This opinion will be unpublished and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

C7-98-273

In the Matter of: Dennis B. Bates.

Filed June 30, 1998

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. P79660167

Mary Ferris Jensen, 5352 44th Avenue S., Minneapolis, MN 55417 (for appellant)

Michael O. Freeman, Hennepin County Attorney, Karen Ann Roesler, Assistant County Attorney, Rebecca S. Rognrud, Acting Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

KALITOWSKI, Judge

Appellant Dennis B. Bates challenges his commitment as a mentally ill person, arguing the evidence does not support the district court's determination that appellant posed a danger to himself or others. We affirm.

D E C I S I O N

In a civil commitment proceeding regarding a mentally ill and dangerous person, "the question of dangerousness is a factual determination for the trial court, which should not be disturbed on appeal unless it is clearly erroneous." In re Hofmaster, 434 N.W.2d 279, 282 (Minn. App. 1989). The district court must determine by clear and convincing evidence that a person is mentally ill under the statute. Minn. Stat. 253B.09, subd. 1 (Supp. 1997).

Bates does not contest that he suffers from schizophrenia, paranoid type. Rather, he contends the evidence does not establish that he poses a substantial likelihood of physical harm to self or others. A mentally ill person is defined, in relevant part, as one suffering from an organic disorder or a substantial psychiatric disorder who

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

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

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

Minn. Stat. 253B.02, subd. 13(a) (Supp. 1997).

The statute clearly requires that the substantial likelihood of physical harm must be demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others.

In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). A person may not be committed as a mentally ill person on the basis of speculation that future harm to self or others may occur. Id. "This is not to say, however, that the person must either come to harm or harm others before commitment as a mentally ill person is justified." Id.; see In re Harvego, 389 N.W.2d. 266, 268 (Minn. App. 1986) ("The trial court was not compelled to delay action until irreparable physical harm was suffered, so long as the danger of appellant's condition had already become evident.").

Here, the district court heard evidence, including expert testimony, that Bates (1) had no insight into his mental illness; (2) tends not to want people around him; (3) becomes agitated when people approach him; (4) denies that he has a mental illness; (5) poses a substantial likelihood of physical harm to himself or others because he might act out according to his paranoid ideation; (6) was very threatening during an incident in the hospital where he was ranting, raving, and waving his hands in front of a doctor's face, resulting in at least one person nearby feeling that he would be assaulted; and (7) posed a danger because his disorder has escalated over the past year, and he has acted on his fears by obtaining a weapon, ammunition, and a bullet-proof vest. Further, the record shows that Bates was hospitalized for mental illness issues in 1995 and 1996. Given these facts, we cannot say the district court's findings on dangerousness were clearly erroneous. See In re Martin, 458 N.W.2d 700, 704-05 (Minn. App. 1990) (upholding commitment where appellant occasionally threatened hospital staff, thought he was being persecuted, was verbally abusive and hostile, and was easily provoked); In re Gonzalez, 456 N.W.2d 724, 726, 729 (Minn. App. 1990) (upholding commitment where appellant was disruptive, intrusive, argumentative, frequently refused medication, and threatened to kill others, as well as could not provide for his own shelter).

Affirmed.