Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-123

                                     SEPTEMBER TERM, 2015

                                                       }    APPEALED FROM:
 In re J.P.                                            }
                                                       }    Superior Court, Chittenden Unit,
                                                       }    Criminal Division
                                                       }
                                                       }    DOCKET NO. 4362-11-10 Cncr

                                                            Trial Judge: Brian J. Grearson

                          In the above-entitled cause, the Clerk will enter:

        J.P. appeals from the trial court’s March 2014 order that found him to be “a person in
need of treatment” pursuant to 18 V.S.A. § 7101(17) and 13 V.S.A. § 4822, and ordered him to
be committed to the custody of the Department of Mental Health for ninety days. That ninety-
day period has since expired, and J.P. remained hospitalized pursuant to a different court order.*
J.P. argues that this case is not moot, and that the evidence is insufficient to support the court’s
decision. We agree that this case is not moot, and we affirm the court’s decision.

        In November 2010, J.P. was charged with first-degree murder and kidnapping of
Kathleen Smith; burglary of her residence; and aggravated operation of her vehicle without her
consent. The court declared J.P. incompetent to stand trial in January 2014. This triggered a
hearing to determine if J.P. should be involuntarily committed. See 13 V.S.A. §§ 4820(2), (4)
(upon finding of incompetence to stand trial under 13 V.S.A. § 4817, court “shall hold a hearing
to determine whether such person should be committed to the custody of the Commissioner of
Mental Health”).

      Following a three-day hearing, the court determined that J.P. should be involuntarily
committed for ninety days. It found as follows. Ms. Smith was discovered lying face down on

        *
           Prior to the expiration of the ninety-day period, the State filed an application for
continued treatment. The trial court granted the State’s request in June 2014, maintaining J.P.’s
hospitalization for one year. Because of differences in briefing schedules, we have already ruled
on J.P.’s appeal of the court’s June 2014 decision to continue his hospitalization. See In re J.P.,
No. 2014-294, 2015 WL 4644398 (Vt. July 1, 2015) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx. In that case, we rejected J.P.’s
assertion that the evidence was insufficient to support the court’s finding that he posed a danger
of harm to others, and affirmed the trial court’s decision that J.P. was a “patient in need of
further treatment” under 18 V.S.A. § 7107(16). We note that a “patient in need of further
treatment” is defined in relevant part as a “person in need of treatment.” 18 V.S.A.
§ 7107(16)(A).
the floor of her home with her hands tied behind her back, surrounded by a considerable amount
of blood. The police observed that the rope used to bind Ms. Smith’s hands was multi-colored
and tied in a distinctive knot. Police also observed a distinctive shoe pattern in the blood on the
kitchen and bathroom floor. A medical examiner determined that Ms. Smith’s death was caused
by large, very deep incision wounds to the neck that cut through the trachea, the jugular vein, and
the carotid artery. Ms. Smith worked at the Howard Center in Burlington, and was a friend of
Sharon Fialco, the mother of J.P.’s youngest child. The police investigation led to J.P., who was
found hiding in a barn not far from Smith’s abandoned vehicle. J.P. was in possession of a knife,
which later forensic testing revealed had Smith’s blood under the handle; a piece of rope that
matched the type used to bind Smith’s hands; and a Howard Center first-aid kit. The tread
design on his shoes also appeared similar to that in the photos of the murder scene.

       A board certified forensic psychiatrist, Dr. John Molloy, who evaluated J.P. before trial,
concluded that J.P. suffered from a major mental illness, “delusional disorder-persecutory type,”
which results in false and delusional beliefs that others are conspiring against him. Initially, the
primary object of J.P.’s delusional beliefs involved J.P.’s relationship with Ms. Fialco. These
delusions include the belief that relatives of the mother and individuals associated with her are
monitoring his actions in order to gather information that could impact his relationship with his
daughter, including attempts to deprive him of contact.

        After more than thirty hours of interviews with J.P. over a two-year period, Dr. Malloy
found it apparent that the scope of J.P.’s conspiracy beliefs had grown to include his attorneys,
the prosecution, and Dr. Malloy, as well as the court system itself. J.P. had written letters to the
court and to Dr. Malloy that in Dr. Malloy’s opinion demonstrated J.P.’s increasing delusional
thoughts, especially in the nature of referential delusions. The court cited several examples of
this. The court also noted that in the course of being interviewed by Dr. Malloy, J.P. described
an earlier dispute that involved another woman, the mother of his oldest child. J.P. told Dr.
Malloy that when he became frustrated by his inability to locate this woman, it occurred to him
that he could restrain her attorney until the attorney told J.P. where the mother and child were
located. Although J.P. did not act on this thinking, in Dr. Malloy’s opinion it demonstrated the
risk of harm that J.P. represents to others who he perceives as being opposed to his interests.
Finally, the court cited an incident that occurred in 2009 or 2010 between J.P. and a woman he
was dating. This incident reinforced Dr. Malloy’s opinion of the connection between the
conspiratorial delusions that are symptomatic of J.P.’s mental illness and the danger that he
presents to others who he perceives are part of that conspiracy -even those without any apparent
connection to Ms. Fialco or the child. As reported to Dr. Malloy, the young woman told the
police that J.P. woke her in the middle of the night, accused her of being part of the conspiracy
against him, and tried to restrain her with handcuffs and a Taser device but was not successful.

         Based on all of the foregoing, Dr. Malloy concluded that J.P. suffers from a major mental
illness; that he is a person in need of treatment because the mental illness has a significant impact
on his behavior, his judgment, and his ability to interact safely with others; and therefore, he
represents a danger to others. In Dr. Malloy’s opinion, although J.P. has not been convicted in
the death of Ms. Smith, there was substantial evidence of a connection between his mental illness
and her death. His paranoid delusions increased his risk of violence, and the lack of negative
symptoms associated with the illness increased the risk of violence even further. Dr. Malloy
indicated that J.P. is very emotionally involved in his delusional beliefs, is fixed in those beliefs,

                                                  2
has demonstrated the ability to plan and to carry out a plan based on those beliefs, and those
beliefs have become even more entrenched during the time Dr. Malloy has been interacting with
him.

        As the court explained, in order to involuntarily hospitalize a defendant, it “must find that
defendant is ‘a person in need of treatment.’ ” State v. Zorn, 2013 VT 65, ¶ 17, 195 Vt. 381
(citing 13 V.S.A. § 4822(a)). A “person in need of treatment” is defined as “a person who is
suffering from mental illness and, as a result . . . poses a danger of harm . . . to others.” 18
V.S.A. § 7101(17). Based on the findings above, the court concluded that the State had shown
by clear and convincing evidence that J.P. suffered from a mental illness, and that he presented a
danger of harm to others as a result of his mental illness.

         The court explained that Dr. Malloy’s testimony clearly demonstrated that J.P. suffered
from a mental illness, specifically, a “delusional disorder-persecutory type” that substantially
impacted his life. This disorder causes J.P. to experience paranoia and delusions; he perceives a
conspiracy against him, involving his ex-girlfriend and her family and acquaintances, the court,
Dr. Malloy, the prosecutor’s office, the police department, and others. The disorder impairs
J.P.’s thoughts, conduct of life, his ability to care for day-to-day needs, and results in a belief that
people in the community are monitoring him. Although Dr. Malloy last met with J.P. in August
2013, his opinion was based on approximately thirty-one hours of evaluation with J.P. from May
through August 2012 and June through August 2013. At their last meeting, J.P. indicated to Dr.
Malloy that he would not be meeting with him any further, and Dr. Malloy credibly testified that
an additional meeting with J.P. at this point would not be helpful to his opinion.

        The court also found that the evidence patently demonstrated that J.P. posed a danger of
harm to others. See id. § 7101(17)(A)(i), (ii) (providing that State may show a “danger of harm
to others” by establishing that person “has inflicted or attempted to inflict bodily harm on
another” or that “by his . . . threats or actions he . . . has placed others in reasonable fear of
physical harm to themselves”). Specifically, J.P. inflicted bodily harm on another by causing the
death of Ms. Smith in October 2010. Ms. Smith’s car was located approximately three to five
miles from where J.P. was later found in Middlebury. He was found in possession of a fixed-
blade knife that had Ms. Smith’s blood on it. The court cited the gruesome nature of the murder.
The court found that the evidence clearly and convincingly demonstrated that J.P. killed Ms.
Smith. The court noted that Dr. Malloy’s testimony provided further support for the conclusion
that J.P. poses a danger of harm to others. Dr. Malloy’s opinion, based on his evaluation and
interactions with J.P. and other information reasonably relied upon by experts in his field, and as
discussed in the court’s findings, was that J.P. represents a danger to others.

         Finally, the court found a clear causal connection between J.P.’s mental illness and the
conclusion that he is dangerous to others. Defendant suggested that there was no link, but the
court strongly disagreed with that contention and was unpersuaded by defendant’s attempt to
distinguish his case from Zorn. As in Zorn, the court concluded, the evidence here “directly
tie[s] [J.P.’s] violent behavior to his mental illness,” and provides a “sufficient basis for the court
to find the causal connection.” Zorn, 2013 VT 65, ¶ 23. The court cited Dr. Malloy’s testimony
that J.P. is very emotionally engaged in his beliefs regarding the perceived conspiracy against
him, a conspiracy that appears to be very similar in nature to that in Zorn. Additionally, despite
J.P.’s diagnosed mental disorder, he lacks negative symptoms, which makes him a greater risk to
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the public. For example, Dr. Malloy found no evidence that J.P. suffered from a depressive
disorder, and his mood is relatively stable. Given this, the court found that J.P. was more likely
to be able to plan and carry out particular acts.

        Dr. Malloy testified that J.P. posed a danger of harm to others, especially to anyone
involved in his conspiratorial delusions, which stemmed from the issue of his contact with Ms.
Fialco’s child. The court found that Ms. Smith’s friendship with Ms. Fialco appeared to have
drawn her into the wide range of people who J.P. perceived as part of the conspiracies against
him, and who are in danger as a result of J.P.’s delusional conspiracies. The evidence also
indicated that J.P. posed a danger to people without any apparent connection to Ms. Fialco or the
child, citing as an example J.P.’s attempt to restrain a young woman he was dating in 2009 or
2010. Dr. Malloy further testified that, in his medical opinion, there was no less restrictive
alternative for J.P. than psychiatric treatment requiring involuntary hospitalization, and that J.P.
was more likely to be violent if he was allowed out into the community.

        The court thus found that the evidence clearly and convincingly showed that, as a result
of J.P.’s delusional disorder-persecutory type, his “capacity to exercise self-control, judgment or
discretion in the conduct of his affairs and social relations is so lessened that he . . . poses a
danger of harm . . . to others.” 18 V.S.A. § 7101(17). In Dr. Malloy’s opinion, there is
substantial evidence of a connection between J.P.’s mental illness and Ms. Smith’s death. To
any extent that Dr. Malloy did not explicitly testify to a clear causal link between J.P.’s mental
illness and his act of killing Ms. Smith, the court reasonably inferred such a causal connection
from its factual findings. Thus, because J.P. was “a person in need of treatment,” the court
committed J.P. to the custody of the Commissioner of Mental Health for ninety days. This
appeal followed.

        J.P. argues that this case is not moot even though the order on appeal has expired. He
bases this argument in part on the fact that he faces negative collateral consequences as a result
of the court’s decision. Assuming he prevails on this point, J.P. maintains that the court’s
finding that he posed a danger of harm to himself or others is not supported by the evidence. J.P.
argues that the court must find that he poses a present danger of harm to himself or others, and
that evidence relating to his alleged murder of Ms. Smith in 2010 is insufficient. J.P. also asserts
that the court erred in finding a nexus between his mental illness and his alleged murder of Ms.
Smith.

       As set forth above, “a person in need of treatment” is defined as:

               a person who has a mental illness and, as a result of that mental
               illness, his . . . capacity to exercise self-control, judgment, or
               discretion in the conduct of his or her affairs and social relations is
               so lessened that he . . . poses a danger of harm to himself . . . or to
               others.

The State may show a “danger of harm to others” by establishing that the person “has inflicted or
attempted to inflict bodily harm on another” or that “by his . . . threats or actions he . . . has
placed others in reasonable fear of physical harm to themselves.” Id. § 7101(17)(A)(i), (ii).


                                                 4
         The State has the burden of proving its case by clear and convincing evidence. Id.
§ 7616(b). “Even where the standard of proof is clear and convincing evidence, we will uphold
trial court findings as long as there is substantial evidence to support them although they are
contradicted by credible evidence.” In re N.H., 168 Vt. 508, 512-13 (1998) (citation omitted). It
is for the trial court to assess the credibility of the witnesses and weigh the evidence. Id. “The
test on review is not whether this Court is persuaded that there was clear and convincing
evidence, but whether the factfinder could reasonably have concluded that the required factual
predicate was highly probable.” Id.

        We agree with J.P. that this case is not moot. We considered and rejected a similar
mootness argument in State v. J.S., 174 Vt. 619, 620 (2002) (mem.). In that case, as here, the
State argued that the appellant’s claims on appeal were moot due to a subsequent commitment
order issued after the expiration of the court’s original ninety day commitment order. We
explained that “[a]n exception to the mootness doctrine exists when negative collateral
consequences are likely to result from the action being reviewed.” Id. at 620. “In mental health
commitment cases, negative collateral consequences can apply because the legal disabilities
radiating from the label of mentally incompetent are myriad.” Id. (citation omitted). As in J.S.,
we conclude that “despite appellant’s continued hospitalization under an order for continued
treatment, the negative collateral consequences of being initially adjudicated mentally ill and
then involuntarily hospitalized may continue to plague appellant with both legal disabilities and
social stigmatization.” Id. Although we decline to dismiss the appeal as moot, we reject J.P.’s
challenges to the merits of the trial court’s decision.

       We begin with J.P.’s assertion that the court erred in finding that he poses a danger of
harm to others. J.P. cites J.S., 174 Vt. at 621, ¶ 11, as recognizing that there must be proof of a
“present danger of harm.” We stated in that case that “[t]o establish proof of present danger, the
court must make factual findings as to whether [the defendant] pose[s] ‘a danger of harm to
himself or others.’ ” Id. (quotation omitted). Thus, the statutory language controls.

         In this case, the State showed a “danger of harm to others” by establishing both that J.P.
“has inflicted . . . bodily harm on another” and that “by his . . . threats or actions he . . . has
placed others in reasonable fear of physical harm to themselves.” Id. § 7101(17)(A)(i), (ii). The
court found clear and convincing evidence that J.P. murdered Ms. Smith, which squarely fits
within the statutory language above. The fact that the murder occurred in 2010 does not mean
that J.P. is no longer dangerous. The brutal murder of Ms. Smith was not that remote in time,
and this hospitalization hearing came immediately after J.P. was declared incompetent to stand
trial for Ms. Smith’s murder, among other charges. There was also evidence to show that J.P.’s
mental illness posed risks to others. As Dr. Malloy opined, J.P. is very emotionally involved in
his delusional beliefs, is fixed in those beliefs, has demonstrated the ability to carry out a plan
based on those beliefs, and those beliefs had become even more entrenched during the time that
Dr. Malloy has been interacting with him. The scope of J.P.’s conspiratorial beliefs had greatly
widened. Defendant’s paranoid delusions increased his risk of violence, and the lack of negative
symptoms associated with his illness increased the risk of violence even further. There was
evidence to show that J.P. presented a risk of harm to anyone who opposed his interests. Dr.
Malloy also concluded that there was no less restrictive alternative for J.P. than psychiatric
treatment requiring involuntary hospitalization, and that J.P. was more likely to be violent if he is


                                                 5
allowed out in the community, testimony that the court credited. There was ample evidence here
to support the court’s conclusion that J.P. posed a danger of harm to others.

        J.P. next challenges the court’s conclusion that, “as a result of his mental illness, [J.P.’s]
capacity to exercise self-control, judgment or discretion in the conduct of his . . . affairs and
social relations is so lessened that he . . . poses a danger of harm . . . to others.” 18 V.S.A.
§ 7101(17) (emphasis added). J.P. maintains that there was no evidence that closely tied his
alleged delusions to Ms. Smith’s murder.

        We reject this argument. As set forth above, the court credited Dr. Malloy’s opinion that
there was substantial evidence of a connection between J.P.’s mental illness and Ms. Smith’s
death. To any extent that Dr. Malloy did not explicitly testify as to a clear causal link, the court
inferred one from its factual findings. These findings included evidence that J.P. was first linked
to Ms. Smith’s death by a telephone report from an individual who knew Ms. Smith from the
community, knew Ms. Smith and Sharon Fialco were close friends, and knew J.P. for a long
time. This person was aware that J.P. knew Ms. Smith through Ms. Fialco, and she contacted
police because she had not seen J.P. since Ms. Smith’s death was reported publicly, and that was
out of character for him. She knew that there had been issues concerning J.P.’s contact with this
child because she had escorted the child to supervised visits years before, and she was concerned
that Ms. Smith’s relationship with Ms. Fialco might be connected to J.P. While this individual
believed J.P. could be a friendly and interesting person, he was also someone with an angry side,
who demonstrated that anger on the street by yelling and kicking objects. Those demonstrations
of anger had been occurring more frequently in recent years. Dr. Malloy also described J.P.’s
delusional beliefs involving his relationship with Ms. Fialco, who was acquainted with Ms.
Smith, and these delusions included the belief that individuals associated with Ms. Fialco were
monitoring his actions in order to gather information that could impact his relationships with his
daughter. The evidence here supports the court’s conclusion that J.P. poses a danger of harm to
others “as a result of his mental illness.”

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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