State v. S. G.

6                              February 20, 2025          No. 115

               IN THE COURT OF APPEALS OF THE
                       STATE OF OREGON

                        In the Matter of S. G.,
               a Person Alleged to have Mental Illness.
                        STATE OF OREGON,
                             Respondent,
                                  v.
                                S. G.,
                              Appellant.
                  Multnomah County Circuit Court
                        22CC07581; A180330

    Erin E. Kirkwood, Judge.
    Argued and submitted January 10, 2024.
  Liza Langford argued the cause and filed the brief for
appellant.
   Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.*
    EGAN, J.
    Affirmed.




______________
    *
        Egan, J., vice Jacquot, J.
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8                                                              State v. S. G.

           EGAN, J.
          In this civil commitment case, appellant seeks reversal of a judgment committing him to the Oregon Health
Authority for a period not to exceed 180 days based on the trial
court’s determination that appellant has a mental disorder
that causes him to be a danger to himself. See ORS 426.130;
ORS 426.005(1)(f)(A). Appellant assigns error to the trial
court’s finding that he was a danger to himself as a result of
his mental disorder. He argues that the evidence was insufficient to show by clear and convincing evidence that his mental
illness caused him to be a danger to himself. Relatedly, he contends that his dangerous behavior resulted from his substance
use disorder, which does not qualify as a mental disorder, so
the state could not prove that his dangerous behavior resulted
from a mental disorder. The state argues that it presented
legally sufficient evidence to support the trial court’s finding
that appellant’s mental disorder caused him to be a danger to
himself.1 For the reasons explained below, we affirm.
                    I. STANDARD OF REVIEW
         Appellant does not request that we review his case
de novo, and this is not an exceptional case that justifies such
review. See ORAP 5.40(8)(C) (providing that the court will
exercise its discretion to review de novo “only in exceptional
cases”). Therefore, “[w]e review whether the state presented
sufficient evidence to support appellant’s civil commitment
for legal error and are bound by the trial court’s factual
findings that are supported by evidence in the record.” State
v. C. M. C., 

, 

 (2019). We state
the facts in accordance with that standard.
                                II.    FACTS
        At the civil commitment hearing, the trial court
heard evidence that appellant has a bipolar disorder;
depression; a schizoaffective disorder that causes him to
hear voices; and a substance use disorder that involves
    1
      The state also argues that appellant failed to preserve his first assignment
of error because he never specifically challenged the sufficiency of the evidence
to support the determination that, because of his mental disorder, he was a danger to himself. However, we conclude that appellant’s closing argument at the
trial court, which cited various sufficiency-of-evidence cases, was sufficient to
preserve this assignment of error.
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consuming dangerously high amounts of coricidin, an overthe-counter cough medicine. Appellant testified that he
takes coricidin as a recreational drug and that it is “what
weed is to the rest of Oregon” because it keeps him “calm,”
“centered,” and “makes [him] feel safe.”
         Appellant’s use of coricidin resulted in overdosing
four times in 2022: once in May, once in November, and
twice in December. On December 3, appellant crossed a
street and began stumbling through traffic because of the
delayed onset effects of consuming coricidin. Video footage
showed cars driving around appellant to avoid hitting him.
A maintenance worker from appellant’s apartment complex
was able to call appellant back to the sidewalk and called
9-1-1, and appellant was admitted to the emergency department to be treated for an overdose. On December 8, appellant called 9-1-1 after ingesting five boxes of coricidin, which
he testified was two and a half times more than his usual
dosage. That overdose precipitated the proceedings in this
case.
         At the hospital, staff described appellant’s thoughts
as “grandiose” and “delusional” because he minimized the
idea that his actions could be dangerous. The precommitment
report shows that appellant told the precommitment investigator that he had only wanted to get high on December 8;
however, the report also states that appellant told an EMS
worker, who helped him on December 8, that he wanted to
sleep and “not wake up.”2 When asked the pre-commitment
investigator asked if he felt invincible, appellant responded,
“Yes, I am the son of God. Even if I die, I can come back to
life.”
         At the hearing, the state presented evidence regarding appellant’s mental health history, substance use disorder, overdoses, hospitalizations, and suicidal ideation and
attempts. Appellant has a history of five known suicidalrelated episodes as of 2022, which included: in 2019, a suicide attempt by hanging himself with a belt; in February
2022, a hospitalization after cutting himself; in April 2022,
    2
      At trial, appellant argued that the statement made to the EMS worker was
hearsay. The trial court overruled appellant’s hearsay objection. Appellant does
not challenge that ruling on appeal.
10                                              State v. S. G.

a hospitalization after being disruptive at his apartment
building, throwing objects out of a window, and standing on
a ledge while threatening to commit suicide; and in March
2022, appellant was admitted into a hospital for mania
and possible psychosis after he swallowed glass. The fifth
episode was the December 8 overdose mentioned above, in
which appellant took two and a half times his usual dose
of coricidin. Appellant also had incidents where he impulsively ate inedible objects. During two incidents where he
ate glass, he would crush glass—the size of a quarter—into
powder with his molars and swallow it. He also testified to
eating concrete twice.
          Appellant testified about hearing voices, and when
asked what role substance use had on his mental health, he
answered, “It numbs me out, because sometimes, too many
voices or too much depression …. Where I get my high, it’ll
level out my mood. I have clarity.” Appellant testified that
he had taken five boxes of coricidin on December 8 because
he wanted to know his “threshold,” which he described as
“the same sort of memory loss, some type of brain damage.”
He also testified that he would not push his threshold again
because he understood “it’s a dangerous place to be at, so
[he’ll] go back to what’s [a] comfortable” dosage. Appellant
also testified that he intended to continue taking coricidin
once released from the hospital, but that he would only take
two boxes at a time going forward.
         Two mental health counselors, a treating hospital
psychiatrist, and a mental health examiner also testified.
Ms. Brown, a community-based mental health counselor
who treated appellant from November 2021 until October
2022, testified that, several weeks prior to appellant’s commitment—before the December 8 overdose—she had not
been concerned for his well-being because he was compliant
with his medication, he started to build a “support network
at his apartment complex,” and he “had a person that he
could communicate with.” She also testified that, although
appellant was adamant to her about not being suicidal, she
questioned that assertion because appellant’s frequent hospital stays appeared to be the result of suicidal behavior.
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          Ms. Gordon, another mental health counselor, who
frequently met with appellant at mindfulness groups and
individually, testified that she was concerned for appellant’s
safety because he had repeated incidents of taking too much
coricidin that caused him to be “out in the cold, unresponsive, or … thrash[ ] around in his hallway, or go[ ] to the 7-11
and tell[ ] the clerks that … he never want[ed] to wake up,”
so she believed appellant “might actually die.” Ms. Gordon
also testified that, although appellant’s counseling records
showed that he was “highly motivated to get medication and
treatment,” she was concerned that appellant’s schizoaffective disorder caused him to hear voices, caused him internal
distress, and led him to engage in dangerous behaviors that
could result in harm.
         The hospital psychiatrist, who met with appellant
twice, testified that he did not think that appellant was an
imminent danger to himself nor others but that his consumption of coricidin placed him at risk of having another
overdose. He testified that consuming five boxes of coricidin
could lead a person to become psychotic or delirious and then
cause a coma or death. He could not say whether appellant’s
consumption of two boxes at a time was “acutely medically
dangerous” because someone who frequently takes the medication will develop a tolerance.
        The mental health examiner testified that appellant
would do whatever was necessary to relieve his psychotic
symptoms, including consuming concrete, glass, or large
amounts of coricidin. The examiner testified that appellant
had a high tolerance for coricidin, and although he did not
intend to overdose, his need to keep pushing the threshold
of how much he could handle made him a danger to self.
         As a result, the trial court found that the state had
met its burden and civilly committed appellant because
appellant’s mental disorders—bipolar and schizoaffective
disorder—have caused appellant to engage in a pattern of
dangerous activities, “lack [ ] insight into the dangerousness
of his choices,” and impulsively act upon his symptoms. The
court found that, even though appellant denied being suicidal, his mental disorders cause him to engage in
12                                                   State v. S. G.

     “behaviors to relieve his pain that place him in harm’s way,
     such as eating glass, eating concrete, and taking immense
     doses of [coricidin], high enough doses that disabled him in
     the middle of traffic most recently; but those medications,
     and the getting high to avoid that pain, could also lead to
     overdose and death.”
The court did not find credible appellant’s testimony that
he would only take coricidin in manageable doses because
the recent overdoses were not isolated incidents, but rather,
part of appellant’s pattern of engaging in dangerous activities in recent years—viz., eating inedible objects, consuming
high amounts of coricidin to the point of overdosing, suicidal
episodes—and appellant “continue[d] to get high to manage
the voices and other symptoms, some of which [were] the
direct result of his mental disorder and some of which may
[have been] driven by [his] trauma.” Thus, the trial court
determined that, based on the evidence, there was a “high
probability that [appellant] [would] continue to engage in
behaviors that place him in harm’s way,” and it ordered that
he be civilly committed.
                         III.   ANALYSIS
A. The trial court did not err in finding appellant was a
   danger to self.
         In appellant’s first assignment of error, he argues
that the trial court erred in committing him based on its
finding that he was a danger to himself due to a mental
disorder because any future prospect of harm was speculative. The trial court may involuntarily commit a person if it
determines by clear and convincing evidence that the individual is a “person with a mental illness.” ORS 426.130(1)(a)
(C). A “person with a mental illness” includes someone who
suffers from a “mental disorder,” and, as a result of that disorder, is a danger to self. ORS 426.005(1)(f)(A). To prove an
individual is a “danger to self,” legally sufficient evidence
must establish that “an individual’s mental disorder …
cause[s] the individual to act in a way very likely to result in
physical harm in the near future.” State v. C. C., 

, 

 (2013) (citing State v. T. R. O., 

, 

 (2006)).
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         “[O]ur cases have uniformly imposed a rigorous
threshold with respect to what the state is required to show
to establish that an individual is ‘[d]angerous to self.’ ” State
v. B. B., 

, 

 (2010). To meet
that threshold, the threat of harm must involve “serious”
and “actual” physical harm in the “near term.” 

 Thus,
the state meets its burden by showing that there is clear
and convincing evidence that appellant’s “mental disorder
has resulted in harm to [him]self … or created situations
likely to result in harm.” State v. K. K. G., 

, 

 (2014) (internal quotation marks and citation omitted). “Indeed, a number of our cases have suggested
that the potential harm must be ‘life-threatening’ or involve
some ‘inherently dangerous’ activity.” B. B., 

-83 (quoting State v. D. J., 

, 153, 

 (2006)).
         “Although a person can be committed as dangerous
to self before [they are] on the brink of death, the prospect
of serious physical harm must be more than merely speculative.” State v. R. E., 

, 

 (2012)
(internal quotation marks and citation omitted)); see State
v. D. R., 

, 

 (2002) (holding
that the appellant was not a danger to self, because wandering the streets while unmedicated had never resulted
in injury; therefore, civil commitment did not “interrupt[ ] a
sequence of events that ha[d], in the past, led to disaster”);
see also State v. D. P., 

, 

(2006) (on de novo review, we reversed a judgment committing an appellant where there was “no evidence by which to
evaluate the seriousness and imminence of th[e] threat [of
self-harm]” beyond her recent admission that she wanted to
harm herself).
         In this case, the record supports the trial court’s
finding that appellant’s mental disorders—bipolar disorder
and schizoaffective disorder—caused him to suffer from
mental pain and symptoms, including hearing voices, that
lead him to engage in “behaviors to relieve his pain that
place him in harm’s way, such as eating glass, eating concrete, and taking immense doses of [coricidin], high enough
doses that disabled him in the middle of traffic[,] … [and]
14                                               State v. S. G.

the getting high to avoid that pain, could also lead to overdose and death.” Although, during the commitment hearing,
appellant denied intending to harm himself by overdosing,
the trial court found that he would continue to behave dangerously, explaining that appellant “continues to get high to
manage the voices and other symptoms, some of which are
the direct result of his mental disorder.” We defer to the trial
court’s findings that are supported by the record. C. M. C.,

.
         Further, there was a future prospect of serious physical harm to appellant that was more than merely “speculative.” There was evidence of suicidal episodes, coricidin use
that had led to repeated overdoses, overdoses that had led
to hospitalizations, and impulsively eating glass and concrete. That evidence permitted the trial court to determine
that appellant had demonstrated a pattern that had led to
serious self-harm; therefore, the trial court had sufficient
evidence to conclude that appellant faced a future prospect
of serious physical harm. Appellant testified that he takes
coricidin to “numb[ ] [himself] out, because sometimes [he
hears] too many voices or [experiences] too much depression[.]” And he testified that when he gets high, it “levels
out” his mood and gives him “clarity.” In other words, as the
court found, appellant’s mental disorder symptoms caused
him to take coricidin, which had resulted in repeated overdoses and hospitalizations. Therefore, the trial court had
sufficient evidence to conclude that civil commitment would
“interrupt[ ] a sequence of events that ha[d], in the past,
led to disaster”—viz., appellant eating glass and concrete;
taking excessive amounts of coricidin; and overdosing and
being hospitalized. D. R., 

.
         The trial court ultimately determined that, based
on appellant’s “lack of insight into the dangerousness of his
choices,” the pattern of his actions, and his impulsivity, there
was a “high probability that [appellant] [would] continue to
engage in behaviors that place him in harm’s way.” Based on
those conclusions, which were supported by the evidence in
the record, the trial court did not err in its civil commitment
determination, because the record contained sufficient evidence to prove appellant’s mental disorders caused him to
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continue to engage in “life-threatening” or “inherently dangerous” activities that created a danger to self. B. B., 

.
B.   The trial court did not err in finding that the state presented sufficient evidence to establish that appellant’s
     mental disorder caused his danger to himself.
         Next, appellant argues that, even if he was a danger to himself due to his coricidin use, the state failed to
prove the required nexus between his mental disorder and
danger to self, because appellant stated that he takes coricidin for recreational use and to get high—rather than to
relieve his mental disorder symptoms. Appellant argues
that his substance use disorder is specifically omitted from
the definition of chronic mental illness under ORS 426.495
and, consequently, the court erred in considering his use of
corcidin in determining that he was a danger to himself.3
As explained below, ORS 426.495 is not directly applicable.
We begin with the question of whether the state proved the
required causal nexus.
          “[I]t is not sufficient for the state merely to prove
that a person has a mental disorder and that the person is
dangerous to [self] …. Rather, the state must prove a causal
nexus between the mental disorder and” dangerousness to
self or others or inability to meet basic needs. State v. M. G.,

, 

 (1997). Conduct that is
solely volitional—“that is, conduct that is engaged in as a
result of a person’s free, knowing, and rational choice—does
not satisfy the requirement of a causal connection between
dangerous behavior and the person’s mental illness.” State
v. R. D. G., 

, 

, rev den, 

 (2003) (internal quotation marks and citation omitted). But if the state establishes that the “allegedly mentally
    3
      The state also argues that appellant did not preserve his second assignment of error because he failed to argue below about the trial court’s discretion,
and the state argues that appellant misstates the standard of review for this
assignment. We conclude that appellant preserved this argument during his closing argument at the commitment hearing when he argued that “chronic mental
illness refers to a mental disorder other than those caused by substance [use
disorder].” However, we agree with the state that this assignment is mis-framed
as having an abuse of discretion standard of review because there was no discretionary issue in this case. We apply the same standard of review as the first
assignment of error.
16                                                State v. S. G.

ill person’s volition is significantly impaired by the person’s
mental disorder,” the requisite causal nexus is satisfied. 

         In State v. E. A. L., we concluded on de novo review
that the state failed to establish the requisite nexus between
the appellant’s mental illness and the potential that his substance use disorder would result in a danger to self. 

, 

 (2002). The appellant had been diagnosed with chronic paranoid schizophrenia and had a history of substance abuse, which included drinking alcohol and
using illegal drugs. 

. He did not view himself as
mentally ill and had been “grudgingly” compliant with medication. 

. On appeal, the state argued that the appellant was a danger to himself because it was probable that,
upon discharge, he would discontinue taking his medications
for his mental disorder and use illegal drugs, which would
exacerbate his mental disorder and result in harm. 

.
We summarized the state’s general concern: that alcohol and
drug use could be harmful, and the appellant did not appreciate the risks of such drug use. 

. We explained that
the difficulty with that argument was that the state “ha[d]
not established the requisite nexus between appellant’s mental illness and the potential substance [use disorder] or failure to appreciate the risks of such [drug use].” 

 Nothing in
the record had demonstrated that the appellant would “[use]
drugs or alcohol because of his mental condition or that his
appreciation of those risks (or, conversely, his choice to engage
in such [drug use]) ha[d] been materially impaired because of
his mental illness.” 

 (Emphasis in original.) As a result, we
concluded that the trial court erred in continuing the appellant’s commitment. 

.
         Here, by contrast, the trial court found that appellant’s mental disorder symptoms caused him to be a danger to himself when it stated that appellant “continues to
get high to manage the voices and other symptoms, some
of which are the direct result of his mental disorder.” The
trial court also found that appellant had been “engaging in
behaviors to relieve his … traumatic pain and pain associated with his mental disorder”—such as “eating glass, eating concrete, and taking immense doses of [coricidin], high
enough doses that disabled him in the middle of traffic.”
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         We agree with appellant that his substance use disorder, alone, or the likelihood that it could result in a future
harm would be insufficient to civilly commit him. However,
as explained above, the trial court found, and the record
supports, that his decisions to consume excessive amounts
of coricidin were caused by his mental disorder. Given that,
the court did not err in concluding that the required nexus
existed.
          Lastly, appellant argues that his substance use disorder cannot justify involuntary commitment under ORS
426.005 because ORS 426.495 specifically excludes substance use disorder from the definition of chronic mental
illness. See ORS 426.495(1)(c)(B) (defining “[p]erson with a
chronic mental illness” to include individuals “[d]iagnosed
… as having chronic schizophrenia, a chronic major affective disorder, a chronic paranoid disorder or another chronic
psychotic mental disorder other than those caused by substance abuse” (emphasis added)). At trial, appellant argued
that “regardless of how severe the substance [use] disorder
is, or the likelihood that [it would] harm [ ] him in the future,
it’s simply not within the scope of things that a person can
be committed for.” The state argues that we should reject
this argument because appellant was not committed on the
ground that he was chronically mentally ill.
         Appellant’s commitment was based on a danger to
self because of a mental disorder under ORS 426.005(1)(f)(A),
not a chronic mental illness under ORS 426.495. The definitions under ORS 426.495 specifically apply to statutes
under ORS 426.490 to 426.500. ORS 426.495(1). We recognize that the definition of a person with mental illness under
ORS 426.005(1)(f)(C) incorporates the definition of a person
with a chronic mental illness under ORS 426.495. ORS
426.005(1)(f)(C). Nevertheless, here, the court determined
that appellant was a person with mental illness under ORS
426.005(1)(f)(A), not ORS 426.005(1)(f)(C). Thus, the definition of chronic mental illness is not directly applicable.
         To the extent that, as appellant argues, the definition nevertheless suggests that the legislature did not intend
mental issues caused by substance abuse to qualify as mental disorders—a question that we need not decide in this
18                                             State v. S. G.

case—the trial court’s ruling in this case is consistent with
that suggestion. Here, the evidence amply showed, and the
trial court found, that appellant’s diagnosed mental disorders—bipolar disorder and schizophrenia—caused, among
other dangerous activities, his substance use. The definition
of chronic mental illness that appellant relies on excludes
mental disorders that are caused by substance abuse, not
substance abuse that is caused by mental disorders. Thus,
we conclude that the trial court did not err in committing
appellant.
        Affirmed.