No. 85-422 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

INTHEMATTER OF THEMENTAL HEALTH OF D. B.

APPEAL FROM: District Court 

### of the Seventh Judicial District, Inand for the County of Richland, The HonorableNat Allen, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Larry

### D. Mansch, Glendive,Montana

For Respondent: PhillipN. Carter,Deputy CountyAttorney, Sidney, Montana

SubmittedonBriefs: Oct. 25, 1985 Decided:November 27, 1985



### .-- ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Respondent D.R. appeals from a commitment order entered in the Seventh Judicial District Court, County of Richland. We affirm the order. On June 14, 1985, the Richland County Deputy Attorney, at the request of D.B. 'smother, filed a petition seeking to commit D.B. The petition alleged four grounds for commitment: A. That on June 12, 1985, at approximately 1:30 a.m., the respondent woke his mother, [J.B.]

## , and accusedher of cuttingup hispork chops. B. That on June 12, 1.985, at approximately 2:00 o'clock a.m., the respondentwent to his sister's house and demanded that that [sic] she return his car to him. The car he was demanding belongs to his sister and her husband. C. That on June 12, 1985, at approximately 3:00 o'clock p.m., the respondentwas found in the Gary Schlenz residence in Glen.dive, Montana. The respond.entwas unknown to the Schlenz family and had no authority to be there. D. On June 10, 1985, the respondent told Officer Marvin Johnson of the Richland County Sheriff's Department that the respondentwas not really there and later he could be beamed to different places and thatBrooke Shieldswas older than she claimed. Probable cause was found to support the petition. Thereafter,Larry Mansch was appointed to represent D.B. as his legal counsel. Peter J. Bruno was appointed as the Professional Person to examine D.B. D.B. requested a trial by jury. It was held June 25, 1985. At the trial, D.B.'s mother, his sister and Peter Bruno, a psychologist, testified that they believed D.B. to be seriously mentally ill and that the least restrictive placement alternative would be Warm Springs State Hospital. D.B. testified in his own behalf. Thereafter, the jury unanimously determined D.B. to be seriously mentally i.11, pursuant to S 53-21-102(14), MCA. A dispositional hearing
was held immediately, following which the trial judge

### committed D.B. to Warm Springs State Hospital for "aperiod of time not to exceed ninety (90) 

### days, as is necessary to adequately treat the respondent." D.B. raises two issues on appeal: 1. Did the District Court err in allowing the jury to hear evidence regarding violent behavior on the part of D.B. when that behavior took place severalyearsprevious to this petition and when those incidents were not set forth as allegations in the petition? 2. Did the State fa.ilto meet its burden of proof as found in 53-21-126(2), MCA? We findno error in the admittance of evidenceofD.B. 's past violent behavior. Rule 402, M.R.Evid., allows the admittance of relevant evidence. "Relevant evidence means evidence having 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 theevidence." Rule 401,M.R.Evid. Section 53-21-126(2), MCA, states inpart: 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. D.B.'s past behavior is both material and relevant to his present condition in that it shows the progression of D.B.'s illness. It provides the jury with a history of his problems, his family's efforts to work with him and his potential with proper treatment. The past events are unquestionably linked to D.B.'s present condition and could make a determination of "seriously mentally ill" more probable. We find no abuse of discretionby the trial judge in

### choosing to allow the jury to hear that evidence. Secondly,

### we find that the State met its burden ofproof
as set forth in S 

### 53-21-126(2), MCA.(2) The standard of proof in any hearing held pursuant to this section is proof beyond a reasonable doubtwith respect to anyphysical facts or evidence and clear and convincing evidence as to all other matters, except that mental disorders shall be evidenced to a reasonable medical certainty. In order to commit D.B.

## , the jury had to find that the evidence proved D.B. to be seriously mentally ill, S 53-21-127(2), MCA, that is "suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof orwhich has deprived the person afflicted of the ability to protect his life or health." Section 53-21-102(14),MCA. This section requires that respondent be a present threat to others or presently unable to protect his life or health. In the Matter of R.T. (1983), 665 P.2d 789, 790, 40 St.Rep. 1025,

There is sufficient evidence to support the jury's determination that D.B. is seriouslymentally ill. Not only has he exhibited violent behavior in the past, his sister testified that she felt threatened by him on the morning of June 11, 1985,when he entered her home demanding the keys to her car. Further,D.B. was found in a stranger's home that
sameday. Fortunately,thewoman responded calmly and no one
was hurt. However, the result could have been far more tragic had she panicked. Finally, Peter Bruno, D.B.'s court-appointedpsychologist, testified thathe believed D.B. to be seriously mentally ill; that he lacked the ability to care for himself, specifically in thathe refuses to takehis medication; and thatheposes a threat to others. This evidence, ifbelieved, supports theverdict.We concur:

-- Chief Justice