This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Civil Commitment of:

Michael Dean Waller.



Filed July 3, 2006


Lansing, Judge


Hennepin County District Court

File No. 27-MH-PR-05-522


David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant Michael Dean Waller)


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)


            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order for civil commitment as mentally ill and dangerous, Michael Waller asserts that the district court clearly erred by finding that he set a fire and by finding that clear and convincing evidence establishes that he attempted to cause serious physical harm to another.  Because we discern no error in either of the district court’s findings, we affirm Waller’s commitment as mentally ill and dangerous.


Michael Waller is a fifty-one-year-old homeless man with a long history of suffering from mental disorders and drug addictions.  He has spent a number of years in treatment facilities and approximately twenty years incarcerated for various offenses.  To support his drug addictions, he steals personal property and sells it for cash.

            In the early morning of December 18, 2004, Waller loitered at Bobby & Steve’s Auto World Service Center, which comprises two unconnected buildings:  a convenience store and a service building.  Waller, who was attempting to sell a portable stereo to customers, twice entered the convenience store, and the cashier twice requested that he leave because he was disturbing customers.  Waller left and did not return to the store after the second request.  Shortly thereafter, the service building caught fire.

            Although the fire was initially classified as accidental, the investigating officer revised this assessment after an investigation.  Still-frame photographs from the buildings’ security cameras show a man, later identified as Waller, leaving the convenience store.  The photographs then show that, a few minutes later, the same person entered the other building, which was closed and otherwise unoccupied.  The photo sequence shows that the person remained in the lobby area of the service building from approximately 5:40 a.m. to 5:45 a.m., when he moved toward the garage area of the building.  Images from the cameras show the person moving around in the garage area for the next twenty minutes.  At 6:26 a.m. the first images of a fire appear in the photos.  Less than one minute later, the photos show the same man passing through the lobby area and leaving the building.

            When shown the photographs, an employee identified the man in the service building as the same man whom she had asked to leave the convenience store.  She later identified Waller in a photo lineup.  The investigating officer also showed the photos to several other police officers, one of whom identified the man as Waller.  Based on this information, the county attorney filed a complaint charging Waller with first- and second-degree arson.

            Concerned about Waller’s capacity to comprehend and defend the charges against him, the district court ordered a forensic psychologist to examine Waller and evaluate his mental condition.  The court accepted the psychologist’s conclusion that Waller was incompetent to stand trial and suspended the criminal proceeding.  In its order suspending the criminal proceeding, the court also included a referral petition for committing Waller as a mentally ill and dangerous person.

            The district court then held a hearing to determine whether Waller qualified as mentally ill and dangerous.  After considering the evaluations of two experts and the testimony of both Waller and the investigating officer, the district court entered an order for the civil commitment of Waller as mentally ill and dangerous.  Waller appeals from the commitment order.


            Minnesota law provides for the civil commitment of a person who the court finds, by clear and convincing evidence, is mentally ill and dangerous.  Minn. Stat. § 253B.18, subd. 1 (2004).  To order civil commitment on this basis, the court must find that the person is mentally ill and, as a result of this mental illness, presents a clear danger to the safety of others.  Id. § 253B.02, subd. 17 (2004).  This danger must be demonstrated by the person’s engaging in an “overt act causing or attempting to cause serious physical harm to another” and “a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.”  Id.

            On appeal from an order for civil commitment as a mentally ill and dangerous person, we examine whether the district court complied with the statute and whether the commitment is justified by the findings based on the evidence produced at the hearing.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  We view the record in the light most favorable to the district court’s decision and will not set aside a finding of fact unless it is clearly erroneous.  Id.  We therefore will reverse the district court’s findings only if, after a review of the entire record, we are “left with a firm and definite conviction that a mistake has been made.”  Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 361-62 (Minn. 1979).

            Waller does not challenge the district court’s conclusion that he is mentally ill.  He acknowledges that he suffers from a number of mental disorders, including schizophrenia, paranoid type.  He limits his appeal to whether he presents a clear danger to the safety of others.  Specifically, he contends that he did not set the fire and that, even if he did, this admittedly overt act was not an attempt to cause serious physical harm to another.

            We first examine Waller’s challenge to the district court’s finding that he set the fire in the service building.  The investigating officer testified that a store employee identified the man in the photos as the man whom she had earlier asked to leave the convenience store.  This employee also identified Waller in a photo lineup as being the same man.  Several other officers confirmed the identification of the man in the photos as Waller.  Waller is not a stranger to the individuals who identified him.  They have had opportunities to observe him over a period of time that began well before the date of the fire.  The identification evidence is sufficient to support the district court’s finding that the man in the photos is Waller.

            The photos establish that Waller was the only person to enter the service building after the last tow truck had been parked there a few hours before the fire.  The short interval of time between the pictures showing Waller in the lobby of the building, the fire erupting, and Waller leaving the building suggest that he started the fire.  And although Waller initially claimed to have no recollection of the incident, he later indicated that he accidentally started the fire while smoking marijuana.  This evidence supports the district court’s factual finding that Waller started the fire.  The district court’s finding is therefore not clearly erroneous.

We next address Waller’s contention that, even if he set the fire, clear and convincing evidence does not establish that he was attempting to cause serious physical harm to another.  In determining whether a person has engaged in an overt act attempting to cause serious physical harm, a court considers whether the act was capable of causing serious physical harm rather than whether the person intended to cause such harm.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989); In re Civil Commitment of Carroll, 706 N.W.2d 527, 530 (Minn. App. 2005).  Therefore, a person may engage in an overt act attempting to cause serious physical harm to another “regardless of intent or the outcome of the action.”  Jasmer, 447 N.W.2d at 195; see also Carroll, 706 N.W.2d at 530 (stating that actor’s intent and outcome of act are not relevant to overt-act analysis).  Indeed, the “action is equally dangerous to the public whether the actor had an intention to cause harm and whether the actor had the capacity to form an intention to cause harm or even to recognize its potential for causing serious harm.”  Jasmer, 447 N.W.2d at 195.

            Although the building was unoccupied, the record provides clear and convincing evidence that the fire had the potential to cause serious physical injury.  Waller set the fire in the service building using gasoline as an accelerant.  Given the close proximity of oil- and gas-filled vehicles, the fire could have escalated rapidly.  The building in which Waller set the fire is relatively close to the gas station and convenience store; both were open and occupied.  The flammable fluids in the immediate area of the fire presented a high likelihood of a rapid escalation of flames and the possibility of an explosion.  If either occurred, employees, customers, and responding firefighters would have been at risk for serious injury.  The record contains clear and convincing evidence that Waller engaged in an overt act that had the potential to cause serious physical harm to another.