State v. S. S. ( 2021 )

131
Submitted September 1, 2020, affirmed February 3, 2021
In the Matter of S. S.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
S. S.,
Appellant.
Multnomah County Circuit Court
19CC04441; A172146
480 P3d 321
Appellant seeks reversal of an order involuntarily committing him to the
Oregon Health Authority for up to 180 days, arguing that the record was legally
insufficient for a rational factfinder to conclude that he suffers from a mental
disorder such that he is a danger to himself. The state responds that the record
contained evidence that appellant’s impulsive and aggressive behavior nearly
provoked others to use violence against him on multiple occasions in the recent
past. Held: The record was sufficient to support the trial court’s determination
that appellant is dangerous to himself. The record contains evidence that appel-
lant has consistently, persistently, and repeatedly put himself in harm’s way,
including one incident where he aggressively brandished a metal baseball bat
at police officers, prompting one officer to draw his gun, and another where he
nearly provoked a fistfight with his neighbor.
Affirmed.
Monica M. Herranz, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
132 State v. S. S.
KAMINS, J.
Appellant seeks reversal of an order involuntarily
committing him to the Oregon Health Authority for up to
180 days. Because the record was legally sufficient to allow
a rational factfinder to conclude that he suffered from a
mental disorder that makes him dangerous to himself, we
affirm.
Absent de novo review, “we view the evidence, as
supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial court’s dis-
position and assess whether, when so viewed, the record was
legally sufficient to permit that outcome.” State v. M. J. F.,
306 Or App 544, 545, 473 P3d 1141 (2020) (internal quo-
tation marks omitted). Accepting those inferences in favor
of the trial court’s decision, we must determine “whether
a rational factfinder could have found that it was highly
probable” that appellant was a danger to himself or others
because of a mental disorder. Id. at 549 (internal quotation
marks omitted; emphasis added). “[W]hether the evidence
is sufficient to support a determination that appellant is a
danger to [self] is a question we review as a matter of law.”
State v. T. Y., 285 Or App 21, 24, 396 P3d 986 (2017). We
state the facts in light of that standard of review.
Appellant suffers from bipolar disorder marked by
paranoia, impulsivity, and aggression. One of the manifes-
tations of this disorder is that appellant frequently, repeat-
edly, and belligerently threatens those around him. When
appellant acts this way, he presents as “out of control” and
he appears to be “very meaningful” in the threats that he
makes. A few examples of the many instances of this behav-
ior in the record include racist slurs, sexist insults includ-
ing threats to rape women and children, and specific and
credible death threats against a behavioral health clinician
and a judge with whom he attended Alcoholics Anonymous.
When police came to his house following the death threats,
appellant ran into his home and then emerged wielding a
baseball bat, threatening to blow up his house by cutting
the gas line. One of the officers drew his gun, but the other
officer, who was familiar with appellant and his mental dis-
order, was able to defuse the situation. It took police several
Cite as 309 Or App 131 (2021) 133
days to take appellant into custody because of his aggres-
siveness and a fear that they could not do so without causing
him injury. When police finally took him into custody, appel-
lant broke his foot in the subsequent altercation, requiring
surgery.
In the same time frame, appellant engaged in sev-
eral other physical encounters. He threatened a mental
health clinician repeatedly, eventually lunging at her and
cutting himself on the fence that separated them. Appellant
also repeatedly threatened to kill his neighbor and rape
his neighbor’s wife and the neighborhood children. On one
occasion, he made as if he was going to punch his neighbor,
which caused the neighbor to put his own fists up in prepara-
tion for a fight. Appellant then left, but he returned shortly
thereafter to spit coffee on the neighbor’s car, window, and
screen door. While in the hospital, appellant’s behavior con-
tinued in this manner, including multiple instances of using
racist, sexist, and homophobic epithets to hospital staff and
in voicemails he left for his neighbor, the police, and other
individuals in the community. He required seclusion and
several summons to hospital security, including the night
before the hearing.
Recognizing that appellant was unable to control
this behavior and “almost got shot” when officers visited his
home, the trial court determined that appellant is likely “to
put [himself] in harm’s way” and is therefore a danger to
self. Appellant acknowledges that he suffers from bipolar
disorder but he contends—and the state disputes—that the
evidence was insufficient to demonstrate that he poses a
danger to himself.
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). A “person with men-
tal 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). For purposes of ORS 426.005(1)(f)(A),
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 physical harm to [self] in the near term.” State
v. B. B., 240 Or App 75, 82, 245 P3d 697 (2010) (internal
134 State v. S. S.
quotation marks omitted). The threat of “potential harm
must be more than speculative.” T. Y., 285 Or App at 25(internal quotation marks omitted).
We have previously observed that cases involving
concerns that an appellant will put himself in “harm’s way”
highlight the application of these principles. Id. (quoting
B. B., 240 Or App at 83). That is so because “delusional or
eccentric behavior, even if inherently risky, is not necessar-
ily sufficient to warrant commitment.” Id. at 26. And, an
isolated incident—even one that risks serious harm—is
insufficient to demonstrate dangerousness without indica-
tion that it is likely to recur. See State v. T. W., 291 Or App
679, 687 n 4, 422 P3d 305 (2018) (although “serious” and car-
rying “a significant risk of harm,” a single encounter with
police that resulted in police using force against appellant
15 years prior is insufficient to demonstrate that appellant
“presented a risk to himself or others at the time of the
hearing”). In contrast, “a concrete risk of specific harm” is
sufficient to demonstrate the risk of future violence. State v.
S. R. J., 281 Or App 741, 751, 386 P3d 99 (2016). From
these cases, two criteria can be derived to evaluate whether
an appellant’s behavior that may put him in harm’s way
amounts to a danger to self: (1) the behavior must have
caused or risked serious harm and (2) must be likely to
recur.
A rational factfinder could conclude those criteria
are met on this record. Appellant consistently, persistently,
and repeatedly put himself in harm’s way in a manner that
created a nonspeculative risk of serious injury. The record
contains numerous instances where appellant engaged in
threatening and violent behavior, leading to several inju-
ries and narrowly avoiding more. When police visited appel-
lant’s home, appellant aggressively brandished a metal
baseball bat, causing an officer to draw his weapon. Police
were unable to take appellant into custody, despite multi-
ple attempts, because of a concern that his aggression and
impulsive behavior would lead to his injury. The day police
finally took him into custody, those concerns were real-
ized when appellant broke his foot fleeing. Appellant also
cut his arm when lunging at a mental health clinician and
provoked a neighbor into making a fist in preparation for a
Cite as 309 Or App 131 (2021) 135
fight. Even after he was hospitalized, appellant has contin-
ued to make numerous threatening phone calls to his neigh-
bor and police and has required security and seclusion in
the hospital setting.
This behavior has already resulted in serious phys-
ical harm—a broken foot—and has narrowly averted more
serious harm—getting shot. There is also sufficient evidence
to conclude that this behavior will recur, given the volume
and consistency of appellant’s belligerence and threats both
before and after his hospitalization. Because of the per-
sistence and consistency of appellant’s actions, a rational
factfinder could conclude that his behavior creates a risk of
serious physical harm and that the risk is likely to recur.
Affirmed.