State v. K. J. B.

GARRETT, J. In this civil commitment case, appellant seeks reversal of an order committing him to the Oregon Health Authority on the ground that appellant suffered from a mental disorder that made him dangerous to himself, dangerous to others, and unable to provide for his basic needs. ORS 426.130; ORS 426.005(l)(e) (2013).1 We conclude that appellant failed to preserve the argument that he makes on appeal and, accordingly, we affirm the judgment of commitment. Appellant has not requested that we exercise our discretion to review de novo, and we decline to do so in this case. Instead, “we 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.” Dept. of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013). Appellant has been diagnosed with schizoaffec-tive disorder since 1986. Appellant’s disorder causes him to become highly disorganized and experience delusions. Those symptoms worsen when appellant is not taking his medication. Appellant has experienced periods of homelessness and substance abuse and has struggled to take advantage of resources available to obtain food, shelter, and medical treatment. In October 2015, appellant was arrested for setting a fire in public, and then held at Yamhill County Jail. At a subsequent arraignment on unrelated charges, he exhibited gross disorganization and bizarre behavior, which led to the initiation of this civil commitment proceeding. At the civil commitment hearing, the state presented evidence regarding appellant’s fire setting, his medical history, and his behavior in jail. Regarding the fire setting, the — 865 — state’s precommitment investigator testified that, when she questioned appellant about the October 2015 fire, he told her that he had set the fire because he was trying to get warm. Appellant’s mental health caseworker, who had worked with appellant for approximately a year, testified that she had received an earlier report from appellant’s family that he had set fires at their property. As to appellant’s medical history, a county social worker testified about an earlier occasion, in July 2015, when appellant had been brought to jail with an infected toe. Appellant had failed to sufficiently care for a foot injury, leading to the infection, which required amputation of the toe. After the amputation, appellant initially refused to take antibiotics and to care for his foot. But, once appellant was stabilized on his psychiatric medications, he began taking the antibiotics and, according to the social worker, appeared to “clear up pretty good before he left jail.” Finally, regarding appellant’s behavior during his current incarceration, the state presented witnesses who testified that appellant had created unsanitary conditions in his cell by causing his toilet to overflow and urinating on his belongings and mattress. He also had refused to meet with the jail’s psychiatric nurse practitioner and to take psychiatric medications. At the close of the evidentiary portion of the hearing, appellant’s counsel argued that the state’s evidence was insufficient to support an involuntary commitment, based on the following rationale: “[T]his is one of those very difficult cases where I—I do think that the state has met its burden to show that [appellant] suffers from a mental illness, * * * but I don’t believe that they have * * * sufficient evidence to allow the court to find by clear and convincing evidence that he is unable to provide for his basic needs, or that he poses a risk to himself or to other people. «⅜⅜‡⅜⅜ “As for the basic needs, the law—case law is very clear on this. Basic needs, of course, refers to accessing food, accessing water, accessing necessary medical care to prevent imminent physical—well, a serious harm to the individual. — 866 — And I don’t think that the state has shown that today. All of the witnesses today have testified that [appellant] has experience as a homeless individual, that he has struggled in getting into shelters, that he has struggled maintaining his housing for sure, but at the same time he’s been resourceful. He has located food, he has located water, he has not refused food, not refused water. And he has shown himself capable of locating sufficient shelter when needed. “As far as medical care, there’s been a lot of talk about an amputated toe from July, but there’s been no evidence that that continues to—to be an ongoing medical concern that he is ignoring. * * * “So your honor, I just don’t think we have enough here for the court to conclude that [appellant] is unable to meet his basic needs. * * * “So your honor, we’d ask that you find yes that he— [appellant] suffers from a mental illness, but no he does not pose a risk to himself, he does not pose a risk to others, and he is not unable to meet his basic needs. [T]here’s just *** not enough evidence to conclude that here your honor.” The trial court disagreed, concluding that the state had established the requirements for commitment on three different grounds. The court found that appellant was a danger to himself because he created unsanitary conditions in his cell despite having recently had a toe amputated due to infection. The court also found that appellant posed a risk of danger to others based on the evidence that appellant had started fires outside of jail to keep warm. Finally, the trial court found that appellant was unable to meet his basic needs, based on a finding that appellant’s survival would be jeopardized if he were released from jail at that time: “[I]f [appellant] were released right now he would find himself in a life threatening condition because although he’s experienced as a homeless person, right now he doesn’t know what month it is and is riding on busses looking for an underground surveillance sewer system *** and has dropped some weight and is refusing to take medications, is clearly delusional, not able to do what it takes to get into the shelters, even though he knows where they are. And under these circumstances *** I do find that that high threshold * * * is met as far as his inability to * * * meet his basic needs.” — 867 — On appeal, appellant contends that the record is insufficient to establish that he was a danger to himself, a danger to others, or unable to provide for his basic needs. We address only the “basic needs” issue, because it is dispositive. Appellant argues that, because he was incarcerated at the time of the hearing, and because no evidence was presented that his release was imminent, our decision in State v. Jensen, 141 Or App 391, 917 P2d 541 (1996), precludes his commitment. In Jensen, we relied on the fact of the appellant’s incarceration to conclude that the trial court erred in committing him on a “basic needs” basis.2 Id. at 394-95. We observed that local correctional facilities are statutorily required to provide for the health and safety of the prisoners in their custody. Id. (citing ORS 169.076 and ORS 169.140). Because there was no evidence of the appellant’s release date, and because the state did not demonstrate that the appellant probably would not survive while incarcerated, we concluded in Jensen that the evidence was insufficient to support the appellant’s commitment. Id. Similarly, here, appellant argues that the state failed to present any evidence that he was about to be released from jail; thus, he reasons, in light of Jensen, the court could not have concluded that his near-term survival was jeopardized. The state responds that appellant’s claim of error was not preserved. The state acknowledges that, at the hearing, appellant made a general argument challenging the sufficiency of the evidence to support commitment on any of the three statutory grounds. In the state’s view, that general contention was inadequate to preserve the argument that appellant now makes on appeal, i.e., that the evidence was insufficient to support a commitment under Jensen because the record is silent regarding when appellant was to be released from jail. We agree with the state. A well-settled principle of our jurisprudence is that, before an issue can be considered on appeal, it must first be — 868 — raised in the trial court. State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (“As a general rule, claims of error that were not raised in the trial court will not be considered on appeal.”). That principle applies equally to civil commitment cases. See, e.g., State v. A. R., 192 Or App 296, 298, 84 P3d 1129 (2004) (a failure to provide statutorily required advice to an allegedly mentally ill person in a civil commitment proceeding is “plain error that we exercise our discretion to consider despite an appellant’s failure to raise and preserve the issue at the hearing” (emphasis added)); State v. Tardanico, 132 Or App 230, 888 P2d 15 (1994) (same). Whether an issue has been preserved for appeal depends, in part, on whether an objection is “‘specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.’” State v. Bigelow, 238 Or App 344, 347-48, 242 P3d 719 (2010), rev den, 350 Or 130 (2011) (quoting State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000)). Apart from promoting judicial economy, preservation also “ensures fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise.” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008); Bigelow, 238 Or App at 348 (“Another objective of the preservation rule is to ensure that adverse parties are not taken by surprise, misled, or denied the opportunity to present their positions on an issue raised by an adversary.”). In close cases, the question of whether an issue has been sufficiently preserved for appeal turns on whether the policies behind the rule, “e.g., procedural fairness to the parties and the trial court, judicial economy, and full development of the record,” have been sufficiently served. State v. Parkins, 346 Or 333, 340-41, 211 P3d 262 (2009). Those policies have not been served in this case. Below, appellant’s argument challenging the sufficiency of the evidence was directed at appellant’s own conduct; he argued that his behavior was not problematic enough to permit a conclusion that he was dangerous to himself or others, or unable to meet his own basic needs. On appeal, his argument is qualitatively different. Rather than focus on his own behavior while out of jail, as he did to the trial court, — 869 — appellant asks us to conclude, essentially, that regardless of what hazards might otherwise be created by his behavior, the fact of his being in jail obviates any concern that he will fail to survive in the near term. That point was never made to the trial court. If it had been made, the state and the trial court would have had the opportunity to address the issue on which the existing record is silent: When was appellant going to be released from jail? As far as we can tell, appellant’s release was imminent; if so, that may have been a significant factor leading the state to seek his civil commitment—and might explain why appellant never directed the trial court to Jensen.3 Thus, the propriety of appellant’s commitment in light of our decision in Jensen could have been resolved, as it ought to have been, at appellant’s commitment hearing. For those reasons, we decline to review appellant’s challenge to the sufficiency of the evidence to support his commitment on the basis of “basic needs.”4 Because we affirm appellant’s commitment on the first basis articulated by the trial court, we do not reach the — 870 — question of whether the evidence was sufficient to support a commitment on the basis that appellant’s mental disorder made him dangerous to himself and others. Affirmed. Footnotes [1] ORS 426.005 (2013) was amended twice in 2015. The first amendment effected a renumbering of the provisions of the statute. Specifically, ORS 426.005(l)(e) (2013)—the paragraph defining the term “person with mental illness”'—was renumbered as ORS 426.005(l)(f). Or Laws 2015, ch 461, § 1. The second amendment effected a change to the definition of “person with mental illness.” Or Laws 2015, ch 433, § 1. The amendment to the definition became effective after the hearing in this case. [2] We also noted that the state’s evidence was insufficient to support a commitment on the basis that the appellant was a “danger to self or others” because the state “failed to address the duration of appellant’s incarcerated status or how, if at all, appellant was a danger to others while incarcerated.” Jensen, 141 Or App at 395. [3] The dissent cites our decisions in State v. A. S., 211 Or App 100, 153 P3d 151 (2007), and State v. R. D. G., 196 Or App 57, 100 P3d 750 (2004), in concluding that appellant adequately preserved his appellate argument for review. In R. D. G., we explained, in a footnote, that the appellant’s argument below that he was “not subject to an involuntary mental commitment” was sufficient to preserve for appeal a general challenge relating to the sufficiency of the state’s evidence that he suffered from a mental disorder. 196 Or App at 61 n 2. Similarly, in A. S., we explained that the appellant’s repeated objections to hospitalization at his commitment hearing were sufficient to preserve a general claim of error as to the sufficiency of the state’s evidence to support an involuntary commitment. 211 Or App at 101. Respectfully, we view neither case as analogous to the situation here, where appellant makes a specific argument on appeal that is qualitatively different from any argument that was made to the trial court, and where it is clear that the record could have developed differently if the argument now being made had been made below. [4] Appellant does not contend that his claim of error on appeal constitutes an error of law that is apparent on the record, ORAP 5.45(1). Accordingly, we decline to undertake such an analysis. See State v. Ardizzone, 270 Or App 666, 673, 349 P3d 597 (2015) (“[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so because it is incumbent upon the appellant to explain to us why an error satisfies the requisites of plain error and, further, why we should exercise our discretion to correct that error.” (Internal quotation marks and citations omitted.)); Bigelow, 238 Or App at 348 (declining to review for plain error where the defendant did not assert that the argument made on appeal demonstrated an error of law that was “apparent on the face of the record”).