State v. A. M. R.

235 P.3d 720, 236 Or. App. 186, 2010 Ore. App. LEXIS 732
CourtCourt of Appeals of Oregon
DecidedJuly 7, 2010
Docket300815461; A139503
StatusPublished
Cited by11 cases

This text of 235 P.3d 720 (State v. A. M. R.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. A. M. R., 235 P.3d 720, 236 Or. App. 186, 2010 Ore. App. LEXIS 732 (Or. Ct. App. 2010).

Opinion

HASELTON, P. J.

Appellant seeks reversal of an order adjudicating her to be a mentally ill person and committing her to the Mental Health Division. ORS 426.130(l)(b)(C).1 Appellant challenges the trial court’s findings that, at the time of the hearing, she presented a danger to herself and others, and that, although she was able to provide for her basic needs, she was not receiving such care as was necessary for her health and safety. See former ORS 426.005(l)(d) (2007), renumbered as ORS 426.005(l)(e) (2009).2 We review de novo, State v. O’Neill, 274 Or 59, 61, 545 P2d 97 (1976),3 and reverse.

We review the facts as they existed on the date of the commitment hearing. State v. Miller, 198 Or App 153, 155, 107 P3d 683 (2005). In July 2008, Junction City Police Sergeants Larson and Salsbury responded to a call at the boarding house where appellant lived. When Salsbury arrived, he could hear appellant “yelling and cussing” upstairs, as if she was arguing with someone.

Larson and Salsbury went upstairs to speak with appellant and found her in her room alone. Larson asked appellant with whom she was arguing, and appellant told him that she was “talking to herself and that’s what she does.” During the ensuing conversation, appellant told Larson that an “Officer Salsbury” had threatened to shoot her and “use her for target practice,” and asked whether the officers were going to use her cat for target practice. Appellant then walked into the hallway, where Salsbury was standing, and said that she needed to find her cat. She told [189]*189Salsbury that “Officer Salsbury had threatened to shoot her and use her for target practice” and asked whether he was like him.4

At that point, Larson told appellant that “she was going to have to go with us to the [bjospital.” Appellant started to scream and yell at the officers, assumed a “defensive posture,” and said, “No, I am not going to go.” The officers told appellant that she was “under arrest for a police officer hold” and, overcoming her resistance, grabbed her arms and wrists and placed her in handcuffs.

Appellant continued to struggle against the officers as they attempted to take her down the stairs to the patrol car. During the struggle, appellant kicked, striking Salsbury’s shin, and spit and tried to bite him-. At the patrol car, the officers used a “hobble” to restrain appellant’s legs and put a “spit hood” over her face. The officers then forced appellant into the patrol car. When Salsbury tried to secure the hobble in the back of the patrol car, appellant bit his left shoulder.

Larson transported appellant to Sacred Heart Medical Center, where she was placed on an involuntary mental health hold. While in the hospital, appellant was interviewed by the precommitment investigator. According to the precommitment investigator, appellant appeared delusional and her tone of voice was “hostile” throughout that interview. Appellant was also interviewed by the examiner, who observed that appellant’s mood was volatile and switched from “being quiet and rather apologetic to being loud and angry the next moment.” At one point in the interview, appellant suddenly slammed her hands down on the table and shouted at the examiner. The examiner also observed appellant slam a door “rather loudly” after a later, private consultation between appellant and her attorney.

At the commitment hearing, Salsbury testified, as described above, about his encounter with, and observations of, appellant. In addition, appellant’s treating psychiatrist testified that appellant has a bipolar disorder and was [190]*190“manic with psychotic features.” She also rendered the opinion that appellant was a danger to herself and others as a result of her mental disorder. The psychiatrist did not offer any personal account as to why appellant posed a danger to others. However, she did refer to the report of another doctor, which stated that appellant had “nearly assaulted” him in the emergency room. That account, however, was included in hearsay portions of the report that the trial court had previously excluded from evidence.

Appellant’s testimony at the commitment hearing was tangential and rambling. In general, it consisted of an account about how the police had failed to come to her aid when she needed assistance, and her complaints about how the officers, medical staff, and others had threatened, harassed, or mistreated her. Appellant also acknowledged that she tried to bite Salsbury, but denied spitting on him or kicking him. Appellant further acknowledged that she refused to take medications for her disorder.

At the end of the hearing, the examiner recommended that appellant be committed on the grounds that she was suffering from a mental disorder and was a danger to herself and to others, and because, although she was able to provide for her basic personal needs, she was “not now receiving such care as is necessary for * * * her health or safety.” The trial court rendered findings consistent with the examiner’s conclusions and, accordingly, committed appellant to the Mental Health Division for a period of time not to exceed 180 days. ORS 426.130(l)(b)(C), (2).

On appeal, appellant does not challenge the trial court’s conclusion that she has a mental disorder. Rather, she argues that the state failed to present clear and convincing evidence that, as a result of that disorder, she was a danger to herself and others, and that she was not receiving the care necessary for her health and safety. The state does not dispute that the record does not support the trial court’s determination that appellant is a danger to herself. We agree and accept that concession as well founded. Further, the state does not assert that the evidence demonstrates that appellant’s mental disorder renders her unable to provide for basic personal needs. Accordingly, our inquiry narrows to whether [191]*191there is clear and convincing evidence that appellant was a danger to others.

In that regard, appellant contends, inter alia, that her forcible resistance to the officers’ efforts to arrest her and take her to the hospital, without more, is insufficient to establish that she is a danger to others. The state responds that appellant’s history of hostility towards others, coupled with her kicking and biting Salsbury during her arrest, provided a sufficient evidentiary basis from which the trial court could predict future dangerousness. For the following reasons, we agree with appellant.

The state had the burden of proving, by clear and convincing evidence, that appellant is a danger to others. ORS 426.130(l)(b). As our cases have repeatedly emphasized, that standard is a rigorous one, requiring that the state present evidence that “is of extraordinary persuasiveness and which makes the fact in issue highly probable.” State v. M. R., 225 Or App 569, 574, 202 P3d 221 (2009) (internal quotation marks omitted).

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Bluebook (online)
235 P.3d 720, 236 Or. App. 186, 2010 Ore. App. LEXIS 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-a-m-r-orctapp-2010.