This opinion will be unpublished and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

C6-96-1412

In the Matter of: Michael Lozowy.

Filed November 26, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. P99460277

Ronald L. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346 (for Appellant Lozowy)

Michael O. Freeman, Hennepin County Attorney, John St. Marie, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent Hennepin County)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

WILLIS, Judge

Appellant Michael Lozowy appeals from his commitment as mentally ill, contending the trial court's finding that his behavior posed a substantial likelihood of physical harm was not supported by the evidence. Because we find the record provided clear and convincing evidence to support the trial court's decision, we affirm.

FACTS

Appellant's threatening behavior led to petitions for commitment in 1994 and 1995. The first commitment was stayed and later terminated on June 9, 1995, and the second was terminated on December 29, 1995.

On January 1, 1996, appellant was charged with assault in the fifth degree after allegedly striking his 65-year-old mother. On April 4, 1996, he was charged with assault in the fifth degree after allegedly pushing his sister to the floor. The criminal court found appellant incompetent to stand trial and commenced civil commitment proceedings pursuant to Minn. R. Crim. P. 20.01.

At the commitment hearing, the court heard tapes of threatening telephone calls appellant had made, as well as testimony about the calls. These included a threat to a judge that he would be "hit" if he did not respond to appellant and another to the mayor's chief of staff that appellant would make sure he never walked again. Appellant also harassed his sister by sending letters containing various allegations to her employer and others. Even while hospitalized, appellant continued to harass people by telephone and letter.

Appellant's sister testified in detail regarding his assault on her, and she described threats he had made to her mother and threats she overheard him making to others by telephone. Appellant offered his version of events at the hearing and denied the assaultive and threatening behavior.

A social worker on appellant's treatment team testified that appellant's harassment and threats have escalated in the last year and a half, that his narcissism and paranoia cloud his sense of reality, and that he poses a risk of harm to those in positions of authority. Appellant requires psychiatric treatment, but has not cooperated with medication or treatment at the hospital, except to attend occupational therapy groups.

The court-appointed examiners diagnosed appellant with schizophrenia and recommended his commitment as mentally ill. The examiners also addressed the issue of whether appellant posed a substantial likelihood of physical harm to himself or others. The first court-appointed examiner cited evidence of appellant's assaults on family members and other behavior, which could prompt strong reactions and retaliation, as evidenced by an incident with his sister. The second court-appointed examiner noted appellant's threatening and assaultive behavior toward family members, as well as his medication noncompliance, lack of insight, and inability to function independently.

The trial court committed appellant to the Anoka Metro Regional Treatment Center as mentally ill. This appeal followed.

D E C I S I O N

Trial court findings will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). Due regard must be given to the trial court's opportunity to judge the credibility of the witnesses. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). This court need not defer to trial court determinations of law. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

A mentally ill person is defined as

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

(a) is manifested by instances of grossly disturbed behavior or faulty perceptions; and

(b) poses a substantial likelihood of physical harm to self or others as demonstrated by:

(i) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or

(ii) a recent attempt or threat to physically harm self or others.

Minn. Stat. § 253B.02, subd. 13 (1994). A trial court must find a person mentally ill by clear and convincing evidence. Minn. Stat. § 253B.09, subd. 1 (1994).

Appellant argues there is no clear and convincing evidence that he poses a substantial likelihood of physical harm, as shown by a recent attempt or threat to physically harm self or others. See Minn. Stat. § 253B.02, subd. 13(b)(ii). He minimizes the two incidents leading to his criminal charges by characterizing them as domestic disputes with family members. We find no support for the theory that assaults on family members are less serious than assaults on others. It is not uncommon for intrafamilial assaults to be cited in support of a commitment. See, e.g., In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988) (relying in part on assaultive behavior toward brother to support commitment as mentally ill), review denied (Minn. Nov. 23, 1988); In re Miner, 424 N.W.2d 810, 814 (Minn. App. 1988) (upholding commitment as mentally ill and dangerous where patient killed his father), review denied (Minn. July 28, 1988).

Appellant next argues that there was no competent evidence of his alleged assault on his mother, and he challenges his sister's testimony describing the alleged assault on her. The record supports the trial court's finding that criminal charges were filed against appellant for these assaults. The decision of whether to credit appellant's or his sister's version of events was a credibility issue for the trial court.

Appellant contends the court relied primarily on his written and telephoned statements to various public officials. He argues these were no more than "verbal bluster and intimidation," that do not meet the standard of "a recent attempt or threat to physically harm self or others." Minn. Stat. § 253B.02, subd. 13(b)(ii). He cites the facts that he has no criminal conviction record or history of violence, and he has not been assaultive during incarceration and involuntary hospitalization. He asserts there is no evidence he had plans or made attempts to carry out threats of violence or any indication that he has the will or means to translate his words into action.

Appellant made specific threats of physical harm to specific individuals. While appellant again attempts to minimize these incidents, and has denied them in the past, the trial court did not credit appellant's characterization of his threats as innocuous. The trial court had clear and convincing evidence from which to conclude that appellant's "continued threats and escalating and potentially violent behavior" posed a substantial likelihood of physical harm. See Minn. Stat. § 253B.02, subd. 13(b)(ii) (providing recent attempt or threat to physically harm self or others can demonstrate substantial likelihood of physical harm to self or others); see also In re Martin, 458 N.W.2d 700, 704-05 (Minn. App. 1990) (citing threats and other behavior to support finding as to likelihood of harm).

Appellant also argues briefly that the record does not support by clear and convincing evidence that his domestic altercations with family members were manifestations of grossly disturbed behavior caused by a mental illness. We disagree. As the medical experts indicated, evidence of appellant's assaults on his family members, as well as his inappropriate behavior, were manifestations of grossly disturbed behavior caused by his illness. See In re Lufsky, 379 N.W.2d 255, 257 (Minn. App. 1986) (holding that assaulting parents, destroying furnishings, and disabling family car support finding mental illness manifested by grossly disturbed behavior).

Affirmed.