This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Welfare of:

John Forsyth Evans.

Filed September 8, 1998

Affirmed; motion granted

Schumacher, Judge

Waseca County District Court

File No. P198174

Keith L. Deike, Patton, Hoversten & Berg, P.A., 215 East Elm Avenue, Post Office Box 249, Waseca, MN 56093 (for appellant Evans)

Larry Collins, Waseca County Attorney, Paul M. Dressler, Assistant County Attorney, 307 North State Street, Waseca, MN 56093 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Harten, Judge.



John Forsyth Evans appeals from his commitment as mentally ill, arguing that a drug-induced psychosis rather than mental illness was the sole cause of his impairment and contending that the district court had insufficient evidence from which to conclude he was substantially likely to physically harm himself or others. Evans also moves to strike material from respondent's appendix and brief. We affirm the commitment and grant the motion to strike.


The district court first committed Evans as mentally ill with paranoid schizophrenia in September 1995 and discharged him in 1996. In early April 1998, Evans again came to the attention of authorities. Two citizens in Waseca reported suspicious behavior in which Evans walked through back yards, apparently to approach his mother's former residence. A police officer arrived on the scene, and he and Evans engaged in a verbal and physical confrontation. After several more officers arrived, Evans struggled violently with them for three to four minutes before they were able to handcuff him and place him in a squad car.

A Waseca County peace officer filed a petition to commit Evans as mentally ill. At the commitment hearing, Evans was disruptive and talked constantly, asking inappropriate questions and displaying delusional thinking.

Dr. Linda Marshall, a licensed psychologist and the court-appointed examiner who had also examined Evans for his 1995 commitment, testified that he continued to suffer from schizophrenia. She later agreed that she could not rule out the possibility his symptoms were cause by drug-induced psychosis. She recommended commitment, based on his difficulties in Waseca and his delusional thinking while in jail, as well as his unkempt appearance, body odor, failure to take medication and lack of insight into his mental illness. Dr. Marshall believed that Evans was homeless and thus would be unable to provide his own care. If released, she predicted Evans might harm himself or others.

The district court concluded Evans suffered from paranoid schizophrenia and that he posed a danger to himself or others and committed him as mentally ill. Evans appeals.


District court findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). On questions of law, this court need not defer to the district court. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

A mentally ill person is defined, in relevant part, as one who suffers from an organic disorder of the brain 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). But a person is not "mentally ill" if the impairment is "solely" due to

(3) brief periods of intoxication caused by alcohol, drugs, or other mind-altering substances; or

(4) dependence upon or addiction to any alcohol, drugs, or other mind-altering substances.

Minn. Stat. § 253B.02, subd. 13(b). The district court must find that the person is mentally ill by clear and convincing evidence. Minn. Stat. § 253B.09, subd. 1 (Supp. 1997).

We first address Evans' argument that his impairment arose solely from a drug-induced psychosis, making his commitment as mentally ill improper under Minn. Stat. § 253B.02, subd. 13(b)(3), (4). While Evans presented some evidence in support of his theory, other evidence showed that he was mentally ill with paranoid schizophrenia. This finding is supported by clear and convincing evidence and is not clearly erroneous. See In re Salkin, 430 N.W.2d 13, 16 (Minn. App. 1988) (court may order commitment as mentally ill even if person may also be chemically dependent where evidence supports commitment as mentally ill), review denied (Minn. Nov. 23, 1988).

We next address Evans' argument that the record was insufficient to conclude he was substantially likely to pose a threat of physical harm to himself or others. Minn. Stat. § 253B.02, subd. 13(a). The likelihood of harm may not be based on speculation. McGaughey, 536 N.W.2d at 623-24. But evidence as to a recent attempt or threat or an inability to care for one's self supports commitment as mentally ill. Minn. Stat. § 253B.02, subd. 13(a); In re Terra, 412 N.W.2d 325, 327-28 (Minn. App. 1987) (upholding commitment based on inability to provide for basic needs and hostile and aggressive behavior). Evans violently resisted arrest, made delusional statements, had poor hygiene, failed to take his medication, and may not have had a home.

Evans disputes some of these facts, and he contends the remaining facts are insufficient to show he poses a likelihood of harm. While the district court was presented with conflicting evidence as to facts or inferences to be drawn from the record, its findings are supported by the record and are not clearly erroneous.

Finally, Evans moves to strike a portion of respondent's appendix containing a partial transcript of a doctor's testimony form the 1995 commitment proceedings as well as references to this testimony in respondent's brief. The record on appeal includes only the papers filed with the district court, the exhibits, and the transcript. Minn. R. Civ. App. P. 110.01. If a party submits material in its brief that is not a part of the appellate record, this court will strike the documents. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993).

The district court here took judicial notice of its 1995 commitment findings and order, but not the transcript. The 1995 transcript of the doctor's testimony and references to the transcript contained in respondent's brief were not part of the record below. Because this court and the district court did not rely on the transcript, this ruling does not affect the outcome of the case.

Affirmed; motion granted.