NO. 95-472 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN THE MATTER OF D.D., , . 2 1936 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell G. Fagg, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry L. Seiffert, Billings, Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana 

Dennis Paxinos, County Attorney, Billings, Montana 

Filed : 

Submitted on Briefs: April 25, 1996 

Decided: June 28, 1996 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

D.D. was committed to the Montana State Hospital at Warm 

Springs by order of the Thirteenth Judicial District Court, 

Yellowstone County. D.D. appeals. We affirm. 

The issues are: 

1. Was there sufficient evidence of an overt act to find D.D. 

seriously mentally ill? 

2. Did the District Court err in entering an order of 

commitment without making findings of fact and conclusions of law? 

In June 1995, D.D. asked officers from the Billings, Montana 

police department to come to his apartment because of his concerns 

about other people in his apartment building. When the officers 

arrived at D. D. ' s apartment, they found papers in the oven, the 

timer for the oven turned on, and the smoke detector in the kitchen 

turned off or disabled. D.D. objected to inspection of his stove 

and apartment by the local fire department. A police officer took 

D.D. to a hospital emergency room for psychiatric evaluation. 

In the emergency room, it was determined that D.D. was 

suffering from delusions and hallucinations. D.D. was examined by 

Dr. Paul Gordon, a Billings psychiatrist. Dr. Gordon diagnosed 

D.D. as a chronic paranoid schizophrenic. 

D. D. told Dr. Gordon that a gang leader, whom he was unable to 

further identify, wanted D.D. to be "his wife and his whore" and 

was going to force D.D. to do that. D.D. told Dr. Gordon that the 

gang leader would beat D.D. in the head with a hammer until D.D. 

was dead or became the gang leader's wife. D.D. opined to Dr. 

Gordon that the gang leader "should be treated like a rabid dog." 
D.D. also told Dr. Gordon that he heard an unseen couple in his 

apartment building saying they were going to rape him 

Dr. Gordon testified at D.D. 's commitment hearing that D.D. is 

a potential danger to himself and others. He stated that D.D. 

could attack somebody because D.D. believes he is about to be 

attacked. D.D. has a history of mental illness, and an attempt to 

treat him locally a year before had not worked out. D.D. had 

refused to take medication prescribed to control his delusions. 

Dr. Gordon recommended that D.D. be committed for treatment and 

that the state hospital be authorized to administer medications to 

D.D. even against his will, if the hospital deemed it necessary 

D.D. also testified at his commitment hearing. He stated that 

he had placed papers relating to an herbal weight loss product in 

his oven because he believed his apartment had been entered without 

him knowing it. He testified: 

Most thieves wouldn't think a weight loss product or a 

pill would be in an oven. 

. . . I told Dr. Gordon and the police, and I told you, 

I was trying to identify a psychotic or psychopathic 

killer in our community. I wasn't doing anything wrong. 

I wasn't acting in an irrational manner. I stood there. 

I was talking to the officer. Sure I was nervous. There 

were five firemen over there accusing me of trying to 

start fire or being incompetent to the point where I 

accidentally started a fire, which I don't think was 

true. I had that stuff in that oven for more than a 

week, and in my own logical observation of myself, 

knowing what I'm doing is why I called the police about 

this person and the people in the apartment building. 

I also told Officer Cunningham, who brought me to 

the hospital, I told him I was having problems with 

somebody who was attacking me right there in my house. 
I tried to identify the person, even tell him his 

name. For all I know he might be using my name, and I 

tried to bring my Montana State ID card with me, but it 

wasn't in my fanny pack that I carried to the hospital, 

so I couldn't find it, but the person that I'm talking 

about, who has been attacking me, will attack others 

either with guns or other material that will hurt them or 

even kill them. 

D.D. further testified: 

I haven't gone out looking for this person to attack him. 

I have been kind of halfway keeping an eye out for him to 

catch him in an act like I have been describing so I can 

help the police apprehend him. 

In its order of commitment, the District Court found that D.D. 

had received the benefit of all applicable statutory and constitutional rights and was seriously mentally ill and in need of further 

evaluation and treatment. The court stated its finding was 

supported by Dr. Gordon's written report, which was attached to the 

order. The court ordered D.D. committed to the Montana State 

Hospital for treatment and evaluation for not more than three 

months unless extended pursuant to § 53-21-128, MCA (1991). 

Issue 1 

Was there sufficient evidence of an overt act to find D.D. 

seriously mentally ill? 

In an involuntary commitment proceeding, the State must prove 

its case beyond a reasonable doubt with respect to any physical 

fact or evidence, and by clear and convincing evidence as to all 

other matters. Section 53-21-126(2), MCA. Our standard of review 

requires that we evaluate the evidence in a light most favorable to 

the prevailing party. Matter of R.J.W. (19871, 226 Mont. 419, 423, 

736 P.2d 110, 112. 
"Seriously mentally ill" is defined at § 53-21-102(15), MCA, 

suffering from a mental disorder which has resulted in 

self -inflicted injury or injury to others or the imminent 

threat of injury or which has deprived the person 

afflicted of the ability to protect the person's life or 

health. For this purpose, injury means physical injury. 

Evidence of actual violence or physical harm is not required to 

satisfy the provision "imminent threat of injury. 'I Matter of F.B. 

(19801, 189 Mont. 229, 235, 615 P.2d 867, 870. However, imminent 

threat of self-inflicted injury or injury to others must be 

evidenced by overt acts sufficiently recent as to be material and 

relevant to the person's present condition. Section 53-21-126 (2), 

MCA . 

D.D. argues that there was no evidence of any overt act in 

which he was violent, threatening toward anyone, or suicidal. He 

contends that the only basis for his commitment were the papers he 

had placed in his oven. 

While the danger must be fairly immediate, an overt act need 

not be a completed act; an attempt or threat, or even a failure to 

act, may suffice. F.B., 615 P.2d at 869. Police officers were 

summoned to the hotel in which F.B. lived because he was "loud and 

abusive and throwing food." F.B., 615 P.2d at 870. F.B. sat on 

his bed wielding a baseball bat and argued with the officers for 

several minutes before agreeing to go with them. This Court upheld 

F.B. Is commitment based upon these "overt acts. " F.B., 615 P.2d at 

870. 

A threat to kill qualifies as an overt act. In re Mental 

Health of E.M. (1994), 265 Mont. 211, 213, 875 P.2d 355, 356. 
E.M., a fifty-seven-year-old widow, was involuntarily committed 

after she told mental health professionals that she planned to buy 

a gun and then shoot her neighbor and herself. On appeal to this 

Court, E.M. argued that a physical act was needed to establish an 

overt act. This Court affirmed E.M.'s commitment based upon her 

verbal threats to kill herself and her neighbor. 

In his written report to the Court, Dr. Gordon recounted that, 

during his conversations with D.D., D. D. came to the conclusion 

that Dr. Gordon was a pimp and that "there were political reasons 

for [Dr. Gordon's] going to court to have [D.D.] committed for 

treatment." Dr. Gordon stated that D.D. could "very easily" attack 

someone out of fear, anticipating that they were about to attack 

him. In the opinion of Dr. Gordon, a mental health professional, 

D.D. is a danger to himself and others in that he may attack 

someone due to his fear and paranoia that he is about to be 

attacked. We conclude that D.D.'s statements to Dr. Gordon, 

including his statement that the gang leader "should be treated 

like a rabid dog," constituted "overt acts." 

Viewing the evidence in the light most favorable to the 

prevailing party, we conclude that the record contains clear and 

convincing evidence that D.D. was suffering from a mental disorder 

demonstrated by an overt act resulting in an imminent threat of 

injury to himself or others. 

Issue 2 

Did the District Court err in entering an order of commitment 

without making findings of fact and conclusions of law? 
Rule 52 (a) , M.R.Civ.P., requires that in all actions tried 

upon the facts without a jury "the court shall find the facts 

specifically and state separately its conclusions of law thereon." 

D.D. points out that the District Court merely found that he was 

seriously mentally ill and incorporated by reference the two-page 

letter from Dr. Gordon as the factual basis therefor. 

The State's first response to this issue is that D.D. did not 

give the District Court notice that he desired more from the court 

in the way of findings of fact. Where the district court has not 

been given an opportunity to correct its error, this Court will not 

reverse on appeal. In re Marriage of Laster (1982), 197 Mont. 470, 

481, 643 P.2d 597, 603. 

Additionally, where the record as a whole establishes that a 

person's mental disorder has resulted in an imminent threat to the 

person and others, a district court's error in failing to set forth 

a detailed statement of the facts may constitute harmless error. 

R. J.W., 736 P.2d at 113. Although we do not recommend the shortcut 

method used by the District Court in this case, such is the case 

here. The record as a whole establishes that D.D. 's mental 

disorder resulted in an imminent threat to himself and to others, 

and supports the action taken by the District Court. 

Af firmed. 
We concur: 

Justices 
Justice James C. Nelson specially concurring. 

I concur in our discussion of issue one and concur in our 

discussion of issue two to the extent that we should not consider 

this issue because no exceptions were made by D.D. to the manner in 

which the court made its findings. I do not agree that simply 

incorporating a doctor's report by reference fulfills the trial 

court's obligation under Rule 52 (a) , M.R.Civ.P., to "find the facts 

specially." Unfortunately decisions like this and Matter of R.J.W. 

(1987), 226 Mont. 419, 736 P.2d 110, establish exceptions that soon 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority's conclusion that there was clear 

and convincing evidence that D.D. was seriously mentally ill. 

Proof of serious mental illness requires proof that a person is an 

imminent threat of injury to himself or others. Section 

53-21-102 (15) MCA. "Imminent threat of self-inflicted injury or 

injury to others shall be evidenced by overt acts, sufficiently 

recent in time as to be material and relevant as to the 

respondent's present condition. Section 53-21-126(2), MCA. 

While we have held in MenlalHea1thofE.M. (1994), 265 Mont. 211, 

875 P.2d 355, that a direct threat to kill another satisfies the 

overt act requirement, the majority's conclusion in this case 

simply stretches the "overt act" requirement beyond the point that 

it has any meaning. 

There was nothing about referring to Dr. Gordon as a pimp, or 

the fact that disparaging remarks were made about a gang leader 

that suggested that D.D. was an imminent threat of harm to himself 

or others. Rush Limbaugh and G. Gordon Liddy say worse things to 

millions of listeners every day. 

While there may be a strong public policy argument that an 

overt act should not be required before concluding that a person 

presents an imminent threat of harm to himself or others, that 

public policy decision has been made by the Legislature and should 
be amended by the Legislature. For all practical purposes, 

5 53-21-126(2), MCA, has been amended by this decision. 

For these reasons, I dissent from the majority opinion.