                          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.




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