This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Civil Commitment of:

Gregory A. Schuebel.


Filed May 22, 2007


Peterson, Judge


Hennepin County District Court

File No. 27-MH-PR-06-16


William L.H. Lubov, Lubov & Associates, L.L.C., 820 North Lilac Drive, Suite 210, Golden Valley, MN  55422 (for appellant)


Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant challenges his indeterminate commitment as mentally ill and dangerous.  He argues that (1) he does not meet the standard for commitment because the evidence the court relied on did not show behavior that was materially different from behavior in the past that was found insufficient for commitment; (2) law of the case, collateral estoppel, and res judicata prevent the court from considering evidence of appellant’s conduct, where it had not been found sufficient for commitment in prior proceedings; and (3) the court erred by admitting evidence of claimed injuries by one allegedly assaulted by appellant, where such evidence had not been disclosed before the hearing and it was hearsay and speculative.  We affirm.


            Appellant Gregory Schuebel has a history of assaultive behavior dating back to 1994.  The current petition is the third petition seeking to have appellant committed as a mentally ill and dangerous (MI&D) person.  The first petition resulted in an order, filed in September 1997, concluding that clear-and-convincing evidence established the appellant was a mentally ill person but not that he was MI&D.  The second petition also resulted in an order, filed in April 2004, concluding that clear-and-convincing evidence did not establish that appellant was MI&D. 

            Appellant suffers from paranoid schizophrenia, which is a substantial psychiatric disorder of thought, mood, perception, orientation, and memory; and grossly impairs appellant’s judgment, behavior, capacity to recognize reality, capacity to reason, and capacity to understand.  Appellant’s mental illness is manifested by incidents of grossly disturbed behavior and perceptions. 

            Appellant has committed at least four assaults since the April 2004 petition was denied.  In December 2004, appellant punched another patient at Anoka Metro Regional Treatment Center.  In September 2005, appellant assaulted another patient at Hennepin County Medical Center (HCMC), striking the patient repeatedly in the head with his fists and leaving the patient lying on the floor, dazed and bleeding from the mouth.  Appellant may have been kicked in the leg by the patient before assaulting him.  Appellant committed at least two other assaults on patients between August and November 2005. 

            The assault resulting in the current petition to commit appellant as MI&D occurred on December 29, 2005.  Appellant assaulted his roommate, punching him in the face and causing an abrasion and laceration on the side of his nose and under his left eye.  HCMC staff separated appellant from his roommate.  Appellant believed that the roommate, who had a diagnosis of mild mental retardation and no history of aggressive or assaultive behavior, posed a threat to him. 

            Dr. Thomas Keul is a psychiatrist employed by HCMC and has been appellant’s treating physician many times, including on December 29, 2005.  Keul diagnosed appellant as having paranoid schizophrenia with symptoms including auditory hallucinations and delusional beliefs about people intending to injure him.  Keul opined that the blow inflicted by appellant on December 29, 2005, was capable of causing serious physical harm.  Keul opined that if the blow had shattered the victim’s glasses, the victim could have sustained a more serious eye injury and that if the victim had not been wearing glasses, “there was quite a potential for serious injury.” 



            To commit a proposed patient as a person who is mentally ill and dangerous to the public, the district court must find by clear and convincing evidence that the proposed patient is a person who is mentally ill and dangerous to the public.  Minn. Stat. § 253B.18, subd. 1(a) (2006). 

            A “person who is mentally ill and dangerous to the public” is 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 (2006).

            On appeal, this court is limited to an examination of the [district] court’s compliance with the [civil commitment] statute, and the [decision] must be justified by findings based upon evidence at the hearing.  The record is viewed in the light most favorable to the [district] court’s decision.  Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witness.  


In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) (citations omitted).

            In reviewing civil commitment cases, this court does not weigh evidence, but determines whether the record as a whole provides substantial support for the district court’s findings.  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).  Whether the evidence is sufficient to satisfy the statutory criteria for commitment is a legal question, which we review de novo.  Knops, 536 N.W.2d at 620; In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (reversing commitment based on conclusion that proposed patient’s actions did not cause serious physical harm as required by statute).

            The supreme court has cautioned that courts must pay due respect to the distinction between the “physical harm” required for commitment as mentally ill and the “serious physical harm” required for commitment as MI&D.  Kottke, 433 N.W.2d at 884.  The legislature has not defined “serious physical harm.”  Id.  Courts should apply the common understanding of the word serious, and reference to criminal statutes defining “great bodily harm” and “substantial bodily harm” is unnecessary.  In re Lufsky, 388 N.W.2d 763, 765-66 (Minn. App. 1986).  The supreme court has also emphasized that neither the person’s intent nor the outcome of the action is determinative.  In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989).

            After making specific findings on the numerous assaults committed by appellant, the district court found:

            These facts create a substantial likelihood that [appellant] will engage in acts capable of inflicting serious physical harm on others.  It is true that the victim of the most recent attack did not require extensive medical treatment for his injuries.  However, this seems to the Court to be a matter of luck.  If the laceration, for example, had been directly on the victim’s eye rather than near it, or the victim’s glasses had shattered during the attack, the victim’s injuries could have been much more serious.  It is this Court’s opinion that [appellant] did not take into consideration the level of injury that his victim might have suffered when engaging in the attack.  Rather, [appellant] intended to injure his victim, and the fact that the victim’s injuries turned out not to be critical does not change the fact that [appellant] placed his victim at risk of serious harm when he began punching him in the face.


            [Appellant] lacks insight into his mental illness, and his long history of unprovoked assaults against others, including this most recent assault, demonstrate that [appellant] does not adequately understand the relationship between his actions, and the effects that they have on those around him.


            Appellant argues that the December 29, 2005 assault was similar to that involved in Kottke.  But unlike the committee in Kottke, appellant does not have a pattern of lashing out ineffectually and then retreating and resuming his mild demeanor.  See Kottke, 433 N.W.2d at 881-83 (discussing committee’s pattern of behavior).  Rather, as the district court found, the assaults committed by appellant “are characterized by a level of brutality that is an inappropriate response to the provocation described by [appellant].”

            Appellant also argues that because the December 29, 2005 assault was not more serious than previous assaults that he committed and because previous petitions for commitment as MI&D were denied, the December 2005 assault cannot support a commitment as MI&D.  The fact that the previous courts did not find the earlier incidents sufficiently severe to warrant commitment does not mean that the court could not find the more recent assaults sufficiently severe.  The question before the court was whether appellant “engaged in an overt act causing or attempting to cause serious physical harm to another.”  Minn. Stat. § 253B.02, subd. 17.

            After the second petition was denied in April 2004, appellant committed at least four more assaults.  Although the district court commented about assaults that occurred before April 2004, it relied on the assaults occurring afterwards to support its finding that appellant’s conduct created a risk of serious physical harm.  It was mere fortuity that the September and December 2005 assaults did not result in serious physical harm.  Accordingly, the evidence is sufficient to support the district court’s finding on the risk created by appellant’s conduct.  See In re Civil Commitment of Carroll, 706 N.W.2d 527, 531 (Minn. App. 2005) (rejecting argument that assaults, which apparently did not result in personal injury, did not constitute overt acts causing or attempting to cause serious physical harm to another when appellant’s records were “replete with documentation of violent outbursts and physical assaults, which he shows not the slightest interest or capability of managing”; noting that the fact that committee “has not so far managed to inflict serious and permanent injuries upon any of his victims is a matter of luck”).


            Appellant argues that because petitions to commit him as MI&D were denied in 1997 and 2004, the current commitment violates the doctrines of res judicata, collateral estoppel, and law of the case.

            Res judicata is the legal principle that a judgment on the merits is an absolute bar to a second suit on the same cause of action and is conclusive between the parties as to every issue that was or could have been litigated.  Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn. 1992).  “We review de novo whether the doctrine of res judicata can apply to a given set of facts.”  Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).  “If the doctrine applies, the decision whether to actually apply it is left to the discretion of the trial court.”  Id. The criteria for res judicata are a final judgment on the merits, a second suit involving the same cause of action, and parties who are either identical or in privity.  Myers v. Price, 463 N.W.2d 773, 776 (Minn. App. 1990), review denied (Minn. Feb. 4, 1991).

            The availability of collateral estoppel is a mixed question of law and fact subject to de novo review.  Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).  “Collateral estoppel prevents a party from relitigating issues if (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party in the prior case; and (4) there was a full and fair opportunity to be heard on the issue.”  In re Trust Created by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993), review denied (Minn. July 15, 1993).

            Appellant’s argument ignores the fact that his entire history of assaultive behavior is relevant to the current commitment.  See In re Welfare of Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989) (stating that in determining present dangerousness, the court may properly consider an individual’s entire history of violent behavior).  Because appellant committed at least four assaults following the denial of the April 2004 petition despite continuing treatment efforts, the previous determinations that appellant did not meet the statutory criteria for commitment as MI&D do not have res judicata or collateral estoppel effect in the current proceeding.  See In re McPherson, 476 N.W.2d 520, 522 (Minn. App. 1991) (declining to apply collateral estoppel in a commitment case); review denied (Minn. Dec. 13, 1991).

            The law-of-the-case “doctrine is not normally applied by a district court to its own decisions.”  Kornberg v. Kornberg, 542 N.W.2d 379, 386 n.2 (Minn. 1996).  This case does not warrant a departure from the general rule.


            Evidentiary rulings rest within the sound discretion of the district court, and they will not be reversed unless there was a clear abuse of discretion.  State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997).

            Appellant argues that he did not receive prior disclosure regarding the extent of injuries suffered by the victim of the December 2005 assault.  Keul testified:

            [The victim] had circular bruises under his left eye, and he had a laceration on the left side of his nose, he had a bloody nose and – but the bruising was quite evident, . . . and also over time it was evident as the days progressed with the bruising which becomes more evident over time . . . .


Exhibit A to the commitment petition, which stated that appellant “punched [the victim]” in the face by his eye and nose, cutting him under his eye and left scratches on his nose,” provided appellant with sufficient notice of the victim’s injuries about which Keul testified.

            Appellant also argues that Keul’s testimony was inadmissible hearsay.  Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally not admissible, subject to certain exceptions.  Minn. R. Evid. 801(c), 802, 803, 804.  Keul’s testimony was based on his personal knowledge, not on out-of-court statements.  Keul testified that he examined the victim’s injuries on the day of the assault and on following days as well.

            Appellant finally argues that the district court erred by allowing Keul to testify that the assault committed by appellant was capable of causing serious physical harm.  An “expert must base his opinion on facts sufficient to form an adequate foundation for an opinion and should not be allowed to speculate.”  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982).  When there is adequate foundation for expert testimony, alleged deficiencies in the factual basis go more to weight than admissibility.  McPherson v. Buege, 360 N.W.2d 344, 348 (Minn. App. 1984).

            Keul is a board-certified family physician, and he has treated many patients with lacerations and head injuries.  Keul’s testimony indicates that his opinion was based on that experience and on his observation of the victim’s injury. 

            The district court did not err in admitting Keul’s testimony.