This opinion will be unpublished and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

C9-01-1288

 

 

In re the Matter of: Ted Zimba.

 

Filed December 18, 2001

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. P585300889

 

 

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408; and

 

Allan C. Poncin, 702 Towle Building, 330 Second Avenue South, Minneapolis, Minnesota 55401-2214 (for appellant Zimba)

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent Hennepin County Medical Center)

 

 

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Ted Zimba appeals from the judgment of the district court committing him as a person mentally ill and dangerous to the public. Zimba contends that he does not meet the requirements for commitment, arguing that the incident with a female patient on which the court relied did not constitute an overt act causing or attempting to cause serious physical harm to another. We affirm.

FACTS

Zimba has been committed as mentally ill numerous times, most recently in April 2000. That commitment was continued in a September 2000 stipulated order. Zimba has been diagnosed with schizophrenia and suffers from paranoia, hallucinations, and delusions. Zimba's mental illness has been treated with antipsychotic medications, but he has a long history of medication noncompliance. Frequently when Zimba has become psychotic he has also been assaultive. The record contains multiple reported incidents of Zimba's assaultive behavior requiring intervention. Many of Zimba's assaults have been against frail, vulnerable females.

The Hennepin County Medical Center (HCMC) filed a petition to commit Zimba as mentally ill and dangerous, and a trial was held before the district court. The assault that triggered the petition occurred at HCMC on September 8, 2000. Five HCMC employees testified about the events of that day. That morning Zimba took his antipsychotic medications, but vomited them up. Hospital staff observed that he appeared agitated and was seen talking to a wall, screaming at a corner, mumbling to himself, and walking in circles. A nurse gave him medication to help him calm down, and soon he appeared to be sleeping. Approximately five minutes later, some staff members heard a loud hitting or pounding noise. The staff's view was partially obscured, but one staff member observed Zimba's arm go back as he repeatedly screamed that he was "going to yoke" S.S., a small female patient. S.S. is less than five feet tall and is described as passive, shy, and withdrawn. Zimba is a large male, weighing more than 250 pounds.

Staff members testified that when they went to intervene, Zimba was leaning over S.S. and was seen pulling his foot back as if to kick her. While staff members worked to restrain him, Zimba continued to yell that he was "going to yoke" S.S. Zimba was placed in five-point restraints. S.S. was crouching on the floor with her arms and hands sheltering her head, crying uncontrollably, and repeatedly stating, "He hit me," or asking, "Why did he hit me?" S.S. had a pronounced bruise on her arm, bumps on the back of her head, and her face was red.

When Dr. Thomas Keul, Zimba's treating psychiatrist at HCMC, interviewed him later that day, Zimba "was very agitated stating that he still wanted to get to [S.S.] as she had squealed to the CIA." Dr. Keul testified that Zimba told him that S.S. had "somehow demeaned his country, Canada, that is. He insists he's a Canadian citizen. And since she demeaned it that she deserved what she got."

The district court heard testimony from Dr. Keul and received the reports of two psychologists, Dr. Paul Reitman and Dr. Terry Nelson, appointed by the court to examine Zimba and provide opinions as to whether he met the requirements for commitment as mentally ill and dangerous. Dr. Nelson also testified at the commitment trial. The three experts agreed that Zimba had a serious mental illness and that he met the statutory "dangerous to the public" standard. The district court concluded that Zimba met the requirements for commitment as mentally ill and dangerous to the public and committed him to the Minnesota Security Hospital in St. Peter. This appeal followed.

D E C I S I O N

On appeal, this court is limited to an examination of the trial court's compliance with the statute, and the commitment must be justified by findings based upon evidence at the hearing.

 

In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) (citations omitted). We view the record in the light most favorable to the district court's decision, and we will not set aside the district court's findings of fact unless they are clearly erroneous. Id.

To support a finding of mentally ill and dangerous, a district 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). Whether a person poses a clear danger to the safety of others is 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.

 

Id.

Zimba does not dispute that he is mentally ill. Rather, he contends that there is insufficient evidence that he engaged in an overt act causing or attempting to cause serious physical harm to another. "Whether evidence is sufficient to prove an overt act is a legal question and is subject to de novo review." Knops, 536 N.W.2d at 620 (citing In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988)).

Not every aggressive act meets the standard for commitment as mentally ill and dangerous, but it "is not necessary that mayhem or murder occur"; conduct less violent than murder may meet the mentally ill and dangerous standard. Kottke, 433 N.W.2d at 884. The necessary overt act conduct includes a "dangerous act capable of causing serious physical harm to another," regardless of the outcome of the act. In re Jasmer, 447 N.W.2d 192, 195-96 (Minn. 1989).

Zimba argues that this case is analogous to Kottke, where the supreme court concluded that two altercations were insufficient to show that the appellant inflicted or intended to inflict serious physical harm. Kottke, 433 N.W.2d at 884. But Kottke involved a mentally ill man who assaulted two security guards, who easily subdued and handcuffed him. Id. at 881-82. In contrast, Zimba's assault against S.S. and several of his earlier assaults were against frail, vulnerable females without provocation. As Dr. Nelson testified,

what he might do to a professional football player or wrestler may not inflict harm on that person, but many of his victims have been frail, they've been elderly, they've been wheelchair bound and I believe that that same type of behavior at that point becomes highly serious and, therefore, meets the statutory requirement of serious physical harm on another.

 

Dr. Keul observed that "[m]ost of [Zimba's assaults] have involved less physically able females that he would, out of the blue, assault with his reasoning often being quite bizarre [and] delusional."

Additionally, the court-appointed examiner in Kottke concluded that the appellant "was not a clear danger to others and did not meet the statutory standard for dangerousness." Kottke, 433 N.W.2d at 883. The examiner testified that as to the assaults, Kottke "simply struck out in a rather ineffectual way and then immediately retreated and became * * * his usual mild-mannered self." Id. Here, all three experts agreed that Zimba met the statutory "dangerous to the public" standard. In contrast to Kottke's immediate return to his mild-mannered self, the record here reflects that Zimba tried to continue his assault on S.S., drawing back his leg to kick her and continuing to yell that he intended to "yoke" her, even after he was restrained. One of the nurses testified that Zimba "wasn't really fighting us but he was trying to get away to go after S.S. it seemed." Dr. Keul testified that he believed Zimba's yelling that he intended to "yoke" S.S. meant that he intended to choke her, to "basically kill her," and he stressed that it was only the intervention of the staff that stopped the assault.

We conclude that the district court did not err in finding that Zimba engaged in an overt act causing or attempting to cause serious physical harm to another. The district court properly committed Zimba as mentally ill and dangerous to the public.

Affirmed.