In the Matter of the Civil Commitment of: Maxim Kenneth Rhone.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0943

In the Matter of the Civil Commitment of:
Maxim Kenneth Rhone.

Filed November 26, 2018
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-MH-PR-16-588

Rick E. Mattox, Prior Lake, Minnesota (for appellant)

John J. Choi, Ramsey County Attorney, Timothy P. Carey, Assista nt County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Re illy, Judge; and
Smith, John, Judge.

U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Maxim Rhone challenges her civil commitment as mental l y i l l a n d
dangerous, arguing that the district court erred in finding that she had engaged in overt acts
demonstrating that she presents a clear danger to the safety of others. Rhone contends that
her killing of her former roommate was not an overt act within the meaning of the

 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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commitment statute because it was a justifiable taking of life and that the other acts relied
upon by the district court were insufficient to satisfy the ove rt-act requirement. Because
the district court found that the killing was not justifiable, and because that finding was
supported by clear and convincing evidence, we conclude that the district court did not err
in determining that the killing was an overt act. We also conclude that the killing alone was
sufficient to satisfy the overt-act criterion of the statute. We therefore affirm.
FACTS
Rhone has a history of serious psychiatric disorders which have resulted in multiple
hospitalizations. She has also t wice been in treatment for chem ical dependency. Several
acts engaged in by Rhone were considered in this case.
One act occurred in approximately 2008, when Rhone was 17 years old. Rhone bit
her father on the stomach during a fight.
The other acts took place in 2016. Rhone was living in an apartment, and for several
weeks, two other people, S.Q. and G.J.M., were living with her, although they were not
authorized to do so under Rhone’s lease. On September 20, 2016, Rhone and G.J.M.
argued, and Rhone, holding a knife, threatened to stab G.J.M. The police were called. Upon
arrival, they found Rhone holding a knife. Rhone told the police that she was God and that
someone in the apartment was raping and stabbing a baby. Police searched Rhone’s
apartment but did not find evidence of the latter claim. Another tenant told the police that
Rhone had been going in and out of the apartment through a brok en window, instead of
using the door. The police transported Rhone to a hospital, where she remained overnight
until her discharge on September 21.

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Around this same time, S.Q. and G.J.M. were evicted from the ap artment. In the
early morning of September 23, G.J.M. returned to Rhone’s apart ment in an attempt to
recover some of his personal property. G.J.M. and Rhone argued, and Rhone stabbed
G.J.M. with a kitchen knife, killing him.
Following her arrest, Rhone spok e with the police. She acknowle dged stabbing
G.J.M. She provided multiple explanations of how G.J.M. got int o the apartment, saying
that he had broken in through a window, that he had a key, and that she had let him in. In
describing what happened in the apartment, Rhone said she “was just trying to get [G.J.M.]
out of her apartment”; that “it was really scary to wake up and have [him] there”; that
G.J.M. “screamed at [her] and spat in [her] face”; and that she “was not going to let it
happen again.” Rhone also told police that she knew G.J.M. want ed to get his property
back; that, immediately prior to the stabbing, she was repeated ly telling G.J.M. to leave
and G.J.M. was saying that he was trying; and that G.J.M. tried to punch her but then bent
over to look for “stuff” and that was when she stabbed him. Rhone also said that she “could
. . . have walked away from the situation” but was “not . . . sure.”
Rhone was charged with second-degree murder, but her trial was suspended after
she was found incompetent. See Minn. R. Crim. P. 20.01, subd. 6(b). Respondent Ramsey
County (the county) then filed a petition to have Rhone committ ed as mentally ill and
dangerous. See id. At the initial-commitment hearing, Rhone was found to be mentally ill
and dangerous. The district court pointed to both the threats o f September 20 and the
stabbing of September 23 as overt acts demonstrating that Rhone presented a clear threat
to the safety of others because of her mental illness. The court also noted that Rhone’s 2008

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biting of her father was her first act of violence, discussing the incident under the heading
“History of Violence and Overt Acts” but not explicitly identifying it as an overt act within
the meaning of the commitment statute.
After the initial-commitment hearing, but before the final-dete rmination hearing,
Rhone was found competent to stand trial in the murder case. Following a jury trial, Rhone
was acquitted based on a special- verdict finding that the state had not proved beyond a
reasonable doubt that she did not act in defense of her dwelling. See Minn. Stat. §§ 609.06,
.065 (2016).
At the final-determination heari ng, the district court conclude d that Rhone
continued to be mentally ill and dangerous. It characterized the threats, the stabbing, and
also the biting incident as overt acts within the meaning of the statute.
Rhone appeals from the district court’s initial-commitment and final-determination
orders.
D E C I S I O N
Minnesota law permits the indeterminate commitment of a person who is found to
be mentally ill and dangerous to the public. Minn. Stat. § 253B .18, subd. 3 (2016). The
county has the burden of proving the facts supporting commitment by clear and convincing
evidence. Minn. Stat. § 253B.18, subd. 1(a) (2016). “On appeal, this court applies a clear-
error standard of review to the district court’s findings of fact and reviews the record in the
light most favorable to the findings of fact.” In re Civil Commitment of Spicer, 853 N.W.2d
803, 807 (Minn. App. 2014). “To conclude that findings of fact are clearly erroneous, [the
reviewing court] must be ‘left with the definite and firm conviction that a mistake has been

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made.’” LaPoint v. Family Orthodontics, P.A. , 892 N.W.2d 506, 515 (Minn. 2017)
(quoting Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013)).
Under Minn. Stat. § 253B.02, subd. 17 (2016):
(a) A “person who is mentally ill and dangerous to the
public” is a person:
(1) who is mentally ill; and
(2) who as a result of that mental illness presents a clear
danger to the safety of others as demonstrated by the facts that
(i) the person has engaged in an overt act causing or attempting
to cause serious physical harm to another and (ii) there is a
substantial likelihood that the person will engage in acts
capable of inflicting serious physical harm on another.

Minn. Stat. § 253B.02, subd. 17. Thus, two elements are required to find a person mentally
ill and dangerous: first, mental illness; and, second, clear danger to the safety of others. Id.
The second element must be supported by two facts: that the per son committed an “overt
act” seriously harming or attempting to seriously harm another, and that there is a
substantial likelihood of future harmful acts. Id.
Rhone concedes that she is men tally ill. She bases her appeal o nly on the second
element of the statute—specifically, the findings of overt acts. Rhone first argues that, as a
matter of law, a justifiable homicide cannot constitute an over t act for the purposes of
commitment. She then contends tha t the county did not prove by clear and convincing
evidence—a lower standard than that required for a criminal con viction—that her killing
of G.J.M. was not justifiable and that the district court there fore erred in determining that
the homicide constituted an overt act. Second, she argues that the district court erred in
relying on her biting of her father and her threat to stab G.J.M. as overt acts. We begin with
Rhone’s challenge to the characterization of her killing of G.J.M. as an overt act.

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Killing of G.J.M.
Obviously, killing someone causes serious physical harm to that person. See Minn.
Stat. § 253B.02, subd. 17 (requiring that an overt act “caus[e] or attempt[] to cause serious
physical harm to another”). Rhone argues that a justifiable killing cannot constitute an overt
act that demonstrates a clear danger to the safety of others. See id. (requiring that “clear
danger to the safety of others” be demonstrated by an overt act). She contends that to hold
otherwise would deprive mentally ill persons of the same right to defend themselves and
their dwellings that persons who are not mentally ill have, because a mentally ill person’s
exercise of that right could then be evidence supporting commitment.
The county argues that a justifiable homicide can constitute an overt act because a
person’s intent is not relevant to determining whether a harmfu l act meets the overt-act
requirement. The county relies on the supreme court’s decision in In re Jasmer, which held
that a mentally ill person who de liberately shot a gun at a chi ld engaged in an overt act
attempting to cause serious harm, regardless of whether he formed or could form the intent
required for conviction of an a ttempted crime. 447 N.W.2d 192, 195 (Minn. 1989). The
court reasoned that an “action is equally dangerous to the public whether the actor had an
intention to cause harm and whether the actor had the capacity to form an intention to cause
harm or even to recognize its potential for causing serious harm.” Id.
We need not decide the precise relationship between a justifiable homicide and the
overt-act requirement if Rhone’s killing of G.J.M. was not just ifiable. See Lipka v. Minn.
Sch. Emps. Ass’n, Local 1980 , 550 N.W.2d 618, 622 (Minn. 1 996) (“[J]udicial restraint
bids us to refrain from deciding any issue not essential to the disposition of the particular

7
controversy before us.”). We therefore begin by examining the district court’s finding that
the killing was not justifiable and whether that finding is supported by clear and convincing
evidence.
Minnesota law permits the use of “reasonable force . . . upon o r toward the person
of another” in certain situations . Minn. Stat. § 609.06, subd. 1. “Reasonable force” does
not include intentional killing, unless the force is used in de fense of self or in defense of
dwelling. Minn. Stat. § 609.065. There are three elements to each of these justifications.
Killing in defense of self is justified if (1) the killing was “done in the belief that it
was necessary to avert death or grievous bodily harm,” (2) the defendant made a judgment
“as to the gravity of the peril to which he was exposed” that w as “reasonable under the
circumstances,” and (3) a reasonable person would have made the same choice to kill “in
light of the danger to be apprehended.” State v. Edwards , 717 N.W.2d 405, 413 (Minn.
2006).
Killing in defense of dwelling is justified if (1) “the killing was done to prevent the
commission of a felony in the d welling,” (2) “the defendant’s j udgment as to the gravity
of the situation was reasonable under the circumstances,” and (3) “the defendant’s election
to defend his or her dwelling was such as a reasonable person would have made in light of
the danger to be apprehended.” State v. Carothers, 594 N.W.2d 897, 904 (Minn. 1999).
Significantly, a person need not fear great bodily harm or death to use deadly force
in defense of dwelling. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). Nor is a
person required to retreat before using deadly force to defend the dwelling. Carothers, 594
N.W.2d at 903-04. However, the absence of these requirements is not a “license to kill”

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any person who commits a felony in one’s dwelling. Id. at 904. The felony must be
something against which the use of force is authorized, the law ful possessor of property
must still make a reasonable judgment as to the gravity of the situation, and the choice to
kill must be one that a reas onable person would make. See id. (“[A] person claiming
defense of dwelling is still subj ect to strictures insuring the reasonableness of his or her
behavior.”); State v. McCuiston, 514 N.W.2d 802, 805-06 (Minn. App. 1994) (suggesting
that a person would not be justified in using deadly force to p revent the commission of
insurance fraud within their own dwelling), review denied (Minn. June 15, 1994). Though
there is no duty to flee out the back door when a burglar enters, “it may be more reasonable
for a person to . . . retreat from a danger within . . . her ho me in different circumstances,”
and the decision as to what is reasonable should be left to the trier of fact, Carothers, 594
N.W.2d at 901, 904.
Once a defendant has produced some evidence to support a claim of justification, it
is the state’s burden to disprove “one or more of the[] elements beyond a reasonable doubt.”
State v. Johnson, 719 N.W.2d 619, 629 (Minn. 2006 ). Rhone argues that, by analogy, the
party seeking civil commitment bears the burden of disproving j ustification by clear and
convincing evidence. Without deciding whether the analogy holds , we reject Rhone’s
argument because the district court’s findings show that the co unty did disprove
justification by clear and convincing evidence.
In its order for initial commitm ent as mentally ill and dangero us, the district court
found that Rhone’s killing of G.J.M. was not justifiable. While not always clearly

9
distinguishing between self-defense and defense of dwelling, th e district court’s findings
negate both defenses.
The district court found that “[t]he evidence . . . does not support a reasonable belief
that killing the victim was necessary to prevent death or serious injury” and “a reasonable
person would NOT have believed th at his life was in such danger that he needed to use
physical force against the victim.” The district court determined that the county had proved,
by clear and convincing evidence, that a reasonable person woul d not have believed that
killing was necessary to prevent death or grievous bodily harm. See Edwards, 717 N.W.2d
at 413. Therefore, the district court rejected Rhone’s self-defense argument.
While the district court specifically rejected self-defense, it d i d n o t s p e c i f i c a l l y
reject defense of dwelling. However, the district court did fin d that Rhone had admitted
that she was not being threatened by G.J.M. when she stabbed him, that she knew G.J.M.,
that she knew he was there to re cover his belongings, that she stabbed G.J.M. because he
would not leave, and that she could have walked away. It conclu ded that “[t]hese
admissions foreclosed any valid a rgument that the killing of th e victim was necessary.”
Taken together, these findings refute that a reasonable person would have killed G.J.M.
under the circumstances, whether to prevent a felony in the person’s dwelling or in defense
of self. The county thus disproved the third element of defense of dwelling by clear and
convincing evidence.
The district court’s findings are supported by the record. Rhone’s argument that the
district court erred in finding that her killing of G.J.M. was not justifiable is little more than
a repetition of the exculpatory statements she made to the police. Rhone asserts that G.J.M.

10
was engaged in burglary and that she told police “that she was scared [G.J.M.] would hit
her in [the] face again, that [G.J.M.] yelled and spat in her face, and that after [G.J.M.] tried
to punch her, she stabbed him.” Rhone also quotes her statement , made to a Minnesota
Security Hospital employee for the purposes of the 60-day treatment report: “I was fearing
for my life and that’s why I reacted the way I did when he approached me. My actions were
in self-defense.”
However, the record also contains statements that Rhone made to police indicating
a lack of justification. She said that G.J.M. was not threatening or assaulting her when she
stabbed him; that G.J.M. was, in fact, bent over and looking fo r “stuff” at the time she
stabbed him; that she knew G.J.M. was trying to get his own pos sessions back; and that
she likely could have walked away instead of stabbing G.J.M. Fi nally, Rhone said she
stabbed G.J.M. because he would not leave, despite his telling her that he was trying to
find his phone and then intended to leave.
We cannot say that the district court clearly erred by creditin g Rhone’s statements
indicating that the killing was unjustifiable or by rejecting R hone’s other statements. See
State v. Vasko, 889 N.W.2d 551, 559 (Minn. 2017) (“The district court, however, rejected
[certain] evidence, and we defer to that credibility determination.”); see also Minn. R. Civ.
P. 52.01 (“Findings of fact, whether based on oral or documenta ry evidence, shall not be
set aside unless clearly erroneous . . . .”). The record is suf ficient to support the district
court’s finding that a reasonabl e person would not have stabbed G.J.M. in the
circumstances and its resulting conclusion that Rhone’s killing o f G . J . M . w a s n o t

11
justifiable.1 The district court therefore did not err in determining the killing to be an overt
act in its initial-commitment order.
Rhone argues, however, that the district court erred by not rec onsidering whether
the killing was an overt act after Rhone was acquitted of murde r based on defense of
dwelling. Apart from the fact of the acquittal, Rhone submitted no new evidence regarding
the killing. In its order for final commitment, the district co urt rejected Rhone’s legal
argument that an act of self-defense could not be an overt act and also stated that
“[c]onviction of a crime is not a prerequisite to commitment as mentally ill and dangerous
to the public.” However, the court did not specifically address whether the killing of G.J.M.
was justifiable or not.
As Rhone concedes, a jury verdict in a criminal case is not bin ding on the
commitment court because the standards of proof differ. Beaulieu v. Minn. Dep’t Human
Servs., 825 N.W.2d 716, 724 (Minn. 2013). Rhone bases her reconsideration argument on
In re Verhelst, 350 N.W.2d 494, 495 (Minn. App. 1984), and In re Bobo, 376 N.W.2d 429,
432 (Minn. App. 1985). Both cases are distinguishable. Verhelst holds that it is error to
order final commitment based on a finding that a patient was mentally ill and dangerous at

1 The district court also made findings that touch on the second element of defense of
dwelling—that “the defendant’s judgment as to the gravity of the situation was reasonable
under the circumstances.” See Carothers, 594 N.W.2d at 904. The court found that, at the
time of the stabbing, Rhone was “floridly psychotic,” that her “severe psychosis prevented
[her] from properly perceiving reality and making reasonable judgments,” and that Rhone
could not “exercis[e] reasonable judgment concerning the assess ment of a threat and the
use of lethal force.” Because we conclude that the district cou rt found, and the record
supports the finding, that a reasonable person would not have m ade the decision to kill
G.J.M., i.e., that the third element of defense of dwelling was lacking, see id., we need not
further analyze the second element.

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the time of initial commitment, r ather than a finding the patie nt continues to be mentally
ill and dangerous. The patient in that case voluntarily took he r medication and ceased
aggressive behaviors between the initial-commitment hearing and the final-determination
hearing. 350 N.W.2d at 495-96. T he case says nothing about reco nsidering whether the
p a t i e n t d i d , i n f a c t , p e r f o r m t h e o v e r t a c t s i n t h e f i r s t p l a c e or about recharacterizing
behaviors initially classified as overt acts.
In Bobo, we considered whether a patient’s compliance with his treatment regimen,
abstention from chemical abuse, a nd lack of violence while hosp italized made the final-
commitment court’s finding—that he was likely to engage in dang erous conduct in the
future—improper. 376 N.W.2d at 43 2. But neither the final-deter mination court nor this
court on appeal reconsidered whether the patient’s overt acts h appened or whether they
were properly classified as overt acts.
Thus, neither Verhelst nor Bobo supports Rhone’s argument that the district court
at a final-determination hearin g must reconsider the findings o f fact made at the initial-
commitment hearing.
In sum, we conclude that the district court’s findings support the determination that
Rhone’s killing of G.J.M. was not justifiable and that the record supports the district court’s
findings. The district court thus did not err in finding that R hone engaged in an overt act
causing serious harm to another.
Other overt acts
Rhone also argues that the district court erred in holding that her threats against
G.J.M. and her biting of her father were overt acts. To be ment ally ill and dangerous, a

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person must “engage[] in an overt act causing or attempting to cause serious physical harm
to another.” Minn. Stat. § 253B.02, subd. 17. Only one such act is required. See In re
Welfare of Hofmaster, 434 N.W.2d 279, 280 (Minn. A pp. 1989) (affirming commitment
where the district court found only one overt act). Because Rhone’s killing of G.J.M. was
an overt act within the meaning of the mentally-ill-and-dangerous statute, it is unnecessary
to determine whether she has engaged in any other overt acts.
Affirmed.