203
Submitted May 3, 2019, reversed October 14, 2020
In the Matter of A. C.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
A. C.,
Appellant.
Lane County Circuit Court
18CC03231; A168312
475 P3d 919
Appellant appeals a judgment committing him to the Mental Health Division
for a period not to exceed 180 days, based on a finding that appellant suffers
from a mental disorder and is a danger to himself and others. ORS 426.130; ORS
426.005(1)(f)(A). He contends that the evidence is insufficient to support the trial
court’s finding, based on the opinion of the hospital’s psychiatrist, that appellant
is a danger to himself or others because he will not take anti-psychotic medication if he is not committed. Held: The hearing record does not contain sufficient
evidence from which it could be found that appellant was a danger to himself or
others at the time of the hearing or that he would become a danger to himself or
others if he did not take medication, and the trial court’s finding that he was a
danger to himself or others was purely speculative.
Reversed.
Maurice K. Merten, Judge.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Keith L. Kutler, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
ARMSTRONG, P. J.
Reversed.
204 State v. A. C.
ARMSTRONG, P. J.
Appellant appeals a judgment committing him to
the Mental Health Division for a period not to exceed 180
days, based on a finding that appellant suffers from a mental disorder and is a danger to himself and others. ORS
426.130; ORS 426.005(1)(f)(A). We conclude that the evidence does not support the trial court’s finding that appellant is a danger to himself or others. We therefore reverse.
In this case, because we do not exercise our discretion to review the record de novo, we view the evidence and
permissible derivative inferences in the light most favorable
to the trial court’s disposition and assess whether the record
was legally sufficient to permit the trial court’s determination. State v. T. Y., 285 Or App 21, 22,
396 P3d 986 (2017).
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).
Appellant is 30 years old and has a history of autism
spectrum disorder. He has lived with his father since he
was an infant. Appellant’s father testified at the hearing
that the episode giving rise to the commitment arose on
July 10, 2018, when appellant experienced disappointment
and stress when a family trip had to be cancelled, leading
him to react by pacing and ranting with speech that was
loud and angry. The father testified that, although the pacing and ranting were common behaviors for appellant, he
had never seen appellant so agitated. Appellant did not
become violent to his father but picked up a potato from a
dumpster and threw it at a tree. The father testified that he
became concerned that appellant was disturbing the neighbors in their apartment complex and that he would unintentionally hurt himself. He called “CAHOOTS,” a mental
health crisis intervention program. A CAHOOTS van came
and took appellant to the hospital emergency department.
Appellant’s father testified that appellant is not dangerous
to him and that he would be comfortable taking him home.
He testified that he had already scheduled a meeting with
outpatient services and that he is willing to do whatever is
necessary for appellant.
Cite as 307 Or App 203 (2020) 205
Dr. Strek, the hospital’s staff psychiatrist, did not
treat appellant but saw him once, on July 22, the day before
the hearing, and reviewed records from the hospital’s emergency department. He testified that appellant’s diagnosis
at admission was “atypical psychosis.” He testified from
the records that, when appellant arrived at the hospital
emergency department, he was agitated and experiencing psychotic symptoms and asking for a “lethal injection.”
Appellant declined to take oral medications, and hospital
staff administered injections of an anti-psychotic drug to
calm appellant so that he did not harm himself or hospital
staff. Strek testified that, over a period of several days in the
emergency department, appellant had been kicking a bench
and banging his head against a wall, but that appellant
improved rapidly with medication. Strek described appellant’s behavior as a psychotically driven exacerbation of
behaviors that people with autism may have when they are
overwhelmed. He testified that appellant is not currently a
danger to others and was not currently displaying the symptoms that caused him to be a danger to himself when he came
into the emergency department. Strek testified that he asked
appellant if he would be willing to stay at the hospital a bit
longer to transition to oral medications, but that appellant
declined and said he wanted to go home. When asked by the
court, Strek offered the opinion that, because of appellant’s
request for a lethal injection and his unwillingness to take
oral medication, appellant is a danger to himself.1
Appellant testified that he is no longer a danger to
himself and that he just needs a little help. He testified that
he is willing to engage in outpatient therapy.
The trial court stated that it did not believe that
the appellant would cooperate with and benefit from a program of voluntary outpatient treatment. The court committed appellant based on the determination that appellant
was a danger to himself or others. The court also found that
1
Strek testified:
“I do think he is a danger to himself. At least when he came in, he was
requesting a lethal injection to die because he had these psychotic symptoms
of having this conflict in his head between god and Lucifer or the devil. He
was screaming outside of his apartment complex.”
206 State v. A. C.
appellant was able to provide for his basic personal needs
but was not receiving such care as necessary for his health
or safety without intervention.
Appellant appeals, contending that the evidence is
insufficient to support the trial court’s finding that he is a
danger to himself or to others. The state concedes that the
evidence is not legally sufficient to support the trial court’s
determination that appellant was a danger to others but
urges affirmance, contending that there is sufficient evidence
that appellant was a danger to himself from head banging
on the day he was admitted and that, although appellant
had improved at the hospital with injected anti-psychotic
medications and was not dangerous on the day of the hearing, he is still a danger to himself because of his unwillingness to take medications in pill form if released from
commitment.
A person may be involuntarily committed if there is
clear and convincing evidence that the person has a mental
illness. ORS 426.130(1)(a). A person has a mental illness if,
because of a mental disorder, the person is “dangerous to
self” or others, ORS 426.005(1)(f)(A), is unable to provide
for basic personal needs, ORS 426.005(1)(f)(B), or meets the
criteria for mental illness set forth in ORS 426.005(1)(f)(C).
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 physical
harm to [self] in the near term.” State v. B. B., 240 Or App
75, 82,
245 P3d 697 (2010) (quoting State v. Olsen,
208 Or
App 686, 691,
145 P3d 350 (2006)). The threatened harm
must be more than speculative and must, at minimum,
involve “actual physical harm” that is “serious.” T. Y.,
285 Or
App at 25.
Whether evidence is sufficient for commitment
is a question of law that must be decided on the facts contained in the record. See State v. A. D. S., 258 Or App 44,
45,
308 P3d 365 (2013); State v. King,
177 Or App 373, 378,
34 P3d 739 (2001). Without a basis of fact in the record, an
examiner’s conclusion is not enough to support commitment. See State v. M. B.,
300 Or App 522, 529,
452 P3d 1006
(2019).
Cite as
307 Or App 203 (2020) 207
We accept the state’s concession that appellant is not
a danger to himself. And we further conclude that the record
does not contain legally sufficient evidence to support Strek’s
opinion and the trial court’s finding that appellant was a
danger to himself. Strek’s opinion depended on his assumption that, because appellant’s behavior improved when he
received anti-psychotic medication, appellant needed that
medication in order to prevent him from having another
atypical psychotic episode. But the record does not contain
evidence from which it could be found that appellant’s psychotic episode, apparently brought on by an incident causing
stress and disappointment, was likely to recur without medication. Strek’s opinion also depended on the assumption
that, without the medication, appellant would cause himself
harm. But the record does not contain evidence from which
it could be found that appellant harmed himself during the
behavior that led his father to call CAHOOTS or during his
head banging in the emergency department, or that he was
a danger to himself at the time of the hearing. The trial
court’s finding that he would become a danger to himself if
he did not take medication is not supported by legally sufficient evidence in the record and was purely speculative. See
State v. M. J. F., 306 Or App 544, 548,
473 P3d 1141 (2020)
(explaining distinction between the “clear and convincing”
standard of proof applied by a trial court in determining
persuasiveness and the appellate court’s evaluation of the
record for legal sufficiency of evidence). Accordingly, the
trial court erred in committing appellant.
Reversed.
