224 August 7, 2024 No. 542

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of C. C. N., a Person Alleged to have Mental Illness.

STATE OF OREGON, Respondent,

v. C. C. N., Appellant. Clackamas County Circuit Court 22CC06735; A180065

Ann M. Lininger, Judge.
Submitted December 21, 2023.
Joseph R. DeBin and Multnomah Defenders, Inc. filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Hadlock, Senior Judge.
MOONEY, J.

Affirmed.Cite as 334 Or App 224 (2024) 225226 State v. C. C. N.

MOONEY, J.
In this civil commitment proceeding, appellant challenges the trial court’s judgment committing him to the custody of the Oregon Health Authority for a period not to exceed 180 days based on the court’s determination that he is a person with mental illness and that, as a result, he is dangerous to others. Appellant raises three assignments of error. First, appellant argues that the trial court lacked probable cause to hold a commitment hearing because it issued a citation for that hearing before the investigation required by ORS 426.070(3)(c) was complete, and therefore should have granted his motion to dismiss. Second, appel

lant challenges the admission of evidence relating to crim

inal assaults committed by appellant in 2013 and 2020. Third, appellant argues that the evidence was legally insuf

ficient to prove that appellant was a danger to others. We affirm.

Probable Cause. We review for legal error whether the trial court complied with the pre-commitment statutes and whether any non-compliance with the statutes violated appellant’s due process rights. See State v. K. G. , 330 Or App 493, 497, 544 P3d 403 (2024) (reviewing the trial court’s interpretation of the commitment statutes for legal error); see also State v. Johansen , 125 Or App 365, 367, 866 P2d 470 (1993), rev den , 319 Or 572 (1994) (reviewing a due process challenge to commitment procedures for errors of law).
Appellant argues that the trial court lacked prob

able cause to hold the commitment hearing because the citation issued before the investigator completed the inves

tigation required by ORS 426.070(3)(c), and, moreover, the investigator ultimately recommended against a commitment hearing. On that basis, appellant argues that the trial court should have granted his motion to dismiss. Assuming with

out deciding that the trial court violated ORS 426.070(5)(a) by prematurely issuing the citation, we nevertheless con

clude that any procedural failure was harmless because it did not result in appellant’s commitment.
A trial court must initiate an investigation by a community mental health program upon receiving noticeCite as 334 Or App 224 (2024) 227

that an individual is alleged to be mentally ill and in need of treatment. ORS 426.070(3)(c); ORS 426.074. “If the court, following the investigation, concludes that there is probable cause to believe that the person investigated is a person with mental illness, it shall, through the issuance of a citation

* * * cause the person to be brought before it * * * for a hear

ing * * *.” ORS 426.070(5)(a). The statutory civil commitment scheme “provides procedural safeguards which satisfy the requirements of the Due Process Clause.” Dietrich v. Brooks

, 27 Or App 821, 828, 558 P2d 357 (1976), rev den , 277 Or 99 (1977). While those procedures “aim to ensure due process, it is not necessarily true that the failure to satisfy those pro

cedures denies due process[.]” State v. S. R.-N. , 318 Or App 154, 161, 506 P3d 492 (2022) (emphasis in original). Thus, to determine whether there was “a constitutionally significant deprivation of due process” here, we must assess “the risk that a procedural failure resulted in the commitment.” Id.
In this case, although the trial court may have prematurely issued a citation before the investigation was complete, the notice of mental illness describing appel

lant’s violent behavior, continued delusions, and medica

tion noncompliance provided the trial court with probable cause to hold a commitment hearing. Specifically, the notice described a violent incident in which appellant stabbed a stranger, who sustained life-threatening injuries, and which resulted in criminal charges against appellant, as well as the results of a subsequent aid-and-assist evalua

tion that concluded that appellant would never be able to aid and assist in his own defense. The notice further described appellant’s lack of insight into his mental health, his frus

tration with taking medication, and a physical altercation between appellant and another patient at the Oregon State Hospital. We conclude that that notice provided the trial court with a substantial objective basis to believe that, more likely than not, appellant was suffering from a mental ill

ness. See State v. Smith , 71 Or App 205, 211, 692 P2d 120 (1984) (explaining that, in the context of civil commitment proceedings, probable cause is “a substantial objective basis for believing that more likely than not a person is mentally ill”). Even though the investigator ultimately recommended against a commitment hearing, that recommendation was228 State v. C. C. N.

not binding on the trial court. See ORS 426.070(4) (“Upon completion, a recommendation based upon the investigation report under ORS 426.074 shall be promptly submitted to the court.” (Emphasis added.)). Therefore, any procedural failure on the part of the trial court did not prejudice appel

lant in that the issuance of the citation before the investiga

tor reported their recommendation did not result in appel

lant’s commitment. The trial court did not err in denying appellant’s motion to dismiss on that basis.
Relevancy of Evidence Pertaining to Previous Assaults. In his second assignment, appellant contends that the trial court erred by admitting testimony, over appel

lant’s relevancy objections, pertaining to a 2013 incident in which appellant assaulted his father and a 2020 incident in which appellant stabbed a stranger on a bike path. As appellant acknowledges, under the rules of evidence, rele

vance is a low threshold: evidence that 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” is relevant. OEC 401.
We conclude that the evidence pertaining to the 2013 and 2020 assaults was relevant. Both incidents rep

resent overt acts of violence, and because appellant had been hospitalized since the 2020 stabbing, that incident in particular provided the most recent example of appellant’s tendency to commit violence while unmedicated and in a delusional state. That evidence logically bears on appel

lant’s probability to commit violence in the future. See State v. J. T. C. , 284 Or App 38, 40, 392 P3d 754, rev den , 361 Or 645 (2017) (explaining that when a person with a mental disorder has carried out “an overt violent act in the past against another person,” that evidence generally constitutes clear and convincing evidence that the person is a danger to others if it “form[s] a foundation for predicting future dan

gerousness” (internal quotation marks omitted)). Thus, the trial court did not err in overruling appellant’s objections to the admission of testimony relating to those assaults.
Sufficiency of the Evidence. Finally, appellant con

tends that the evidence is legally insufficient to prove that he was a danger to others because the evidence pertainingCite as 334 Or App 224 (2024) 229

to the 2013 and 2020 incidents fails to show a current threat of serious and highly probable physical harm. We have reviewed the record and conclude the trial court did not err.
“Whether evidence is legally sufficient to support a civil commitment is a question of law.” State v. R. L. W. , 267 Or App 725, 728, 341 P3d 845 (2014). We are bound by the trial court’s findings, so long as they are supported by evi

dence in the record. Id. “[W]e view the evidence, as supple

mented 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.” Id. (internal quotation marks omitted).
“To prove that a person is dangerous to others, the state must establish by clear and convincing evidence a factual foundation to predict appellant’s future dangerous

ness based on his condition at the time of the hearing in the context of his history.” State v. H. M. , 307 Or App 246, 250, 475 P3d 133 (2020) (internal quotation marks omitted). “[I]f a mentally ill person has threatened others and has also carried out an overt violent act in the past against another person, those facts generally constitute clear and convinc

ing evidence that the person is a danger to others.” State v. D. L. W. , 244 Or App 401, 405, 260 P3d 691 (2011). However, the state cannot carry its burden to establish future dan

gerousness “based solely on past history without more.” H. M. , 307 Or App at 251. The state must also present “cur

rent evidence to link [the] appellant’s past behavior to a cur

rent serious and highly probable threat of harm.” Id. at 252 (emphasis in original).
Here, the evidence is legally sufficient to support the trial court’s conclusion that appellant is a danger to oth

ers due to his mental illness. Appellant’s previous assaults demonstrate the serious violence appellant is capable of while unmedicated and in a delusional state. Although the 2020 incident occurred approximately two years before the commitment hearing, the state presented sufficient evi

dence to link appellant’s past violent behavior to a current serious and highly probable threat of harm. The trial court found, and the record supports, that appellant’s delusions230 State v. C. C. N.

persisted despite treatment and intervention in the Oregon State Hospital, that appellant demonstrated poor insight into his mental health and planned to stop taking medica

tion if he was not required to, and that appellant engaged in multiple physical altercations with other patients while hospitalized. The trial court, therefore, did not err in con

cluding that appellant, because of a mental disorder, is dan

gerous to others.

Affirmed.