This opinion will be unpublished and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:


James Allen Brenny.


Filed July 24, 2001


Hanson, Judge


Hennepin County District Court

File No. P20060180


Brian C. Southwell, 701 Fourth Avenue S., Suite 500, Minneapolis, MN 55415 (for appellant)


Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Louis Mande, Assistant County Attorney, C-2000 Government Center, 300 S. Sixth St., Minneapolis, MN 55487 (for respondent)


            Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N


Appellant challenges a district court order committing him to the Anoka Metro Regional Treatment Center as a “mentally ill person.”  Because the district court did not clearly err in its findings and those findings support the conclusion that Brenny poses a substantial likelihood of physical harm to himself and to others, we affirm.


This is the second initial commitment of appellant James Allen Brenny.  Brenny suffered traumatic brain injury in 1997.  For the next several years, he received in-patient nursing care in a variety of facilities, then returned to live with his wife in 2000.  In March of 2000, his wife became concerned that he was suicidal and hid his guns.  When Brenny tried to get his guns back, his wife became frightened and locked herself in a room.  Brenny tried to force his way into the room, punching a large hole in the door.  He was charged with fifth-degree assault, was found not guilty by reason of mental illness and, on May 15, 2000, was committed to the Anoka Metro Regional Treatment Center (AMRTC) as mentally ill.

Prior to the expiration of that initial commitment, Hennepin County filed a petition to continue Brenny’s commitment pursuant to Minn. Stat. § 253B.13, subd. 1 (2000).  That petition failed procedurally, and the district court ordered the commitment discharged.  Several days later, Hennepin County filed a new petition, this time under Minn. Stat. § 253B.09, subd. 1 (2000), the more rigorous initial-commitment statute.

After a hearing the district court found that Brenny

is ill with dementia and mood disorder secondary to a traumatic brain injury * * * .  As a consequence of his mental illness, [Brenny] engages in grossly disturbed behavior or experiences faulty perceptions, and he poses a substantial likelihood of causing physical harm.


The district court elaborated that Brenny has diminished impulse control, which is aggravated by his use of alcohol and marijuana; he denies he has any problems and emphasizes he will continue to use alcohol and marijuana whenever possible; and he is ambivalent about taking his medication because he believes he has no problems.  The court also found that, while at AMRTC, Brenny had several “explosive outbursts,” and noted that Brenny’s medical chart contained entries regarding his “angry and rageful behavior.”  The court concluded that unless Brenny remained in a closely monitored living situation, “he would use alcohol and marijuana and then become threatening towards others and/or engage in behavior that could harm him.”


On appeal from a judicial commitment, this court's review is limited to whether the district court complied with the Minnesota Commitment and Treatment Act (MCTA), and whether the commitment was “justified by findings based upon evidence” submitted at the hearing.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  This court must affirm the district court's factual findings unless the findings are clearly erroneous.  In re Schauer, 450 N.W.2d 194, 196 (Minn. App. 1990).  Whether the evidence is sufficient to meet the standard for commitment is a legal question and is subject to de novo review.  Knops, 536 N.W.2d at 620.


Brenny argues that the evidence is insufficient to support the district court’s finding that he poses a substantial likelihood of physical harm to self or others.  He emphasizes that the statute requires a demonstrated recent attempt or threat to cause physical harm.  Minn. Stat. § 253B.02, subd. 13(a) (2000); In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).  Under the statute,

speculation as to whether the person may, in the future, fail to obtain necessary food, clothing, shelter, or medical care or may attempt or threaten to harm self or others is not sufficient to justify civil commitment as a mentally ill person. 


McGaughey, 536 N.W.2d at 623.  However, this does not mean “the person must either come to harm or harm others before commitment as a mentally ill person is justified.”  Id.; see also In re Terra, 412 N.W.2d 325, 328 (Minn. App. 1987); In re Harvego, 389 N.W.2d 266, 268 (Minn. App. 1986).  Instead,

 [t]he statute requires only that a substantial likelihood of physical harm exists, as demonstrated by * * * a recent attempt or threat to harm self or others.


McGaughey, 536 N.W.2d at 623-24; see also Enberg v. Bonde, 331 N.W.2d 731, 736-38 (Minn. 1983) (recognizing that civil commitment of mentally ill persons requires a recent overt act, attempt or threat of harm to self or to others). 

There is evidence that, since 1997, Brenny repeatedly engaged in assaultive behavior, threatened people and engaged in acts that could have been harmful to himself or others.  That evidence supports the district court’s findings.

Several weeks after Brenny sustained brain injury in 1997, he was transferred from the hospital to a series of nursing homes.  He was transferred from one facility to another because of his persistent rule violations—primarily drinking alcohol and smoking marijuana—and his refusal to comply with treatment recommendations.  In 1998, he got drunk on Scope and jumped off a balcony, injuring himself.  Later that year, at another facility, Brenny assaulted a nurse and damaged property when he punched a wall.  He was finally sent home and, three months later, was arrested for assault on his wife, which led to his first commitment to AMRTC. 

While at AMRTC, he engaged in explosive, threatening behavior.  Dr. Kenneth Kuhn, Brenny’s treating psychiatrist, recounted an incident during which Brenny yelled at him for approximately 10 minutes.  Dr. Kuhn testified that he

was fortunate enough to have other people in the room at the time, because [he] wasn’t sure if [Brenny] was going to get out of his chair * * * .


He also stated he was “concerned” that Brenny was “starting to unravel.”  The progress notes from Brenny’s AMRTC file indicate that on October 5, 2000, one patient reported that Brenny threatened to beat up another patient; on October 12, 2000, Brenny was involved in a physical altercation with another patient; on November 2, 2000, Brenny clenched his fists and ran toward a reserve officer, yelling, “I’m gonna kick your ass,” etc.  Dr. Kuhn, Dr. Terry Nelson (the first court examiner), and Dr. Roger Sweet (the second court examiner) testified that Brenny’s recent behavior indicated his mental illness and presented a substantial likelihood that he would harm himself or others.  The doctors’ opinions were based on their own observations and are supported by Brenny’s medical records. 

Brenny argues that the district court erroneously considered the earlier incidents, including the March 2000 assault on his wife, because they do not constitute a recent attempt to harm.  Minn. Stat. § 253B.02, subd. 13(a)(2) (2000) (a recent attempt or threat to physically harm self or others may be used to determine whether a person poses a substantial risk of harm to self or others).  To the contrary, the district court may consider past incidents, particularly when the proposed patient has been in custody since those incidents.  State v. Ward, 369 N.W.2d 293, 296-97 (Minn. 1985) (affirming order for patient’s continued commitment based on single incident that occurred ten years earlier); In re Welfare of Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989) (act committed 12 years earlier was not too remote in time to support district court’s determination of mental illness); In re Beard, 391 N.W.2d 29, 31 (Minn. App. 1986) (“Good behavior in the artificial environment of a hospital is not determinative on the issue of dangerousness to the public where expert testimony indicates the patient remains dangerous”); In re Clemons, 494 N.W.2d 519, 521 (Minn. App. 1993) (a single prior act may be sufficient; the fact that person “does not have a long history of violence does not preclude a finding of future dangerousness”).


Brenny argues that this court should remand the case to the district court for more specific findings to support its commitment order.  See Minn. Stat. § 253B.09, subd. 2 (2000) (stating that the trial court is required to “specifically state the proposed patient's conduct which is the basis for determining that each of the requisites for commitment is met”).  We conclude that the district court's reference to “explosive outbursts” was intended to incorporate all recent events reflected in the medical record and sufficiently describes the basis for determining that Brenny is a mentally ill person.