This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-836

 

In Re:

Frank Towers.

 

Filed October 30, 2001

Affirmed

Toussaint, Chief Judge

 

Mower County District Court

File No. P901555

 

Lee A. Bjorndal, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN  55912 (for appellant)

 

Patrick A. Oman, Mower County Attorney, Julie A. Mougin, Assistant Mower County Attorney, Mower County Courthouse, 201 First Street N.E., Austin, MN  55912

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant challenges his commitment as mentally ill, contending that the district court was clearly erroneous in finding that he suffered from an organic brain disorder and that he posed a substantial likelihood of physical harm to others.  He also contends that the district court improperly relied on hearsay to reach its decision.  Because there was clear and convincing evidence supporting appellant’s commitment, we affirm.


FACTS

            Appellant arrived at his grandmother’s house at about 10:00 a.m. on Easter Sunday 2001 for a family dinner.  He testified that he was doing “a few crazy things” and was acting “funny” that day.  Appellant described several incidents at issue.  First, his aunt asked him to get her a knife, and he grabbed one, as well as a cleaver; he examined the cleaver because he did not often see one.  He then heard his sister screaming at her son in the living room.  When he went to investigate, still holding a knife, his aunt “came out of nowhere” and grabbed the knife.  In another incident, appellant poured water on the head of his 11-month-old nephew, explaining he did so because it might feel good or might liven up the party.  His family called police and the petition for commitment was filed.

            At the commitment hearing, Dr. Rosemary Linderman, the first court-appointed examiner, testified that appellant has an organic brain disorder caused by a traumatic brain injury he suffered when he was eight years old.  Dr. Linderman explained that appellant had taken medication to treat his condition in the past and began taking it again since his most recent hospitalization.  But when he was living independently, he had stopped taking it and was unable to recognize that his symptoms had returned.  Dr. Albert Asper, the second court-appointed examiner, testified that while appellant has a significant mental disorder, it is not a substantial one within the meaning of the commitment statute.

            The examiners also addressed appellant’s actions at his grandmother’s house.  Dr. Linderman testified that when she questioned appellant about the knife incident, he explained that while it might scare someone, he did not believe it was dangerous.  He also told Dr. Linderman that when his sister physically interacts with him, he stops her behavior by displaying a knife.  As to pouring water on the baby, he explained he always pours water when he is frustrated.  Dr. Linderman also referred to an incident in the hospital records in which appellant made threatening stabbing gestures towards the staff with a pen.  She opined that appellant posed a substantial likelihood of causing harm to others.

            Dr. Asper offered a different opinion of appellant’s actions.  While he believed that appellant exhibited very poor judgment, he viewed his actions as attention-seeking conduct rather than dangerous behavior.  He did not believe appellant attempted or threatened to harm others.

            Dr. Linderman recommended appellant’s commitment as mentally ill, while Dr. Asper opposed commitment.  The district court committed appellant as mentally ill and this appeal followed.

D E C I S I O N

            The findings by the district court will not be set aside unless clearly erroneous.  In re Duvick, 497 N.W.2d 311, 313 (Minn. App. 1993).  The court’s credibility determinations as to expert testimony are of particular significance.  In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986).  Whether the evidence is sufficient to meet the standards for commitment is a legal question that an appellate court reviews de novo.   In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

The district court must have clear and convincing evidence that the proposed patient meets the standards for commitment.  This “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt,” and exists when “the truth of the facts asserted is ‘highly probable.’”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).

            A mentally ill person is defined as

                        any person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory 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 perception and poses a substantial likelihood of physical harm to self or others as demonstrated by:

 

                                    (1)       a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment; or

 

                                    (2)       a recent attempt or threat to physically harm self or others.

 

Minn. Stat. § 253B.02, subd. 13(a) (2000).

            Appellant first contends the district court finding that he had the requisite organic disorder of the brain was clearly erroneous, citing Dr. Asper’s testimony that he was not mentally ill within the meaning of the statute.  The district court, which had the opportunity to hear both experts and appellant testify, found that appellant “has a longstanding organic brain disorder arising from a traumatic injury with a secondary diagnosis of cognitive disorder not otherwise specified.”  Dr. Linderman specifically stated that appellant’s traumatic brain injury resulted in an organic brain disorder, and the district court credited her testimony.  The district court had clear and convincing evidence from which to conclude appellant had an organic brain disorder and the decision is not clearly erroneous.

            Next, appellant challenges the determination as to dangerousness.  Commitment as mentally ill requires clear and convincing evidence that the proposed patient poses a substantial likelihood of physical harm to himself or others as demonstrated by a failure to obtain food, clothing, or medical care, or a recent attempt or threat to physically harm self or others.  Minn. Stat. § 253B.02, subd. 13(a).

            The district court determined that appellant met this factor based on the following findings:

                        On Easter Sunday [appellant] was waving a cleaver, kitchen knife, and an electric knife at his relatives, sufficiently alarming them so as to require them to call the police.  On April 19, 2001, while at St. Peter, he was making threatening stabbing gestures with a pen at staff.

 

The court also ruled that appellant exhibited a lack of insight into his need for medication and, during the period in which he did not take the medication, his behavior deteriorated sufficiently that he acted in an irrational and threatening manner toward his relatives.

            Appellant contends that the district court violated Minn. R. Civ. Commitment 15[1] by basing its decision on hearsay rather than live testimony.  He contends that because he testified his actions were not assaultive and because there was no testimony to the contrary by any other witnesses to the events, the district court’s findings were based on speculation and should be reversed as clearly erroneous.

            We first address the hearsay argument.  A party must make a timely objection to a district court’s evidentiary ruling to obtain appellate review.  In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990).  Appellant did not make any objections based on hearsay and cannot challenge the admissibility of any alleged hearsay evidence for the first time on appeal.  The court’s admission of evidence was consistent with rule 15.

            Appellant also contends that the district court could not have found that he attempted or threatened to physically harm others because appellant himself testified that he was not assaultive in the knife incident.  However, a person’s behavior can meet the dangerousness requirement for civil commitment regardless of whether the person intended to cause harm or could even recognize the potential for causing harm and regardless of the outcome.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989) (addressing harm required for commitment as mentally ill and dangerous).  Appellant’s belief that his actions were not dangerous is not determinative.

            Appellant also faults the district court for relying on Dr. Linderman’s account and interpretation of events and her testimony that he stopped taking medication.  But these were based on her interviews with appellant as well as her consideration of other facts and data.  A party-opponent’s admissions offered against that party are not hearsay.  Minn. R. Evid. 801(d)(2).  Further, an expert may rely on facts or data not in evidence to provide a basis for her opinions.  Minn. R. Evid. 703(a).  In any event, appellant did not object to Dr. Linderman’s testimony.  The district court properly considered Dr. Linderman’s testimony.

            The statute requires, in relevant part, clear and convincing evidence of a recent attempt or threat to physically harm others to show that the proposed patient poses a substantial likelihood of harm to others.  Minn. Stat. § 253B.02, subd. 13(a)(2); see In re Martin, 458 N.W.2d 700, 704-05 (Minn. App. 1990) (citing threats of assault and failure to take medication).  Here, the district court cited appellants’ actions in waving knives at his relatives and making stabbing gestures at hospital staff with a pen, along with his failure to take medication.  These facts provided clear and convincing evidence to the court from which to conclude appellant met the standards for commitment.

Affirmed.

 



[1]  Rule 15 provides:

 

                        The Court may admit all relevant, reliable evidence, including but not limited to the respondent’s medical records, without requiring foundation witnesses.