IN RE T.L.,
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         Respondent and Appellant.



APPEAL FROM:   District Court of the Thirteenth Judicial Dfistrict,
               In and for the County of Yellowstone,
               The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Terry L. Seiffert, Attorney at Law,
               Billings, Montana
         For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Micheal S. Wellenstein, Assistant Attorney
               General, Helena, Montana
               Dennis Paxinos, Yellowstone County Attorney,
               Susan P. Watters, Deputy County Attorney,
               Billings, Montana


                            Submitted on Briefs: August 117, 1995
                                        Decided:     November 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
       Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1 9 9 5 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
       On    October      14,   1994,    the    Yellowstone      County     Attorney
petitioned the District Court for the Thirteenth Judicial District
in Yellowstone County pursuant to              §§    53-21-129   and 1 2 1 , MCA, to
detain T.L. and commit him to a mental health facility.                          The
District Court ordered that T.L. be detained pending a hearing
which was held on October 1 8 , 1 9 9 4 .           Following that hearing, T.L.
was involuntarily committed to the Montana State Hospital at Warm
Springs. He appeals from the District Court's order of commitment.
We affirm the District Court.
       The issues on appeal are:
       1.    Was T.L. illegally detained in violation of              §   53-21-129,

MCA?
       2.    Was   §   5 3 - 2 1 - 1 4 1 ( I ) ,MCA, violated when the District Court

admitted Dr. Lowell Stratton's October 1 4 , 1 9 9 4 , report?
       3.    Was there sufficient evidence to support the District
Court's finding that T.L. was seriously mentally ill?
       The   petitioner,        T.L., voluntarily         admitted     himself    to
Deaconess Psychiatric Center for treatment on October 8 , 1 9 9 4 .               On
October 1 4 , 1 9 9 4 , T.L.'s physician, Dr. Lowell Stratton, signed and
filed   a   request    for   involuntary commitment with    the   County
Attorney.    The request was based upon a diagnosis of paranoid
schizophrenia.        Dr. Stratton included in the request a letter
outlining his evaluation of T.L. and recommendation for commitment.
     T.L. waived his initial appearance after being advised of his
rights by counsel.       The court then ordered an evaluation of T.L.
and scheduled a hearing for October 18, 1994.
     At the hearing, Dr. Stratton testified that, in his opinion,
T.L. suffered from paranoid schizophrenia and that T.L. believed he
was possessed by an evil spirit and had put a gun to his head about
one month earlier at the direction of the spirit.          Dr. Stratton
testified that T.L. continued to have the delusional belief in the
evil spirit and intermittent auditory hallucinations, and that in
his opinion, T.L. could be a danger to himself or others.
     T.L. testified that although he was possessed by an evil
spirit, the incident with the gun occurred over one year ago and
that since then he had been able to ward off the evil spirit
through religion.       T.L. also testified that he did not believe
commitment was necessary and that he was concerned about side
effects from drugs which Dr. Stratton had prescribed.
     Following the hearing, the District Court filed its order
committing T.L. to the custody of the Montana State Hospital at
Warm Springs.
     T.L. has since been conditionally released from the Montana
State Hospital.
                                 ISSUE 1
     Was T.L. illegally detained in violation of      §   53-21-129, MCA?
     We review a District Court's conclusions of law to determine
whether they are correct. In r e J L . S . (1988), 234 Mont. 201, 206, 761



     Section 53-21-129(1) and (2) MCA, applies to emergency commit -
ments and provides:
           (1) When an emergency situation exists, a peace
     officer may take any person who appears to be seriously
     mentally ill and as a result of serious mental illness to
     be a danger to others or to himself into custody only for
     sufficient time to contact a professional person for
     emergency evaluation. If possible, a professional person
     should be called prior to taking the person into custody.
           (2) If the professional person aqrees that the
     person detained awwears to be seriously mentallv ill and
     that an emerqency situation exists, then the person may
     be detained and treated until the next regular business
     day. At that time, the professional person shall release
     the detained person or file his findings with the county
     attorney who, if he determines probable cause to exist,
     shall file the petition provided for in 53-21-121through
     53-21-126 in the county of the respondent's residence. In
     either case, the professional person shall file a report
     with the court explaining his actions.
(Emphasis added. )
     T.L. maintains that the requisite emergency situation did not
exist because no evidence of any imminent threat of death or
serious bodily injury was present.
     T.L. cites InreShennum (l984), 210 Mont. 442, 684 P.2d 1073, in

support of his position
     In Shennum, Alan Shennum, armed with a loaded semiautomatic

pistol, seated himself in the public section of the chambers of the
Missoula City Council just before a scheduled council meeting.
Shennum, 684 P.2d at 1075.      After he was discovered, apprehended,

questioned, and relieved of his weapon by local police, he was
released. The next morning, Shennum went to the police station to
pick up his gun. He was detained there and examined by a Missoula
psychiatrist.     Later that day, he was transferred to the mental
health unit of a local hospital. A petition for commitment in the
state mental hospital was filed the following day.           Shennum,   684

P.2d at 1076.
      The court held that the record failed to demonstrate a finding
by the psychiatrist of an emergency situation justifying Shennum's
detainment at the police station, and reversed his commitment.
Shennum, 684 P.2d at 1077.

      The facts in Shennum differ from those in this case.        Shennum

was originally detained pursuant to      §    53-21-129(1), MCA, without
the recommendation of a professional person.         Unlike Shennum, T.L.

was detained at the request of a professional person.        Pursuant to
§   53-21-129(2),MCA, the determination of whether a person appears
to be seriously mentally ill and an emergency situation exists is
left to the professional person whose request             for emergency
                                              ,
detainment is sufficient. See In re MC. (1986) 220 Mont. 437, 443,

716 P.2d 203, 207.
       Dr. Stratton evaluated T.L. after his voluntary admission to
the    hospital   and   found   that   T.L.    suffered   from   paranoid
schizophrenia with delusions and hallucinations, that he was
hostile if challenged, and that he had, only a month prior to the
hearing, put a gun to his head.       In addition to the gun incident,
Dr. Stratton testified at the hearing that T.L. had a physical
altercation with another person in a stairwell when, according to
T.L., an evil spirit was in him. Dr. Stratton also testified that
T.L. continued to have the delusional belief in the evil spirit and
intermittent auditory hallucinations and that in his opinion, T.L.
could be a danger to himself or others.
      We need only determine whether the professional person here
had   adequate information to believe          that T.L. was   seriously
mentally ill and that an emergency situation existed requiring
T.L.'s detention. Based upon Dr. Stratton's testimony, we conclude
that he did have adequate information to believe that T.L. was
seriously mentally ill and that an emergency situation existed
requiring T.L.'s detention. Moreover, on October 14, the same day
of T.L.'s initial detainment, the county attorney filed a petition
for commitment.      The requirements of   §   53-21-129(2), MCA, were,
therefore, satisfied.
      We hold that sufficient evidence supported T.L.'s emergency
detention pursuant to    §   53-21-129, MCA.
                                 ISSUE 2
      Was   §   53-21-141(1), MCA, violated when the District Court
admitted Dr. Lowell Stratton's October 14, 1994, report?
      We review evidentiary rulings to determine if the district
court abused its discretion.       State v. Passama (1993) 261 Mont . 338,
                                                          ,
       T.L. alleges that communications made by him to the physician
who sought his commitment were privileged pursuant to     §   53-21-141,
MCA, and therefore, that Dr. Stratton's report should not have been
admitted into evidence.
       Section 53-21-141(1), MCA, provides as follows:
       Unless specifically stated in an order by the court, a
       person involuntarily committed to a facility for a period
       of evaluation or treatment does not forfeit any legal
       right or suffer any legal disability by reason of the
       provisions of this part except insofar as it may be
       necessary to detain the person for treatment, evaluation,
       or care. All communication between an alleged mentally
       ill person and a professional person is privileged under
       normal privileged communication rules unless it is
       clearly explained to the person in advance that the
       purpose of an interview is for evaluation and not
       treatment.
       However, there is nothing in Dr. Stratton's October 14, 1994,
report which repeats or even refers to any communications by T.L.
to Stratton. The report simply contains Dr. Stratton's diagnosis
and his recommendation for treatment. Therefore, its admission did
not violate     §   53-21-141(I), MCA
       T.L. asserts in his reply brief that Dr. Stratton's report
should not have been used because he neither conducted a formal
evaluation nor prepared and submitted a report after the court
ordered an evaluation.        However, T.L. failed to raise compliance
with   §    53-21-123, MCA, as an issue on appeal.   The State has not
had an opportunity to respond to this argument, and we will not
consider arguments or issues raised for the first time in a reply
brief.
       We    conclude that the District Court did not         abuse its
discretion when it admitted Dr. Stratton's report into evidence
                               ISSUE 3
     Was there sufficient evidence to support the District Court's
finding that T.L. was seriously mentally ill?
     On appeal, this Court will not disturb the district court's
findings of fact unless they are clearly erroneous. InreE.P. (1990),

241 Mont. 316, 319, 787 P.2d 322, 325; Rule 52 (a), M.R.Civ.P. When
reviewing conclusions of law, this Court will merely determine if
the decision below was correct.    In re JL.S. (1988), 234 Mont. 201,


     Montana's procedures concerning petitions for involuntary
commitment of a person at a mental health facility are set forth at
5 5 53-21-121 to -127, MCA.   Section 53-21-126(2),MCA, provides:
          The standard of proof in any hearing held pursuant
     to this section is proof beyond a reasonable doubt with
     respect to any physical facts or evidence and clear and
     convincing evidence as to all other matters, except that
     mental disorders shall be evidenced to a reasonable
     medical certainty. Imminent threat of self-inflicted
     injury or injury to others shall be evidenced by overt
     acts, sufficiently recent in time as to be material and
     relevant as to the respondent's present condition.
     Before a person can be civilly committed in accordance with
Montana Code Annotated Title 53, Chapter 21, the court must make a
determination that the person is seriously mentally ill.     Section
53-21-102(15),MCA, defines "seriously mentally ill" and provides
in part:
     "Seriously mentally ill" means suffering from a mental
     disorder which has resulted in self-inflicted injury or
     injury to others or the imminent threat of injury or
     which has deprived the person afflicted of the ability to
     protect the person's life or health. For this purpose,
     injury means physical injury.
      T.L. contends that the District Court erred when it found him
seriously mentally ill because the record does not demonstrate an
overt act.    T.L. asserts that the only overt act he committed,
putting a gun to his head at the request of an evil spirit, cannot
be considered because it occurred too far in the past to be
relevant.
      There is a conflict in the evidence concerning when T.L. put
the gun to his head.   Dr. Stratton testified that he was told that
the gun incident happened only a month prior to the hearing, while
T.L. testified that it occurred over one year ago. The "weight of
the evidence and the credibility of the witnesses are exclusively
within the province of the trier of fact."   State v. Bower   (1992), 254

Mont. 1, 8, 833 P.2d 1106, 1111.
      Dr. Stratton testified that T.L. struggles daily with the evil
spirit and that his refusal to take his medication would exacerbate
T.L. s paranoid schizophrenia and he would then be an imminent
threat to himself and to others.
      A   review of the record indicates that the District Court's
finding that T.L. was "seriously mentally ill," as set forth in
§   53-21-102(15), MCA, was supported by sufficient evidence.         We
hold that the Court did not err when it ordered T.L.'s involuntary
commitment to a mental health facility.
      T.L.'s detention and commitment are affirmed.
We concur:
