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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. WILLIAMS

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

BRIAN M. WILLIAMS, APPELLANT.

Filed September 12, 2017. No. A-17-060.

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge. 

Affirmed.

Timothy S. Noerrlinger for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

INTRODUCTION

Brian M. Williams appeals from a post-acquittal commitment proceeding held pursuant to 

Neb. Rev. Stat. §§ 29-3701 and 29-3702 (Reissue 2016). The district court for Lancaster County 

found Williams to be a danger to himself and the public and committed him to the Lincoln 

Regional Center (Regional Center). On appeal, Williams contends the court failed to properly 

weigh the evidence and wrongly required inpatient treatment at the Regional Center. Because we 

cannot say as a matter of law that the district court order was unsupported by clear and convincing 

proof, we affirm.

BACKGROUND

On May 28, 2015, a Lancaster County deputy sheriff observed Williams driving in excess 

of the speed limit. When the deputy initiated a traffic stop, Williams fled. After a chase, the deputy 
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took Williams into custody. Because he requested medical treatment, the deputy took him to the 

hospital. However, upon arrival at the hospital, Williams refused both treatment and requests for 

a blood test. He was later charged with operating a motor vehicle to avoid arrest, refusal of a 

chemical test, and resisting arrest, first offense. Following a bench trial on stipulated facts, the 

district court entered an order on July 27, 2016, finding the defendant suffered from schizophrenia 

and was “hallucinating and paranoid” at the time of his offenses. His condition at that time made 

him unable to distinguish right from wrong. Therefore, the district court found Williams not 

responsible by reason of insanity on all three counts.

After the acquittal, the trial court conducted a probable cause hearing on August 17, 2016,

pursuant to § 29-3701. The State reentered evidence from trial, including the evaluation of 

Williams by a clinical psychologist. The court further received a mental investigation case report 

from the police and Williams’ testimony. In an order entered August 24, the court found probable 

cause to believe Williams was dangerous to himself or others by reason of his mental illness. The 

court ordered that Williams’ mental condition be evaluated within 90 days and a treatment plan 

prepared. However, because the court found Williams would not be a danger to himself and the 

public during the required evaluation period, the court stated that Williams could be evaluated at 

the Regional Center on an outpatient basis.

Williams did not make himself available for the outpatient evaluation, and the district court 

ordered him to appear for a hearing to be held on September 16, 2016. Williams did not appear for 

the September 16 hearing, and the court granted the State’s motions to revoke Williams’ bond, 

issue a bench warrant, and hold Williams in the Lancaster County Jail until the Regional Center 

had room for an evaluation.

On September 19, 2016, a Regional Center psychiatrist performed an initial evaluation on

Williams for the court. Based on his evaluation of Williams and the stipulated trial evidence, the 

psychiatrist found that Williams is unlikely to attend outpatient appointments and take prescribed 

medication. The psychiatrist went on to find Williams’ delusions would not yield to outpatient 

psychotherapy. If Williams were given a relapse prevention plan, the psychiatrist determined he 

would be unlikely to follow it. Last, the psychiatrist found that Williams is physically aggressive 

and may harm his mother if left in her custody. Thus, the Regional Center psychiatrist found 

Williams is a “clear and present danger to others.” The psychiatrist mailed his findings to the court 

in a letter dated September 19.

Due to the Regional Center psychiatrist’s findings, the district court scheduled an 

additional probable cause hearing for October 7, 2016. At the additional probable cause hearing, 

the State presented the psychiatrist’s findings. Following the hearing, the district court entered an 

order finding probable cause existed that Williams was dangerous to himself and others by reason 

of his mental illness and would remain dangerous in the foreseeable future. Accordingly, the 

district court ordered that Williams remain in law enforcement custody, pending bed availability 

at the Regional Center, and that his evaluation be conducted at the Regional Center on an inpatient 

basis.

The district court held a commitment hearing pursuant to § 29-3702 on December 20, 2016. 

The State offered the opinions of a social worker, clinical psychologist, and second psychiatrist 

from the Regional Center on the condition of Williams’ mental health. These mental health 
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professionals reported that Williams has a history of aggression and paranoid delusions leading to 

impulsive behavior. He is altogether unwilling to discuss his mental health issues. Although he has 

had no behavioral issues since his admission to the Regional Center, he has reported experiencing 

5 to 10 minutes of delusions per day. He has a poor history of compliance with taking medication, 

and cannot articulate why taking medication is important. While his condition has improved since 

his admission, the mental health professionals asserted Williams is still mentally ill and dangerous. 

He would be a particular risk if he were to leave the Regional Center’s structured environment. 

They concluded that inpatient treatment at the Regional Center would be the least restrictive mental 

health plan for Williams’ condition. In response, Williams insisted that his mental health had 

improved since being in the care of the Regional Center and that he would be able to administer 

his medications independently. Williams requested the court enter a treatment plan and order him 

to report to the Regional Center on a less restrictive outpatient basis.

On December 23, 2016, the district court entered an order committing Williams to the 

Regional Center for appropriate treatment. The court found clear and convincing evidence that 

Williams was a danger to himself or others due to his mental illness and that the danger would 

continue in the foreseeable future absent continuing participation in the appropriate treatment. The 

court further found the Regional Center is the least restrictive environment for Williams, and 

ordered a treatment plan consistent with the Regional Center’s evaluation. Williams appealed.

ASSIGNMENTS OF ERROR

Williams asserts, consolidated and restated, that the district court did not properly weigh 

the evidence and thus erred in placing his legal custody with the Regional Center instead of 

instituting a less restrictive outpatient commitment.

STANDARD OF REVIEW

An appellate court will not interfere with a final order made by the district court in a mental 

health commitment proceeding unless the court can say as a matter of law that the order is not 

supported by clear and convincing proof. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006).

ANALYSIS

Williams argues that the district court erred in granting the Regional Center custody over 

him for inpatient treatment when outpatient treatment was available. Section 29-3702 requires the 

district court to place a person who is a danger to himself or others due to mental illness in the 

least restrictive available treatment program that is consistent with the person’s needs and the 

safety of the public. Williams insists that because the court found, following the initial § 29-3701 

probable cause hearing, that he would not pose a foreseeable danger to himself or the public during 

the evaluation period, § 29-3702 requires the district court to similarly find he is not dangerous at 

the commitment proceeding.

Williams misunderstands the relationship between the post-acquittal probable cause 

hearing required by § 29-3701 and the post-acquittal mental health commitment hearing described 

in § 29-3702. In his brief, Williams suggests that the two hearings must necessarily be consistent 

with one another. Instead, as discussed below, the two hearings determine the status of an acquitted 
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person’s mental health and the least restrictive treatment option based on evidence available to the 

court at the time of each hearing.

After an acquittal on grounds of insanity, § 29-3701(1) provides the procedure the issuing 

court must follow.

Following receipt of a verdict of acquittal on grounds of insanity, the court shall forthwith 

conduct a hearing to determine whether there is probable cause to believe the person is 

dangerous to himself, herself, or others by reason of mental illness or defect or will be so 

dangerous in the foreseeable future, as demonstrated by omissions, threats, or overt acts. 

In making this determination the court shall consider all evidence adduced at trial and all 

additional relevant evidence. If the court finds probable cause it shall order an evaluation 

not to exceed ninety days in length of the person’s mental condition and a treatment 

plan. . . . The evaluation of the person may be conducted as an outpatient at a regional 

center or other appropriate facility if the court finds by clear and convincing evidence that 

the person poses no current danger to society at the time of the probable cause hearing and 

will not become a danger to society during the evaluation period. . . .

Here, at Williams’ initial hearing the district court found probable cause that Williams 

is--or may be in the foreseeable future--a danger to himself or the public. But based on the evidence 

available at that time, the court found he would not be a danger to himself or the public during the 

evaluation period. The court therefore allowed the Regional Center to evaluate Williams on an 

outpatient basis. Because he did not attend his outpatient evaluation, the court issued a bench 

warrant for Williams’ arrest and ordered him held in custody until he could be evaluated at the 

Regional Center. The district court held a second probable cause hearing based on the Regional 

Center psychiatrist’s findings following the initial evaluation. At the second hearing, the district 

court determined Williams was a danger to himself and others and should be evaluated on an 

inpatient basis. Following the evaluation, the district court held a commitment hearing.

When a regional center has completed the evaluation ordered at a § 29-3701 probable cause 

hearing, the court will hear the evidence obtained from the evaluation in a commitment proceeding. 

As provided in § 29-3702(1):

Prior to the expiration of the evaluation period provided for in section 29-3701, the court 

shall conduct an evidentiary hearing regarding the condition of the person, at which time a 

representative of the facility where he or she was evaluated may testify as to the results of 

the evaluation and the contents of the treatment plan. Based upon the results of the 

evaluation, evidence adduced at trial, evidence of other omissions, threats, or overt acts 

indicative of dangerousness, and any other relevant evidence, the court shall determine 

whether the person is dangerous to himself, herself, or others by reason of mental illness 

or defect, will be so dangerous in the foreseeable future, or will be so dangerous absent 

continuing participation in appropriate treatment.

If the court finds the required clear and convincing evidence, § 29-3702(2) provides that the court 

must order the person to participate in the least restrictive available treatment program that is

consistent with the treatment needs of the person and the safety of the public.
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The Nebraska Supreme Court has found several factors point to a finding that inpatient 

commitment is the least restrictive treatment option for an acquitted defendant. For example, in 

State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987), the district court placed a person acquitted 

from criminal charges based on a plea of insanity in the custody of a regional center for inpatient 

mental health treatment. On appeal, the acquitted defendant claimed the State could not point to 

an overt act sufficient to meet the clear and convincing evidence standard of commitment. The 

Supreme Court determined that a psychiatrist’s findings regarding the acquitted defendant’s 

mental health were legally sufficient to support the clear and convincing standard the statute 

requires.

So too, in State v. Hayden, 233 Neb. 211, 444 N.W.2d, 317 (1989), a defendant acquitted 

on grounds of insanity claimed the State offered insufficient evidence to support a finding by the 

clear and convincing standard. The defendant argued that even if inpatient treatment was necessary 

at one point, evidence that the defendant’s mental illness was in remission merited a less restrictive 

mental health treatment plan. The Supreme Court disagreed. The Court reasoned that the 

defendant’s history of aggression, drug and alcohol abuse, poor orientation in time and place, and 

the necessity of close monitoring supported the district court’s findings that the defendant was a 

danger to himself and the public and should be treated as an inpatient at a regional center.

In this case, the court found by clear and convincing evidence that Williams was a danger 

to himself and others, and would continue to be such a danger for the foreseeable future. The court 

based its decision on several factors, including Williams’ refusal to cooperate with treatment, lack 

of insight regarding his mental illness, history of aggression toward his mother and the police, 

history of drug and alcohol abuse, poor orientation in time and place, the need for close 

observation, and the recommendation of several mental health professionals. Therefore, the court 

concluded inpatient treatment would be the least restrictive option. We agree.

An appellate court will not interfere with a final order made by the district court in a mental 

health commitment proceeding unless the court can say as a matter of law that the order is not 

supported by clear and convincing proof. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006). 

Based on the evidence presented at the commitment hearing, it cannot be said that there is not 

sufficient evidence to support the district court’s finding by clear and convincing proof.

CONCLUSION

After reviewing the record, we cannot conclude as a matter of law that the district court 

erred in placing legal custody of the appellant with the Regional Center instead of instituting a less 

restrictive outpatient commitment. Therefore, we affirm.

AFFIRMED.