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) 225
226 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, appellant challenges the admission of evidence relating to criminal assaults committed by appellant in 2013 and 2020. 

Third, appellant argues that the evidence was legally insufficient 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 probable cause to hold the commitment hearing because the 

citation issued before the investigator completed the investigation 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 without deciding that the trial court violated ORS 426.070(5)(a)

by prematurely issuing the citation, we nevertheless conclude 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 notice 
Cite 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 hearing * **.” 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 procedures 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 appellant’s violent behavior, continued delusions, and medication 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 evaluation 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 frustration 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 illness. 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 was 
228 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 appellant in that the issuance of the citation before the investigator reported their recommendation did not result in appellant’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 appellant’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, relevance 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 represent 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 appellant’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 dangerousness” (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 contends that the evidence is legally insufficient to prove that 

he was a danger to others because the evidence pertaining 
Cite 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 evidence in the record. Id. “[W]e 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.” 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 dangerousness 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 convincing 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 dangerousness “based solely on past history without more.”

H. M., 307 Or App at 251. The state must also present “current evidence to link [the] appellant’s past behavior to a current 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 others 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 evidence 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 delusions 
230 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 medication 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 concluding that appellant, because of a mental disorder, is dangerous to others.

Affirmed.