This opinion will be unpublished and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

CX-96-1493

In Re: Donald Glenn Kabanuk.

Filed December 10, 1996

Affirmed

Amundson, Judge

Isanti County District Court

File No. P096105

Timothy A. Quarberg, Lindberg & McKinnis, P.A., 2211 Main Street South, Cambridge, MN 55008 (for Appellant Kabanuk)

Jeffrey R. Edblad, Isanti County Attorney, G. Paul Beaumaster, Assistant County Attorney, Isanti County Government Center, 555 18th Avenue Southwest, Cambridge, MN 55008 (for Respondent Isanti County)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Foley,[*] Judge.

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

AMUNDSON, Judge

The trial court committed Donald Kabanuk for an indeterminate period to the Minnesota Security Hospital as mentally ill and dangerous. Kabanuk appeals, challenging only the determination that he is likely to be dangerous in the future. We affirm.

FACTS

Kabanuk, who has a long history of mental illness with repeated commitments and hospitalizations, suffers from paranoid schizophrenia. In the incident that led to the present commitment, a female patient and Kabanuk eloped from a regional treatment center, even though Kabanuk was scheduled for release the following day. They went to the woman's house, where they remained for about four days. Kabanuk severely beat the woman, who suffered a broken nose and right arm, multiple contusions all over her body, and numerous lacerations on her head requiring stitches. Kabanuk at first denied assaulting her, and told the investigating officer another man beat both of them.

At the initial hearing, expert witnesses gave differing opinions as to the extent of Kabanuk's dangerousness. Dr. George Komaridis, a psychologist and the court-appointed examiner, found Kabanuk's condition similar to other paranoid schizophrenics committed only as mentally ill, and recommended that he be committed as mentally ill. He characterized the first-time aggressive assault as occurring under circumstances that were a "set-up" to go wrong, involving two vulnerable, ill-prepared, and isolated people who were not stabilized. He recommended placement at a regional treatment center as the least restrictive alternative because he believed Kabanuk would receive the same treatment regardless of how secure the setting was.

Dr. Loren A. Boutin, a psychologist and the second court-appointed examiner, concluded that Kabanuk was likely to be dangerous in the future, based on his chemical dependency, lack of insight as to his alcoholism and his illness, and the nature of his illness, which causes him to suppress his anger and then explode. Dr. Boutin supported commitment as mentally ill and dangerous, and explained that Kabanuk requires close supervision and observation.

The trial court committed Kabanuk to the Minnesota Security Hospital as mentally ill and dangerous. The security hospital submitted a report and a review hearing was held. Dr. Kristine K. Kienlen, a psychologist at the security hospital, testified that the security hospital recommended continued commitment as mentally ill and dangerous. Dr. Kienlen stated that, while Kabanuk's condition varied, and at times he does well, in the past two weeks he had appeared more irritable and had described paranoid delusions and auditory hallucinations.

Dr. Kienlen addressed several factors that would contribute to Kabanuk's potential risk of dangerous behavior, including his recent elopement and assault, his physically assaultive and verbally threatening behavior while hospitalized, and records from another hospitalization reporting that he had allegedly threatened his ex-wife and said he planned to obtain a gun to kill her.

Dr. Kienlen also addressed Kabanuk's placement. While treatment for his mental illness would be the same regardless of the facility to which he was committed, commitment to the security hospital would offer him additional programs and security. He could attend behavioral programs for his anger, irritability, threats, and assaults. The higher level of security would prevent Kabanuk from eloping, which was of concern based on his history of at least 12 elopements from other facilities. The hospital would also prevent access to chemicals, which was important because Kabanuk has a history of using alcohol and marijuana. Finally, the higher staff-to-patient ratio would allow closer supervision.

Kabanuk's brother and mother testified as to their belief that he was not violent.

The trial court committed Kabanuk for an indeterminate period to the Minnesota Security Hospital as mentally ill and dangerous. This appeal followed.

D E C I S I O N

On appeal, the findings of the trial court will not be disturbed unless clearly erroneous, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). The trial court's evaluation of the credibility of the witnesses is of particular significance when the findings rest almost entirely on expert testimony. Id. Issues of law will be reviewed under a de novo standard. See id.

In a commitment as mentally ill and dangerous, it must be shown by clear and convincing evidence that "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(b)(ii) (1994); see Minn. Stat. § 253B.18, subd. 1 (1994) (requirement of clear and convincing evidence). "Dangerousness may be demonstrated by past conduct together with a determination the person is likely to engage in future violent conduct." In re Lufsky, 388 N.W.2d 763, 766 (Minn. App. 1986) (appellant's threats and assaults and testimony by court-appointed examiner and sheriff's deputy met standard).

Kabanuk challenges only the trial court finding that there is a substantial likelihood that he will engage in acts capable of inflicting serious physical harm on another, contending that it is not supported by clear and convincing evidence.[1] Instead, he believes he should be committed only as mentally ill. See Minn. Stat. § 253B.02, subd. 13 (1994) (definition of mentally ill). Kabanuk argues that Dr. Boutin's report was offset by the observations and testimony of Dr. Komaridis. Further, he asserts that he had only one assaultive incident, which did not prove that he was likely to cause serious physical harm in the future. See In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (reversing commitment as mentally ill and dangerous because actions in striking two people with fists did not meet standard of "serious physical harm").

The trial court was presented with conflicting expert opinions as to future dangerousness. It relied on the experts who concluded Kabanuk met this standard, and also cited Kabanuk's lack of insight, the significant injuries to his victim, and Kabanuk's continued symptoms and threatening behavior while hospitalized. The fact that Kabanuk engaged in only one serious assault does not preclude the commitment as mentally ill and dangerous. See Clements, 494 N.W.2d at 521 (likelihood of future harm shown by one serious assault associated with delusions caused by long-term mental illness, continued delusions while hospitalized, and lack of insight).

The trial court's decision is supported by clear and convincing evidence and is not clearly erroneous.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 While respondent asserted Kabanuk also raised the issue of least restrictive placement, it appears Kabanuk's argument is limited to the issue of future dangerousness. In any event, the evidence provides clear and convincing evidence to support commitment to the Minnesota Security Hospital. See In re Clements, 494 N.W.2d 519, 521-22 (Minn. App. 1993).