This opinion will be unpublished and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

     In the Matter of:

Luther C. Samuels.

Filed June 25, 1996
Peterson, Judge

Hennepin County District Court

File No. P08330377

David L. Kraker, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for

Michael O. Freeman, Hennepin County Attorney, Karen Roesler, Assistant
Hennepin County Attorney, A-2000 Government Center, Minneapolis, MN 55487
(for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and
Stone, Judge.(*)
        [Footnote] (*)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                        Unpublished Opinion

PETERSON, Judge (Hon. Cara Lee Neville, District Court Trial Judge)

Luther C. Samuels appeals from a judgment committing him as mentally ill.
We affirm.

In May 1995, Samuels began living with his friend, Mark Macon, in Macon's
home. During the time that Samuels lived with Macon, Samuels was prescribed
Prozac, but he let his prescription run out without refilling it. Macon
testified that Samuels spoke to him about giant spiders and giant ants
taking over and doing things to people.

In November 1995, Samuels withdrew to his room and would not eat. His
hygiene was poor, and he would not communicate. Macon attempted to hand
feed Samuels. On November 16, 1995, Macon called the police because he was
concerned about Samuels's health.

The police brought Samuels to the North Memorial Medical Center (NMMC)
emergency room. Samuels was admitted, and hospital staff documented his
poor hygiene and unkempt clothing. Samuels was also nonresponsive and mute.
Samuels did not show any signs of acute physical distress, malnutrition,
dehydration, or weight-loss.

Dr. Dennis Philander, Samuels's treating psychiatrist, ultimately diagnosed
Samuels as having ``[s]chizophrenia, paranoid type, in acute psychotic
episode *** [and] cannabis dependency by history.'' Kathleen Boegeman, a
psychiatric social worker and a member of Samuels's treatment team at NMMC,
testified as follows:
        Q. Does the team have an opinion as to whether
        [Samuels] poses a substantial likelihood of physical
        harm to himself or others if he is released?

A. There is great concern that he would not be able to provide for himself
        * * * *
        A.  There is concern by the staff that he would not
        be able to provide the basic necessities to live.

Samuels testified that he did not want to be committed. He denied his
mental illness and testified that he would continue to take his medications
if he were released. He also testified that he did not understand what the
medications were for, and he could not explain why he did not get his
earlier-prescribed Prozac prescription refilled.

The district court found that Samuels has chronic paranoid schizophrenia
and that his illness ``grossly impairs his judgment, behavior, capacity to
recognize reality and ability to reason or understand.'' The district court
further found that Samuels ``poses a substantial likelihood of causing
physical harm'' to himself. The court noted Samuels's failure to take his
medications, his failure to eat, his failure to care for his personal
hygiene, and his nonresponsiveness. The district court rejected possible
alternative treatments and found that ``[t]he least restrictive,
appropriate, available placement is a commitment to a regional treatment
center for inpatient treatment.''
        Our review is limited to an examination of the trial
        court's compliance with the statute, which requires
        specific findings of fact, separate conclusions of
        law, and a listing of less restrictive alternatives
        considered and rejected.

In re Fusa, 355 N.W.2d 456, 457 (Minn. App. 1984). The commitment
must be ``justified by findings based upon evidence at the hearing.'' Minn.
R. Civ. Commitment 11.01. Findings of fact
        shall not be set aside unless clearly erroneous, and
        due regard shall be given to the opportunity of the
        trial court to judge the credibility of the

Minn. R. Civ. P. 52.01.

Minn. Stat. 𨵕B.02, subd. 13 (1994) provides:
        ``Mentally ill person'' means any person who has an
        organic disorder of the brain or a substantial
        psychiatric disorder of thought, mood, perception,
        orientation, or memory which grossly impairs
        judgment, behavior, capacity to recognize reality,
        or to reason or understand, which
        (a) is manifested by instances of grossly disturbed
        behavior or faulty perceptions; and

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

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

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

Samuels argues that there is not clear and convincing evidence that he
poses a substantial likelihood of physical harm to himself. We disagree.

The supreme court has recently emphasized that the commitment statute
        requires that the substantial likelihood of physical
        harm must be demonstrated by an overt failure
        to obtain necessary food, clothing, shelter, or
        medical care.

In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). Moreover, the
overt act must be recent. Enberg v. Bonde, 331 N.W.2d 731, 736-38
(Minn. 1983), cited in McGaughey, 536 N.W.2d at 623.

The medical records and the testimony of Macon and Boegeman provide clear
and convincing evidence that Samuels poses a substantial likelihood of
physical harm to himself. Samuels's failure to eat without prompting or
assistance and failure to take medication on his own are both overt
failures to obtain necessary food or medical care. These overt failures are
recent because they occurred as little as four days before the petition for
commitment. Evidence that Samuels does not appear malnourished or
dehydrated does not refute evidence of his failure to care for his own