State v. M. J. F. ( 2020 )

544
Argued and submitted March 11, affirmed September 16, 2020
In the Matter of M. J. F.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. J. F.,
Appellant.
Yamhill County Circuit Court
19CC02302; A171146
473 P3d 1141
Appellant in this civil commitment case appeals an order committing him
to the Oregon Health Authority for a period not to exceed 180 days. On appeal,
appellant asserts that the trial court erred in determining that he was a danger
to himself because there was insufficient evidence in the record that appellant
was likely to harm himself. Held: The record was sufficient to permit a rational
trier of fact to conclude that it was highly probable that appellant presented a
danger to himself.
Affirmed.
Jennifer K. Chapman, Judge.
Alexander C. Cambier argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
Cite as 306 Or App 544 (2020) 545
KAMINS, J.
Appellant seeks reversal of an order involuntarily
committing him to the Oregon Health Authority for up to
180 days, arguing that the evidence was insufficient to prove
that he suffered from a mental disorder that makes him
dangerous to himself or others. See ORS 426.130(1)(a)(C), (2).
Because the record was legally sufficient to support the trial
court’s conclusion, we affirm.
Unless we exercise our discretion to review an order
of civil commitment de novo (which we do not here), “we
view the evidence, as supplemented and buttressed by per-
missible derivative inferences, in the light most favorable
to the trial court’s disposition and assess whether, when so
viewed, the record was legally sufficient to permit that out-
come.” State v. T. Y., 285 Or App 21, 22, 396 P3d 986 (2017)
(quoting State v. M. A., 276 Or App 624, 625, 371 P3d 495
(2016) (internal quotation marks omitted)). Additionally,
we are “bound by the trial court’s findings of historical fact
that are supported by any evidence in the record[.]” State v.
M. J. M., 301 Or App 638, 639, 456 P3d 363 (2020) (quoting
State v. R. E., 248 Or App 481, 483, 273 P3d 341 (2012)). We
state the facts in light of that standard of review.
On April 9, 2019, appellant called emergency ser-
vices and asked to be transported to the hospital. He
reported to emergency department staff that he was very
depressed and that he wanted to kill his roommate by using
one of the guns he owned. He further reported that he had
been contemplating killing himself for the past seven weeks
and that those thoughts occurred to him multiple times each
day, lasting for between one and four hours each time that
they occurred. He explained that voices in his head were
telling him to kill himself and that God was telling him that
his life was over and he needed to die so that he could “come
home.” Appellant also reported that he had attempted sui-
cide by drug overdose one to two weeks before that hospital
visit and that he had recently gone to a bridge and wanted
to jump off. His plan at the time of his admission was to
take his own life by jumping off a bridge or using one of his
guns. Medical records confirmed that appellant had been
hospitalized twice in the two months prior to this hospital
546 State v. M. J. F.
visit for suicidal ideations, including an attempt to take his
own life by overdosing on pills two weeks earlier.
Appellant spent the next few weeks in the hospi-
tal and frequently reported both suicidal and homicidal
ideations. On April 21, he demanded his release from the
hospital, but his providers were concerned about his safety,
and civil commitment proceedings were commenced. After
holding a hearing, the trial court determined that appellant
posed a danger to both himself and others and ordered him
committed to the authority of the Oregon Health Authority
for 180 days.1
Under Oregon law, a person may be involuntarily
committed if the person is determined to be “a person with
mental illness.” ORS 426.130(1)(a)(C). As relevant here, a
“person with mental illness” is someone who suffers from
a “mental disorder” and, as a result of that disorder, is
“[d]angerous to self * * *.” ORS 426.005(1)(f)(A). Before the
trial court, appellant did not dispute that he suffers from a
mental disorder, but he maintained that he is not dangerous
to himself. Appellant makes the same argument on appeal.
“[W]hether the evidence is sufficient to support a
determination that appellant is a danger to [self] is a ques-
tion we review as a matter of law.” T. Y., 285 Or App at 24.
For purposes of ORS 426.005(1)(f), a person is dangerous
to self “if the person’s mental disorder would cause him or
her to engage in behavior that is likely to result in physi-
cal harm to [self] in the near term.” State v. B. B., 240 Or
App 75, 82, 245 P3d 697 (2010) (internal quotation marks
omitted). That determination requires evidence that the
person’s mental disorder “has resulted in harm or created
situations likely to result in harm in the near future.” Id.(Internal quotation marks omitted.) The threat of “potential
harm must be more than speculative.” T. Y., 285 Or App at
25 (internal quotation marks omitted).
The record here is legally sufficient to support
the trial court’s decision that, at the time of the hearing,
1
Because we agree with the trial court’s conclusion that appellant posed a
danger to himself, we do not address whether appellant also posed a danger to
others.
Cite as 306 Or App 544 (2020) 547
appellant posed a danger to himself. During his hospital-
ization, appellant frequently discussed suicidal ideations.
According to appellant’s medical records, he reported that
he wanted to take his own life on four of the seven days lead-
ing up to the civil commitment hearing. He had a specific
plan that he communicated to hospital staff—that he would
use a gun or jump off a bridge. The day before he signed the
form requesting his release, he reported that he was think-
ing about suicide “all the time” and that “he intended to act
on these thoughts after he left the hospital.” At the hear-
ing, when appellant was asked if he continued to have such
thoughts, he responded that he was “not sure.”
The record also indicates that appellant took two
specific actions that put his life at risk. First, appellant
reported to emergency room personnel that he had recently
visited a bridge and considered jumping. Second, two weeks
prior to his visit to the emergency room, appellant was hos-
pitalized for attempting suicide by drug overdose.
Although our case law cautions against “fact-matching”
when evaluating whether an appellant is a danger to
self, see, e.g., State v. J. G., 302 Or App 97, 101, 458 P3d
721 (2020), one principle can readily be drawn: A present
threat to commit suicide, coupled with a recent attempt to
enact that threat through overt action, can be sufficient to
demonstrate that the person’s mental disorder has resulted
in “harm” sufficient to constitute a danger to self. State v.
S. R. J., 281 Or App 741, 751, 386 P3d 99 (2016) (recognizing
that “we have often required evidence that the delusional
behavior either led to past harm or to narrowly averted past
harm”). Indeed, our cases frequently identify a shortfall in
the state’s evidence of dangerousness when a person who
expresses suicidal thoughts has not recently attempted sui-
cide. See, e.g., State v. N. A. P., 216 Or App 432, 439-40, 173
P3d 1251 (2007) (applying de novo review, we recognized that
“a statement that one wants to die or wants staff to kill one,
especially with no history of suicide attempts, is not tanta-
mount to an assertion that one intends to inflict self-harm
in the near future”); State v. M. S., 180 Or App 255, 258, 42
P3d 374 (2002) (applying de novo review, reversing a judg-
ment of commitment where the appellant had stated that
she wanted to die but had not “attempted suicide lately”).
548 State v. M. J. F.
By contrast, in this case, appellant expressed sui-
cidal ideations multiple times in the days leading up to the
hearing, did not disavow those desires during the hearing,
had taken a specific act of visiting a bridge to carry out those
ideations immediately prior to his hospitalization, and had
overdosed in a suicide attempt a few weeks prior to the cur-
rent hospitalization.
Citing cases in which we employed de novo review,
appellant argues that there is not clear and convincing
evidence—that is, evidence of “extraordinary persuasive-
ness”—that appellant is likely to cause himself harm, and
we should therefore reverse the trial court’s decision. See
N. A. P., 216 Or App at 437 (“The clear and convincing evi-
dence standard of proof requires evidence that is of extraor-
dinary persuasiveness, so that the fact at issue is highly
probable.” (Quoting State v. Allen, 209 Or App 647, 652,
149 P3d 289 (2006) (internal quotation marks omitted).)).
However, appellant’s argument seeks a misapplication of
the clear and convincing standard.
Although it uses the word “evidence,” the clear and
convincing evidence standard is not a description of the
credibility or believability of the evidence; it is a standard of
proof. Indeed, it is the “intermediate” of the three standards
of proof—preponderance, clear and convincing, and beyond
a reasonable doubt. Riley Hill Gen. Contractor, Inc. v. Tandy
Corp., 303 Or 390, 402, 737 P2d 595 (1987); see also Cook v.
Michael, 214 Or 513, 527, 330 P2d 1026 (1958) (recognizing
that each standard represents a “different degree of proof”).
These standards can be represented as “degrees on a grad-
uated scale, with ‘preponderance’ at the lowest end of the
scale, ‘reasonable doubt’ at the highest end, and ‘clear and
convincing’ in the middle.” Cook, 214 Or at 527. The prepon-
derance standard requires that the factfinder “believe that
the facts asserted are more probably true than false; * * *
and proof ‘beyond a reasonable doubt’ means that the facts
asserted are almost certainly true.” “Clear and convincing”
falls in the middle and requires that “the truth of the facts
asserted is highly probable.” Id. Accordingly, in this case,
the trial court was tasked with applying that intermediate
standard of proof to determine whether the evidence demon-
strated that it is highly probable that appellant presents a
danger to himself.
Cite as 306 Or App 544 (2020) 549
Our role, however, is different. As the reviewing
court, we look at the evidence as a whole, in the light most
favorable to the trial court’s decision, to determine whether
a rational factfinder could reach that decision. T. Y., 285 Or
App at 22. As with “our review [of] rulings on motions for
directed verdicts or motions for judgment of acquittal, our
function is limited to determining whether the evidence was
sufficient to permit the challenged determination.” Dept. of
Human Services v. N. P., 257 Or App 633, 640, 307 P3d 444
(2013); see also State v. King, 307 Or 332, 339, 768 P2d 391(1989) (recognizing that, in evaluating the sufficiency of the
evidence in a criminal case, “[o]ur decision is not whether
we believe defendant is guilty beyond a reasonable doubt,
but whether the evidence is sufficient for a jury so to find”).
Thus, the question for us as the reviewing court is whether
a rational factfinder “could have found” that it was highly
probable that appellant presented a danger to himself. State
v. J. D. S., 242 Or App 445, 448, 263 P3d 1017 (2011).
Appellant contends that there is not “extraor-
dinarily persuasive” evidence to prove that he presents a
danger to himself, arguing, for example, that his state-
ments that he has access to firearms lack “corroboration.”
Accepting this argument would require us to evaluate each
piece of evidence to determine its persuasiveness. That eval-
uation is exclusively the province of the initial factfinder or
an appellate court reviewing the evidence de novo. N. P., 257
Or App at 640 (“Our non-de novo appellate review function
does not allow us to substitute our assessment of the persua-
siveness of the evidence for the [initial factfinder’s] * * *.”);
see also J. D. S., 242 Or App at 447-48 (“[W]e do not reweigh
the evidence to determine anew whether there is clear and
convincing evidence that appellant is a danger to himself or
others.”).
To be sure, some of our cases mention the “extraor-
dinary persuasiveness” of the evidence. See, e.g., State v.
E. D., 264 Or App 71, 73, 331 P3d 1032 (2014) (“The clear
and convincing evidence standard is a rigorous one, requir-
ing evidence that is of extraordinary persuasiveness, and
which makes the fact in issue highly probable.” (Quoting
State v. M. R., 225 Or App 569, 574, 202 P3d 221 (2009).)).
However, these references to the “persuasiveness” of the
550 State v. M. J. F.
evidence do not imply that we are weighing the evidence
anew, but rather recognize that the clear and convincing
standard explicates the burden of persuasion. That recog-
nition does not alter our standard of appellate review. See
id. at 72 (confirming that “we view the evidence, as supple-
mented and buttressed by permissible derivative inferences,
in the light most favorable to the trial court’s disposition and
assess whether, when so viewed, the record was legally suf-
ficient to permit that outcome” (quoting N. P., 257 Or App at
639)). And, as we have repeatedly recognized, that standard
of review does not allow us to substitute our assessment of
the persuasiveness of the evidence for that of the trial court.
Resolving all inferences in favor of the trial court’s
disposition, this record is undoubtedly sufficient to permit
a rational trier of fact to conclude that it is highly probable
that appellant presents a danger to himself for purposes of
ORS 426.130.
Affirmed.