This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1793

In Re: Joseph Donald Thornblad.

Filed December 31, 1996

Affirmed

Klaphake, Judge

Renville County District Court

File No. PX-96-267

Curtis L. Reese, Selander and Reese, P.L.L.P., 207 South Eighth Street, P.O. Box 56, Olivia, MN 56277 (for Appellant Thornblad)

Thomas J. Simmons, Renville County Attorney, David J. Torgelson, Assistant County Attorney, 800 East DePue Avenue, P.O. Box D, Olivia, MN 56277 (for Respondent Renville County)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

KLAPHAKE, Judge

Appellant Joseph Donald Thornblad was committed for an indeterminate period as mentally ill and dangerous. He appeals, contending that the record did not show he had engaged in the necessary overt act causing or attempting to cause serious physical harm. He also argues that he was improperly removed from the courtroom, that he was not allowed to represent himself at the hearing, and that the court failed to advise him of his right to a second examiner. Because the evidence shows Thornblad engaged in overt acts causing or attempting to cause serious physical harm to another and because there is no merit to Thornblad's other claims, we affirm.

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 issue of whether the evidence is sufficient to show the necessary overt act occurred is a question of law reviewed under a de novo standard. See id.

Before a person may be committed as mentally ill and dangerous, there must be a showing, in relevant part, that "the person has engaged in an overt act causing or attempting to cause serious physical harm to another." Minn. Stat. § 253B.02, subd. 17(b)(i) (1994). Thornblad contends that as a matter of law this factor was not met. He argues that the evidence showed he was only verbally aggressive and threatening, and that the overt acts he had engaged in were not recent.

Thornblad has been committed as mentally ill several times previously. The petition for the present commitment was filed after Thornblad said he would kill a state representative, and threatened an elderly woman in a restaurant, pinning her to her chair. He was the subject of many complaints to the police for other disruptive, frightening, or threatening incidents. Thornblad also has a long history of committing violent physical assaults, including a 1984 assault on a police officer, a 1988 assault on a judge in which the victim sustained injuries including a broken arm, and, most recently, a December 1993 assault on a prison staff member resulting in a puncture wound to the victim's hand. At the commitment hearing, two psychologists found Thornblad suffered from paranoid schizophrenia. He was considered dangerous based on the nature of his disorder, his long history of violent acts, and his current threatening behavior.

The court was not required to rely on only the very recent threatening incidents in determining whether the overt act requirement was met. See In re Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989). The court could also consider less recent assaults. Id. In view of Thornblad's continuing threatening behavior, his untreated mental illness, and the expert testimony, the trial court properly considered the 1984, 1988, and 1993 assaults in deciding that Thornblad met the statutory requirements for commitment as mentally ill and dangerous.

Thornblad next contends that the trial court's decision to exclude him from the proceedings on its own motion and without input from counsel was an abuse of discretion and violated his right to participate. He argues that instead the court should have recessed for 20 to 30 minutes to allow him to regain his composure. He also asserts that the court should have allowed his attorney to talk to him and possibly de-escalate his disruptive mood.

The trial court, on its own motion, may exclude a proposed patient who is seriously disruptive or is totally incapable of comprehending and participating in the proceedings, after making findings on the record. Minn. Stat. § 253B.08, subd. 5(b) (1994). In this case, Thornblad continually interrupted the proceeding, although the court repeatedly told him not to interrupt and warned him that if he continued to do so he would be excluded. Finally, the court ordered him excluded, finding on the record that his actions seriously disrupted the proceedings and that he was incapable of assisting in or understanding the proceedings. Thornblad did not move for a continuance or ask the court to allow his attorney to meet with him, and may not raise this argument for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Next, Thornblad claims that he should have been allowed to represent himself at the commitment hearing. A proposed patient does not have the right to self-representation. See In re Irwin, 529 N.W.2d 366, 371 (Minn. App. 1995), review denied (Minn. May 16, 1995).

Thornblad attempts to distinguish Irwin, contending the proposed patient there was facing the more onerous commitment as a psychopathic personality. He also claims he has represented himself in various legal settings and is sophisticated in self-representation. See State v. Thornblad, 513 N.W.2d 260, 263 (Minn. App. 1994) (holding in criminal case where Thornblad was found competent to stand trial, denial of request to defend himself on grounds of incompetency violated constitutional right to self-representation).

Both a mentally ill and dangerous commitment and a psychopathic personality commitment are for an indeterminate period. Minn. Stat. § 253B.18, subd. 3 (1994) (mentally ill and dangerous); Minn. Stat. § 253B.185, subd. 1 (1994) (provisions regarding commitment as mentally ill and dangerous apply to sexual psychopathic personality commitments). Irwin is controlling, and Thornblad did not have the right to represent himself. In any event, it is not clear from the transcript that Thornblad in fact made a request to represent himself. If he did not raise this issue below, he cannot raise it for the first time on appeal. See Thiele, 425 N.W.2d at 582.

Finally, Thornblad claims that the trial court abused its discretion because the record did not show it advised him of his statutory right to an independent examiner and evaluation, or that he waived that right. Minn. Stat. § 253B.07, subd. 3 (1994) (prior to hearing, court shall inform patient of right to independent second examination). The trial court file reveals Thornblad was notified of this right, which is all that is required. Further, Thornblad never raised this issue to the trial court and therefore may not raise it for the first time on appeal. See Thiele, 425 N.W.2d at 582.

Affirmed.