                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                             May 5, 2020




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 In the Matter of the Detention of:                                   No. 52882-7-II

 C.J.
                                                               UNPUBLISHED OPINION
                                Petitioner,



        LEE, C.J. — C.J. appeals a 180-day civil commitment order, arguing that the superior court

erred because the superior court’s finding that C.J. committed second degree assault is not

supported by substantial evidence and the superior court’s findings do not support its conclusion

that C.J. meets the statutory requirements for a 180-day commitment. We hold that substantial

evidence supports the superior court’s finding and the court’s findings support its conclusion that

C.J. meets the statutory requirements for a 180-day commitment. Therefore, the superior court

did not err by entering the 180-day commitment order. Accordingly, we affirm.

                                              FACTS

        C.J. was charged with second degree assault based on an incident where C.J. assaulted a

nurse. In C.J.’s criminal case, the superior court found C.J. incompetent to stand trial on the second

degree assault charge, ordered the criminal charge dismissed, and referred C.J. for an involuntary

commitment hearing.

        The State filed a petition for a 180-day involuntary commitment. The petition alleged that

criminal charges had been dismissed against C.J. because he was found to be incompetent, he
No. 52882-7-II


committed acts constituting a violent felony, and he presents a substantial likelihood of repeating

similar acts because of a mental disorder.

       Evans Okallo testified at the civil commitment hearing. Okallo stated that he was working

on a ward at Western State Hospital when he observed C.J. jump over the nurses’ station and attack

a nurse. Okallo also observed C.J. holding the nurse by the neck. Okallo stated that he “tried to

pull the hands from—from the nurse[’s] neck because she was struggling to breathe at that point.”

Verbatim Report of Proceedings (VRP) at 15. Okallo “had to fight to get the hands out of the grip

of [C.J.]. . . . With one other staff who came in later . . . [Okallo] was able to do that eventually.”

VRP at 15.

       Dr. Jacqueline Means, a forensic evaluator, testified regarding her evaluation of C.J.’s

condition. Dr. Means testified that C.J. suffers from schizoaffective disorder. Dr. Means opined

that there was a substantial likelihood that C.J. would harm others because of his mental disorder.

And Dr. Means opined that C.J. was gravely disabled as a result of his mental disorder.

       After the 180-day commitment hearing, the superior court entered findings of fact and

conclusions of law. The superior court found, based on Okallo’s testimony, that C.J. “was holding

a nurse by the neck with his hands. . . . [The nurse] was also having trouble breathing.” Clerk’s

Papers (CP) at 25. The superior court also found that:

       [C.J.] was determined to be incompetent and felony charges were dismissed. [C.J.]
       committed the following acts, which constitute the felony/felonies of Assault in
       the Second Degree [RCW 9A.36.021(g)] within the meaning of RCW 71.05, and
       as a result of a mental disorder, [C.J.] presents a substantial likelihood of repeating
       similar acts.

               ....




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No. 52882-7-II


                The acts [C.J.] committed constitute a violent offense under RCW
                9.94A.030.

                ....

       [C.J.] Is/Continues To Be Gravely Disabled.

CP at 25-26 (emphasis omitted). Based on its findings, the superior court concluded, as relevant

here, that C.J. presents or continues to present a substantial likelihood of repeating acts similar to

the charged criminal behavior and is gravely disabled, and ordered that C.J. be civilly committed

for 180 days.

       C.J. appeals the superior court’s 180-day civil commitment order.1

                                            ANALYSIS

A.     LEGAL PRINCIPLES

       We review challenges to the sufficiency of the evidence in the light most favorable to the

State. In re Det. of B.M., 7 Wn. App. 2d 70, 85, 432 P.3d 459, review denied, 193 Wn.2d 1017

(2019). The State must prove the elements required for commitment by clear, cogent, and

convincing evidence. RCW 71.05.310. We will not “disturb the superior court’s findings ‘if

supported by substantial evidence which the lower court could reasonably have found to be clear,

cogent, and convincing.’” B.M., 7 Wn. App. 2d at 85 (quoting In re Det. of LaBelle, 107 Wn.2d

196, 209, 728 P.2d 138 (1986)). Evidence is substantial if the trier of fact could determine that the

ultimate issue is “highly probable.” LaBelle, 107 Wn.2d at 209. If the superior court’s findings

are supported by substantial evidence, we determine whether the findings support the superior



1
  Although the 180-day civil commitment order has expired, this appeal is not moot because
involuntary commitment orders have continuing consequences. In re Det. of M.K., 168 Wn. App.
621, 629-30, 279 P.3d 897 (2012).


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No. 52882-7-II


court’s conclusions of law and judgment. Id. We review conclusions of law de novo. Robel v.

Roundup Corp., 148 Wn.2d 35, 42-43, 59 P.3d 611 (2002).

       Under RCW 71.05.280(3) a person may be involuntarily committed for 180 days if the

person is determined to be incompetent and criminal charges have been dismissed, has committed

acts constituting a felony, and presents a substantial likelihood of repeating similar acts as a result

of a mental disorder. When the underlying charge is a violent felony under RCW 9.94A.030, the

superior court shall determine whether the acts the person committed constitute a violent offense

under RCW 9.94A.030. RCW 71.05.280(3)(b).

       A person commits second degree assault if he or she assaults another by strangulation or

suffocation. RCW 9A.36.021(1)(g). “‘Strangulation’ means to compress a person’s neck, thereby

obstructing the person’s blood flow or ability to breathe, or doing so with the intent to obstruct the

person’s blood flow or ability to breathe.” RCW 9A.04.110(26). “‘Suffocation’ means to block

or impair a person’s intake of air at the nose and mouth, whether by smothering or other means,

with the intent to obstruct the person’s ability to breathe.” RCW 9A.04.110(27). Second degree

assault is a felony. RCW 9A.36.021(2). And second degree assault is a violent offense under

RCW 9.94A.030(56)(a)(viii).

B.     SUBSTANTIAL EVIDENCE

       C.J. argues that the superior court’s finding that his acts constituted second degree assault

is not supported by substantial evidence. Specifically, C.J. argues that because the nurse did not

testify, there is insufficient evidence to support a finding of second degree assault. We disagree.

       Here, Okallo testified that he saw C.J. jump over the nurse’s station and attack the nurse.

Okallo also testified that C.J. had his hands around the nurse’s throat and that she had trouble



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No. 52882-7-II


breathing. And when he attempted to intervene and help the nurse, he had to fight to get C.J. to

release his grip on the nurse’s throat. Based on the totality of Okallo’s testimony, there was

substantial evidence for the superior court to determine that it was highly probable that C.J.’s grip

on the nurse’s throat obstructed the nurse’s ability to breathe. Accordingly, the superior court’s

finding that C.J. committed acts that constitute second degree assault was supported by substantial

evidence.

C.     180-DAY COMMITMENT

       C.J. also argues that the superior court lacked the authority to order a 180-day civil

commitment because the superior court’s finding that his acts constituted second degree assault

does not support the conclusion that he met the statutory requirements of RCW 71.05.280(3). We

disagree.

       Generally, a superior court may order only a 90-day commitment. RCW 71.05.320(1)(a).

However, “[i]f the grounds set forth in RCW 71.05.280(3) are the basis of commitment, then the

period of treatment may be up to but not exceed one hundred eighty days.” RCW 71.05.320(1)(c).

       RCW 71.05.280(3) states that a person can be committed for further treatment if:

       Such person has been determined to be incompetent and criminal charges have been
       dismissed pursuant to RCW 10.77.086(4), and has committed acts constituting a
       felony, and as a result of a mental disorder, presents a substantial likelihood of
       repeating similar acts.
               (a) In any proceeding pursuant to this subsection it shall not be necessary to
       show intent, willfulness, or state of mind as an element of the crime;
               (b) For any person subject to commitment under this subsection where the
       charge underlying the finding of incompetence is for a felony classified as violent
       under RCW 9.94A.030, the court shall determine whether the acts the person
       committed constitute a violent offense under RCW 9.94A.030.




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No. 52882-7-II


        Here, the superior court found that C.J.’s acts constituted second degree assault, which is

a felony and a violent offense under RCW 9.94A.030(56)(a)(viii). And, for the reasons explained

above, the superior court’s finding was supported by substantial evidence. The superior court also

found that as a result of a mental disorder, there is a substantial likelihood of C.J. repeating similar

acts. Thus, the superior court’s findings support its conclusion that C.J. should be ordered to a

180-day civil commitment under RCW 71.05.280(3).

        The superior court’s finding that C.J.’s acts constituted second degree assault is supported

by substantial evidence and the court’s findings support its conclusion that C.J. meets the

requirements for a 180-day commitment under RCW 71.05.280(3). Therefore, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       Lee, C.J.
 We concur:



 Worswick, J.




 Sutton, J.




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