No. 719 August 6, 2025 539
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of M. D.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. D.,
Appellant.
Multnomah County Circuit Court
24CC01877; A184105
Erin E. Kirkwood, Judge.
Argued and submitted April 11, 2025.
Liza Langford argued the cause and filed the brief for
appellant.
Kirsten M. Naito, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and DeVore,
Senior Judge.
POWERS, J.
Affirmed.
540 State v. M. D.
POWERS, J.
Appellant seeks reversal of both the trial court’s
general judgment civilly committing him to the Oregon
Health Authority (OHA) for up to 180 days on the ground
that he is a danger to others and the supplemental order prohibiting him from possessing firearms. On appeal, he raises
two assignments of error: first, he asserts that the evidence
was insufficient to establish that his mental disorder made
him a danger to others; and second, in an unpreserved posture, he contends that the court erred by not dismissing the
case because the hearing was not held within five days of
the physician’s second hold in violation of ORS 426.232(2)
and ORS 426.095(2) and appellant’s due process rights. As
explained below, we affirm.
We view the evidence, as supplemented 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 sufficient to
permit that outcome. State v. S. R. J., 281 Or App 741, 743,
386 P3d 9 (2016). In so doing, we are bound by the court’s
findings of historical fact that are supported by any evidence in the record. State v. M. J. F.,
306 Or App 544, 545,
473 P3d 1141 (2020). Because the parties are familiar with
the underlying procedural and factual background, we do
not provide a recitation of the facts for this nonprecedential
memorandum opinion.
First, the record in this case is legally sufficient to
support the trial court’s determination that appellant was a
danger to others. Appellant suffers from bipolar I disorder
with psychotic features and the decompensation of his condition was due to his mental illness. His condition worsened
and his behavior became aggressive such that he attacked
others, including putting his hands around another patient’s
neck, grabbing nurses, posturing, and chasing nurses.
His attending provider testified that appellant’s aggressive behavior was related to his delusions, which were a
symptom of his mental illness. In short, because the evidence shows that appellant’s violent and aggressive behavior extended beyond hospital staff and included a fellow
patient, and because there was testimony to support the
Nonprecedential Memo Op: 342 Or App 539 (2025) 541
court’s determination that there was a nexus between his
bipolar disorder and his aggression, we reject appellant’s
first assignment of error.
Second, appellant’s claim that the hearing was
not held within five days of the physician’s hold is unpreserved, and he does not request plain error review. See State
v. Ardizzone, 270 Or App 666, 673,
349 P3d 597, rev den,
358 Or 145 (2015) (explaining that “we ordinarily will not
proceed to the question of plain error unless an appellant
has explicitly asked us to do so”). Moreover, even if we were
to reach the merits, appellant’s argument is unpersuasive
because of the undisputed factual circumstances.
A person may be placed in a mental health hold “if
the court finds that there is probable cause to believe that
the failure to take the person into custody pending the
investigation or hearing would pose serious harm or danger to … others.” ORS 426.070(5)(b)(A).1 ORS 426.095(2)(b)
requires that the trial court hold a hearing within five judicial days for a person detained by a mental health hold.
Further, “if a postponement is requested by the person or
legal counsel of the person” alleged to have the mental illness,
the hearing is postponed for no more than five judicial days
to allow for preparation of the hearing. ORS 426.095(2)(c).
If the hearing is postponed and the person is detained, the
court may order “for the care and custody of” the person for
that postponement period. Id.
ORS 174.120 governs how to calculate five judicial
days, which excludes the first day and includes the last
day, unless the last day falls upon any legal holiday or on
Saturday, in which the last day is also excluded. See State v.
M. D. D., 323 Or App 442, 444,
523 P3d 1152 (2022) (explaining the timing provisions in ORS 174.120). Here, the hearing was held within five days of the hold in compliance with
ORS 426.095(2)(b). Appellant filed a motion to postpone
the hearing, which the court granted, and the hearing was
held within five judicial days of the requested postponement
in accordance with ORS 426.095(2)(c). Further, because
1
ORS 426.070 was recently amended by Or Laws 2025, ch ___, § ___ (House
Bill 2005 § 6 (2025)); however, those amendments do not take effect until January 1,
2026. See HB 2005 (2025) at § 66.
542 State v. M. D.
appellant’s legal counsel requested postponement, the court
had discretion to detain appellant during the postponement
period. See id. (providing that “the court, for good cause,
may allow the person to be detained during the postponement if the postponement is requested by the person or the
legal counsel of the person”). In short, given the underlying
factual circumstances, appellant’s argument provides no
basis for relief on appeal both because it is unpreserved and
fails to account for the undisputed factual record.
Affirmed.
