State v. D. F. U. , 314 Or. App. 409 ( 2021 )

409
Submitted December 12, 2019, affirmed September 9, 2021
In the Matter of D. F. U.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
D. F. U.,
Appellant.
Multnomah County Circuit Court
121172534; A169497
498 P3d 332
In this civil commitment case, appellant challenges the trial court’s recom-
mitment order, arguing that the record lacks clear and convincing evidence that
appellant was “still a person with mental illness” as required by ORS 426.307(6)
and ORS 426.130(1). Held: Appellant did not make a closing argument or other-
wise alert the state or the trial court that there was a challenge to the legal
sufficiency of the evidence and provide an opportunity to respond. Accordingly,
appellant failed to preserve the argument advanced on appeal.
Affirmed.
Julia A. Philbrook, Judge.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge,
and Landau, Senior Judge.
POWERS, J.
Affirmed.
410 State v. D. F. U.
POWERS, J.
In this civil commitment case, appellant challenges
the trial court’s recommitment order, arguing that the
record lacks clear and convincing evidence that appellant
was “still a person with mental illness” as required by ORS
426.307(6) and ORS 426.130(1). We conclude that appellant
failed to preserve the argument advanced on appeal and
therefore we affirm the trial court’s judgment.
The relevant facts are undisputed and mainly pro-
cedural. Appellant, who has been diagnosed with schizo-
phrenia with catatonic features, has lived in a secure res-
idential facility almost continuously since 2005. Appellant
has eloped from the facility on different occasions and the
“typical pattern” is that appellant would end up in an emer-
gency room two or three days later. The treating psychiatrist
testified that appellant has stopped taking the prescribed
antipsychotic medication at times in the last six months,
which causes appellant to rapidly decompensate and that,
if released, appellant would not take medication or engage
in voluntary treatment in the community. Appellant did not
articulate a coherent plan for shelter, food, or safety, and
both the treating psychiatrist and appellant’s case manager
expressed concern that appellant’s disorganization and dif-
ficulty communicating would interfere with appellant’s abil-
ity to obtain food and shelter if released.
On appeal, appellant argues that the record lacks
clear and convincing evidence that, due to a mental disor-
der, appellant was a danger to self or that the requirements
for a basic-needs commitment were met. In the preservation
section of the opening brief, however, appellant acknowl-
edges that appellant’s attorney declined to give a closing
argument. Instead of identifying a place in the record where
there was a challenge to the sufficiency of the evidence,
appellant relies on appellant’s own testimony during the
commitment hearing to preserve the arguments made on
appeal. See State v. A. S., 211 Or App 100, 101, 153 P3d 151
(2007) (concluding that, on de novo review, the appellant’s
repeated statements that he did not want to go to the hos-
pital and that hospitalization “won’t do me any good” and
“there’s no reason to put me in a hospital” were sufficient
Cite as 314 Or App 409 (2021) 411
to preserve the claim of error). Specifically, when asked if
appellant would like to stay in the hospital for another few
months to live safely, appellant responded, “No”; and, when
asked if appellant was capable of processing the multiple
steps required for meeting basic needs, appellant replied,
“Yes, I can.” The state remonstrates that, because there is a
difference between a factual dispute and a dispute about the
legal sufficiency of the evidence, appellant failed to preserve
the arguments made on appeal and that, in any event, there
was sufficient evidence supporting recommitment.
An issue not preserved in the trial court generally
will not be considered on appeal. State v. Wyatt, 331 Or 335,
341, 15 P3d 22 (2000). To preserve a challenge to the legal
sufficiency of the evidence, an appellant must raise the issue
before the trial court with enough specificity to allow the
court to consider the issue and rule on it. See, e.g., State v.
Barboe, 253 Or App 367, 373-74, 290 P3d 833 (2012), rev den,
353 Or 714 (2013) (concluding that the defendant failed to
preserve a sufficiency argument when his closing argument
focused on a different issue).
Here, appellant did not make a closing argument
or otherwise alert the state or the trial court that there was
a challenge to the legal sufficiency of the evidence and pro-
vide an opportunity to respond. See State v. Walker, 350 Or
540, 552, 258 P3d 1228 (2011) (“The appropriate focus * * * is
[on] whether a party has given opponents and the trial court
enough information to be able to understand the contention
and to fairly respond to it.”); Peeples v. Lampert, 345 Or 209,
220, 191 P3d 637 (2008) (explaining that the touchstone of
the preservation requirement is procedural fairness to the
parties and the trial court).
Further, appellant’s reliance on A. S. is unavailing.
We reviewed the record de novo in that case. See A. S., 211
Or App at 101. Here, appellant has not requested that we
exercise our discretion to review the proceedings de novo
and has challenged only the legal sufficiency of the evi-
dence. See ORAP 5.40(8)(c) (explaining that we will exercise
our discretion to review de novo “only in exceptional cases”).
As the state’s argument contends, there is an important
difference between a dispute about the facts and a dispute
412 State v. D. F. U.
about the legal sufficiency of the evidence. See, e.g., State v.
Lovins, 177 Or App 534, 537, 33 P3d 1060 (2001) (observ-
ing the distinction between a legal argument—e.g., whether
there is evidence that would permit a trier of fact to find
a defendant guilty—and a factual argument—e.g., whether
the trier of fact should, in fact, be convinced of a defendant’s
guilt beyond a reasonable doubt). Thus, although appel-
lant’s testimony may have preserved a factual argument
that the trial court should not have recommitted appellant,
that same testimony did not raise—and therefore did not
preserve—a challenge to the legal sufficiency of the evidence.
Affirmed.