State v. Johnson

886 P.2d 42, 131 Or. App. 561, 1994 Ore. App. LEXIS 1741
Court of Appeals of Oregon·Decided December 7, 1994·No. 9402-95352; CA A83238·Published·Cited by 17 cases

Opinions

[563] LEESON, J.

Appellant seeks reversal of an order committing him to the Mental Health Division. ORS 426.307(6). He contends that the state failed to prove by clear and convincing evidence that he is a mentally ill person because he is “dangerous to self.” ORS 426.005(l)(d). On de novo review, State v. Weyeneth, 115 Or App 555, 557, 838 P2d 1113 (1992), we reverse.

Appellant is 20 years old. He dropped out of high school at age 18, because he “didn’t fit in, didn’t feel right.” He has worked at a pizza restaurant and at a window manufacturing company. He lived at home until September, 1993. Following a dispute with his step-father, he lived in his car or with friends. In December, 1993, appellant consulted his family physician, because he was feeling depressed after a sinus infection, a severe bout of the flu and his decision to stop seeing friends who were involved with illegal drugs. He was given a prescription for Imipramine, an anti-depressant, but he did not begin to take it until he had stopped using an inhaler prescribed for his sinus infection and an antibiotic prescribed for the flu. Soon after he began taking Imipramine, he experienced a range of physical and psychological symptoms. His mother took him to the hospital when she observed that he had a rash, his eyes would flutter and roll back into his head, his eyes were bloodshot, and he had trouble breathing. He was treated with Benadryl, but his psychological symptoms worsened. He became delusional, disoriented and heard voices. He also became incontinent. His mother took him back to the hospital, where he was admitted on February 7,1994, for “acute onset of psychosis.” Commitment proceedings were initiated, and a commitment hearing was held on February 22,1994.

At the hearing, appellant was examined by mental health professionals Mike and Sheets. Both expressed the opinion that appellant is unable to provide for his basic needs. Neither found that he is a danger to others. However, Mike placed a check on the line of the examiner’s report form indicating that, in his opinion, appellant is “dangerous to self.” Sheets left that fine blank.

[564] At the conclusion of the hearing, the trial court stated:

“I am going to order his commitment. I understand his mother’s concern, but I think both the examiners and the Court is [sic] convinced there’s some underlying problem that needs to be examined, and certainly if his problem is of a temporary nature, they will release him and put him on an outpatient basis. I’m going to put it on grounds of danger to self.”

The court’s written order contains a check mark on the form indicating that appellant is dangerous to himself.

On de novo review, we examine the record to determine whether the state has established by clear and convincing evidence that appellant is a danger to himself. In order to be “clear and convincing,” evidence must be of “extraordinary persuasiveness.” State v. Siebold, 100 Or App 365, 366, 786 P2d 219 (1990). We consider appellant’s mental state at the time of the hearing and must be persuaded that it is “highly probable” that appellant is a danger to himself. State v. Woolridge, 101 Or App 390, 394, mod 102 Or App 559, 794 P2d 1258 (1990). In reviewing the record, we require examiners to fully explain the facts and observations that led them to a particular conclusion. State v. Alexander, 26 Or App 943, 947, 554 P2d 524 (1976); see also State v. Fletcher, 60 Or App 623, 627, 654 P2d 1121 (1982).

At the hearing, appellant testified that he felt “groggy” and “tired” because of the medications he was taking.1 Nonetheless, he responded coherently to most questions and expressed strong opinions about what had happened to him since he started taking Imipramine. During her examination, Sheets asked appellant about voices that he had reportedly heard. Appellant responded that the voices were really thoughts telling him not to relax. Sheets inquired:

Q. “[I]n our report it appears that you had heard some voice tell you to kill yourself. Have you heard any voice telling you to do that recently?”
[565] A. “No.”
Q. “Do you have any thoughts about wanting to harm yourself?”
A. “No, I don’t want to hurt myself. I want to live; I don’t want to die. I just want to live a regular life and be a happy human being like most of you in here seem to he.”

Appellant also expressed a strong desire to return to his parents’ home.2 He expressed a preference not to take any more medications but said that he would if his physician told him to. He also testified that he would be willing to participate in family therapy with his parents.

Appellant’s mother testified that appellant’s mental condition is “all new to me,” that it started when appellant began taking Imipramine, and that he had not acted normally since being hospitalized and given drugs such as Haldol, Thorazine and Valium. In response to a question about whether appellant had heard voices, she said:

“When he was first in the hospital with all the noise in the hallway, some of the times he would think he was hearing voices and then it would be people in the hallway, so he couldn’t distinguish between exactly what was going on around him and what was happening with him.”

She testified that, although appellant suffered from hallucinations or delusions when he was first admitted to the hospital, he had not experienced either in the week before the hearing.

Only examiner Mike found that appellant is a danger to himself, and he qualified that finding with the phrase, “harms [sic] way.” He did not explain what he meant by that phrase or why he qualified his finding in that manner.3 [566] Examiner Sheets left blank the lines on which she was to indicate whether appellant is a danger to himself, but she responded to all other parts of the examiner’s form.4

Having reviewed the record carefully, we conclude that the state produced some evidence that appellant is a danger to himself, but that it did not produce the extraordinarily persuasive evidence required by the clear and convincing standard. The written comments of both examiners suggest concerns about appellant’s ability to provide for his basic needs rather than concern that he is a danger to himself. Appellant’s mother testified that he began hearing voices only after he took Imipramine. Appellant and his mother both testified that he had not heard any voices recently. Appellant testified that he wants to live and that he does not want to hurt himself. In short, the state failed to prove that, at the time of the hearing, it was highly probable that appellant was a danger to himself.

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State v. Johnson, 886 P.2d 42, 131 Or. App. 561, 1994 Ore. App. LEXIS 1741 (Or. Ct. App. 1994).

886 P.2d 42 (State v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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