This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2078

 

In the Matter of the Civil Commitment of:  Kevin Arnell Banks, Jr.

 

Filed March 13, 2007

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. 62-MH-PR-06-95

 

Steven R. Kufus, Steven R. Kufus, P.A. Inc., Spruce Tree Centre, Suite 510, 1600 University Avenue West, St. Paul, MN 55104 (for appellant Kevin Arnell Banks, Jr.)

 

Susan Gaertner, Ramsey County Attorney, Margaret Gustafson Samec, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Kevin Arnell Banks, Jr. challenges the district court’s decision that he is mentally ill and dangerous on the grounds that:  (1) he is not substantially likely to engage in acts capable of inflicting serious physical harm on another; and (2) the district court failed to adequately consider less restrictive alternatives to the secured hospital.  We affirm.

D E C I S I O N

            Following a suicide attempt in 2004, appellant was briefly hospitalized and treated for auditory hallucinations for the first time.  He checked himself out against medical advice and failed to continue treatment in the community. 

            Three months later, appellant, in an apparent psychotic state and without provocation, repeatedly beat a friend with a shovel.  The victim remains paralyzed from the mid-chest down as a result of appellant’s attack.

            The district court found appellant not guilty of first-degree assault by reason of mental illness and referred him for commitment proceedings pursuant to Minn. R. Crim. P. 20.01.  After an indeterminate commitment hearing, he was committed as mentally ill and dangerous.  Appellant challenges the district court’s findings that he is substantially likely to engage in acts capable of inflicting serious physical harm on another and argues that the district court failed to adequately consider less restrictive alternatives to the secured hospital.

I.

            The district court is statutorily authorized and required to commit any person to a treatment facility if the court finds the person to be “mentally ill and dangerous to the public,” as defined in Minn. Stat. § 253B.02, subd. 17 (2004), following the procedures described in Minn. Stat. § 253B.18 (2004).  But it must so commit a person only upon clear and convincing evidence of mental illness and public danger.  Minn. Stat. § 253B.18, subd. 1.  “To be committed as either mentally ill or as mentally ill and dangerous requires more than just the presence of mental illness.”  In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988).  “Mentally ill and dangerous” is statutorily defined as:

a person (a) who is mentally ill; and (b) who as a result of that mental illness presents a clear danger to the safety of others as demonstrated by the facts that (i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.

 

Minn. Stat. § 253B.02, subd. 17 (emphasis added).

            Appellant concedes he is mentally ill and committed the requisite overt act, but appellant disputes the district court’s determination that he is dangerous.  A substantial likelihood of future dangerousness may be demonstrated by past conduct, along with supporting medical testimony.  See In re Clemons, 494 N.W.2d 519, 520-21 (Minn. App. 1993) (affirming commitment based on determination of likelihood of future serious physical harm when the challenger apparently had delusional apparitional experiences that led to recent attempts to beat demons out of her grandchild); In re Grafstrom, 490 N.W.2d 632, 637 (Minn. App. 1992) (noting that “this court has allowed a determination of dangerousness to be based upon past conduct” and endorsing the district court’s consideration of factually-based, supporting medical testimony). 

            Our standard of review here is limited.  In deciding whether there is sufficient factual support for the district court’s determinations, we will not reweigh the evidence, but will consider it in the light most favorable to the decision to “determine if the evidence as a whole presents substantial support for the district court’s conclusions.”  In re Linehan, 557 N.W.2d 171, 189 (Minn. 1996), vacated on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997).  “Findings of fact, whether based on oral or documentary evidence, 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 witness.”  In re Knops, 536 N.W.2d at 616, 620 (Minn. 1995); Minn. R. Civ. P. 52.01.  “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.”  In re Knops, 536 N.W.2d at 620. 

            Here, appellant complains not that insufficient evidence was presented, but rather that the district court gave the evidence improper weight.  Specifically, appellant challenges the district court’s weighing of:  (1) statements regarding appellant’s medication compliance; (2) statements of appellant’s pre-assault medication noncompliance; (3) evidence regarding earlier assault charges against appellant; and (4) the results of one of appellant’s psychological evaluations. 

            The district court found that appellant was medication-compliant while under court supervision.  Appellant argues that his medication compliance was not the result of court supervision, but of his own choice.  But two of the three medical experts who testified commented that the supervision was a factor to consider.  Good behavior during a period of supervision is not dispositive.  See In re Welfare of Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989) (“[G]ood behavior in the artificial environment of a hospital is not conclusive on the question of dangerousness to the public, when experts testify that the proposed patient remains mentally ill and dangerous.”).  Although appellant was not hospitalized, we cannot say the district court erred by finding that court supervision was relevant to appellant’s medication compliance.

            Appellant argues that the district court exaggerates appellant’s history of medication noncompliance.  But appellant does not dispute that he was hospitalized in October 2004 for auditory hallucinations, checked himself out of the hospital against medical advice, and failed to follow up on his medication and treatment in the community.  The district court did not err by finding that appellant had a history of medication noncompliance.

            Appellant argues that the district court erred by finding that appellant has a history of assaultive behavior.  Appellant correctly noted that one of the four alleged assaults relied on by the district court in evaluating whether appellant had a history of assaultive behavior was not an assault, but rather a juvenile court delinquency petition for giving false information to the police.  The remaining three incidents, however, are sufficient to support the district court’s finding that appellant has a history of assaultive behavior.  The district court did not err.

            Appellant argues that the district court gave insufficient weight to his score on the Hare Psychopathy test.  Appellant scored a 27, whereas the recognized threshold for dual antisocial-psychopathic personalities is a 30.  But the Hare Psychopathy test was only one of a battery of tests administered to appellant, including an IQ test, Millon Clinical Multiaxial III, PAI, Hare Psychopathy, and a clinical judgment tool.  The doctor who administered all the tests testified that the result on any one of the tests is not dispositive, but that they must all be considered in making a diagnosis.  Moreover, a second doctor testified that the Hare Psychopathy score was irrelevant to his analysis.  Considering the number of tests performed and the expert testimony regarding the tests, we conclude that the district court did not err by failing to give appellant’s Hare Psychopathy test score more weight.

            We review challenges to a district court’s conclusions of law de novo.  In re Civil Commitment of Martin, 661 N.W.2d 632, 638 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Here, three experts evaluated appellant and his records and each determined that appellant is mentally ill and dangerous.  Two experts testified that appellant is likely to inflict harm on another if he is not properly medicated and that medication noncompliance is a symptom of appellant’s illness.  Appellant’s medication compliance during his year in the community and in the hospital is not dispositive.  See In re Malm, 375 N.W.2d 888, 891 (Minn. App. 1985) (affirming district court’s determination that symptom-free patient continued to be mentally ill and dangerous based on precommitment behavior indicating that he is dangerous and that, if released, he would stop taking medication and symptoms would recur). 

            We conclude that the district court did not abuse its discretion in deciding that appellant is mentally ill and dangerous and that commitment is appropriate.         

II.

            Appellant argues that the district court erred by inadequately considering whether appellant could be treated in a less restrictive setting.

The Minnesota Commitment and Treatment Act requires a court to commit a patient that it finds mentally ill and dangerous “to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.”  Minn. Stat. § 253B.18, subd. 1(a). 

            Although appellant elicited testimony from two experts that community treatment plans were available for appellant’s conditions, the same two doctors recommended specifically that appellant be treated in the secured hospital.  Moreover, appellant failed to demonstrate how a less-secure treatment facility would serve the dual objectives of treatment and public safety.  And the district court specifically found that the secured hospital “is the least restrictive facility available that is consistent with the patient’s treatment needs and the requirements of public safety.” 

            We will not reverse a district court’s findings regarding the least-restrictive program that can meet the patient’s needs and the needs of public safety unless the findings are clearly erroneous.  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  On this record, we cannot say that the district court clearly erred.

            Affirmed.