This opinion will be unpublished and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

A07-219

 

In the Matter of the Civil Commitment of:
Randy Michael Olson.

 

Filed June 5, 2007

Affirmed

Stoneburner, Judge

 

Itasca County District Court

File No. 31PR064355

 

John P. Dimich, 16 Northeast Third Street, Grand Rapids, MN 55744 (for appellant)

 

John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Michael J. Haig, Assistant County Attorneys, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his commitment as mentally ill and dangerous, arguing that the commitment is not supported by clear and convincing evidence and does not represent the least-restrictive treatment alternative.  We affirm.

FACTS

 

            Appellant Randy Michael Olson was found incompetent to stand trial on two counts of criminal-vehicular homicide and four counts of criminal-vehicular operation arising out of an automobile accident that left one person dead and two people severely injured.  Olson had misused prescription drugs and consumed alcohol at the time of the crash.  Respondent Itasca County Human Services (the county) petitioned for Olson’s commitment as mentally ill and dangerous (MID).[1]

            The district court appointed Dr. Dallas Erdmann, and at Olson’s request, Dr. Peter Meyers, to examine Olson.  Both doctors filed reports with the district court and testified at Olson’s commitment hearing.  Both agreed that Olson is mentally ill.  Dr. Erdmann testified that Olson is dangerous due to an organic brain disorder arising from multiple traumatic head injuries, intensified or compounded by Olson’s alcohol and prescription drug misuse, which have adversely affected Olson’s judgment, frustration tolerance, and impulsivity.  Dr. Erdmann testified that civil commitment is the least-restrictive treatment available to protect the public while providing Olson with treatment.

            Dr. Meyers opined that despite the brain injuries, “the real heart of [Olson’s] issues is alcohol.”  Because Olson had been sober for over a year and a half at the time Dr. Meyers examined him, Dr. Meyers stated that there was not a substantial likelihood that Olson would be a danger to others in the future.  Dr. Meyers testified that Olson’s current outpatient treatment is sufficient and that commitment “would almost be punitive” because it would not be any more productive than outpatient treatment, given Olson’s sobriety.  Dr. Meyers testified that because Olson does not meet the profile for antisocial-personality disorder on the Hare Psychopathy Checklist and the Folstein Mini-Mental Status Exam, there is not a substantial likelihood that Olson would engage in future acts capable of inflicting serous physical harm on another.  But Dr. Meyers acknowledged Olson’s inability to maintain sobriety in the past and the fact that Olson has only had two sessions with his current therapist in the year and a half since the accident, which Dr. Meyers conceded was not sufficient treatment.

            Olson’s wife, who manages his day-to-day care, testified that Olson has not driven or consumed alcohol since the accident.  She testified that she prepares his medicines weekly and keeps them in a locked safe, but she testified that she felt that she does not have the right to withhold medication from Olson.  She testified that she has limited time to transport Olson to therapy sessions.

            In addition to the testimony presented at the hearing, the district court received into evidence Olson’s medical records and documents from various criminal files involving Olson.  The district court found that the county had met its burden of producing clear and convincing evidence that Olson is MID as defined by Minn. Stat. § 253B.02, subd.17 (2006), and committed Olson to the Minnesota Security Hospital in Saint Peter.[2]  This appeal followed.

D E C I S I O N

 

            On appeal of a commitment as MID, the reviewing court is limited to an examination of the trial court’s compliance with the statute, and the commitment must be justified by findings based on the evidence at the hearing.  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).  The record is viewed in the light most favorable to the district court’s decision, and findings of fact shall not be set aside unless clearly erroneous.  Id.  Due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Id.  “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.”  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003) (quotation omitted).  An appellate court will not reverse a trial court’s findings as to the least-restrictive treatment program that can meet the patient’s needs unless clearly erroneous.   Id.

A “person who is mentally ill and dangerous to the public” is 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 fact 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 (2006).

            Olson does not dispute that he is mentally ill or that there was an overt act supporting commitment, but asserts that the record does not contain clear and convincing evidence that he presents a future danger to others.  The district court largely credited Dr. Erdmann’s testimony and evidence in Olson’s records indicating that he has not been able to maintain sobriety in the past, despite his desire to do so.

            Dr. Erdmann testified that there are no specific tests to determine whether Olson will be a future danger, and opined that Dr. Meyers’s use of the Hare Psychopathic Checklist was “taken out of context” and was of limited diagnostic value.  Dr. Erdmann’s opinion of Olson’s future dangerousness was based on his evaluation of Olson and his review of Olson’s criminal and medical records.

            Olson relies on In re Schweninger, 520 N.W.2d 446, 450 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994), for the proposition that a determination of future dangerousness must be based on some scientific test.  But Schweninger involved commitment as a psychopathic personality, which is not the same as an MID commitment.  Id. at 447-48.

[T]he psychopathic personality is an identifiable and documentable violent sexually deviant condition or disorder . . . .”  Ordinarily . . . there is a pattern of sexual assaults creating the danger of infliction of serious physical harm.  Compare, for example, the definition of “dangerous” in the phrase “mentally ill and dangerous” where “dangerous” is defined as likely to inflict “serious physical harm on another.”

 

Id.at 449 (quoting Minn. Stat. § 253B.02, subd. 17) (other quotation and citation omitted).  Additionally, although Schweninger cites “base rate statistics for violent behavior among individuals of this person’s background” as one of the factors to be considered in predicting serious danger to the public, Schweninger does not hold that commitment as a psychopathic personality is solely dependent on such statistics, or that absent such statistics commitment is precluded.  Id.at 450 (quotation omitted).  We find no merit in Olson’s assertion that MID commitment requires consideration of base rate statistics or any other specific test results.

            Olson also asserts that the district court erred by failing to impose a less restrictive alternative than commitment to the Minnesota Security Hospital.  A district court must commit a patient that it finds MID “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) (2006).

            The district court found that because Olson has an organic brain disorder that affects his personality and cognitive skills, is unlikely to maintain sobriety, has not received proper assistance with managing his medications, and has not actively participated in therapy sessions that would help him, indeterminate commitment to the state security hospital is the least-restrictive alternative that will provide for public safety and provide proper medical care to Olson.  The district court’s findings are supported by the record and are not clearly erroneous.  Olson did not meet his burden of proving by clear and convincing evidence that there is a less-restrictive alternative to indeterminate commitment to the state security hospital.

            Affirmed.