Rotter v. PSRB

182 October 28, 2026 No. 1032 IN THE COURT OF APPEALS OF THE STATE OF OREGON Dustin Leroy ROTTER, aka Danual Jacob Write, Petitioner, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent. Psychiatric Security Review Board 152703; A184933 Submitted November 6, 2025. Harris S. Matarazzo filed the brief for petitioner. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. POWERS, J. Reversed and remanded. Cite as 354 Or App 182 (2026) 183 POWERS, J. Petitioner seeks judicial review of an order from the Psychiatric Security Review Board (PSRB), concluding that he was “affected by a qualifying mental disorder which, when active, renders him a substantial danger to others.” Petitioner argues that, although he is affected by a qual- ifying mental disorder, the board’s determination that he presents a substantial danger to others is not supported by substantial evidence in the record. Consequently, petitioner contends that he should be discharged from PSRB jurisdic- tion under ORS 161.346(1)(a) (requiring discharge when the person is “no longer affected by a qualifying mental disorder or, if so affected, no longer presents a substantial danger to others”). For the reasons explained below, we agree with petitioner. Accordingly, we reverse and remand. The underlying facts are undisputed. In April 2015, petitioner was found guilty except for insanity (GEI) on one count of attempted murder for an incident in which peti- tioner rammed his car into a dual tanker truck and then attacked the truck driver by repeatedly stabbing him. Prior to the incident, petitioner had a long history of methamphet- amine use, had been psychiatrically hospitalized several times, and had been diagnosed with paranoid schizophre- nia. The court’s determination was based on an evalua- tion by Dr. Anne-Marie Smith that diagnosed petitioner with “Unspecified Schizophrenia Spectrum and Psychotic Disorder” and “Stimulant Use Disorder, Amphetamine Type, Severe.” Smith concluded that petitioner had an “acute psychotic episode at the time of the incident[.]” Ultimately, the trial court placed petitioner under PSRB jurisdiction for a maximum of 20 years, and he was admitted to the Oregon State Hospital. See ORS 161.327(1)(a) (authorizing the com- mitment to a state hospital of a person found GEI of a felony, if the person is affected by qualifying mental disorder and presents a substantial danger to others). About two years later, in November 2017, the board conditionally released petitioner to a residential treatment home following a hearing. The jurisdictional report prepared for that hearing again diagnosed petitioner with schizo- phrenia and noted that petitioner reported experiencing 184 Rotter v. PSRB auditory hallucinations, which he described as “flashback sounds.” Earlier in 2017, petitioner was prescribed and began taking a small dose of an antipsychotic medication. He then reported the cessation of the auditory hallucina- tions. Petitioner discontinued taking the antipsychotic med- ication in January 2023. In November 2022, the board held a five-year status hearing to determine if he should be discharged from PSRB jurisdiction. See ORS 161.336(6) (requiring the board to hold a hearing for individuals that have spent five years on con- ditional release to “review the person’s status and determine whether the person should be discharged from the jurisdic- tion of the board”). At that hearing, the board continued peti- tioner’s conditional release, ordered a jurisdictional report to answer questions regarding petitioner’s qualifying mental health disorder, and ordered that a status hearing be held “in approximately six months.” See ORS 161.346(2) (authorizing the board to appoint a psychiatrist or licensed psychologist “to examine the person and to submit a report” that “must include an opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled with treatment as a condition of release”). Dr. Chelsea Gilbert conducted the ordered assess- ment of petitioner in December 2022. Gilbert diagnosed petitioner with “other specified attention-deficit/hyperac- tivity disorder (ADHD), with insufficient symptoms, in sus- tained remission.” In the report, Gilbert also noted her clin- ical opinion that petitioner does not have “any schizophrenia spectrum or affective psychotic disorder” and “does not pres- ent a substantial danger to others as a result of the mild cognitive weaknesses that are associated with his diagnosis of other specified ADHD.” In May 2023, the board held the status hearing to consider its continuing jurisdiction over petitioner under ORS 161.336(2), which allows the board to modify con- ditions or terminate a conditional release as provided in ORS 161.351. Both parties agreed that the state had the burden to prove by a preponderance of the evidence that petitioner was affected by a qualifying mental disorder and Cite as 354 Or App 182 (2026) 185 continued to present a substantial danger to others under ORS 161.351(1). At the hearing, in addition to admitting 283 exhibits into evidence, the board heard testimony from both Gilbert, who completed the ordered assessment of peti- tioner, and Tylr Wagner, a psychiatric nurse practitioner who worked with petitioner. Gilbert testified about her assessment and diag- nosis of petitioner with the “qualifying mental disorder” of “other specified attention deficit hyperactivity disorder with insufficient symptoms in sustained remission.” In her view, if petitioner were to become dangerous again, “substance-in- duced psychosis,” which is not a qualifying mental disorder, “would be the most likely reason.” Gilbert also discussed petitioner’s discontinued use of antipsychotic medication and acknowledged that she understood his dose to be “sub- therapeutic” and that petitioner would likely exhibit symp- toms within one year of discontinuation if he has a psychotic disorder. Similarly, Wagner discussed petitioner’s medica- tion usage, mental health condition, and substantial-danger risk. He also discussed petitioner’s January 2023 discontin- uation of the antipsychotic medication and his belief that the dosage was “subtherapeutic” and did not impact petitioner’s behavior. Wagner noted that petitioner had not reported any issues since going off the medication. In Wagner’s view, peti- tioner would be a substantial danger to others only if he relapsed on methamphetamine. Ultimately, the board issued an order denying peti- tioner’s discharge from its jurisdiction and maintaining his conditional-release status. The board first found that peti- tioner “is affected by a qualifying mental disorder, to wit, unspecified schizophrenia spectrum and other psychotic disorder, as demonstrated by the underlying facts shown by the evidence.” It also found that petitioner, “without ade- quate supervision and treatment, would continue to pres- ent a substantial danger to others as demonstrated by the underlying facts shown by the evidence.” In explaining its first finding—that petitioner has the qualifying mental disorder of unspecified schizophrenia 186 Rotter v. PSRB spectrum disorder and other psychotic disorder—the board discounted Gilbert’s 2022 assessment of petitioner and her diagnostic conclusions because she did not, in the board’s view, adequately address petitioner’s psychological his- tory, use of the antipsychotic medication, or his behav- ioral indicators of psychotic symptoms, and she relied too heavily on petitioner’s self-report despite his recorded ten- dency to underreport and minimize symptoms. The board contrasted Gilbert’s evaluation with Smith’s earlier evalu- ation. Acknowledging that Smith’s report “was conducted some years ago,” the board concluded that it was “concom- itant with [petitioner’s] mental status and circumstances surrounding the instant offense, thoroughly examined the differential diagnosis of a qualifying versus non-qualifying mental disorder and nexus.” To support its second finding—that “without ade- quate supervision and treatment,” petitioner “would con- tinue to present a substantial danger to others”—the board noted that it is “reasonable to find that [petitioner] would present a substantial danger to others when that [qualify- ing mental] disorder is active based on the circumstances related to his instant offense of Attempted Murder as described in the police reports contained in Exhibits 4, 5, and 6 as well as his extensive criminal history contained in Exhibit 3.” The board also “emphasize[d] the importance of considering [petitioner’s] mental state following the discon- tinuation of antipsychotic medication to position the Board to reconsider its finding with respect to the nature of his underlying mental condition, his potential dangerousness, and the connection between the two.” Underpinning both findings was the board’s focus on petitioner’s January 2023 discontinuation of the antipsy- chotic medication. It noted in the order that it “repeatedly raised questions regarding the role and impact of [the med- ication] on managing [petitioner’s] qualifying mental disor- der and response to stress” and it found “that this issue is central to its decision-making.” The board found “it prudent to conduct further assessment of [petitioner’s] psychiatric condition in the absence of psychotropic medication” because of testimony that suggested that symptoms may recur Cite as 354 Or App 182 (2026) 187 within a year of petitioner’s discontinuation of the medica- tion. As noted, the board concluded that the state sustained its burden of proving by a preponderance of the evidence that petitioner continued to be affected by a qualifying men- tal disorder and continued to be a substantial danger to oth- ers, and that he should not be discharged from the board’s jurisdiction. Petitioner timely seeks judicial review. We review the board’s order for errors of law and substantial evidence. ORS 183.482(8)(a), (c). Disputed find- ings are reviewed to determine whether they are supported by the evidentiary record and whether a reasonable person, viewing the entire record, could make those findings. ORS 183.482(8)(c); Rinne v. PSRB, 297 Or App 549, 557, 443 P3d 731 (2019). We also review for substantial reason. Knotts v. PSRB, 250 Or App 448, 455, 280 P3d 1030 (2012). That is, the board is required to explain any conclusions it makes with enough detail for us to review its reasoning. “If the board’s reasoning cannot be ascertained or is faulty, then the order is not supported by substantial reason.” Id. (inter- nal quotation marks omitted). On review, petitioner argues that there was insuffi- cient evidence in the record to support the board’s determi- nation that petitioner was a “substantial danger to others” as a result of a “qualifying mental disorder.” First, petitioner argues that more recent evidence—specifically, the testi- mony of Gilbert and Wagner—did not support the board’s finding that petitioner was a “substantial danger to others” as a result of unspecified schizophrenia spectrum and other psychotic disorder. Relatedly, petitioner argues that his prior use of a “subtherapeutic” dosage of the prescribed anti- psychotic medication undercuts the board’s findings because the dosage was less than what is considered to be effective to treat unspecified schizophrenia and other psychotic disor- der. Therefore, according to petitioner, he could not be a sub- stantial danger to others as a result of unspecified schizo- phrenia and other psychotic disorder. Second, petitioner argues that substantial evidence in the record does not support the board’s finding that he represents a substantial danger to others as the result of a qualifying mental disorder. Petitioner notes that both 188 Rotter v. PSRB Gilbert and Wagner opined that he does not present a sub- stantial danger to others as a result of a qualifying men- tal disorder. Indeed, Wagner testified that petitioner could be dangerous only if he relapsed on methamphetamine— that is, petitioner would be a danger only as a result of his substance abuse disorder, which is not a qualifying mental disorder. Petitioner also asserts that some of the evidence relied upon by the board—namely, police reports related to the 2014 offense and petitioner’s criminal history—was over eight years old at the time of the 2023 hearing. Petitioner also notes that the board relied on a 2017 Oregon State Hospital Report that noted that he had been placed on a low dose of an antipsychotic medication to support its substan- tial danger finding.1 Petitioner contends that the board’s reliance on that outdated evidence was inadequate to sup- port a substantial danger finding because it did not address petitioner’s current circumstances. In response, the board highlights evidence that it contends supports its findings, including: (i) petitioner’s history of arrests; (ii) petitioner’s psychiatric hospitaliza- tion in California prior to the underlying offense; (iii) the circumstances of the instant offense; (iv) petitioner’s 2014 diagnosis by Smith of unspecified schizophrenia spectrum and other psychotic disorder and stimulant use disorder; (v) the subsequent 2017 schizophrenia diagnosis and reported auditory hallucinations; and (vi) the reported abatement of those symptoms with the use of an antipsychotic medication. The board also focuses on the circumstances surrounding petitioner’s discontinued use of the antipsychotic medication before the May 2023 hearing. The board argues that, because petitioner had discontinued the use of the antipsychotic med- ication only four months prior to the hearing and psychotic symptoms usually recur, if they are going to, within a year of discontinued use, it could reasonably conclude that it was too early to assess petitioner’s mental condition. Considering the parties’ arguments and having reviewed the final order and record in accordance with our standard of review, we agree with petitioner’s argument 1 Although petitioner’s argument on this point references a report from 2015, we understand his argument to be referring to Ex 73, which is a report from 2017. Cite as 354 Or App 182 (2026) 189 that the board’s order is not supported by substantial evi- dence. That is, even assuming that the board’s finding that petitioner has a qualifying mental disorder is supported, we conclude that there is not substantial evidence in the record that petitioner presented a substantial danger to others at the time of the May 2023 hearing because of that qualifying mental disorder. In particular, we conclude that the order relies on older evidence that does not address petitioner’s current potential risk and relies on speculation to support its finding that petitioner presents a substantial danger to others as a result of the qualifying mental disorder. To be supported by substantial evidence, the board’s findings must address petitioner’s current mental and phys- ical condition. See Haidar v. PSRB, 324 Or App 129, 132, 524 P3d 986 (2023) (concluding that “the order fails to grap- ple with uncontested testimony describing [the] petitioner’s current mental and physical condition and therefore lacks substantial evidence to support the conclusion that [the] petitioner presents a substantial danger given her current condition”); Einstein v. PSRB, 330 Or 121, 127, 998 P2d 654 (2000) (noting that the “appropriate factual inquiry was applicant’s mental condition at the time of the hearing”). Relatedly, the board must also point to evidence beyond the circumstances of the underlying offense to support a find- ing that petitioner would be a substantial danger to oth- ers if their qualifying mental disorder became active. See Norgren v. PSRB, 344 Or App 617, 626, 581 P3d 1009 (2025) (concluding that the record lacked substantial evidence that the petitioner presented a substantial danger to others because “the PSRB relied heavily” on the circumstances of the underlying offense, which occurred approximately nine years before the hearing and resulting order). In Haidar, the board relied on old exhibits and evidence from before the petitioner’s mental and physical decline due to dementia as evidence of substantial danger. 324 Or App at 134-35. We concluded that the order was not supported by substantial evidence “because none of the exhibits cited by PSRB address[ed] [the] petitioner’s more recent physical and mental condition, which significantly changed in the years leading up to the PSRB hearing in 190 Rotter v. PSRB 2020.” Id at 135. Similarly, in Norgren, we concluded that the record lacked substantial evidence to support a substan- tial-danger finding because “the PSRB relied heavily on a single incident of violence by [the] petitioner that occurred in October 2013 when [the] petitioner was experiencing mania and psychosis. But the PSRB does not explain how that evidence is probative of the risk that, should [the] petitioner have another mood episode, it will similarly result in mania and psychosis as opposed to manifesting in some other manner.” Norgren, 344 Or App at 626 (internal quotation marks omitted). Here, the board’s substantial-danger finding is not supported by evidence of petitioner’s current substan- tial-danger risk. The board disregarded Gilbert’s and Wagner’s testimony, who both concluded that petitioner was not currently a substantial danger to others as a result of a qualifying mental disorder. The board was entitled to do so, and we do not question that determination. See Einstein, 330 Or at 128 n 4 (noting that the board is “not required to accept * * * testimony without considering the rest of the record”); Martin v. PSRB, 312 Or 157, 167, 818 P2d 1264 (1991) (observing that the board “does not count the witnesses; it weighs the evidence”). The fact remains, however, that there was no other evidence submitted or pre- sented regarding petitioner’s current condition and substan- tial-danger risk at the time of the hearing. Further, the board’s finding that, at the time of the hearing, petitioner represented a substantial danger to others relied on the circumstances before and surrounding the underlying offense as one of the foundations for its find- ing without more explanation. As noted above, the board pointed to “the circumstances related to his instant offense of Attempted Murder as described in the police reports con- tained in Exhibits 4, 5, and 6 as well as his extensive crim- inal history contained in Exhibit 3” as the factual basis for the substantial-danger finding. The board does not explain how the circumstances of the underlying offense, which occurred almost a decade prior to the hearing, are probative of the risk that, if petitioner experiences similar symptoms Cite as 354 Or App 182 (2026) 191 again, he will constitute a substantial danger to others. And, as noted above, the board does not point to any evi- dence that suggests that petitioner will experience similar symptoms again as a result of the qualifying mental dis- order or that, if he does, he will present a substantial dan- ger to others. The board’s substantial-danger finding is not supported by evidence showing that petitioner presented a substantial danger to others at the time of the hearing, and to the extent that it is based on evidence from before and surrounding the underlying offense, it is not supported by substantial evidence. Finally, that leaves the board’s reliance on specu- lation about petitioner’s prior use of an antipsychotic medi- cation to support its substantial-danger finding. The board found it crucial that petitioner took an antipsychotic med- ication to successfully treat self-reported auditory halluci- nations and that he “remained on the same small dose of antipsychotic medication continuously for six years until January 2023, which indicated ongoing treatment for a diagnosed condition.” The board “emphasize[d] the impor- tance of considering [petitioner’s] mental state following the discontinuation of antipsychotic medication to position the Board to reconsider its finding with respect to the nature of his underlying mental condition, his potential dangerous- ness, and the connection between the two.” In other words, the board implied that, because petitioner was no longer taking his antipsychotic medication, he remained, at least potentially, a substantial danger to others. A finding by the board is not supported by substan- tial evidence if its conclusion “relies on a speculative chain of events.” Norgren, 344 Or App at 625. Here, although it was uncontested that petitioner previously had been treated with an antipsychotic medication for six years and that, upon starting the medication, he had reported relief from the self-reported auditory hallucinations, that evidence does not point to current substantial danger to others even though petitioner stopped taking the medication. That is, there was no evidence in the record that petitioner had expe- rienced issues that would cause him to be a substantial dan- ger to others since going off the medication. Indeed, there 192 Rotter v. PSRB was uncontested evidence in the record that petitioner had reported no issues since going off the antipsychotic medica- tion and, further, there was evidence that his dosage when taking the medication was subtherapeutic. Without more, the reliance on the fact that petitioner went off the medi- cation as evidence that he is more likely than not to be a substantial danger to others is impermissibly speculative. Nothing in the record suggests that petitioner had experi- enced a recurrence in symptoms or supports an inference that, if he did, he would become a danger to others. In short, we conclude that the order denying peti- tioner discharge lacked substantial evidence because the order relied on older evidence from the events preceding and surrounding the underlying offense that did not address petitioner’s current substantial-danger risk and relied on speculation related to petitioner’s discontinued use of anti- psychotic medication to support the finding that petitioner presents a substantial danger to others as a result of the qualifying mental disorder. Reversed and remanded.