IN RE MENTAL CONDITION OF WILLIAM S., 97-1216-FT (Wis.Ct.App. 8-28-1997)

Court of Appeals of Wisconsin.
Case No. 97-1216-FT.
Opinion Released: August 28, 1997 Opinion Filed: August 28, 1997 This opinion will not be published. See RULE 809.23(1)(b)4, STATS.

APPEAL from an order of the circuit court for Dane County: MORIA KRUEGER, Judge. Affirmed.

DEININGER, J.[1]

William S. appeals an order recommitting him for twelve months to the Dane County § 51.42 Board for outpatient treatment.[2] He claims that there was insufficient evidence for the trial court to find him dangerous within the meaning of § 51.20(1)(a)2. and (am), STATS.,[3]
and thus to extend his commitment. Because we conclude that the trial court’s finding that William presents a substantial risk of dangerousness to others if treatment were withdrawn, was not clearly erroneous, we affirm.

BACKGROUND
William, “while psychotic in 1972,” killed his mother and was committed under § 971.17, STATS., until 1990. In 1994, he threatened to shoot a group home resident and was committed under § 51.20, STATS. The original outpatient commitment was extended in July 1995 and also in January 1996. In the instant action, Dane County sought to extend William’s commitment for an additional twelve months.

The court appointed James Black, a psychologist, and Paula Colombo, a psychiatrist, to examine William and to make reports and recommendations to the court. Both filed written reports and testified at the extension hearing that William was mentally ill and a proper subject for outpatient treatment. They disagreed, however, on the risk of danger posed if William were to withdraw from treatment. Black’s opinion was that the degree of risk was “moderate,” while Colombo testified that William’s risk to engage in dangerous behavior if not treated was “substantial.” Both concluded, however, that William was resistant to treatment and would likely discontinue his medications if not committed. Even though his evaluation of William’s risk of dangerousness differed from that of Colombo, Black testified that it was his opinion that William “should remain under an extension of his commitment.”

In its ruling from the bench, the trial court noted the discrepancy in the testimony of the examiners regarding William’s potential for dangerousness if not treated. The court acknowledged that Black’s credentials were perhaps more extensive than Colombo’s, but declined to accept Black’s determination that William’s risk of dangerousness was “moderate” as opposed to “substantial”:

[I] rely not only on [the 1972 killing of his mother], but I do rely on the incidents that were testified to in 1974 [sic-1994]. Now, there was a period and everyone seems to think `90 to `94 it may well be that [William] was not on medications. What happened when [William] was not on medications appears to be quite clear as well, that he substantially deteriorated in his ability to function even on the fringes of society without either causing violence or threatening violence and I do note that the violence that was threatened, and it’s not contested, was through the use of a firearm. I think that’s about as good an example as we can have as to what happens if medication is not taken. We have [William], himself, saying that it would be his intention to stop his medications if he were not under a court order to continue these medications.

The court concluded:

We know this is an individual who can get so detached from reality so as to, in his own mind, justify the taking of a human life. So I believe that I am not without solid foundation in finding this substantial risk.

The court subsequently entered an order extending William’s commitment to the Dane County § 51.42 Board for twelve months of outpatient treatment “with conditions,” and an order for involuntary medication and treatment.

ANALYSIS
The County’s burden is to show the elements required for an extension of William’s commitment by “clear and convincing evidence.” Section 51.20(13)(e), STATS. The trial court’s determination that William poses a substantial risk of danger to others if not treated is a factual finding that will not be disturbed on appeal unless it is “clearly erroneous.” Section 805.17(2), STATS.[4] We must affirm the trial court unless its finding is contrary to the great weight and clear preponderance of the evidence. Noll v. Dimiceli’s,Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct.App. 1983). We conclude that the trial court did not err in determining that there was clear and convincing evidence in the record that William posed a substantial risk of danger to others if treatment were withdrawn.

The report and testimony of Dr. Colombo, by itself, would constitute sufficient evidence to sustain the trial court’s finding on William’s dangerousness. William does not argue that Colombo, a resident psychiatrist at U.W. Hospital and Clinics for one and one-half years, was not competent to express her professional opinions regarding William’s mental illness and propensity for dangerousness. Rather, he argues that Black’s opinions were better founded and should have been accepted by the trial court. The weight and credibility to be accorded the testimony of witnesses at trial, however, is a matter within the province of the trier of fact. Mullen v. Braatz, 179 Wis.2d 749, 756, 508 N.W.2d 446, 449 (Ct.App. 1993). This is true for experts as well as lay witnesses. See WIS J I — CIVIL 260.[5]

The trial court could well conclude that the evidence in the record regarding William’s treatment history, and his past violent acts and threats, rendered Colombo’s assessment of a “substantial” risk of dangerousness more credible than Black’s opinion that the risk was only “moderate.” In addition, Black himself recommended that William’s commitment be extended. We cannot conclude that the trial court’s finding was clearly erroneous.

By the Court. — Order affirmed.