This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1071

In Re: Marvin Foss.

Filed October 8, 1996

Affirmed

Toussaint, Chief Judge

Beltrami County District Court

File No. P596507

Rebecca S. Anderson, Kief, Fuller, Baer & Wallner, Ltd., 514 America Avenue, P.O. Box 880, Bemidji, MN 56601 (for appellant Foss)

Timothy R. Faver, Beltrami County Attorney, Laurie A. Middleton, Assistant County Attorney, 207 Fourth Street, P.O. Box 1653, Bemidji, MN 56601 (for respondent Beltrami County)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Crippen, Judge.

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

TOUSSAINT, Chief Judge

Marvin Foss appeals his commitment as mentally ill, arguing there was insufficient evidence to show he posed a substantial likelihood of physical harm to himself or others. Because respondent did not file a brief, this court ordered the matter to proceed pursuant to Minn. R. Civ. App. P. 142.03 (if respondent fails to file a brief, case shall be determined on the merits). Because we find there is clear and convincing evidence in the record to support the district court findings that (1) Foss posed a substantial likelihood of physical harm to himself or others, and (2) there was no suitable alternative to commitment, we affirm.

D E C I S I O N

A commitment as mentally ill must be "justified by findings based upon evidence at the hearing." Minn. R. Civ. Commitment 11.01. The appellate courts will not reverse district court findings unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). This court need not defer to the district court on questions of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

A district court must find a person mentally ill by clear and convincing evidence. Minn. Stat. § 253B.09, subd. 1 (1994). There must be a determination, in relevant part, that the proposed patient poses a substantial likelihood of physical harm to self or others, as shown by a failure to obtain necessary food, clothing, shelter, or medical care, or a recent attempt or threat to physically harm self or others. Minn. Stat. § 253B.02, subd. 13 (1994). The likelihood of harm must be demonstrated, and mere speculation is not enough. McGaughey, 536 N.W.2d at 623.

The district court made the following findings:

[P]atient sat for hours in a cafe staring out the window. Patient was reported in Canada to be following a woman. Patient drove his vehicle 70 m.p.h. around a barricade, crashing and totaling the vehicle. Patient has refused to take his medication and has brought some of his medication to the Roseau police telling them he didn't want it and that it was dangerous. Patient told Dr. Muller that he had electrodes placed in his head. He told Dr. Muller and the court that he hears a voice. When temporarily placed in Brainerd he told some staff members that he would kill them. He exhibited lewd behavior and other obscenities to some female staff members at Brainerd.

The district court found (1) no suitable alternative to commitment existed because Foss was mentally ill, diagnosed as schizophrenic having paranoid delusions and being bipolar, and (2) Foss would not take his medication and was a danger to himself and others.

Foss challenges the district court's determination that the evidence showed he posed a substantial likelihood of physical harm to himself or others. He asserts there was insufficient evidence that he was unable to obtain necessities and contends that he turned in his medication to the police because it made him ill and was dangerous to others. The district court's finding that he did not take his medication was supported by the evidence, and the court was not required to accept appellant's explanation.

Foss attempts to discredit testimony of several witnesses because they referred to incidents of which, he alleges, they had no personal knowledge. Foss did not, however, object to this testimony on hearsay grounds at the hearing. "Where an objection is not made, hearsay evidence will be admitted and has probative force." State v. Hamilton, 268 N.W.2d 56, 63 (Minn. 1978). Foss also attempts to minimize the seriousness of threatening incidents in which he was involved, citing testimony by mental health workers that it can be upsetting to be at the hospital and it would not be unusual for a person to yell under the circumstances. The credibility determination was for the district court to make, and we cannot say it was clearly erroneous. See In re Fusa, 355 N.W.2d 456, 457 (Minn. App. 1984).

Foss then faults the district court because it found "[w]hen temporarily placed in Brainerd he told some staff members that he would kill them," yet the testimony indicated that this occurred when he was temporarily placed at the Northwest Medical Center in Thief River Falls, on a seventy-two hour hold. The apparent misstatement as to the location of appellant's temporary placement does not affect the district court's credibility determination that he made the threats to kill staff. Id.

Foss lastly argues the mere fact that he was involved in an automobile accident is insufficient to prove that he poses a substantial likelihood of harm to himself and others. Foss testified that he was not trying to harm himself and cites Dr. Muller's testimony that nothing in Foss's history indicated he had a history of harming himself or others, except for that accident.

The record supports the district court's finding that the accident was the result of dangerous behavior. Foss testified that he went through a stop sign and then accelerated, drove beside a pile of gravel, saw water crossing the road, and then rolled his car over. He denied trying to hurt himself, but explained "it just happened." The fact that Foss does not appear to understand that his actions could cause harm is not conclusive. See In re Jasmer, 447 N.W.2d 192, 195 (Minn. 1989).

The evidence supports the district court findings, which show Foss posed a substantial likelihood of physical harm to himself or others.

Affirmed.