NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS 

DIVISION ONE

IN THE MATTER OF LARRY B. 

No. 1 CA-MH 13-0089

Appeal from the Superior Court in Mohave County

No. S8015MH201300045

The Honorable Lee Frank Jantzen, Judge

AFFIRMED

COUNSEL

Mohave County Attorney’s Office, Kingman

By Dolores H. Milkie

Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman

By Diane S. McCoy

Counsel for Appellant
IN THE MATTER OF LARRY B.

Decision of the Court

2

MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.

G O U L D, Judge:

¶1 Appellant Larry B. appeals from the trial court’s order for 

involuntary commitment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant was admitted to the Mohave Mental Health Clinic 

after his wife filed an application for a court-ordered evaluation pursuant 

to Arizona Revised Statutes (“A.R.S.”) section 36-520. A few days later, a 

petition for involuntary treatment was filed. The petition was supported

by the affidavits of two physicians, Doctors Calvin Flowers and Michael 

Tofani. Both doctors opined that Appellant was persistently or acutely 

disabled, a danger to others, and a danger to himself.1 

¶3 A commitment hearing was held on December 3, 2013.

Flowers testified at the hearing; however, the parties stipulated to the 

admission of Tofani’s affidavit in lieu of his testimony. At the conclusion 

of the hearing, the court determined that Appellant was a danger to self 

and others, was persistently and acutely disabled, and was unwilling or 

unable to accept voluntary treatment. The court ordered Appellant to 

undergo combined in-patient and out-patient treatment. Appellant filed a 

timely appeal. 

 

1 The first line of Tofani’s affidavit states, “Calvin Flowers, M.D., 

Medical Director, being first duly sworn, deposes and states. . . .” The 

parties agree that this is a typographical error, and that the affidavit, 

which is signed by Tofani, is in fact Tofani’s affidavit. 

 
IN THE MATTER OF LARRY B.

Decision of the Court

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DISCUSSION

¶4 The State must prove a patient’s need for court-ordered 

treatment by clear and convincing evidence. A.R.S. § 36-540(A).2 A trial 

court’s factual findings supporting a civil commitment order “will not be 

set aside unless clearly erroneous or unsupported by substantial 

evidence.” In re MH 2007–001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 

423 (App. 2008). However, we review de novo issues concerning 

interpretation of the statutory requirements for civil commitment 

proceedings. In re MH 2011-000914, 229 Ariz. 312, 314, ¶ 7, 275 P.3d 611, 

613 (App. 2012); MH 2007–001236, 220 Ariz. at 165, ¶ 15, 204 P.3d at 423. 

Because involuntary treatment proceedings may result in a serious 

deprivation of a person’s liberty interests, the statutory requirements for 

such proceedings must be strictly construed. MH 2007–001236, 220 Ariz. 

at 165, ¶ 15, 204 P.3d at 423.

I. Tofani’s Affidavit

¶5 Appellant contends that Tofani’s affidavit is insufficient to 

support the trial court’s findings that he is suffering from a mental 

disorder, is persistently or acutely disabled, is a danger to himself and 

others, and is in need of treatment. 

¶6 The evidence presented at a commitment hearing “shall 

include . . . [the] testimony of . . . two physicians who participated in the 

evaluation of the patient.” A.R.S. § 36-539(B). The testimony of the 

physicians “may be satisfied by [the parties] stipulating to the admission” 

of the physician’s affidavits that were submitted in support of the petition 

for court-ordered treatment. Id; see A.R.S. § 36-537(D) (providing that an 

attorney “may enter stipulations on behalf of the patient” at civil 

commitment hearing). A physician’s affidavit must include the 

physician’s “opinion[s] concerning whether the patient is, as a result of 

mental disorder, a danger to self or to others, is persistently or acutely 

disabled or is gravely disabled and . . . whether the patient requires 

treatment.” A.R.S. § 36-539(B); see A.R.S. § 36-533(B). The affidavit must 

“describe in detail the behavior that indicates that the person, as a result of 

mental disorder, is a danger to self or to others, is persistently or acutely 

disabled or is gravely disabled.” A.R.S. § 36-533(B); see A.R.S. § 36-539(B) 

 

2 Absent material revisions, we cite to the current version of 

applicable statutes. 
IN THE MATTER OF LARRY B.

Decision of the Court

4

(stating that a physician’s testimony at a commitment hearing “shall state 

specifically the nature and extent of the danger to self or to others, the 

persistent or acute disability or the grave disability”). Thus, conclusory 

statements and general assertions, “without more, are insufficient to meet 

the statutory requirements” for a civil commitment. MH 2011-000914, 229 

Ariz. at 316, ¶ 14, 275 P.3d at 615. 

¶7 The opinions in a physician’s affidavit cannot be tentative or 

equivocal; opinions must be “expressed to a reasonable degree of medical 

certainty or probability.” MH 2007-001236, 220 Ariz. at 169, ¶ 29, 204 P.3d 

at 427. However, a physician’s affidavit is not insufficient or inadmissible 

merely because he fails to include the specific words “reasonable degree 

of medical probability or certainty.” Id. at 169-70, ¶ 30, 204 P.3d at 427-28. 

Rather, the trier of fact must decide, based on all of the evidence, whether 

the physician’s opinions have been expressed to a reasonable degree of 

medical certainty or probability. Id. 

A. Admissibility of Attachments

¶8 Appellant argues that the documents attached to Tofani’s

affidavit should not have been considered by the trial court as part of his

affidavit.3 Appellant does not contend the attachments are hearsay, lack 

authentication or are otherwise inadmissible, nor does Appellant argue

that the attachments were improperly admitted in lieu of Tofani’s 

testimony. See In re MH 2009-001264, 224 Ariz. 270, 229 P.3d 1012 (App. 

2010) (discussing due process considerations involved in admitting 

physician affidavits in place of live testimony). Rather, Appellant asserts 

that the parties’ stipulation only included the page entitled, “Affidavit,” 

and did not include any of the documents attached to this page. In 

contrast, the State asserts that the attached documents were part of the

affidavit Tofani submitted in support of the petition for court-ordered 

treatment, and that all of these documents were included in the parties’

stipulation. 

¶9 We review a trial court’s decision regarding the admission of 

evidence for an abuse of discretion. MH 2011-000914, 229 Ariz. at 315, 

¶ 13 n.8, 275 P.3d at 614 n.8; Waddell v. Titan Ins. Co., 207 Ariz. 529, 536, 

¶ 28, 88 P.3d 1141, 1148 (App. 2004). 

 

3 The attachments consist of the following documents: “Persistently 

or Acutely Disabled (Addendum No. 1)”; “Client Progress Notes”; a form 

entitled “Client Progress Note”; and a list of Appellant’s medications. 
IN THE MATTER OF LARRY B.

Decision of the Court

5

¶10 When Appellant’s counsel entered the stipulation at the 

hearing, he did not object to the admission of the attachments, nor did he 

urge the court to disregard or remove the attachments from the 

“Affidavit” page. As a result, Appellant has waived any objection to the 

admission of the attachments as part of Tofani’s affidavit. MH 2009-

001264, 224 Ariz. at 272, ¶ 7, 229 P.3d at 1014; In re MH 2007-001264, 218 

Ariz. 538, 540, ¶ 16, 189 P.3d 1111, 1113 (App. 2008). Accordingly, we 

conclude the trial court properly considered the documents attached to 

the “Affidavit” page in reaching its decision.

B. Sufficiency of Tofani’s Affidavit 

¶11 Appellant asserts there are several deficiencies in Tofani’s 

affidavit. First, Appellant argues that Tofani’s opinion that he suffers

from a mental disorder is not expressed to a reasonable degree of medical 

certainty or probability. Appellant bases this argument on Tofani’s 

statement that Appellant is “suffering from a mental disorder diagnosed 

as Schizophrenic Paranoid Type (Probable Diagnosis).” 

¶12 Although Tofani does not use the specific phrase, 

“reasonable degree of medical certainty or probability,” when read as a 

whole, Tofani clearly diagnoses Appellant as suffering from a mental 

disorder, specifically, Schizophrenic Paranoid Type. A.R.S. § 36-539(B). 

We find no error. 

¶13 Appellant also claims that Tofani’s affidavit lacks specificity 

as to the basis for his diagnosis. We disagree. Tofani bases his diagnosis 

on Appellant’s “[p]resentation of psychotic symptoms with paranoid 

delusional thoughts, auditory hallucinations and threatening behavior to 

others.” Tofani notes that Appellant has a past history of “recurrent 

paranoid psychotic symptoms and multiple past hospitalizations,” and 

that prior to his current hospitalization he had been taken to jail for 

threatening to “stab someone.” 

¶14 Appellant also claims Tofani’s affidavit is deficient because 

it does not address the statutory elements required to show he is 

persistently or acutely disabled. A.R.S § 36-501(32)(b). Appellant asserts 

Tofani’s affidavit fails to show (1) he lacked the capacity to make an 

informed decision about the advantages and disadvantages of accepting 

treatment, as well the alternatives to treatment, and (2) there is a 

reasonable prospect he is treatable by outpatient, inpatient or combined 

inpatient and outpatient treatment. Id. 
IN THE MATTER OF LARRY B.

Decision of the Court

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¶15 Our review of Tofani’s affidavit shows that he addresses

Appellant’s impaired capacity to make informed decisions about 

treatment. Tofani states that Appellant has no “insight into how he got 

back into this position,” and is “unable to offer a plan to get out of it.” 

Tofani goes on to state that “all available alternatives have been 

investigated and deemed inappropriate” based on “multiple attempts at 

[outpatient] treatment which is much less restrictive,” and that these 

attempts have failed “due to repeated noncompliance with therapeutic 

medication and substance use.” Tofani opines that Appellant’s severe 

mental disorder substantially impairs his capacity to make informed 

decisions regarding treatment based on the fact Appellant “demonstrates 

no insight into his illness or how to care for it and has markedly impaired 

judgment preventing him from making informed decisions.” 

¶16 Tofani further states that Appellant “does not appear to be 

able to understand and retain the significance of maintaining treatment 

which has been helpful to him in the past,” and that Appellant’s 

“complete lack of insight into his illness and the complications provided 

by substance use impairs his ability to make [a] meaningful determination 

to continue treatment and avoid substance use.” As an example of 

Appellant’s lack of insight, Tofani notes that Appellant minimizes his 

substance abuse and “offers no plan on how he will be able to stay clean 

other than relying on his brothers.” Tofani also testifies that there is a 

reasonable prospect Appellant is treatable, but “only with complete 

[abstinence]” from substance abuse. Accordingly, we conclude Tofani’s 

affidavit establishes that Appellant is persistently or acutely disabled 

pursuant to A.R.S. § 36-501 (32)(b). 

¶17 Next, Appellant claims that Tofani’s affidavit is insufficient 

to show he is a danger to others. A.R.S. § 36-501(5). The record does not 

support Appellant’s argument. In his affidavit, Tofani notes Appellant’s 

“agitation and threatening behavior,” and “threatening behavior towards

others.” Tofani also states that Appellant is currently hospitalized because

he threatened to “stab someone.” Based on this incident, the police took 

Appellant to jail, he is facing “possible assault charges,” and his wife has

obtained an order of protection against him. 

¶18 Finally, Appellant asserts that Tofani’s statement Appellant 

suffers from suicidal ideation lacks the requisite specificity to show he is a 

danger to himself. A.R.S. § 36-501(6). We disagree.

¶19 Tofani opines Appellant is a danger to himself, noting that

“[h]e appears overwhelmed by his emotions, presently feeling hopeless 
IN THE MATTER OF LARRY B.

Decision of the Court

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and thinking about suicide,” and “present reference to suicidal ideation.” 

Tofani states Appellant is experiencing auditory hallucinations, paranoid 

and delusional thoughts, and is using methamphetamine. Tofani also 

reports Appellant’s statement, “I think about killing myself if I cannot see 

my kids.” 

¶20 Based on our review of Tofani’s affidavit, we conclude it (1) 

meets the requirements of A.R.S. §§ 36-539(B) and 36-533(B), and (2) 

provides sufficient evidence to support the trial court’s findings that 

Appellant is suffering from a mental disorder, is persistently or acutely 

disabled, constitutes a danger to himself and others, and requires 

treatment.

II. Flowers’ Testimony

¶21 Appellant also argues that Flowers’ testimony is insufficient 

to prove he is a danger to others and that he requires treatment.4 

Appellant contends that Flowers’ testimony lacked specificity on these 

issues, and that contrary to a finding he was a danger to others, Flowers 

testified that Appellant has “no thoughts of harm” to others. 

¶22 Flowers testified that Appellant’s auditory hallucinations 

cause him to act out and behave in a manner that is dangerous to himself 

and others. Flowers stated Appellant has poor impulse control, and that 

he reasonably expects Appellant’s behavior will result in physical harm to 

others because he tends to have violent thoughts and make threats to his 

family. Flowers noted that prior to his current hospitalization Appellant 

had been incarcerated for an incident of domestic violence. Flowers 

testified on cross-examination Appellant “continues to have violent 

thoughts and has asked for stronger medications on several occasions to 

help combat the auditory hallucinations which prompt the violent 

thoughts towards himself and others.” 

¶23 Flowers also testified about Appellant’s need for treatment. 

Flowers testified “there’s a high likelihood” that without “a combination 

of inpatient and outpatient [treatment] and psychiatric medications,” 

 

4 Appellant also argues that Flowers’ affidavit was insufficient to 

show he is a danger to others and that he requires treatment. We do not, 

however, consider Flowers’ affidavit in reviewing the sufficiency of the 

evidence because it was not admitted as an exhibit at the commitment 

hearing. 
IN THE MATTER OF LARRY B.

Decision of the Court

8

Appellant would “suffer severe and abnormal mental, emotion[al] or 

physical harm” that would “significantly impair[] [his] judgment, reason, 

behavior or capacity to recognize reality.” However, Flowers opined that 

with treatment there is a very good chance Appellant’s symptoms will be 

“reduced.” Flowers stated that he discussed with Appellant the 

advantages of treatment, including a “reduction in psychotic symptoms of 

the auditory hallucinations . . . improvement in overall functioning . . . the 

reduction in aggressive behaviors and thoughts and the ability to integrate 

back into the community.” Flowers also advised Appellant that the

primary disadvantage of treatment was the side effects of antipsychotic 

medications. 

¶24 Flowers testified that he discussed alternative treatment 

placements with Appellant, which consisted of “doing nothing” and 

possible voluntary treatment, and the risk that these alternatives would 

result in relapse and future hospitalization. Flowers testified that 

Appellant had difficulty understanding these alternatives due to the 

“acute nature” of his “psychotic symptoms.” Ultimately, Flowers 

concluded that Appellant had no willingness or ability to undergo 

voluntary treatment, and that he lacked the capacity to make an informed 

decision about his treatment. 

¶25 Our review of the record shows that Flowers provided 

sufficient evidence that Appellant is a danger to others and in need of 

treatment. 
IN THE MATTER OF LARRY B.

Decision of the Court

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CONCLUSION

¶26 For the reasons discussed above, we conclude the trial

court’s order for involuntary treatment was supported by substantial 

evidence. We therefore affirm.