This opinion will be unpublished and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

A07-552

 

 

In the Matter of the Civil Commitment of:

Alicia Lee Bolles.

 

 

Filed August 7, 2007

Affirmed

Lansing, Judge

 

Hennepin County District Court

File Nos. 27-MH-PR-06-136,

27-MH-PR-05-581

 

Gregory R. Solum, 3300 Edinborough Way, Suite 550, Edina, MN 55435 (for appellant)

 

Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 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

LANSING, Judge

            In this appeal from an order for indeterminate civil commitment as mentally ill and dangerous, Alicia Bolles contends that the record does not support the district court’s determination of dangerousness.  Because we conclude that sufficient evidence established that Bolles met the statutory criteria for commitment as mentally ill and dangerous, and that Bolles failed to show that a less-restrictive treatment option was available, we affirm.

F A C T S

            Alicia Bolles is twenty-one years old and has been diagnosed with paranoid schizophrenia.  She was seen at Hennepin County Medical Center for psychiatric problems in April 2005 and again in May 2005.  She was hospitalized in June 2005 for psychotic symptoms.  Although civil-commitment proceedings were commenced in that same month, the proceedings were stayed based on the understanding that Bolles would take prescribed antipsychotic medication and would participate in psychiatric-treatment services.

            In September 2005, Bolles stopped taking her antipsychotic medication because she did not believe she was mentally ill.  Bolles’s case worker, however, was not aware of that decision and Bolles’s stay of commitment was allowed to expire on the scheduled date of December 16, 2005.

            Thirteen days later, on December 29, 2005, Bolles walked into Matthews Park Recreation Center in Minneapolis and stabbed an employee who was working at the front desk.  Bolles used a “paring knife” with a three-inch blade and continued stabbing the woman until another employee intervened.  The victim received one stab wound to her shoulder, two stab wounds to her upper back, and a cut on her hand.  Bolles did not know the victim.  Bolles apparently stabbed the victim in an attempt to get someone to listen to her.

            Bolles was subsequently charged with two counts of second-degree assault.  But she was found incompetent to stand trial, and the district court initiated proceedings to commit Bolles as mentally ill and dangerous. 

            At Bolles’s April 2006 commitment hearing, the district court received evidence relating to the attack and Bolles’s mental-health problems.  Following the hearing, the district court found that Bolles engaged in an overt act causing serious physical harm to another, and that there is a substantial likelihood that Bolles will engage in future acts capable of inflicting serious physical harm.  Based on these findings, the court found that Bolles qualified as mentally ill and dangerous and ordered her committed to the Minnesota Security Hospital.

            At a review hearing in January 2007, the district court heard testimony about Bolles’s progress in treatment.  But the district court concluded that Bolles continued to qualify as mentally ill and dangerous and ordered her committed indeterminately to the Minnesota Security Hospital.

            On appeal, Bolles contends that she is not dangerous and should not have been committed as mentally ill and dangerous.  She does not dispute, however, that she satisfies the criteria to be committed as mentally ill.  Instead, she argues that the stabbing incident was not sufficiently dangerous to warrant indeterminate detention and that her progress during treatment shows that she will not be a danger in the future.  In addition, she claims that the Minnesota Security Hospital is not the least-restrictive treatment option available for her.

D E C I S I O N

            To commit a person as mentally ill and dangerous, the petitioner must prove by clear and convincing evidence (1) that the person is mentally ill and (2) that, as a result of the 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 future acts capable of inflicting serious physical harm on another.  Minn. Stat. §§ 253B.02, subd. 17, .09, subd. 1 (2006).

            Following a person’s initial commitment as mentally ill and dangerous, the district court must hold a review hearing.  Minn. Stat. § 253B.18, subd. 2 (2006).  If the person continues to be mentally ill and dangerous, the district court must order the person committed for an indeterminate amount of time.  Minn. Stat. § 253B.18, subd. 3 (2006).  The person must be committed to a secure treatment facility, such as the Minnesota Security Hospital, unless the person proves by clear and convincing evidence that a less-restrictive treatment program is available that is consistent with treatment needs and the requirements of public safety.  Minn. Stat. § 253B.18, subd. 1 (2006).

I

            Bolles challenges the district court’s finding that she committed an overt act causing or attempting to cause serious physical harm to another.  An appellate court will not set aside a district court’s findings of fact in a commitment case unless the findings are clearly erroneous.  In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).  As applied to undisputed facts, the question of whether an act involved “serious physical harm to another” presents a question of law that we review de novo.  See In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (deciding as matter of law that act did not involve “serious physical harm to another”).

            A person attempts to cause serious physical harm if she engages in “an overt dangerous act capable of causing serious physical harm to another.”  In re Jasmer, 447 N.W.2d 192, 195-96 (Minn. 1989) (emphasis added).  We interpret the term “serious” using a common understanding of the word.  In re Lufsky, 388 N.W.2d 763, 766 (Minn. App. 1986).  “Serious” is not interpreted as “great bodily harm” or “substantial bodily harm” as defined in criminal statutes.  Id.at 765-66.  Only one overt act is required.  Jasmer, 447 N.W.2d at 195.

            In this case, the district court heard a description of Bolles’s attack on the recreation-center employee and heard medical opinions about the seriousness of the attack.  The evidence established that Bolles stabbed another person four times with a knife that had a three-inch blade.  The victim did not know Bolles, and the attack was unprovoked.  Bolles stabbed the victim with sufficient force to puncture the victim’s skin.  The victim’s cuts were about one-sixth of an inch deep.  One witness, a medical doctor who provided psychiatric treatment for Bolles, described the victim’s injuries as “not terribly serious but . . . moderately serious.”  Another expert, however, testified that “I think the potential is there but I don’t think the seriousness actually occurred.”

            Based on clear and convincing evidence, the district court reasonably found that Bolles committed the requisite overt act.  Bolles caused serious physical harm to the recreation-center employee, based on a common understanding of the word “serious.”  Furthermore, applying the rationale of Jasmer, the evidence establishes that whether or not the physical harm that was actually inflicted was serious, Bolles’s stabbing the recreation-center employee repeatedly with a knife that had a three-inch blade was an act capable of causing serious physical harm to another.  Therefore, the district court could find on either basis that Bolles’s actions constituted an overt act causing or attempting to cause serious physical harm to another.  See Id. at 195-96 (equating “attempt to cause serious physical harm” with “capable of causing serious physical harm”).

II

            Next, Bolles challenges the district court’s finding that, at the time of the review hearing, there was a substantial likelihood that she would engage in future acts capable of inflicting serious physical harm on another.  We review the district court’s finding for clear error.  McGaughey, 536 N.W.2d at 623.  A single act can support a finding of future dangerousness.  In re Clemons, 494 N.W.2d 519, 521 (Minn. App. 1993).  When a patient is currently being treated with medication, the district court can consider pretreatment behavior.  In re Malm, 375 N.W.2d 888, 891 (Minn. App. 1985).  In evaluating future dangerousness, the district court can consider the likelihood that a person will continue to take prescribed medications.  In re Dirks, 530 N.W.2d 207, 211 (Minn. App. 1995).

            At the review hearing, Bolles presented evidence that her condition had improved.  One of the court-appointed psychologists testified that Bolles was “certainly more interactive, more able to answer questions, she was engaging, she had greater affect.”  He testified that “if she continues the treatment . . . I think her likelihood of committing any future violent acts is quite low.”  He also testified about what would happen if Bolles stopped taking her medications:  “I would anticipate, based on reading her past records, that when she was off medications she was considerably different.  And so she had been on medications before, gone off some medications, gotten considerably worse, and so I think that would happen again.”

            A psychologist who had been treating Bolles at the Minnesota Security Hospital also testified about the likelihood Bolles would cause future harm.  The psychologist testified that, based on Bolles’s history of failing to take her medication, her previous violent act, and other actuarial factors, there was still a substantial likelihood that Bolles would engage in future acts that would be capable of inflicting serious physical harm on another.  The psychologist also testified about what would happen if Bolles were released today:  “Based on what has happened in the past, I can say it’s fair to assume she may stop taking her medications; which in the past led to her psychiatric decompensation, and eventually led to her committing an act of violence.”

            Despite Bolles’s apparent improvement, the district court could still take into account Bolles’s history of failing to take prescribed medication.  Furthermore, the district court could conclude that Bolles was apt to fail to take her medication in the future.  Based on the expert testimony, the district court could reasonably conclude that as a result of Bolles’s probable refusal to comply with necessary medical care, she would be substantially likely to engage in future acts capable of inflicting serious harm on another.  Therefore, the district court’s finding was not clearly erroneous.

III

            Finally, Bolles argues that she established by clear and convincing evidence that the Anoka-Metro Regional Treatment Center was an available treatment option that was consistent with her treatment needs and the requirements of public safety.  Therefore, Bolles argues that under Minn. Stat. § 253B.18, subd. 1(a), she should not have been committed to the Minnesota Security Hospital.

            The district court, however, found that Bolles failed to establish that the Anoka-Metro Regional Treatment Center was an available treatment option.  Although the second court-appointed psychologist testified that Anoka would be a suitable treatment center, Bolles did not establish that Anoka would accept her as a patient.  The Minnesota Security Hospital psychologist testified that Anoka does not take mentally ill and dangerous patients.  Because the district court properly concluded that Bolles was mentally ill and dangerous, the court could similarly conclude, as it did, that Bolles failed to establish that Anoka was an available treatment option.  Because Bolles had the burden of proof, the district court’s finding was not clearly erroneous.

            Affirmed.