State v. M.A. (In re M. A.)

• Decision Date: 02 March 2016
• Docket Number: 140261784,A156435.
• Citation: 371 P.3d 495,276 Or.App. 624
• Parties: In the Matter of M. A., a Person Alleged to have a Mental Illness. STATE of Oregon, Respondent, v. M.A., Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 624

371 P.3d 495

In the Matter of M. A., a Person Alleged to have a Mental Illness.STATE of Oregon, Respondent

v.M.A., Appellant.

140261784

A156435.

Court of Appeals of Oregon.

Submitted Nov. 7, 2014.

Decided March 2, 2016.

Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General and Judy C. Lucas, Senior Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and WILSON, Senior Judge.

DUNCAN

, P.J.

In this civil commitment case, appellant seeks reversal of the trial court's judgment, which committed him to the Oregon Health Authority, pursuant to ORS 426.130(1)(a)(C)

, on the ground that he suffered from a mental disorder that caused him to be a danger to himself and others and rendered him unable to provide for his basic personal needs. We reverse.

When reviewing a challenge to a civil commitment judgment, unless we exercise our discretion to review the matter de novo, “ ‘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. R.L. W., 267 Or.App. 725, 728, 341 P.3d 845 (2014)

(quoting Dept. of Human Services v. N.P., 257 Or.App. 633, 639, 307 P.3d 444 (2013) ). In this case, appellant has not asked us to review the matter de novo, and we decline to do so. See ORAP 5.40(8)(C)

(providing that the court will exercise its discretion to review de novo “only in exceptional cases”). Consequently, we state the historical facts in accordance with the trial court's express and implicit findings because there is evidence in the record to support them, and we review the trial court's conclusion that the requirements for commitment were met to determine if it is supported by legally sufficient evidence.¹

We begin with the facts. Appellant is a Saudi Arabian national and, while boarding an airplane in Portland, he got into a disagreement with a female flight attendant. Appellant demanded to speak to a male, and walked to the front of the plane to speak to the pilot. The pilot told appellant that his behavior was unacceptable and that he would not be allowed to continue on the flight. The pilot and appellant stepped into the jetway, and appellant tried to reenter the plane several times, but was blocked by the pilot, who had called law enforcement officers. When the officers arrived and arrested appellant, there was a physical altercation and appellant suffered a small rug burn on his face.

Two days after appellant was arrested, he was interviewed by Special Agent Kelley of the Federal Bureau of Investigation, who is a member of a Joint Terrorism Task Force and has had training on Arab cultures. Appellant described what had happened at the airport, including that the flight attendant had put her hands palm forward to his face, which, according to Kelley, is an “extraordinarily offensive gesture * * * to a young Saudi male[.]” Appellant could not understand why he was in custody; he told Kelley that he believed his brother was playing a joke on him. Based on appellant's statements during the interview, Kelley believed that appellant was “at the very genesis” of mental illness. Appellant remained in jail for more than a month after the airport incident.

Within four days of his release from jail, appellant went to a bank, where he spoke nonsensically to a teller and needed assistance using an ATM. He stared at bank customers and made them uncomfortable. A bank employee called the police, and the officers who responded asked appellant to leave the bank. Appellant did not leave, but he remained calm until the officers attempted to arrest him, at which point he resisted. The officers tackled him and transported him to jail.

Based on appellant's conduct at the bank, the state charged him with criminal trespass and resisting arrest, both misdemeanors. In jail, appellant was initially housed in “the hole,” the highest disciplinary segregation unit, for a few weeks. He was then transferred to the jail's psychiatric infirmary.

While appellant was in jail after the bank incident, Kelley made arrangements for appellant to fly back to Saudi Arabia accompanied by a Saudi Arabian official. When Kelley attempted to take appellant from jail to a hospital for treatment so that he could return to Saudi Arabia, appellant refused to leave his jail cell because he believed that people outside the cell would kill him.

The state placed a civil commitment hold on appellant, and he was transferred to a hospital. At appellant's civil commitment hearing, Kelley testified that, when he visited appellant in jail after the bank incident, appellant had a difficult time maintaining a single line of thought and denied that he was even in jail. Kelley also testified that appellant appeared to have lost between 10 and 15 pounds since Kelley had interviewed him approximately two months earlier. Appellant told Kelley that he was not eating or drinking because voices were telling him that his food and water were poisoned. Appellant reported that he had not had any food or water for fifteen days. Appellant believed that anywhere outside his cell was dangerous and that people wanted to kill him.

Kelley testified that appellant had been in the United States on a student visa but that immigration officials had revoked his visa. According to Kelley, appellant was in the country illegally and immigration officials were aware of his status.

A mental health consultant from the jail, Grooms, testified that she believed that appellant was mentally ill because he had delusions about, among other things, having lost large amounts of weight and having people in his cell. Regarding appellant's consumption of food and water in jail, Grooms testified:

“I think the first few weeks of [appellant's] custody [after the bank incident], he was not eating regularly or well enough. He had a lot of diet concerns and I think that may be cultural, too. I know eventually they were able to get him whatever type of diet he had requested. And there's a lot of documentation * * * of his not eating for several days and then eating, like, a full meal, a sack lunch, drinking five cups of juice and having cookies.”

According to Grooms, who had seen appellant when he was in custody after both the airport incident and the bank incident, appellant had not suffered any “notable weight loss” while in jail. Grooms testified that, if a person was in jail on misdemeanor charges and did not have any holds, the person probably would be in jail “[a] few days at most.”

The trial court concluded that appellant “suffer[ed] from a mental disorder” and, as a result, was “dangerous to [him] self,” “dangerous to others,” and “unable to provide for basic personal needs and [was] not receiving such care as is necessary for health and safety.” See ORS 426.130(1)(a)(C)

; former ORS 426.005(1)(e)(A), (B) (2014), renumbered as ORS 426.005(1)(f)(A), (B) (2015). Regarding appellant's dangerousness, the trial court reasoned that, because appellant was unable to accurately interpret others' actions and control his own responses, he might overreact to others and “either he or somebody in the community would get hurt.” Regarding appellant's ability to provide for his basic needs, the trial court found that appellant would remain in jail on his pending misdemeanor charges only for “a relatively short period of time” and that, when released, he would not be able to meet his basic needs because he was unable to make or follow through with “any plan.”

On appeal, appellant does not dispute that the state presented sufficient evidence to establish that he has a mental disorder, but he does dispute that the state presented sufficient evidence to establish that he was a danger to himself, a danger to others, or unable to provide for his basic needs. For the reasons explained below, we agree with appellant.

We turn first to the trial court's conclusions that appellant was a danger to himself and others. To establish that a person is “[d]angerous to self,” former ORS 426.005(1)(e)(A) (2014), the state must establish that “the person's ‘mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself * * * in the near term.’ ” State v. B. B., 240 Or.App. 75, 82, 245 P.3d 697 (2010)

(quoting State v. Olsen, 208 Or.App. 686, 691, 145 P.3d 350 (2006) ). The potential harm must be serious physical harm. Id. “Indeed, a number of our cases have suggested that the potential harm must be ‘life-threatening’ or involve some ‘inherently dangerous' activity.” Id. at 82–83, 245 P.3d 697 (quoting State v. Judd, 206 Or.App. 146, 152, 135 P.3d 397 (2006) ). In addition, the potential harm must be more than “speculative.” State v. Roberts, 183 Or.App. 520, 524, 52 P.3d 1123 (2002) ; see also

State v. Ayala, 164 Or.App. 399, 404, 991 P.2d 1100 (1999) (“Apprehensions, speculations and conjecture are not sufficient to prove a need for mental commitment.”). The state must present evidence of a “particularized and highly probable threat to [the person's] safe survival, including a risk of substantial harm, in the near future.” B. B., 240 Or.App. at 84, 245 P.3d 697

(internal quotation marks and citations omitted); see also

State v. Olsen, 208 Or.App. 686, 693, 145 P.3d 350 (2006) (“Evidence of delusions, general lack of judgment, and failure to plan for release * * * is simply not the kind of evidence of a particularized, near-term threat that is required to justify appellant's involuntary commitment on the ground that he is a danger to himself.”); State v. Jacobson, 142 Or.App. 371, 377, 922 P.2d 670 (1996) (“Evidence of general mental and physical deterioration is insufficient to justify a finding of mental illness under the danger to self standard.”).

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