                                             No.    85-287

                 I N THE SUPREME COURT O THE STATE O MONTANA
                                        F           F

                                                   1986




I N THE MATTER O THE MENTAL HEALTH
                F
O D.R..S.,
  F
               Appellant.




APPEAL F O :
        R M       D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
                  I n and f o r t h e County o f C a s c a d e ,
                  The Honorable Thomas M c K i t t r i c k , Judge p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:

                  John K e i t h , G r e a t F a l l s , Montana


         F o r Respondent:

                  Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                  P a t r i c i a S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
                  P a t r i c k L. P a u l , County A t t o r n e y , G r e a t F a l l s , Montana
                  S t e v e n L o b d e l l , Deputy County A t t y . , G r e a t F a l l s




                                                   S u b m i t t e d on B r i e f s :   Jan.   3 0 , 1986

                                                      Decided: May 6 , 1986



Filed:    MPIY   - 1986
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                                                   Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.




       D.R.S.   appeals from an order of the Cascade County
District Court committing him to Montana State Hospital..          He
argues that the evidence was insufficient to support the
conclusion that he is seriously mentally ill.            We affirm.
       On November 5, 1982, Dana J. Minster, a clerk at Western
Warehouse Foods in Great Falls, Montana, was the victim of an
armed    robbery.     The   two    robbers   took Minster behind    a
woodpile by the store, taped him up, covered him with wood
and left him in the cold.         He identified D.R.S. as the robber
who taped him up while the other one threatened to shoot
Minster if he didn't tell them the combination to the safe.
Minster testified that both robbers frightened him and that
he feared for his life.
       Following    the   robbery, criminal     charges were     filed
against D.R.S.      A psychiatric examination showed that D.R.S.
suffered from serious mental disease and lacked the capacity
to understand the proceedings against him and to assist in
his own defense.          Defense counsel moved, and the State
stipulated, to suspend proceedings because of D.R.S.'          lack of
fitness to proceed in the matter, pursuant to S 46-14-221,
MCA.    The District Court then committed him to the custody of
the Department of Institutions and he was placed in Montana
State Hospital on January 26, 1983.
       D.R.S.   remained in the hospital until the fall of 1984
when he was declared fit to proceed in the criminal matter.
On October 1, 1984, he was transferred to the Cascade County
Jail to     await trial.      The District Court dismissed the
criminal charges on January 8, 1985, due to the lapse of time
which had occurred while D.R.S.        was unfit to proceed.         The
District Court also ordered the County Attorney to file a
petition seeking involuntary commitment of D.R.S. to Montana
State Hospital.         D.R.S.   remained in custody pending this
petition.
          After a probable cause hearing, the District Court held
a hearing on the civil commitment petition on February 14,
1985.       On February 26, 1985, the District Court found that
D.R.S.      suffered from serious mental illness and ordered him
committed to Montana         State Hospital with        release to    an
appropriate supervised community setting, when the hospital
staff determined such a release would be advisable.                  The
District Court also ordered that D.R.S. be transported to the
Montana State Hospital as soon as possible.
          D.R.S. appeals this order raising one issue:
          Whether   sufficient   evidence    supports    the   District
Court's finding that D.R.S.       is seriously mentally ill.
          Section 53-21-102(14), MCA, defines seriously mentally
ill as
          ...   suffering from a mental disorder which has
          resulted in self-inflicted injury or injury to
          others or the imminent threat thereof or which has
          deprived the person afflicted of the ability to
          protect his life or health.     For this purpose,
          injury means physical injury.     ..
          The standard of proof is set forth in 5 53-21-126(2),
MCA   .
          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' present condition.
                                   s
     [Emphasis added.]
". . .   [Tlhe law does not require proof beyond a reasonable
doubt that an injury will occur in the future             . . . The   law
requires only proof beyond a reasonable doubt that the threat
of future injury presently exists and that the threat is
imminent   ... "    Matter of F.B.       (Plont. 1980), 615 P.2d 867,
869, 37 St.Rep. 1442, 1445.
     An overt act or behavior is evidence of a person's
status as seriously mentally ill.         This term of art refers to
a manifestation of dangerousness.          - supra.
                                           F.B.,             When this
requirement   is    coupled   with   a    corresponding psychiatric
evaluation,   the    District   Court      can   better    assess     the
likelihood that the person will commit similar acts.             -
                                                                 F.B.,
supra.
     D.R.S.   contends that the State failed to show "overt
acts, sufficiently recent in time as to be material and
relevant" to his present condition.          He claims that the acts
allegedly committed in furtherance of the robbery, occurring
almost two and one-half years prior to the hearing, do not
satisfy the requirement of a recent overt act.            In Matter of
the Mental Health of D.B. (Mont. 1985), 709 P.2d 161, 162, 42
St.Rep. 1747, 1749, this Court stated past behavior can be
material and relevant to a person's present condition.                The
circumstances in the case at bar are such that a lapse of
time between the overt act and the commitment proceedings do
not preclude relying on the overt act         as evidence of D.R.S.'
mental condition.
     Dr. James Deming, the psychologist who treated D.R.S.
for the two-year period at Montana State Hospital testified
that D.R.S.' condition was essentially unchanged from that in
1982.     He testified that:
        [D.R.S. 1 continued to exhibit symptoms of a
       significant mental illness, continued. to be
       confused, continued to develop neologisms or new
       words, continued to be convinced of specific
       bizarre ideations, as an example, [D.R.S.] was
       convinced that his lawyer was my brother. On the
       basis of the information that both of us wore
       mustaches.    He continued to have--to exhibit a
       significant thought disorder which renders him
       unpredictable, and in my judgment, imminently
       dangerous.
Dr.    Deming relied on several factors in concluding that
D.R.S.     is dangerous.           In addition to the primary element of
the      charges    against        D.R.S.,      Dr.       Deming     considered    his
statements of            unwillingness         to    accept    supervision        in   a
community setting for his disorder, D.R.S.'                        stated intent to
use      alcohol       when      he     leaves       the     hospital,      and    the
deterioration of his condition while in the county jail.                           Dr.
Deming explained that a small amount of alcohol would render
D.R.S.        confused     and     disoriented,           resulting    in   dangerous
behavior, and that he had not received medication during his
stay     in    jail.       The     fact that D.R.S.            had    not exhibited
dangerous or "acting-out" behavior in the hospital was due to
the supervised environment and the control of his medication.
If taken out of this supervised setting, Dr. Deming said that
D.R.S.    would become imminently dangerous within two months.
Finally, the doctor expressed his opinion that D.R.S.                                  is
seriously mentally ill and imminently dangerous to himself
and      others     due       to      his    mental        disease     of   paranoid
schizophrenia.
       D.R.S. '        conduct        during        the     robbery,     under     the
circumstances presented here, is "sufficiently recent in time
as to be material and relevant" to his present condition.
Section        53-21-126(2), MCA.           The time lapse between the overt
act and his commitment hearing was due to his serious mental
illness.     The evidence showed his condition remained as it
was   at   the   time   of     the   overt    act.   In    addition, the
psychiatric evaluation stated that D.R.S. would be imminently
dangerous    within     two    months    of    leaving    the   supervised
hospital- setting.        We    hold    that the District Court had
sufficient evidence to find D.R.S. is seriously mentally ill.
      The order of the District Court is affirmed.




We concur:
