This opinion will be unpublished and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

CX-96-1994

In the Matter of:

Drake Eric Gross.

Filed January 14, 1997

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. P29660352

Brian C. Southwell, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for appellant )

Michael O. Freeman, Hennepin County Attorney, William Neiman, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County)

Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

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

TOUSSAINT, Chief Judge

After Drake Eric Gross was arrested for domestic assault and damage to property, the trial court petitioned for his commitment as mentally ill pursuant to Minn. R. Crim. P. 20.01. After a hearing and recommended order for commitment by a referee, and judicial review of the referee's order, Gross was committed as mentally ill. Gross appeals, challenging the sufficiency of the evidence to support his commitment. Because clear and convincing evidence supports the commitment, we affirm.

D E C I S I O N

Findings of fact by the trial court will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The fact-finder is the judge of the credibility of the witnesses. Minn. R. Civ. P. 52.01. If the record does not show by clear and convincing evidence that the requisite standards for commitment were met, the commitment will be reversed. See McGaughey, 536 N.W.2d at 624.

Gross argues that his commitment as mentally ill should be reversed because the trial court did not have clear and convincing evidence to show that he posed a substantial likelihood of physical harm. A commitment as mentally ill requires, in relevant part, a showing that the person posed a substantial likelihood of physical harm to himself or others, as shown by a failure to obtain necessities or a recent attempt or threat to harm himself or others. Minn. Stat. § 253B.02, subd. 13(b) (1994). While this finding cannot be based on speculation as to future harm, it is not necessary that the person or others actually come to harm before commitment is justified. McGaughey, 536 N.W.2d at 623.

The trial court here found that Gross poses a substantial likelihood of causing physical harm as demonstrated by the fact he is

actively psychotic with hyper-vigilant behavior and paranoid thoughts. He is suspicious, anxious and confused. His behavior is guarded, isolative and often bizarre. For example, he was arrested on June 28, 1996, at his mother's Brooklyn Park residence, carrying a butter knife in his back pocket. His mother was fearful of him. While in the Brooklyn Park jail, he tore up his blanket and formed a noose. He denies that he had any plan to commit suicide.

Gross argues that the butter knife incident does not show he posed a danger to anyone. He cites the fact that he was on his way up to his room where he often ate and notes there were no allegations he was threatening or angry. Gross also disputes the significance the trial court placed on the "loop" he hung underneath his cot while jailed. He contends that he was compulsively shredding the blanket and making designs and argues there was no evidence he had used the loop as a noose or that he was attempting to commit suicide. Finally, he cites testimony by the psychiatrist that he made no recent attempts to harm himself or others. Instead, she merely speculated that if untreated, he might strike out in a defensive way.

Gross's mother and the hospital social worker placed different interpretations on Gross's actions. Gross's mother, who had noticed his deterioration since he stopped taking his medication and knew that he had a prior hospitalization for mental illness, found the fact that he was carrying a knife in his pocket very suspicious and threatening. The social worker took Gross's actions in making a noose very seriously and explained that it was not uncommon for individuals with paranoia of his severity to kill themselves before someone else killed them. He gave several examples of how others had killed themselves by strangulation using methods similar to Gross's. Finally, the psychiatrist found that Gross was likely to harm himself or others if untreated.

The trial court credited the inferences and interpretations by Gross's mother and the social worker, rather than Gross's innocuous interpretation of events. Gross's active psychotic state, caused by his failure to take medication, the threat he posed by carrying the knife, and his suicidal actions provided clear and convincing evidence to support a determination that Gross posed a substantial likelihood of physical harm to himself or others. See In re Martin, 458 N.W.2d 700, 705 (Minn. App. 1990) (likelihood of harm shown by threats of assaults and behavior that would be very provocative in community, which occur when patient fails to take neuroleptic medication). The trial court decision to commit Gross as mentally ill was not clearly erroneous.

Affirmed.