State v. J. G. , 302 Or. App. 97 ( 2020 )

97
Submitted November 18, 2019, reversed January 29, 2020
In the Matter of J. G.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
J. G.,
Appellant.
Lane County Circuit Court
19CC00227; A169916
458 P3d 721
Appellant seeks reversal of a judgment committing her to the Mental Health
Division of the Oregon Health Authority for up to 180 days. She argues that the
evidence was legally insufficient for the trial court to find her to be a person with
a mental illness, specifically a person who, due to a mental disorder, was dan-
gerous to others. See ORS 426.130; ORS 426.005(1)(f)(A). Held: The trial court
erred in ordering commitment, because the evidence was legally insufficient to
establish that appellant was dangerous to others as a result of her mental dis-
order. The only evidence of dangerousness to others was a single incident, which
occurred in the hospital four days prior to appellant’s hearing, in which appellant
punched another patient once in the back. On this record, the trial court erred
in treating that incident as predicative of future violence, particularly future
violence in the narrow range of serious and highly probable threats of harm nec-
essary for an involuntary commitment, rather than an isolated incident.
Reversed.
Maurice K. Merten, Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney General,
filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Reversed.
98 State v. J. G.
AOYAGI, J.
Appellant seeks reversal of a judgment committing
her to the Mental Health Division of the Oregon Health
Authority for up to 180 days. She argues that the evidence
was legally insufficient for the trial court to find her to be
a person with a mental illness, specifically a person who
is dangerous to others due to a mental disorder. See ORS
426.130; ORS 426.005(1)(f)(A). For the reasons that follow,
we agree with appellant and, accordingly, reverse.
We state the facts in the light most favorable to
the trial court’s disposition. State v. L. R., 283 Or App 618,
619, 391 P3d 880 (2017) (standard for non-de novo review).
Our task is to determine whether the record, so viewed, is
sufficient to meet the legal standard for involuntary com-
mitment. Id. In this case, the record consists of appellant’s
testimony; the testimony of Hicks, a psychiatric nurse prac-
titioner who treated appellant during her hospitalization;
and the precommitment report and its attachments, which
were admitted at the hearing without objection. The pre-
commitment investigator was present at the hearing but did
not testify. See ORS 426.095(4)(d) (providing for admission
of the precommitment report into evidence, subject to objec-
tion, but requiring that the investigator be present to be
cross-examined unless the investigator’s presence is waived
by the person alleged to have a mental illness or the person’s
counsel).
Appellant has been diagnosed with bipolar dis-
order with severe manic episodes and psychotic features.
Appellant lacks insight into her condition and believes that
her only mental health concern is post-traumatic stress dis-
order from her military service. At the time of the hearing,
appellant was taking medication but did not intend to con-
tinue taking medication if released.
Appellant was brought to the hospital by police “due
to worsening symptoms of mental illness,” after she “had
been showering for hours [one] day, flooded her apartment,
and rubbed her skin raw in areas due to excessive cleansing
and scrubbing.” While in the hospital, appellant continued
to believe that her skin was covered in “dirt and poop” and
constantly washed it, although not to the point of causing
Cite as 302 Or App 97 (2020) 99
serious physical harm. She was “dysphoric, irritable, suspi-
cious, paranoid,” and “minimizing or denying of the symp-
toms that led to her hospitalization.” She believed that staff
were unfair to her and that other patients mistreated her.
Particularly relevant here, three days after admission (and
four days before the hearing), appellant “punched” another
patient, who was “a pretty big guy,” once in the back with a
closed fist, when he reached for a newspaper near her food
tray. In Hicks’ view, appellant misinterpreted the other
patient’s behavior as threatening, because of her irritability
and paranoia. Hicks was not aware of any other incidents
of violence. There is no reference to violence or threats in
the precommitment report or its attachments, except that a
chart note from the day after the punching incident includes
a statement that, “[p]er staff report, patient is anxious,
angry, demanded to be released, argumentative, speak-
ing aggressively, threatening, dismissive, and agitated.
Refusing scheduled medications.”
At the conclusion of the hearing, the trial court
found that appellant has a mental disorder and that, due to
that mental disorder, she is dangerous to others.1 See ORS
426.130 (providing for commitment of a “person with mental
illness”); ORS 426.005(1)(f)(A) (defining “[p]erson with men-
tal illness” to include “a person who, because of a mental
disorder, is * * * [d]angerous to self or others”). On appeal,
appellant does not contest that she has a mental disorder,
but she argues that the court erred in finding that it makes
her dangerous to others. She asserts that the “punching”
incident was an isolated incident that was not predictive of
future violence and notes, among other things, that there
was no evidence that she harmed the other patient or
intended to harm him.
“ORS 426.005 precludes a court from committing
a person on the basis of a mental disorder alone.” State v.
Miller, 198 Or App 153, 161, 107 P3d 683 (2005). Rather, as
relevant here, the state had to prove by clear and convincing
evidence that appellant’s mental disorder made her danger-
ous to others at the time of the hearing. ORS 426.130(1)(a);
1
The state had also argued that appellant was dangerous to herself, but the
trial court found that the state did not prove that allegation.
100 State v. J. G.
see also State v. J. T. C., 284 Or App 38, 39, 392 P3d 754,
rev den, 361 Or 645 (2017) (clear and convincing evidence is
a ‘rigorous’ standard of proof that requires ‘evidence that is
of extraordinary persuasiveness, and which makes the fact
in issue highly probable’ (citation omitted)). Specifically, the
question is whether she was dangerous to others “as a result
of [her] condition at the time of the hearing as understood in
the context of [her] history.” State v. M. R., 225 Or App 569,
574, 202 P3d 221 (2009) (internal quotation marks omitted).
“Although ‘dangerous’ is a common term that, in
ordinary usage, may refer to a broad range of threats, the
type of ‘danger’ necessary to justify an involuntary civil
commitment is a narrow range of serious and highly proba-
ble threats of harm.” State v. S. R. J., 281 Or App 741, 749,
386 P3d 99 (2016). Also, “actual future violence” must be
“highly likely.” State v. L. D., 247 Or App 394, 400, 270 P3d
324 (2011). “Conclusions based on conjecture as to whether
appellant poses a danger to others are insufficient.” State
v. M. A., 276 Or App 624, 629, 371 P3d 495 (2016) (citation
omitted).
This case involves a single known act of violence.
Except for the “punching” incident, there was no evidence
presented at the hearing of appellant having engaged in
any other acts of violence in the past or during her hospi-
talization. There also was no evidence presented of appel-
lant threatening to harm anyone in the past or during
her hospitalization—except for a summary reference in a
chart note to a “staff report” of appellant being “anxious,
angry, demanded to be released, argumentative, speaking
aggressively, threatening, dismissive, and agitated,” which
adds little to the analysis given the lack of further detail or
explanation.2
A single violent act may be sufficient to establish
that a person is dangerous to others, if the circumstances
2
An unidentified staff person’s description of appellant as “speaking aggres-
sively” and “threatening,” without any indication what appellant actually said or
did, has little value in predicting appellant’s future dangerousness. The state did
not draw attention to the chart note at appellant’s hearing, the trial court did not
refer to it, and the state does not cite it on appeal. We therefore focus our atten-
tion on the “punching” incident, which is consistent with how the state argued
the case below and argues it on appeal.
Cite as 302 Or App 97 (2020) 101
of the act, the person’s history, or other contextual evidence
allows the court to rely on the act to predict future danger-
ousness. See L. R., 283 Or App at 625. However, an “isolated”
violent act, without more, is not enough.3 State v. A. M. R.,
236 Or App 186, 191, 235 P3d 720 (2010). For example, in
State v. T. M., 296 Or App 703, 705-06, 437 P3d 1197 (2019),
we held that the evidence was insufficient to find that the
appellant was dangerous to others, where she raised a fire
poker over her head, advanced toward her ex-husband (who
was also her roommate and caretaker), and said that she
would kill him, precisely because of the isolated nature of
that incident. Again, a single violent act may be enough, but
only if the evidence is sufficient to establish that the act is
predictive of future dangerousness of the type necessary to
justify an involuntary civil commitment, rather than an iso-
lated incident.
The state relies on State v. T. T., 293 Or App 376,
385, 428 P3d 921 (2018), to argue that the evidence here
was sufficient to establish appellant’s dangerousness to
others, where appellant’s single violent act was paired with
“unabated symptoms that included psychosis, lack of will-
ingness to take medication, lack of insight into her con-
dition, and impaired judgment.” We disagree that T. T. is
comparable to this case. Although fact-matching is of lit-
tle utility in commitment cases, see id. at 384, it is notable
that, in T. T., the appellant had stabbed her husband in the
hand with a knife, she continued to believe at the time of
the hearing that “the threat had been real and needed to
be neutralized,” and she gave various explanations for stab-
bing him, including because of “a covenant” and because
“voices told her to do it.” Id. at 385. The appellant also had
“reported at the hospital that she had, in fact, had thoughts
3
To be clear, overt acts of violence are not necessary to establish dangerous-
ness to others. Verbal threats may be enough in appropriate circumstances. See
State v. Bodell, 120 Or App 548, 550, 853 P2d 841 (1993) (“Specific acts of vio-
lence are not required to establish that appellant is dangerous, as long as there
is ample evidence to form a foundation for predicting future violent behavior.”
(Internal quotation marks omitted.)); see also M. A., 276 Or App at 629 (“Past
acts, including verbal acts, can justify a finding of dangerousness, so long as the
acts clearly form a foundation for predicting future dangerousness.” (Internal
quotation marks omitted.)). However, there was no evidence of threats of physical
violence in this case, so we limit our discussion accordingly.
102 State v. J. G.
about hurting others.” Id. On that record, we found that the
evidence formed a sufficient basis on which to predict future
dangerousness. Id.This case is significantly different. Appellant com-
mitted one act of violence while in the hospital—a single
punch to someone’s back. She did not use a weapon. It is
unknown how much force she used. It is unknown whether
the punch caused any pain or injury to the recipient, who
was a “pretty big guy.” And there is no evidence that appel-
lant has ever engaged in any other act of violence or ever
threatened anyone with physical violence. It is important
to recall that, in the context of involuntary civil commit-
ment, “dangerous” refers to “a narrow range of serious and
highly probable threats of harm,” S. R. J., 281 Or App at
749, and “actual future violence” must be “highly likely,”
L. D., 247 Or App at 400. Finally, although appellant’s bipo-
lar disorder has psychotic features, there is no evidence that
she harbors thoughts about hurting people, has ever been
urged by voices to hurt someone, or has resorted to violence
in the past when suffering from psychosis or experiencing
paranoia.
The state further argues that the fact that the
“punching” incident occurred only four days before the
hearing makes it particularly potent evidence of appellant’s
dangerousness to others. We disagree, at least in these cir-
cumstances. It is certainly true that the court must assess
a person’s dangerousness at the time of the hearing, M. R.,
225 Or App at 574, so more recent evidence may be more
compelling than older evidence. And any evidence related to
a person’s present hospitalization will necessarily be recent,
given the short timeline to hold a commitment hearing.
However, appellant was not brought to the hospital due to
any violence toward others, and a single violent act may be
an isolated incident even if it occurs in the hospital.
Ultimately, we conclude that the single incident of
appellant punching another patient once in the back while
in the hospital, without more, was not enough for the trial
court to predict a high likelihood of actual future violence by
appellant if released, particularly “the type of danger nec-
essary to justify an involuntary civil commitment,” which
Cite as 302 Or App 97 (2020) 103
“is a narrow range of serious and highly probable threats
of harm.” S. R. J., 281 Or App at 749. On this record, we
reverse.
Reversed.