State v. Webber

45 P.3d 1046, 181 Or. App. 229, 2002 Ore. App. LEXIS 724

• Court: Court of Appeals of Oregon
• Decided: May 8, 2002
• Docket: 00M0042; A111563
• Status: Published

Opinions

EDMONDS, P. J.

In this mental commitment proceeding, appellant challenges an order committing him to the custody of the Oregon Mental Health and Developmental Disability Services Division. He makes two assignments of error. First, he argues that the trial court’s advice of rights was insufficient under ORS 426.100 because the court failed to tell appellant of his right to subpoena witnesses. Second, he contends that there is not clear and convincing evidence of his dangerousness to himself or others. We reverse on the ground that the evidence is insufficient to support a finding that appellant’s mental illness causes him to be a danger to himself or others, without reaching the first assignment of error.

Appellant is 28 years old, and he suffers from a bipolar type of schizoaffective disorder. He has a history of civil commitments based on findings that he has been dangerous to himself or others, but the record in this case is devoid of evidence of the circumstances surrounding those commitments. During the time in question, he was on a prescription regimen of medicines through the Josephine County Mental Health Department, but he had not been consistent in taking those medications in the year before the hearing.

This commitment occurred after an altercation during a family picnic on August 2. The outing included appellant, his parents, his older brother Donald, and some extended family members. Appellant had taken his medication only sporadically in the week preceding the outing, and he was in an excited state because of the family outing. Appellant and Donald, had not seen each other for several years. Appellant consumed a 24-ounce beer very quickly, early in the outing. Then, during a brief discussion with Donald, appellant became angry when Donald asked him if he was still taking his medications. Appellant testified that he is very embarrassed about his mental health and that the question made him angry because he felt that he had been conversing normally with his brother and that Donald had no reason to bring up appellant’s mental health in front of his family. Appellant got up, left the area where the conversation had occurred, and began to goad Donald to fight with him. Appellant also swore at his mother and father when they tried to intervene and then began to swear at and to use profane gestures toward Donald. Donald stood up to put on his shoes, which appellant perceived as a response to his invitation to fight. Appellant’s father encouraged Donald to sit down to avoid a confrontation. His father later testified that he had “talked Donald out of’ responding to appellant’s goading. Appellant then left the area, walked to a convenience store, and bought and consumed another large beer. Donald loaded his family into their car and left the area as well.

Soon thereafter, appellant returned to the scene of the family picnic and got into the car with his parents. He continued to swear at his parents and to act out of control, even after he was asked to calm down or get out of the car. On the drive home, appellant made comments that there was going to be trouble because “it’s not over yet.” He also made comments about “chopping” Donald in the throat, making him suffocate, and getting a knife and stabbing him. Appellant was talking rapidly and repeating himself. The father testified that appellant continued to say that “there was going to be some form of confrontation when the two of them [Donald and appellant] got together.”

When the family arrived home, appellant and his parents went into the parents’ house and appellant had something to eat. He then went to the room where he was staying, closing the door behind him. Donald dropped off his family at another relative’s house and then went to the parents’ house. He went uninvited into the room where appellant was resting and began another conversation with appellant. Appellant was reclining on the bed without his eyeglasses on. Although Donald reported that the conversation began as an attempt to reconcile with appellant, he said something at one point to the effect that he had been hearing things about appellant’s behavior, that he was now seeing it for himself, and that he had even heard that appellant had hit their father. Appellant made a flippant remark in response, and the discussion again became heated. Appellant repeatedly asked Donald to leave the room. When Donald would not leave, appellant attempted to push Donald out of the room. Donald then hit appellant twice, hard enough to cause him to bleed. Appellant went to the bathroom to clean himself up. Donald followed appellant into the bathroom. While in the bathroom, appellant muttered under his breath to Donald that he hoped Donald, a police officer, would get hurt in the line of duty. Another physical altercation broke out, with Donald again hitting appellant twice. Appellant was again injured. Appellant called the police, who took him to the hospital.

During an interview on August 3 with Thor, a case manager for the mental health department, appellant was too excited to stay focused on answering Thor’s questions. He repeatedly demonstrated, through dramatic physical gestures, how the altercations had occurred, and he blamed his brother for the occurrence. In a second interview with Thor on August 4, appellant was oriented to time and place, was able to focus on Thor’s questions, and explained that he had been drinking during the incident. He also demonstrated greater insight into his role in the incident. On August 8, the day before the commitment hearing, appellant was interviewed again, this time by Brown, a court-appointed examiner. At that time, he was able to explain more about his thought processes and his understanding of the incidents leading to his hospitalization. He accepted some responsibility for his actions and acknowledged that he had been in a manic phase for about six weeks. He also explained that he believed Donald was largely responsible for the altercation and that he had responded out of anger to Donald’s provocations. Appellant alternated between wanting medications for his illness and desiring not to be involved with mental health treatment.

At the hearing, Donald and appellant’s father testified about the above events. The father testified as to a general fear among the family about appellant’s unpredictable behavior because of the events. Donald testified as to his recollection of the interaction between himself and appellant and related that he had, in fact, asked appellant whether he was taking his medication at the very beginning of their conversation. He testified that he had then been “hurt” by appellant’s verbal comments at the picnic and that he was thinking about the possibility of having to “contain” appellant because of his personal experiences as a police officer with “major drug users down south.” Donald also testified that appellant was “very calm” when he went into appellant’s room and that appellant asked him repeatedly to leave the room before appellant tried to push him out of the door. He did not contradict appellant’s testimony that he had in fact initiated the physical confrontation in appellant’s room, nor did he contradict appellant’s testimony that he had physically struck appellant in the bathroom. Nothing in Donald’s testimony established that he had been injured by appellant in any way during any of the altercations.

In his testimony at the hearing, appellant acknowledged some responsibility for the incidents, that he had a mental illness, and that he was not taking his medications regularly. Appellant also explained that, on the car ride home from the outing, when he alluded to the fact that “it wasn’t over,” he meant that he believed Donald would initiate further violence because “Donnie stood up” and appellant knew, “just looking at him when he stood up, that there was going to be trouble.” He explained that he was “thinking the whole way home there’s going to be trouble” and that he had gone to his room alone to avoid any more confrontation and to lie down so that his parents would allow him to “stay and visit with my brother.” Appellant apologized to his brother during the hearing for his part in the altercations. He explained that he had overreacted to his brother’s comments, but pointed out that he had not been the physical aggressor in the altercations. Appellant said that he could understand Donald’s fears and could relate to Donald’s desire not to have an incident occur in front of his family but again asserted that Donald had initiated the physical contact. He explained,

“I wasn’t fighting back. I was just asking him to stop the whole time — pushing him off, ask him to stop.

“* * * I tried to push him out of my own room * * * so I could go to sleep, because I didn’t want an altercation.

“I knew I was wrong at the lake and I didn’t want to talk about it. I felt real bad about it and I know it was wrong, and I wasn’t ready to throw it on the table and discuss it with my parents or, you know, do the right thing yet, if it would come to that, but —.

“So after he said I’m going to put you out * * * my parents came in there * * * I never threw a punch or anything like that. I did push him to try and get him out of my room.

“Anyway he finally let me go, I went into the bathroom and I said — I was washing the blood off me, and [he] came by and I said something really vicious. And my assault that time was a verbal assault, you know, it wasn’t a push, it was a verbal assault, and he went smack and smack, and hit me two more times.

“My parents saw it. They were coming around the corner and he goes “he swung on me, he swung on me’, and I didn’t, right. And then I said, that’s it, it’s over, I’m calling the police, because I was — had blood from head to toe. The policeman came. There was blood on the — pools of blood on the carpet, mine. He didn’t have a scratch on him, because I never threw a punch, I never fought back, and because I knew, again — say that again, at the lake I was wrong.”

Appellant also interrupted the proceeding several times during testimony of others, trying to explain what he had been thinking or what he had meant by his statements that others were relating.

Brown concluded that appellant was mentally ill and was dangerous to others. The trial court also found that appellant was dangerous to himself and to others. The court ruled:

“I do find that you are mentally ill. And at this time I also find that you are not only a danger to others but a danger to yourself, that you are not able at this time to voluntarily participate in a program of treatment that is appropriate and necessary to stabilize you.”

The trial court did not state that it found a nexus between appellant’s conduct and his mental illness.

ORS 426.005(l)(d) defines a “mentally ill person,” in part, as one

“[w]ho, because of a mental disorder, is one or more of the following:

“(A) Dangerous to self or others.” (Emphasis added.)

To support involuntary mental commitment, the evidence must establish that the facts that establish one of the grounds under ORS 426.005(l)(d) are “highly probable.” State v. Stephens, 178 Or App 31, 38, 35 P3d 1061 (2001). Also, there must be persuasive evidence, established by expert testimony or otherwise, that there is a “causal nexus between the mental disorder and at least one of the ORS 426.005(l)(d) criteria.” State v. Gjerde, 147 Or App 187, 192, 935 P2d 1224 (1997). In Gjerde, we said, “The statute expressly requires that there be a causal connection between the alleged mental disorder and the danger to self[.]” Id. In that light, we review the record in this case de novo. ORS 19.415(3).

The record contains ample evidence that appellant was in fact injured during the fight with Donald and that the physical altercation between him and Donald was serious, requiring police intervention and the treatment of appellant for physical injuries. While Donald did not appear to be injured, it is clear that the fight was dangerous to both brothers because of the intensity of emotion and physical force involved. What is less clear is whether the evidence satisfies the nexus or causation requirement by the requisite burden of proof.

We find little in this record to show that appellant’s actions or reactions toward Donald were caused by, or linked to, his mental illness. Rather, they could as reasonably be the result of his brother’s instigation of the fight at the house or appellant’s consumption of alcohol. In fact, Thor testified that, as a result of his interviews, he did not form the perception “that [appellant] was a danger to himself so much as that he was mentally ill.” As the governing statute makes clear, a person must be more than mentally ill in order to be committed involuntary — the person must also be dangerous to self or others as a result of the person’s mental illness. ORS 426.005(1). While neither Donald nor appellant acted admirably, we cannot find on this record that appellant acted that way because of his mental disorder. The fact that two brothers, one apparently healthy and one apparently mentally ill, both reacted harshly to each other’s comments and gestures, and the fact that both engaged in a physical altercation, is not by itself clear and convincing evidence that appellant’s mental illness is what caused him to be a danger to others or himself.

The dissent would hold that there is clear and convincing evidence to find appellant dangerous to others because of his mental illness. In essence, the dissent makes three assertions. First, the dissent argues that “the evidence of what occurred demonstrate [s] the necessary relationship” between the conduct and the mental illness. 181 Or App at 245 (Deits, C. J., dissenting). Second, the dissent contends that “the two mental health experts * * * specifically found that, due to his mental disorder, appellant was a danger to others.” Id. at 245 (Deits, C. J., dissenting). Finally, the dissent contends that the trial court’s assessment provides support for the nexus, or causation requirement, between appellant’s mental illness and his dangerousness to others.

As to what facts demonstrate causation, the dissent apparently reasons that anytime a mentally ill person responds to a provocation with exaggerated behavior and threats of violence, that response demonstrates the required casual connection. While a permissible inference could exist in this case to that effect, the dissent forgets that the state’s burden is to prove by clear and convincing evidence that appellant is a danger to others because o/his mental disorder. ORS 426.130. In this case, the inference drawn by the dissent is equaled or outweighed by the reasonable inference that appellant’s conduct was caused by Donald and not by his mental illness. Both Donald and appellant described what occurred between them as a physical altercation in which Donald was the physical aggressor and in which appellant was the only injured person. No witnesses attributed appellant’s reaction to Donald to delusions, hallucinations, voices speaking to him, or any other indicator of mental illness. In our view, the inference that the dissent draws from the evidence does not rise to the level of making it highly probable that appellant’s conduct was caused by his mental illness as distinguished from other potential causes.

As to the dissent’s assertion that the “two mental health experts * * * specifically found that, due to his mental disorder, appellant was a danger to others,” 181 Or App at 245 (Deits, C. J., dissenting), the record does not support that claim. Investigator Thor’s written report concluding that appellant is dangerous to others does not contain an explanation of any nexus between appellant’s conduct and his mental illness. It refers to intimidating statements, threats, nonstop talking, and menacing gestures, but it does not link that conduct to any specific manifestation of appellant’s mental disorder. It also refers to appellant’s history of hospitalizations, but it does not explain why the conflict with appellant’s brother is similar or dissimilar to what led to those hospitalizations. Finally, Thor comments in his report that “[appellant] has little insight into the factual actions that happened, other than, for the most part, it was entirely his brother[’]s fault.” If anything, that statement supports the understanding that appellant’s conduct was caused by Donald and not by his mental illness.

Thor testified at the hearing and was asked, “Do you have an opinion as to what caused this particular incident?” Thor responded,

“[flrom my understanding of [appellant’s history and from niy experience of him in the hospital, and also the fact that he acknowledged on the interview of the 4th that he’d probably taken medication three times the previous week and a half, that it was because he wasn’t taking his medication.” (Emphasis added.)

Moreover, Thor also testified that “[appellant’s conduct] didn’t indicate to me that he was a danger to himself so much as that he was mentally ill.” It is reasonable to infer that Thor thought that appellant should be hospitalized because, as Thor said in his report, “appellant has never been completely consistent with following through on treatment and thus continues to suffer from the symptoms of mental illness.” Whether appellant should receive more treatment for his mental illness is a different issue from whether he should be involuntarily committed because his mental illness causes him to be a danger to himself or others. When Thor’s report and testimony are considered together, Thor’s opinion never addresses the import of Donald’s provocative and assaultive conduct.

Examiner Brown’s testimony and her written report suffer from the same defect. They fail to draw any nexus between appellant’s mental illness and his conduct. In her written report, Brown reports that appellant said, “This was just a normal brother to brother fight, and that his family overreacted.” Brown found that appellant “was fully oriented.” When asked to explain in a written form how appellant’s mental disorder was connected to and resulted in appellant’s behavior described in question number four,¹ Brown wrote, “[his] thinking is disorganized and delusional.” Brown did not explain in her report or in her testimony how disorganized and delusional thinking caused appellant to react to his brother in a way that was dangerous to himself or others. Both Thor and Brown checked the box on their written report forms that stated, “In my opinion, this person, because of the above stated mental disorder, is dangerous to others.” The problem with relying on their acts of checking the boxes on the forms is that the underlying facts contained in their reports do not “explain how the mental disorder is connected to and resulted in” the behaviors described, as the forms expressly direct. Neither evaluation appears to have appreciated the distinction between the symptoms of mental illness and the legal requirement imposed by statute that a mental illness must be the cause of a person’s dangerousness to himself or others before an involuntary commitment can lawfully be ordered.

Finally, the dissent argues that we should defer to the trial court’s finding of a nexus. In light of our de novo review, any deference to the trial court is necessarily limited to its assessment of the credibility of witnesses, and this case does not turn on the credibility of witnesses. What is at issue is whether the state’s evidence satisfies a legal requirement for involuntary commitment by clear and convincing evidence. As pointed out above, the court did not expressly find the required nexus. It appears to have jumped from the finding of mental illness to a finding of dangerousness to others, without regard for the need of the state to establish causation. On de novo review, we have analyzed the evidence in light of that legal requirement. We conclude based on the record before us that the state has not satisfied its burden by clear and convincing evidence in that regard.

Reversed.

1 In response to question number four, Brown wrote that the behavior that made appellant dangerous to others was that he “refusefd] to take medication, threatened] family members with physical harm.”