A07-551

In the Matter of the

Civil Commitment of:

Donald James Whiteford.

Filed August 14, 2007

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 27-MH-PR-05-1370

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, Minnesota 55408 (for appellant)

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487 (for respondent)

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

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

HUDSON, Judge

On appeal from a civil commitment as mentally ill and dangerous, appellant Donald J. Whiteford challenges the district court’s conclusion that he is mentally ill and dangerous and in need of indeterminate commitment. Because we conclude that sufficient evidence established that appellant met the statutory criteria for commitment as mentally ill and dangerous, we affirm.

FACTS

On the evening of October 27, 2005, a Minnesota State Patrol trooper witnessed appellant’s vehicle run a red light. After stopping the vehicle and approaching it, the trooper noticed a “strong order of alcohol” and that appellant had bloodshot, watery eyes. Appellant was not able to perform any of the field sobriety tests, and his preliminary breath test registered an alcohol concentration of .179. The trooper arrested appellant and transported him to the Minneapolis Police Department’s chemical-testing unit where appellant was read the Minnesota Implied Consent Advisory. Appellant declined to speak with an attorney and submitted to an Intoxilyzer breath test, which registered an alcohol concentration of .16.

The state charged appellant in Hennepin County District Court with two counts of first-degree driving while impaired. Appellant had 18 prior alcohol-related driving offenses on his record; on two occasions, appellant caused minor property damage.

Before trial, the district court ordered a competency evaluation pursuant to Minn. R. Crim. P. 20.01. During the evaluation, appellant stated that he did not believe he was an alcoholic; he intended to continue to consume alcohol; and Minnesota law prohibiting drunken driving was “a silly thing as long as you don’t kill nobody.” The competency evaluation revealed that appellant was schizophrenic and experienced visual and auditory hallucinations, paranoid ideation, and grandiose delusions. The district court concluded that appellant was “incompetent to stand trial” and referred appellant to the Hennepin County District Court – Mental Health Division for “whatever proceedings that Court deems appropriate pursuant to Minn. R. Crim. P. 20.01 and Minnesota Chapter 253B.” The district court ordered that appellant be confined to the Minnesota Security Hospital pending the outcome of the commitment hearing.

In preparation for the commitment hearing, court-appointed psychologist James M. Alsdurf, Ph.D., interviewed appellant. In his resulting report, Dr. Alsdurf confirmed that appellant was mentally ill and that his illness directly influenced his decision to drive while intoxicated. Dr. Alsdurf stated that appellant “clearly inten[ds] to continue to drink and drive, he clearly is actively psychotic at this time, and the combination of these two disorders cause him to be a danger to self or others.” However, Dr. Alsdurf was unable to conclude that appellant’s conduct and condition satisfied the statutory criteria justifying his commitment as mentally ill and dangerous.

After the commitment hearing, the district court found that appellant was schizophrenic and that “the evidence clearly and convincingly establishes that [appellant’s] unbending insistence on drinking alcohol to excess and driving is a product of his psychotic disorder, of his hallucinations and his delusional beliefs that God or his ‘spiritual guide’ has . . . encouraged him to engage in his potentially deadly driving.” The district court found that appellant had committed an overt act for purposes of the mentally-ill-and-dangerous commitment statute and that his “[d]riving through a red light while heavily intoxicated pose[d] a very serious risk of . . . causing a collision that would [have] result[ed] in significant physical harm and even death.” The district court opined that “[i]t is near certainty that [appellant] will again engage in very dangerous drunk driving, which is capable of inflicting serious physical harm on others.” Consequently, the district court concluded that appellant was “mentally ill and dangerous” and was “in need of commitment.”

The hospital staff prepared a treatment report in preparation for the statutorily required review hearing. The report recited appellant’s long history of mental illness and alcohol dependency and implicated appellant’s mental illness as influencing his dangerous driving behavior. The treatment report showed that appellant minimized the hazards of intoxicated driving and that his delusions and hallucinations influenced his alcohol-consumption decisions. The report concluded that appellant “meets the statutory criteria for civil commitment as a person mentally ill and dangerous.”

On October 18, 2006, the district court held the review hearing. On January 11, 2007, the district court concluded that appellant continued to be “mentally ill and dangerous to the public” and “should be committed for an indeterminate period of time.” On appeal, appellant argues that drinking and driving do not constitute an “overt act,” and therefore he does not meet the requirements for commitment as mentally ill and dangerous.

D E C I S I O N

On appeal, this court examines whether, based on the evidence presented at the hearing, the facts found justify the commitment. In re Civil Commitment of Carroll, 706 N.W.2d 527, 530 (Minn. App. 2005). The evidence is viewed in the light most favorable to the district court’s decision, giving due regard to the court’s credibility determinations. Id. We will not reverse the district court’s factual findings unless they are clearly erroneous. Id.

If a district court finds that clear and convincing evidence proves that a person is “mentally ill and dangerous to the public, it shall commit the person to a secure treatment facility.” Minn. Stat. ง 253B.18, subd. 1 (2006). The district court “shall hold a hearing to make a final determination as to whether the person should remain committed as a person who is mentally ill and dangerous to the public.” Id., subd. 2. If the court finds that the person “continues to be a person who is mentally ill and dangerous, then the court shall order commitment . . . for an indeterminate period of time.” Id., subd. 3.

To find a person “mentally ill and dangerous to the public,” the state must prove by clear and convincing evidence that (1) the person is mentally ill, and (2) as a result of that mental illness, the person 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. งง 253B.02, subd. 17, .09, subd. 1 (2006) (emphasis added).

Here, the district court found that appellant’s “present diagnosis is paranoid schizophrenia.” The district court stated that appellant’s “unbending insistence on drinking alcohol to excess and driving is a product of his psychotic disorder” and that his hallucinations and delusions “encourage [appellant] to engage in his potentially deadly driving.” The district court found that appellant’s driving through a red light while intoxicated constitutes an “overt act that is capable of causing serious physical harm to another.” Finally, the district court found that if released from commitment, appellant would almost certainly “resume his abuse of alcohol and his drunken operation of motor vehicles.”

But appellant argues that the lack of evidence in the record correlating drinking and driving with serious physical injury, and the fact that he has 18 documented alcohol-related driving incidents that did not result in serious physical harm, requires a conclusion that drinking and driving cannot be an “overt act.” We disagree.

“Whether the evidence is sufficient to support a finding that an overt act has occurred is a legal question subject to de novo review.” In re Carroll, 706 N.W.2d at 530. But “[t]he person’s intent or the outcome of the action is not relevant to the determination of whether the conduct meets the overt-act requirement.” Id. at 530–31 (citing In re Jasmer, 447 N.W.2d 192, 195–96 (Minn. 1989)). In our view, Jasmer is dispositive in this case.

In Jasmer, a man suffering from schizophrenia fired a shotgun at a teenage boy. 477 N.W.2d at 194. The shot missed the boy by three to four feet. Id. The district court found that Jasmer committed an overt act. Id. at 194–95. This court reversed. Id. But the supreme court reversed this court, holding:

If the state proves that as a result of mental illness a person presents a clear danger to others as demonstrated by clear and convincing evidence (1) that the person has engaged in an overt dangerous act capable of causing serious physical harm to another, and (2) that there is a substantial likelihood that the person will do so again, the requirements [to commit a person as MI&D] have been met.

Id. at 195–96 (emphasis added). The supreme court did not articulate what degree of capability of causing serious physical harm a particular act needs to have in order satisfy the overt-act requirement. But the court gave two examples of acts that would suffice: firing a shotgun at a person or driving at a high rate of speed into a crowd of people on a residential street. Id. at 195. Appellant argues that Jasmer is distinguishable because driving while intoxicated is not as inherently dangerous as the Jasmer examples.

But it is undisputed that appellant not only drove while heavily intoxicated, he also ran a red light. As in Jasmer, the absence of injury here was attributable merely to chance or the trooper’s defensive-driving abilities, or both. Clearly, appellant’s conduct was capable of causing serious physical harm to another and his attempt to distance himself from Jasmer is to no avail.

Our holding is consistent with State v. Weltz, 155 Minn. 143, 193 N.W. 42 (1923). In Weltz, the Minnesota Supreme Court held that driving while intoxicated is eminently dangerous; thus, the requisite mens rea for murder can be inferred from the commission of the act. Id. at 148–49, 193 N.W. at 43–44. In making this determination the court analogized drunken driving to intentionally “driving a carriage in among a crowd at a furious speed . . . or the discharging of a gun among a multitude of people.” Id. at 144–45, 193 N.W. at 42. We find Weltz instructive, and we conclude that driving through a red light while heavily intoxicated constitutes an overt act. Because the evidence supports the district court’s conclusion, we affirm.

Affirmed.