State v. M. D. M.

                                394

              Submitted April 26, affirmed June 15, 2022


                In the Matter of M. D. M.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                        M. D. M.,
                        Appellant.
               Linn County Circuit Court
                  21CC04003; A176560
                             

  Brendan J. Kane, Judge.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2022)                             395

        PER CURIAM
          Appellant appeals a judgment of involuntary civil
commitment. The trial court determined that, because of
a mental disorder, appellant was unable to provide for her
basic needs as defined in ORS 426.005(1)(f)(B) and otherwise met the requirements for civil commitment of a mentally ill person under ORS 426.130. Appellant does not dispute that she has a mental disorder, but she contends on
appeal that the evidence was legally insufficient to prove
that her mental disorder put her at nonspeculative risk
of serious physical harm in the near future. See State v.
M. A. E., 

, 240, 

 (2019) (stating standard for a “basic needs” commitment). In response,
the state argues that appellant did not preserve her claim
of error and that, in any event, the evidence was legally
sufficient.
        The preservation issue proves dispositive.
          Appellant argues that her claim of error is adequately preserved because the entire point of the commitment hearing was to determine whether she had a mental
disorder that caused her to be unable to provide for her basic
needs—in particular, that caused her to avoid eating and
drinking—and, in that context, appellant testified, “I’ve
been eating and taking the meds.” In essence, appellant
argues that, by implicitly contesting the need for commitment during her testimony, she preserved a challenge to the
legal sufficiency of the evidence. Appellant relies on State
v. A. S., 

, 

 (2007), in which
we disagreed with the state’s contention that the appellant
had not challenged the legal sufficiency of the evidence and
had effectively “stipulated” to his commitment, where he
repeatedly stated at the commitment hearing “that he did
not want to go to the hospital” and also testified that hospitalization would not do him any good and that there was no
reason to hospitalize him.
         The state argues that A. S. is distinguishable because
it involved mandatory de novo review, which lends itself to
a more generous view of preservation as to legal insufficiency arguments. That standard of review no longer applies
396                                                     State v. M. D. M.

here,1 and, under the current standard, we have expressly
stated that the “well-settled principle” that an issue generally must be raised in the trial court to be considered on
appeal “applies equally to civil commitment cases.” State v.
K. J. B., 

, 

 (2016), aff’d,

, 

 (2018); see also State v. Wyatt, 

, 

 (2000) (“Generally, an issue not preserved in the trial court will not be considered on appeal.”).
         We agree with the state that, under K. J. B. and
normal appellate principles, appellant did not preserve
her claim that the trial court erred as a matter of law by
civilly committing her on this record. Under normal preservation principles, there is a critical difference—at least
for the party who does not bear the burden of proof (here
appellant)—between arguing to the trial court as factfinder
that it should be persuaded to decide the case in a particular
way and arguing to the trial court as legal decisionmaker
that only one outcome is permitted as a matter of law. “A
party that contends that it is entitled to prevail on a claim or
issue as a matter of law must ask the trial court to withdraw
the claim or issue from the fact finder, whether the case is
tried to a jury or to the court.” Bend Tarp & Liner, Inc. v.
Bundy, 

, 

, rev den, 

 (1998); but see Peiffer v. Hoyt, 

, 

 (2005) (limiting the foregoing principle—“[W]e decline
to require a party that bears the burden of persuasion at
a court trial to raise, for preservation purposes, the claim
that it should prevail on the evidence as a matter of law.”)
In a matter tried to the court, that request may be made by
motion or in closing argument. See State v. Forrester, 

, 

 (2005), rev den, 

 (2006);
T. L. A. v. Vierra, 

, 

, rev den,

 (2019). It is the express or implied ruling on that
request that we then review on appeal. See ORAP 5.45(3).
        Here, appellant’s testimony that she had “been eating and taking the meds” may have created a factual dispute regarding the need for commitment, but that testimony

    1
      De novo review is still available in equitable proceedings but is now generally discretionary, ORS 19.415(3)(b), and we exercise that discretion only in
“exceptional cases,” ORAP 5.40(8)(c).
Cite as 

 (2022)                                                397

did not constitute a legal challenge to the sufficiency of the
evidence. The claim of error raised on appeal is therefore
unpreserved, and we reject it on that ground.2
           Affirmed.




    2
      Where an issue was not preserved in the trial court, we have discretion to
consider a claim of “plain” error. ORAP 5.45(1); see State v. Vanornum, 

, 

 (2013) (stating the requirements for an error to be “plain”).
“However, we ordinarily will not proceed to the question of plain error unless an
appellant has explicitly asked us to do so,” as “it is incumbent upon the appellant
to explain to us why an error satisfies the requisites of plain error and, further,
why we should exercise our discretion to correct that error.” State v. Ardizzone,

, 

, rev den, 

 (2015) (internal quotation
marks omitted). Plain-error review has not been requested here.