This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Civil Commitment of:
Hennepin County District Court
File No. MH-PR-05-772
Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)
William L.H. Lubov, Lubov & Associates, L.L.C., 820 North Lilac Drive, Suite 210, Golden Valley, MN 55422 (for appellant Vou Xiong)
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
After the district court found probable cause to believe appellant had committed murder, attempted murder, and assault and that he was incompetent to proceed, he was referred for commitment proceedings. The district court committed him as mentally ill and dangerous. On appeal, appellant argues that there was no credible evidence that he suffered from mental illness; that the court failed to consider Hmong cultural factors to explain his claimed auditory hallucinations; and that instead he had feigned mental illness to avoid prison. We find there is clear and convincing evidence in the record to support the district court’s finding that appellant is mentally ill and dangerous to the public. We affirm.
Appellant Vou Xiong and his fiancé Mai Lee immigrated
After appellant moved out, he visited Lee on several occasions. The last visit occurred on March 26, 2005. According to a statement appellant gave to police, appellant placed a Hmong knife in a backpack, and then took a taxi to Lee’s residence. Upon arriving at the house, Lee’s grandmother answered the door and told appellant that Lee was upstairs. Appellant went upstairs, knocked on Lee’s door, and pulled the knife from the backpack. According to appellant, when Lee opened the door, appellant stabbed her, causing her to fall on the floor. Appellant then stabbed Lee repeatedly before being interrupted by members of Lee’s family. A scuffle ensued between appellant and members of Lee’s family. Eventually, Lee’s uncle hit appellant with a wrench, and the family was able to restrain appellant.
On April 28, 2005, an indictment was filed charging appellant with one count of first-degree murder, three counts of attempted first-degree murder, and three counts of second-degree assault. On that date, the district court found probable cause that appellant had committed the charged offenses. Shortly thereafter, the district court ordered psychologist Kristine Kienlen to examine appellant. After receiving Dr. Kienlen’s report, the district court found that appellant was incompetent to stand trial, and filed a petition for judicial commitment pursuant to Minn. R. Crim. P. 20.01.
On August 18 and 19, 2005, a trial was held on the commitment petition. At trial, Dr. Kienlen testified that she diagnosed appellant as suffering from a psychotic disorder. According to Dr. Kienlen, there was some question as to the specific diagnosis, but she concluded that the symptoms were part of the schizoaffective or schizophrenia diagnosis. Dr. Kienlen also testified that appellant told her that (1) he heard voices prior to the murder telling him to kill Lee; (2) he was having command hallucinations telling him to harm others; and (3) he believed that Lee was hitting him during his current incarceration. Dr. Kienlen further testified that appellant’s behavior logs and medical clinic logs from jail, and the Hennepin Count Medical Center (HCMC) records, support a conclusion that appellant suffered from mental illness. Although Dr. Kienlen testified that she is concerned about the possibility of malingering, she concluded that based upon appellant’s violent assault and murder, and his continuing symptoms, appellant posed a substantial risk of future harm to others.
Dr. James Alsdurf, a second court-appointed psychologist, also submitted his report and testified at trial. Dr. Alsdurf diagnosed appellant as suffering from schizophrenia, paranoid type. According to Dr. Alsdurf, appellant continued to exhibit symptoms of psychotic thought disorder, which was evidenced by appellant’s reports of auditory and visual hallucinations, such as voices that gave him commands to harm others and to keep silent at times. Dr. Alsdurf also testified that appellant had no appreciation for the significance of his assault on Lee, and did not display a capacity to reason or understand in responding to his own emotional states. Dr. Alsdurf further testified that it was likely appellant was suffering from a psychotic disorder at the time of the murder, and that it was unlikely the mental illness would have suddenly popped up after his arrest. Because he believed that there was a substantial likelihood that appellant would commit similar acts in the future given the signs that he suffered from a very severe mental illness, Dr. Alsdurf concluded that he supported appellant’s commitment as mentally ill and dangerous.
On August 29, 2005, the district court issued an order finding that appellant is mentally ill and that there is a substantial likelihood that appellant will engage in acts capable of inflicting serious physical harm. The district court found that appellant
is untreated and has demonstrated no insight into his assaultive behavior or his mental illness. He remains paranoid and delusional. He is uncooperative with medical staff to the extent that he claims not to remember his actions. In addition, he is guarded and will not share information. [Appellant’s] treatment with neuroleptic medications has made a small impact on [appellant’s] appearance.
Thus, the district court ordered appellant committed as a person who is mentally ill and dangerous to the public pursuant to Minn. Stat. § 253B.02, subd. 17 (2004). Shortly thereafter, the district court issued an amended order for commitment dated September 6, 2005, which contained non-substantive amendments to the original commitment order. This appeal followed.
D E C I S I O N
On appeal in
a civil commitment case, the reviewing court is limited to examining whether
the district court complied with the requirements of the commitment
statute. In re Knops, 536 N.W.2d 616, 620 (
A “person who is mentally ill” means 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 perceptions 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;
(2) an inability for reasons other than indigence to obtain necessary food, clothing, shelter, or medical care as a result of the impairment and it is more probable than not that the person will suffer substantial harm, significant psychiatric deterioration or debilitation, or serious illness, unless appropriate treatment and services are provided;
(3) a recent attempt or threat to physically harm self or others; or
(4) recent and volitional conduct involving significant damage to substantial property.
Minn. Stat. § 253B.02, subd. 13 (2004). A person who is mentally ill and dangerous to the public is defined as:
a person (a) who is mentally ill; and (b) who as a result of that mental illness presents a clear danger to the safety of others as demonstrated by the facts 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 (2004).
Appellant argues that the district court erred in finding by clear and convincing evidence that he is mentally ill and dangerous to the public. We disagree. The record reflects that while appellant was in custody, he displayed irrational behavior. The Adult Detention Center (ADC) records indicate that appellant complained of hearing voices and that he was fearful that his wife was coming to kill him. The ADC records also indicate that on May 2, 2005, appellant was found on the floor under his bed, in an unresponsive state, with broken Tylenol pills found near him. The ADC records further reveal that on May 8, 2005, appellant was observed standing on his bed, naked, feeling the wall, and on May 25, appellant was seen swatting at the floor.
The testimony of the examining psychologists also supports the district court’s order. Both Dr. Kienlen and Dr. Alsdurf testified that appellant suffered from a schizophrenia or schizoaffective disorder, and that the psychotic disorder impaired appellant’s thought. The psychologists testified that appellant was uncooperative, heard voices, and was having command hallucinations telling him to hurt other people. Based on their examinations of appellant, both psychologists were consistent in their conclusions that appellant suffered from a mental illness and that appellant posed a substantial risk of future harm to others.
Appellant contends the district
court “placed too much weight” on the psychologists’ testimony. We can only note that appellant did not place
any expert testimony of his own into evidence. Where the findings of fact rest almost
entirely on expert testimony, the trial court’s evaluation of credibility is of
particular significance. In re
Joelson, 385 N.W.2d 810,
Appellant further contends that the district court failed to consider Hmong cultural factors to explain appellant’s auditory hallucinations. Dr. Alsdurf testified that he was experienced in treating persons in the Hmong community and that, although it might not be unusual for a person of Hmong ethnicity to report hearing the voice of a deceased person, the key factors to consider are the degree to which the individual believed the voices to be real, and how the voices affected the individual’s behavior. Dr. Alsdurf testified that there is “nothing within [appellant’s] culture that would approve him to murder somebody on the basis of simply hearing a voice.”
Finally, appellant argues that where there are concerns about his malingering, as well as a lack of diagnostic testing and collateral history on the patient, the district court erred in finding by clear and convincing evidence that appellant is mentally ill. We are not persuaded. Both the psychologists discussed the possibility of malingering, and explained that appellant could malinger by exaggerating symptoms, but still be mentally ill. Dr. Kienlen testified that many of appellant’s symptoms, such as his fearfulness, are difficult to fake. Similarly, Dr. Alsdurf testified that appellant’s symptoms and behavior have been consistent and demonstrate signs of mental illness. Consequently, the concern that appellant may be faking mental illness to avoid a criminal trial was addressed. Although diagnostic testing was not performed, Dr. Alsdurf testified that the lack of testing did not prevent him from reaching a conclusion that appellant has a psychotic disorder. Based on the totality of evidence and testimony presented, the district court did not err in finding that it was proved by clear and convincing evidence that appellant is mentally ill and dangerous to the public.
 It is unclear from the record if appellant and Lee were married or engaged to be married.