John J. Muhar, Itasca County Attorney, Winton James Mason, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County)

Considered and decided by Toussaint, Chief Judge, Davies, Judge, and Willis, Judge.

Appellant John Howard appeals from his indeterminate commitment as mentally ill and dangerous, arguing (1) there was insufficient evidence to find that he committed an overt act causing or attempting to cause serious physical harm to another; and (2) the Minnesota Security Hospital was not the least restrictive alternative available. Because clear and convincing evidence supports the district court's decision, we affirm.

Appellant contends that his actions do not meet the overt act requirement because he did not inflict serious physical harm on the victim of his attempted sexual assault and he stopped short of rape; further, he reported the incident to authorities. Likewise, when he set the curtains in his room on fire, no injuries occurred and he promptly notified staff, who were able to put the fire out. Consequently, he contends these incidents do not show out-of-control and dangerous behavior meeting the overt act requirement.

Appellant cannot prevail in his efforts to minimize the dangerous nature of his overt acts. First, the statute explicitly applies to both acts and attempts. Minn. Stat. § 253B.02, subd. 17(b)(i). Further, the fact that the victim was able to fight off appellant's aggressive and potentially life-threatening assault and that staff was able to put out the fire does not mitigate the seriousness of appellant's actions. The district court had clear and convincing evidence from which to conclude that appellant engaged in overt acts attempting to cause serious physical harm to others.

We first note that the supreme court recently held that indeterminate commitment as mentally ill and dangerous does not require commitment to the least restrictive alternative. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn. 1998) (applying ruling to sexual psychopathic personality and sexually dangerous person commitments). The legislature has since amended the statute to give the patient the opportunity to prove that "a less restrictive treatment program is available that is consistent with the patient's treatment needs and the requirements of public safety." 1999 Minn. Laws ch. 118, § 3 (to be codified at Minn. Stat. § 253B.18, subd. 1(a)) (effective Aug. 1, 1999). But under the applicable law, the district court was not required to commit appellant to the least restrictive alternative.

In any event, the district court determined appellant needed placement at a secure facility. Otherwise, it was likely appellant would cause serious injury to others. Further, this likelihood would increase if he had access to mood altering chemicals. The court's determination that he should be committed to the Minnesota Security Hospital as the least restrictive alternative is supported by clear and convincing evidence and is not clearly erroneous.

Affirmed.