IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In re the Detention of: No. 54645-1-II

Z.L., UNPUBLISHED OPINION

Petitioner.

MAXA, J. – ZL appeals the trial court’s order committing him to involuntary treatment for 

up to 180 days under chapter 71.05 RCW after a jury found that he was “gravely disabled” as a 

result of a mental disorder as defined by former RCW 71.05.020(22) (2019). 

We hold that (1) the trial court did not err when it admitted evidence regarding ZL’s Type 

1 diabetes because his ability to manage his diabetes was relevant to whether he was gravely 

disabled as a result of a mental disorder; and (2) the trial court erred when it allowed an expert 

witness to testify that his opinions were supported by clear, cogent and convincing evidence, but 

that the error was harmless. Accordingly, we affirm the order committing ZL to involuntary 

treatment for 180 days.

FACTS

Background

At the time of his involuntary commitment, ZL was a 37-year-old man with 

schizophrenia and antisocial personality disorder. ZL also had Type 1 diabetes, which meant 

that his body could not make insulin on its own. As a result, ZL relied on regular insulin 

injections and blood sugar checks, along with a controlled diet. ZL initially was committed for

Filed

Washington State

Court of Appeals

Division Two

August 17, 2021
No. 54645-1-II

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90 days at Western State Hospital (WSH) in October 2019 pursuant to a superior court 

commissioner’s order.

Petition for Involuntary Treatment

In December 2019, Dr. Susan Lin and Dr. Leslie Sziebert at WSH filed a petition in 

superior court for involuntary treatment for an additional 180 days on the grounds that ZL 

remained gravely disabled as a result of a mental disorder. In March 2020, Dr. Lin and Dr. 

Sziebert filed an amended petition, adding that ZL also had threatened, attempted, or inflicted 

physical harm upon another person or substantial damage to another’s property and therefore 

presented a likelihood of serious harm.

Jury Trial

ZL requested a jury trial. Before the trial started, ZL filed a motion to exclude all 

testimony regarding his Type 1 diabetes. The trial court denied the motion.

At the commitment trial, Sabrina Bauer, a registered nurse who worked with ZL, testified 

that she had witnessed ZL be verbally and physically aggressive with other people at WSH. 

Bauer watched ZL punch another patient in the back of her head, make verbal threats to the 

patient, and spit on the patient and on other staff members. Bauer also explained that ZL was not 

compliant 80 percent of the time for his blood sugar checks relating to his diabetes.

Dr. Lin testified that she was ZL’s treating psychologist. She stated that ZL’s primary 

diagnosis was schizophrenia, which caused him to have grandiose delusions such as believing 

that he owned mansions and several law firms, had won several Grammy awards, and had cured 

acquired immunodeficiency syndrome (AIDS). Dr. Lin stated that ZL’s secondary diagnosis was 

antisocial personality disorder. Dr. Lin testified that ZL’s demeanor fluctuated from speaking 

cordially and coherently to speaking to no one in particular. She stated that ZL generally knew 
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where he was and what day it was, but that he did not believe that he was supposed to be at 

WSH. She noted that ZL had some cognitive and volitional control over his behavior and that he 

was able to tend to his hygiene.

Dr. Lin opined that ZL was not ready for discharge and that he was gravely disabled as a 

result of his mental illness because “he would not be able to take care of his own health and 

safety needs” without support from WSH. 2 Report of Proceedings (RP) at 124. Dr. Lin 

explained that WSH staff had to prompt ZL several times a day to get out of bed, to eat his 

meals, and to take his medications. She emphasized that it was necessary for ZL to eat because 

of his Type 1 diabetes. She stated that if ZL stopped taking his antipsychotropic medications, his 

psychiatric symptoms would be exacerbated and he would become more aggressive. Finally, Dr. 

Lin opined that ZL presented a likelihood of serious harm to himself or others.

Dr. Sziebert testified that he was a psychiatrist and that he was the head of ZL’s treatment 

team. He testified that ZL suffered from schizophrenia and antisocial personality disorder and 

that he exhibited grandiose delusions and auditory hallucinations. However, ZL did not accept 

the fact that he had a major psychiatric diagnosis.

Dr. Sziebert also stated that ZL had Type 1 diabetes, which was different than Type 2 

diabetes. Specifically, he explained that as a Type 1 diabetic individual, ZL had to be 100 

percent compliant with his prescribed medications and treatments, especially blood sugar checks, 

and had to eat appropriate foods because his body could not create insulin by himself. Dr. 

Sziebert stated that ZL sometimes was not compliant with his blood sugar checks and insulin 

injections. He also stated that ZL mostly was non-compliant with his dietary needs. Dr. Sziebert 

struggled to control ZL’s diabetes even in the very structured environment of WSH.
No. 54645-1-II

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Dr. Sziebert testified that ZL’s control of his diabetes was connected to his mental 

condition. Because of ZL’s grandiosity, his attitude was “[r]ules don’t apply to me, and if I feel 

like doing it, it’s okay.” 2 RP at 219. Dr. Sziebert opined that ZL was gravely disabled because 

he was unable to manage his diabetes and that failure to control his diabetes could result in the 

loss of a leg or arm or even death. Dr. Sziebert also testified that he believed that ZL presented a 

likelihood of repeated acts of violence to a reasonable degree of scientific certainty.

The State then asked Dr. Sziebert whether his opinion that ZL was not ready for 

discharge was based on a clear, cogent, and convincing degree of certainty, and he agreed. Dr. 

Sziebert also agreed that his opinions that ZL had a mental condition and that he was gravely 

disabled were “by clear, cogent, and convincing evidence.” 2 RP at 188-89. ZL objected to each 

of the questions that referenced clear, cogent and convincing evidence, but the trial court 

overruled the objections.

As part of the jury instructions, the trial court instructed the jury that they were the “sole 

judges of the credibility of the witness” and the “value or weight to be given to the testimony of 

each witness.” Clerk’s Papers at 67. The court also instructed the jury that the petitioners had 

the burden to prove each element of their case by clear, cogent, and convincing evidence.

The jury found that ZL had a mental disorder and was gravely disabled as a result of a 

mental disorder. The jury also found that ZL had threatened, attempted, or inflicted physical 

harm upon another or himself or substantial damage upon another’s property and that as a result 

of his mental disorder, he presented a likelihood of serious harm to himself, others, or property 

of another. The trial court entered an order to involuntarily treat ZL for up to 180 days.

ZL appeals the trial court’s order.
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ANALYSIS

A. INVOLUNTARY TREATMENT ACT

The involuntary treatment act (ITA), chapter 71.05 RCW, governs the temporary 

detention for evaluation and treatment of persons with mental disorders.

Former RCW 71.05.320(4) (2018) provides that after the initial commitment period, the 

person in charge of the facility in which a person is committed may file a new petition for 

involuntary treatment on various grounds. Relevant here, a new petition may be filed on the 

grounds that he or she continues to be gravely disabled. Former RCW 71.05.320(4)(d). Former 

RCW 71.05.020(22)1 defines “gravely disabled” as a condition in which a person, because of a 

mental disorder:

(a) Is in danger of serious physical harm resulting from a failure to provide for his 

or her essential human needs of health or safety; or (b) manifests severe 

deterioration in routine functioning evidenced by repeated and escalating loss of 

cognitive or volitional control over his or her actions and is not receiving such care 

as is essential for his or her health or safety.

This statute provides two alternative definitions of “gravely disabled,” and either provides a basis 

for involuntary commitment. In re Det. of LaBelle, 107 Wn.2d 196, 202, 728 P.2d 138 (1986).

In addition, a new petition for involuntary treatment may be filed when a person who:

(a) During the current period of court ordered treatment: (i) Has threatened, 

attempted, or inflicted physical harm upon the person of another, or substantial 

damage upon the property of another, and (ii) as a result of a mental disorder, 

substance use disorder, or developmental disability presents a likelihood of serious 

harm.

Former RCW 71.05.320(4)(a) (emphasis added). The term “likelihood of serious harm” means: 

(a) A substantial risk that . . . (ii) physical harm will be inflicted by a person upon 

another, as evidenced by behavior which has caused such harm or which places 

another person or persons in reasonable fear of sustaining such harm; or (iii) 

physical harm will be inflicted by a person upon the property of others, as evidenced 

 

1 This definition currently is codified at RCW 71.05.020(24).
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by behavior which has caused substantial loss or damage to the property of others; 

or 

(b) The person has threatened the physical safety of another and has a history of 

one or more violent acts.

Former RCW 71.05.020(35) (2019).

To support an involuntary commitment, a person’s grave disability or likelihood of 

serious harm must be as a result of a “mental disorder.” Former RCW 71.05.320(4)(a); former 

RCW 71.05.020(22). “Mental disorder” is defined in RCW 71.05.020(37)2to mean “any 

organic, mental, or emotional impairment which has substantial adverse effects on a person’s 

cognitive or volitional functions.”

In a civil commitment proceeding, the State has the burden of proving that a person is 

gravely disabled or presents a likelihood of serious harm by clear, cogent, and convincing 

evidence. Former RCW 71.05.310 (2012); Labelle, 107 Wn.2d at 208-09. This standard means 

that the State must show that the ultimate fact in issue is “highly probable.” Labelle, 107 Wn.2d 

at 209.

Even though ZL’s period of involuntary commitment has passed, the appeal of an 

involuntary commitment order is not moot because such an order may have collateral 

consequences in future proceedings. In re Det. of B.M., 7 Wn. App. 2d 70, 76-77, 432 P.3d 459, 

review denied, 193 Wn.2d 1017 (2019).

B. RELEVANCE OF DIABETES

ZL argues that the trial court erred when it failed to exclude expert testimony on ZL’s 

ability to manage his diabetes by himself. He argues that a person cannot be considered “gravely 

 

2 Although other portions of RCW 71.05.020 were amended in 2020, subsection (37) was not. 

Therefore, we cite to the current version of that subsection.
No. 54645-1-II

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disabled” based on an inability to care for a physical medical condition such as diabetes, rather 

than common human needs such as hygiene, food, and shelter. We disagree.

1. Legal Principles

Under ER 402, only relevant evidence is admissible. Evidence is relevant if it has “any 

tendency to make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence.” ER 401. Whether 

evidence is relevant is a low bar; even minimally relevant evidence is admissible. Mut. of 

Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d 1143 (2013).

We review a trial court’s decision to admit evidence for an abuse of discretion. In re Det. 

of West, 171 Wn.2d 383, 396, 256 P.3d 302 (2011).

2. Analysis

As stated above, there are two definitions of “gravely disabled” under former RCW 

71.05.020(22). ZL focuses on the definition under former RCW 71.05.020(22)(a), which 

provides that a person is gravely disabled as a result of a mental disorder when he or she “[i]s in 

danger of serious physical harm resulting from a failure to provide for his or her essential human 

needs of health or safety.” In addition, one of the requirements in former RCW 71.05.020(22)(b) 

is that the patient will fail to receive treatment that is essential for health or safety, which 

includes that the patient would not receive such care if released. LaBelle, 107 Wn.2d at 208. 

First, ZL argues that Dr. Sziebert improperly based his opinion that ZL was gravely 

disabled on a physical disorder – his diabetes – rather than on a mental disorder. However, Dr. 

Sziebert testified that ZL’s mental disorder was connected to his control of his diabetes because 

his grandiosity caused him to believe that the rules did not apply to him and he could do anything 

he felt like doing. In addition, even in the structured environment of WSH, ZL often was not 
No. 54645-1-II

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compliant with his blood sugar checks, insulin injections, and dietary needs. The inference from 

this testimony is that if released, his mental disorder would cause him to discontinue the 

medication and proper eating habits necessary to control his diabetes. Therefore, the evidence 

supports a finding that ZL would neglect his diabetes because of his mental disorder.

Second, ZL argues that the “essential human needs” referenced in former RCW 

71.05.020(22)(a) refers to only those needs common to all humanity in order to survive, such as 

food, clothing, and shelter. However, in LaBelle, the Supreme Court expressly included 

“medical treatment” as an example of an essential human need. 107 Wn.2d at 205. In addition, 

ZL’s narrow interpretation is contrary to the purpose of the ITA – “[t]o protect the health and 

safety of persons suffering from behavioral health disorders.” RCW 71.05.010(1)(a). Here, it is 

impossible to separate ZL’s ability to care for his essential human needs from his ability to 

control his diabetes because both are required for the sake of his overall health and safety.

ZL’s diabetes and his ability to manage his diabetic condition was directly relevant to the 

issue of whether he was gravely disabled as a result of a mental disorder. Accordingly, we hold 

that the trial court did not err when it admitted evidence regarding ZL’s diabetes.

C. EXPERT TESTIMONY REGARDING CLEAR, COGENT, AND CONVINCING STANDARD

ZL argues that the trial court erred when it allowed Dr. Sziebert to testify that clear, 

cogent, and convincing evidence supported his opinions. ZL claims that the error violated his 

right to a jury trial. We agree, but we hold that the error was harmless.

1. Legal Principles

ER 702 provides that a court may permit a witness qualified as an expert to provide an 

opinion regarding scientific or specialized knowledge if such testimony may assist the trier of 
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fact. “Admission is proper provided the expert is qualified and his or her testimony is helpful.” 

Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016).

To be admissible, expert medical testimony must be based on reasonable medical 

probability or reasonable medical certainty – the terms are used interchangeably. Anderson v. 

Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 606-07, 260 P.3d 857 (2011). This rule applies to 

expert opinion testimony concerning a person’s mental status. In re Det. of Twining, 77 Wn. 

App. 882, 891, 894 P.2d 1331 (1995), abrogated on other grounds by In re Det. of Pouncy, 168 

Wn.2d 382, 229 P.3d 678 (2010).

ER 704 provides that an opinion that is otherwise admissible is not objectionable when it 

states an ultimate issue of fact to be decided by the trier of fact. However, experts may not offer 

legal conclusions in their testimony or merely tell the jury what result to reach. 5B KARL B.

TEGLAND, WASHINGTON PRACTICE SERIES: EVIDENCE LAW AND PRACTICE § 704.5, at 271 (6th 

ed. 2016); see also State v. Haq, 166 Wn. App. 221, 263, 268 P.3d 997 (2012); Stenger v. State, 

104 Wn. App. 393, 407-09, 16 P.3d 655 (2001). Only the trier of fact may determine the weight 

and credibility of an expert’s testimony. Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 

136, 146, 341 P.3d 261 (2014).

“[T]rial courts are afforded wide discretion, and trial court expert opinion decisions will 

not be disturbed on appeal absent an abuse of such discretion.” Johnston-Forbes v. Matsunaga, 

181 Wn.2d 346, 355, 333 P.3d 388 (2014). Therefore, a trial court’s ruling on the admissibility 

of evidence will only be overturned when the decision was manifestly unreasonable, exercised 

on untenable grounds, or based on untenable reasons. Gregg Roofing, 178 Wn. App. at 728.
No. 54645-1-II

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2. Analysis

Here, the State’s attorney asked Dr. Sziebert’s about his degree of certainty regarding his 

opinion that ZL was ready to be discharged: 

Q: . . . And I take it that [ZL] isn’t ready for discharge at the current time?

. . . 

A: No, I don’t think he’s ready for discharge.

Q: Can you state that with any degree of certainty? 

A: Yes. 

Q: More likely than not? 

A: More certain than more likely than not. 

Q: Clear, cogent, and convincing? 

A: At least. 

Q: At least clear, cogent, and convincing that he’s not ready for discharge? 

A: Yes.

2 RP at 187-88.

It is not necessarily improper to ask an expert witness how certain he or she is of an 

expressed opinion. However, “clear, cogent, and convincing” does not relate to a level of 

certainty. Instead, that phrase refers to a level of evidence that satisfies the State’s burden of 

proof. See former RCW 71.05.310 (“The burden of proof shall be by clear, cogent, and 

convincing evidence.”); Labelle, 107 Wn.2d at 209 (“The burden of proof at 90-day or 180-day 

involuntary commitment proceedings is by clear, cogent and convincing evidence.”). The State 

essentially was asking Dr. Sziebert whether clear, cogent, and convincing evidence supported his 

opinion.

Subsequent questions more specifically referred to evidence. The State asked Dr. 

Sziebert whether “clear, cogent, and convincing” evidence supported his opinions:

Q: Would you have any opinion as to whether he has a mental condition by clear, 

cogent, and convincing evidence as well? 

A: Yes. 

. . . 
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Q: And do you think that he’s gravely disabled as a result of his mental condition 

by clear, cogent, and convincing evidence?

A: I do.

2 RP at 188-89 (emphasis added).

We hold that all three questions referencing the clear, cogent, and convincing standard 

were improper. Under ER 704, it was proper for Dr. Sziebert to testify on ultimate issues of fact, 

such as whether ZL had a mental condition and was gravely disabled as a result of his mental 

condition. But Dr. Sziebert’s personal belief that clear, cogent, and convincing evidence 

supported his opinions on these ultimate issues of fact directly invaded the jury’s province to 

weigh the evidence. By mimicking the legal requirement for the State’s burden of proof, Dr. 

Sziebert crossed the line between helping the jury understand the evidence and instructing the 

jury on what result to reach.

The State argues that there is no bright line answer as to what is admissible under ER 704 

and as a result, appellate courts defer to trial courts absent an abuse of discretion. The State also 

argues that it is necessary for an expert to quantify the extent to which he or she is certain of his 

or her opinion in order to be admissible as expert testimony. But as stated above, only the jury 

may decide whether an expert’s testimony supports the conclusion that the evidence in the case 

meets the clear, cogent, and convincing standard. See 5B TEGLAND, § 704.5, at 271 (“No 

witness is permitted to express an opinion that is a conclusion of law or merely tells the jury 

what result to reach.”).

Accordingly, we hold that the trial court erred when it failed to sustain ZL’s objections to 

the testimony at issue.
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3. Harmless Error

An erroneous evidentiary ruling is not grounds for reversal unless the error was 

prejudicial and not harmless. Barriga Figueroa v. Prieto Mariscal, 193 Wn.2d 404, 415, 441 

P.3d 818 (2019). “The test for harmless error is whether there is a reasonable probability that the 

error materially affected the outcome of the trial.” Frantom v. State, 12 Wn. App. 2d 953. 959, 

460 P.3d 1100 (2020).

As stated above, former RCW 71.05.020(22)(a) states that a person is considered 

“gravely disabled” when he or she “[i]s in danger of serious physical harm resulting from a 

failure to provide for his or her essential human needs of health or safety.” Alternatively, a 

person also can meet the definition of “gravely disabled” when a person “manifests severe 

deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or 

volitional control over his or her actions and is not receiving such care as is essential for his or 

her health or safety.” Former RCW 71.05.020(22)(b).

Here, Dr. Sziebert provided extensive, unrefuted testimony that explained why he 

believed that ZL was gravely disabled based on ZL’s schizophrenia and his inability to control 

his Type 1 diabetes outside the confines of WSH. And Dr. Sziebert expressly stated his opinion 

that ZL was gravely disabled and the basis for that opinion earlier in his testimony, long before 

he was asked about clear, cogent, and convincing evidence.

In addition, Bauer and Dr. Lin testified in support of the petition to involuntarily commit 

ZL. Bauer testified about specific events where ZL exhibited physical or verbal aggression 

towards other people and how ZL was not compliant 80 percent of the time for his blood sugar 

checks. Dr. Lin testified that ZL had grandiose delusions that he owned mansions and law firms, 

had won several Grammy awards, and had cured AIDS. Dr. Lin opined that ZL was gravely 
No. 54645-1-II

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disabled because he lacked the ability “to take care of his own health and safety needs” and that 

he needed to be prompted several times a day to get out of bed, eat his meals, and to take his 

medications. 2 RP at 124.

Accordingly, we conclude that any error that arose out of Dr. Sziebert’s testimony was 

harmless.

CONCLUSION

We affirm the trial court’s commitment order.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

MAXA, J.

We concur:

LEE, C.J.

SUTTON, J.