Matter of Fry

584 P.2d 354 (1978) 36 Or.App. 297 In the matter of Timothy Allen Fry, Alleged to Be a Mentally Ill Person. State of Oregon, Respondent, v. TIMOTHY ALLEN FRY, Appellant. No. 2896; CA 10333. Court of Appeals of Oregon. Argued and Submitted June 23, 1978. Decided September 18, 1978. Duane J. McCabe, Coos County Public Defender, North Bend, argued the cause and filed the brief for appellant. James C. Rhodes, Deputy Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. Before SCHWAB, C.J., and JOHNSON, GILLETTE and ROBERTS, JJ. ROBERTS, Judge. Appellant seeks reversal of the court's determination that he is a mentally ill person. The sole issue presented is whether the evidence is sufficient to conclude that the appellant was a mentally ill person as defined by ORS 426.005(2)(a).[1] In State v. Alexander, 26 Or. App. 943, 554 P.2d 524 (1976), we noted the necessity of making a case by case review in determining whether the individual was, in fact, mentally ill beyond a reasonable doubt. ORS 426.130.[2] We further noted the difficulty in attempting to apply the reasonable doubt standard because of the necessity of predicting that the allegedly mentally ill person would engage in dangerous conduct. In Alexander, we stated: "`* * * [T]he legislature clearly has rejected the traditional philosophy applied to mental commitment proceedings of "when in doubt, commit." Under the new statute, if any reasonable doubt exists, an allegedly mentally ill person may not be committed.'" State v. Alexander, supra 26 Or. App. at 947, 554 P.2d at 527. [Quoting 53 Or.L.Rev. 262-63 (1973-74)]. *355 In reviewing de novo, we must determine whether the reasonable doubt standard has been met. Appellant, aged 21, testified he heard voices talking to him from television and radio. He admitted thinking about killing himself and others, but he denied that he ever would. Appellant further admitted having a conflict between God and Satan going on in his mind, and he felt that he was God and had special powers. The voices troubling appellant were becoming worse, and they led appellant to conclude that he could not leave the courthouse and live. He also believed people were out to get him, and was sometimes afraid of people. Appellant's mother, who initiated the proceedings, stated that appellant's discussions about harming himself were "just talk." Although appellant had thought of killing himself with a gun, he neither owned a gun nor knew where he could acquire one. She also testified that appellant had no enemies that she knew of. Appellant was incarcerated for driving while his driver's license was suspended. He was designated a jail trustee during which time he showed no aggression toward jailers or prisoners. He had performed his trustee job well until a nervous problem occurred. He was then treated with medication and began acting "a lot better now than he was." While in jail, he was never observed to exhibit dangerous tendencies toward other people. According to his supervising police officer who testified in his behalf appellant was well liked by his fellow trustees. Appellant had not threatened or quarreled with either of the initiating petitioners or anyone else within the recent past. The two examining mental health professionals agreed that the appellant had a mental disease, but disagreed as to whether or not he was dangerous to himself or others. The examiner who favored involuntary commitment, a medical doctor serving as the county health officer, was not particularly certain regarding appellant's actual dangerousness. The examiner observed: "Well, I can say this, that he is not a danger to others as he is now but unless he gets proper care and proper medication and gets the situation under control, he is going to be worse and that worse could result in some voice saying `Look, go get the Judge or get [me]' or something and they often will do it." (Emphasis supplied.) The other examiner, a psychologist, concluded that appellant was suffering from a mental illness, but not to such a degree that he was dangerous to himself or others. We have stated in State v. Lucas, 31 Or. App. 947, 950, 571 P.2d 1275, 1277 (1977), "a mere recitation of past acts, in the absence of a showing that such clearly forms the foundation for a prediction of future dangerousness, cannot serve as the basis for finding that one is a mentally ill person pursuant to ORS 426.005(2)." (Footnote omitted.) Apprehensions and speculation alone are not enough to fulfill the requirements of the statute. The record reflects that the one professional examiner to conclude that appellant should be committed predicated his opinion on his hypothesis that appellant "could" become dangerous to others. Such conjecture falls short of the reasonable certainty of predicted dangerous behavior that we required in Alexander and reaffirmed in Lucas. Reversed. JOHNSON, J., specially concurs. JOHNSON, Judge, specially concurring. In State v. Heintz, 26 Or. App. 935, 939-40, 554 P.2d 556, 558 (1976), Judge Tanzer stated in a specially concurring opinion: "The standard of proof beyond reasonable doubt, borrowed from criminal procedure, is inappropriate in a mental hearing where the issue is the degree of probability of future possibilities rather than the existence of a past fact. Yet the legislature has directed that we apply that standard and, however difficult it may be to apply, we are bound to and will find ways to make it workable. I concur with that statement except for the comment that we "will find ways to make it *356 workable." In this case, we are confronted with persons who suffer from mental illness and in all probability are a danger to themselves or to others. If we applied a preponderance of the evidence test, I am certain that a majority of this court would agree with me that the trial court's order committing these individuals should be affirmed.[1] We are compelled to reverse because the legislature in its wisdom requires that the state prove a probability as to the future beyond a reasonable doubt. NOTES [1] ORS 426.005(2)(a) provides: "(2) `Mentally ill person' means a person who, because of a mental disorder, is either: "(a) Dangerous to himself or others * *" [2] ORS 426.130 provides in pertinent part: "After hearing all of the evidence, and reviewing the findings of the examining persons, the court shall determine whether the person is mentally ill. If in the opinion of the court the person is not mentally ill, he shall be discharged forthwith. If in the opinion of the court the person is mentally ill beyond a reasonable doubt, the court may order as follows:" (Emphasis supplied.) [1] Furthermore, if the test were a preponderance of the evidence, I am certain that this court would have affirmed orders of commitment in previous cases wherein the orders were reversed for failure of the state to meet its burden of proof beyond a reasonable doubt. Since the legislature adopted the stricter burden of proof in 1974, Oregon Laws 1973, ch. 838, § 12, this court has heard, in addition to the three cases decided today, twenty-three appeals from orders of commitment under ORS chapter 426. In five of those cases, the orders were reversed for procedural errors. See State v. Carney, 29 Or. App. 291, 562 P.2d 1248 (1977); State v. Hynes, 27 Or. App. 37, 554 P.2d 1030 rev den (1977); State v. English, 26 Or. App. 957, 554 P.2d 201 (1976); State v. May, 26 Or. App. 953, 554 P.2d 201 (1976); State v. Anderson, 21 Or. App. 263, 534 P.2d 1159 (1975). In only six cases where the issue was the sufficiency of the evidence was the order affirmed. See State v. Brooks, 35 Or. App. 347, 581 P.2d 134 (decided July 18, 1978); State v. Watkins, 35 Or. App. 87, 581 P.2d 90 (decided July 5, 1978); State v. Hart, 32 Or. App. 573, 574 P.2d 702 (1978); State v. Daulton, 30 Or. App. 217, 566 P.2d 555 (1977); State v. G, 26 Or. App. 197, 552 P.2d 574 rev den (1976); State v. Nesbitt, 23 Or. App. 202, 541 P.2d 1055 rev den (1976); State v. O'Neill, 21 Or. App. 710, 536 P.2d 552 (1975). (This court's opinion in O'Neill was reversed by the Supreme Court in State v. O'Neill, 274 Or. 59, 545 P.2d 97 (1976).) In the remaining ten cases, the orders of commitment were reversed for failure of the state to meet its burden of proof. See State v. Nelson, 35 Or. App. 57, 580 P.2d 590 (decided July 5, 1978); State v. Conrad, 34 Or. App. 119, 578 P.2d 1 (1978); State v. Corrigan, 32 Or. App. 577, 574 P.2d 707 (1978); State v. Lucas, 31 Or. App. 947, 571 P.2d 1275 (1977); State v. Paul, 28 Or. App. 479, 559 P.2d 535 (1977); State v. Benton, 27 Or. App. 259, 555 P.2d 468 (1976); State v. Haskell, 27 Or. App. 261, 555 P.2d 798 (1976); State v. Alexander, 26 Or. App. 943, 554 P.2d 524 (1976); State v. Heintz, 26 Or. App. 935, 554 P.2d 556 (1976); State v. Stephens, 23 Or. App. 257, 541 P.2d 1052 (1975). In at least some of these cases, it is likely that the orders of commitment would have been affirmed had the burden of proof been by a preponderance of the evidence. See e.g., State v. Alexander, State v. Heintz, and State v. Corrigan, all supra.