This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In the Matter of the

Civil Commitment of:

T. L. S.



Filed May 22, 2001


Halbrooks, Judge


Hennepin County District Court

File No. P99660526



Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Allan R. Poncin, Suite 702 Towle Building, 330 2nd Avenue South, Minneapolis, MN 55401 (for appellant)




            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            This is an appeal from the indeterminate commitment of a 15-year-old juvenile as mentally ill and dangerous.  Appellant contends that his conduct did not constitute an overt act causing or attempting to cause serious physical harm to another, and that commitment as mentally ill would have been the appropriate course.  He also argues that the mentally-ill-and-dangerous commitment to the Minnesota Security Hospital was not the least restrictive alternative for commitment of a juvenile.  Because we conclude that the trial court did not err in its determination that appellant is mentally ill and dangerous or in its choice of facilities, we affirm.


            T.L.S. has been diagnosed as suffering from bipolar disorder, intermittent explosive disorder, conduct disorder, and oppositional disorder.  At 15 years old, T.L.S. was 5’11” tall and weighed about 250 pounds.  He has an extensive criminal record that began in August 1994, when, as a ten-year-old, he was charged with third-degree burglary and felony criminal damage to property.  Four different inpatient facilities attempted to evaluate T.L.S.  At each facility, T.L.S. went on behavioral rampages, resulting in significant property damage at one facility and an assault of a child at another.

            After T.L.S. was adjudicated delinquent, he was first committed to the Willmar Regional Treatment Center and then to a facility in Wisconsin.  Both facilities discharged him because of his assaultive and threatening outbursts.

            T.L.S. was next placed in a facility in Montana, the only program that would accept him.  Records from the facility note his aggressive behavior and the significant injuries T.L.S. inflicted on staff.

            T.L.S. was discharged from the Montana treatment program after he assaulted his psychiatrist by pushing her onto the floor, attempting to kiss her, and thrusting his pelvis over her for a period of several minutes.  On April 30, 1999, T.L.S. was returned to Hennepin County juvenile authorities and placed in solitary confinement at the Minnesota Correctional Facility in Red Wing. 

            While in confinement at Red Wing, T.L.S. destroyed property, exhibited suicidal tendencies, and threatened others.  Several times, correctional officers needed to use chemical sprays and physical restraints to control him.  On June 10, 1999, T.L.S. pulled correctional officer Tammy Wherley’s arm through the tray-pass opening in the door as she attempted to dispense his medication.  T.L.S. held Wherley’s arm for over a minute as she struggled to get free and begged him to release her.  Wherley sustained damage to her shoulder that necessitated medical treatment for six months.

            Following this incident, the state petitioned to have T.L.S. committed as mentally ill and dangerous.  A month before trial, T.L.S. bludgeoned correctional officer Brian Bolduan by striking him with a metal broom handle just below his neck.  This attack occurred when Officer Bolduan brought a cleaning cart to T.L.S.’s room, in spite of the fact that Bolduan first put ankle shackles and handcuffs on T.L.S.

            A commitment hearing was held on December 27 and 28, 1999.  Among the witnesses presented by the state were Robert Roddy, Ph.D., who treated T.L.S. at Red Wing, and James Alsdurf, Ph.D., and Paul Reitman, Ph.D., who were court-appointed examiners.  All three agreed that T.L.S. is mentally ill under Minnesota law and highly likely to continue to engage in dangerous conduct.  The state also called several other witnesses to testify concerning T.L.S.’s incidents of violence, including Bolduan and Wherley, and Hennepin County parole agent David Seeler, who testified about T.L.S.’s history of damaging property and assaulting patients and staff members at other facilities.  The trial court ordered T.L.S. to be committed at the Minnesota Security Hospital as mentally ill and dangerous so that a written treatment report could be prepared.  See Minn. Stat. § 253B.18, subd. 2 (2000) (requiring a treatment report to be filed with the committing court within 60 days of commitment).

The court scheduled a follow-up hearing to occur either in 90 days or 14 days after the treatment report was filed, whichever came first.  See id.  But because the Minnesota Security Hospital is not licensed to accept minors as patients, T.L.S. was transferred to the Brainerd Regional Human Service Center (“Brainerd”).  Because of the transfer and the need to prepare an adequate facility for an individual of T.L.S.’s size, Brainerd did not submit T.L.S.’s treatment report to the trial court until August 21, 2000.

            On September 7, 2000, the trial court held a final determination hearing to determine if, based on the treatment report, T.L.S. should be indefinitely committed.  Finding that T.L.S required further treatment, the court issued an order for indeterminate commitment as mentally ill and dangerous.  Although the court noted that T.L.S. showed some signs of improvement while at Brainerd, he had also engaged in nine incidents of property destruction and three incidents of “extremely aggressive behavior, including assaults on staff which caused minor injuries.”  Because T.L.S. seemed “unable to deal with the stressors of everyday life in an appropriate and safe manner” and because no other treatment facility was willing to accept him, the trial court committed T.L.S. to Brainerd for further care and treatment.  This appeal follows.


            On appeal, we examine the trial court’s compliance with the civil commitment statute, to see if the commitment is justified by findings based upon the evidence at the hearing.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  The record is viewed in the light most favorable to the trial court’s decision, and we will not set aside findings of fact shall unless they are clearly erroneous.  Id.  But “[w]hether evidence is sufficient to prove an overt act is a legal question and is subject to de novo review.”  Id. (citation omitted).  Due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.  Id.

            To support a finding of mentally ill and dangerous, a trial court must find (1) the person is mentally ill, and (2) the person, as a result of that mental illness, “presents a clear danger to the safety of others.”  Minn. Stat. § 253B.02, subd. 17 (2000).  A mentally ill person is defined as

any person who has an organic disorder of the brain or a substantial psychiatric disorder * * * which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which is manifested by instances of grossly disturbed behavior or faulty perceptions and poses a substantial likelihood of physical harm to self or others * * * .


Minn. Stat. § 253B.02, subd. 13(a) (2000).  Whether a person poses a clear danger to the public can be demonstrated by showing that

(i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.


Minn. Stat. § 253B.02, subd. 17.  One act of sufficient magnitude is enough to satisfy the statute.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (noting that the statute is satisfied if there is “evidence that on at least one occasion in the past the person has engaged in an overt dangerous act”).

            Here, T.L.S. does not challenge the trial court’s factual findings, nor does he dispute the court’s assessment that he is mentally ill.  Rather, he argues that the two incidents involving correctional officers Bolduan and Wherley were merely minor scuffles and did not result in serious physical harm.  See In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (because the legislature distinguished between “physical harm” and “serious physical harm,” the latter term must mean something more egregious but not necessarily “mayhem or murder”).  Therefore, T.L.S. argues that there is insufficient evidence to support the conclusion that he poses a clear danger to the public.

            We disagree.  First, we believe that the assaults against Bolduan and Wherley were attempts to cause serious physical harm.  Both were unprovoked, explosive acts.  T.L.S. attacked Bolduan, using a makeshift weapon with such force that the metal broom handle “bent across [his] chest.”  In the assault against Wherley, T.L.S. brutally pulled her arm through the slot in the door, ignoring her pleas to be released.  Although neither assault resulted in a permanent injury, the intensity of these attacks makes them much more than minor scuffles.  Cf. Kottke, 433 N.W.2d at 882 (finding that two altercations were insufficient to show appellant committed serious physical harm where appellant was easily overpowered by his victims and incidents resulted in minor injuries such as “red knuckle marks”). 

            Second, the trial court could rely on numerous other incidents of violence to reach its conclusion.  See In re Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989) (finding no error when a district court considered a stabbing that occurred 11 years before a mentally-ill-and-dangerous commitment proceeding); In re Lufsky, 388 N.W.2d 763, 766 (Minn. App. 1986) (finding a district court can consider in a mentally-ill-and-dangerous commitment proceeding evidence that was presented in an earlier mentally-ill proceeding).  In the span of four years, T.L.S threatened a mother and child with a butcher knife; assaulted another resident by choking him and stomping on his legs; and committed an assault on a female staff member in a Wisconsin facility that resulted in a fourth-degree sexual-assault-and-battery charge.

            T.L.S. also argues that the trial court should have committed him as mentally ill, rather than mentally ill and dangerous, because as a juvenile, T.L.S. ought to be subjected to the “least restrictive alternative.”  We disagree.  As T.L.S. concedes, there is no prohibition against applying Minn. Stat. § 253B.02, subd. 17, to juveniles.  Once the state proved that T.L.S. meets the statutory definition of mentally ill and dangerous, the court had no choice but to commit him under this statute.  See Minn. Stat. § 253B.18, subd. 1(a) (2000) (“If the court finds by clear and convincing evidence that the proposed patient is mentally ill and dangerous to the public, it shall commit the person to a secure treatment facility or to a treatment facility willing to accept the patient under commitment.”).  T.L.S. also admits that, regardless of whether he is labeled mentally ill or mentally ill and dangerous, he can be treated at Brainerd.  Moreover, the Minnesota Security Hospital, T.L.S.’s initial preference for treatment, is not licensed to handle juveniles.  By the time of the hearing in this appeal, T.L.S.’s counsel reported that he seemed to be adjusting to his current surroundings.  Because T.L.S. fits the profile for a mentally-ill-and-dangerous individual and because Brainerd appears to be the best treatment facility for T.L.S.’s needs, the trial court properly committed T.L.S. as mentally ill and dangerous.