State v. Zackery J. Olson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 22, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP369-CR Cir. Ct. No. 2021CM1454

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ZACKERY J. OLSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
JENNIFER R. DOROW, Judge. Affirmed.

¶1 GUNDRUM, P.J.1 Zackery J. Olson appeals from a judgment of
conviction entered after a jury trial for two counts of violating a harassment

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP369-CR

injunction, both as a repeater. He contends the circuit court erroneously exercised
its discretion by sentencing him to prison instead of placing him on probation. For
the following reasons, we disagree and affirm.

Background

¶2 In 2015, Carrie received a ten-year harassment restraining order
against Olson, prohibiting him from contacting her, and in 2018, her sister
Hannah2 received a similar four-year restraining order against him. In
December 2020, Olson contacted each of them by text message; as a result, he was
charged with two counts of violating a harassment injunction, as a repeater. The
“repeater” status was due to Olson’s 2017 conviction of three counts of violating
the 2015 restraining order Carrie had received. A jury found him guilty of both
counts stemming from the December 2020 contacts.

¶3 At sentencing, Carrie relayed to the circuit court the terror Olson has
caused her for years. She explained how she has to see a counselor “to help find
ways to cope with trauma that Olson has caused,” adding that she and her husband
“have cameras all around our house that instantly alert our phones of any
movements” and that she “cannot leave my house for something as simple as a
walk outside with my kids without my firearm.” “I have been called my girl,
baby, little fucking brat, bunny, pussy, cunt, and good little fuck bunny in the
numerous voicemails and texts sent by this man,” Carrie continued. She relayed
how less than two weeks earlier—after Olson had been found guilty at trial but
before sentencing—she went to see a band in Elkhart Lake, and

2
Hannah and Carrie are pseudonyms.

2
No. 2023AP369-CR

[t]he moment we got back to the hotel room, I found that I
had three emails from [Olson’s email address],
timestamped minutes after we entered the concert hall.

I have done nothing but call the cops on him for years
now. And he finds it appropriate to email me while out on
bail with a sentencing hearing just days away.

My gut tells me he was there watching me the whole
time, and it makes me sick to my stomach. I th[a]nk God I
was never on my own that night.

Carrie indicated that the Fond du Lac District Attorney’s office had charged Olson
with ten counts in relation to this incident. She stated that Olson “said himself,
you’re not going to scare me away with the fucking cops anymore.” She added
that “[t]he restraining orders and the police warnings won’t and haven’t scared
him away. From what I have witnessed, he will never stop. As long as he’s
walking around free, he will never stop trying to get to me. And I will never have
the chance to live a normal life.”

¶4 Carrie continued: “This has been allowed to escalate for far too
long, and I don’t want to become another statistic. There is nothing more
terrifying to me as a woman than knowing someone with no respect for the law is
out there holding on to an 18-year sexually charged obsession with you.” Carrie
asked the circuit court to “impose the longest stay in jail as possible for a second
offender and a man as compulsive as Zackery Ols[]on. I also ask[] that he gets
intensive psychological therapy while in jail that continues into whatever
probation period of time he may be granted.” She concluded her comments “with
this quote from a voicemail Zackery Olson sent me on February 22nd, 2021:

You’re not going to scare me away with the fucking
cops anymore. And you’re not gonna keep me at bay by
satisfying me with your way of communication. It’s a
fucking crumb of communication. I’m done. I’m over it.
It’s old. It’s just going to end up pissing me off more. All
right? I want the real thing. I need the real thing. I want

3
No. 2023AP369-CR

my girl. You’re my girl. All right? I want my [Carrie].
So I know you’re up there with your fucking husband right
now. I think your phone is off. You’re not his. You
belong to—you don’t belong to him. All right, [Carrie]?
Your pussy belongs to me. Your holes belong to me. Your
titties belong to me. You belong to me. Everything
belongs to me. All right? And I’m your man. I’m your
daddy. All right? This stick is yours. All right? So why
don’t you come hop on it like a good little fuck bunny that I
know you want to be. Quit playing with me. Quit being
afraid to admit it. So why don’t you pick up your phone
when I call your phone? Unblock my number and accept
my call and stop being a pussy. I told you things are
different. And I fucking mean it. We need to get together.
We need to talk. Okay? Because you’re not going to keep
me at bay anymore. I’m going to go.

¶5 At trial, Carrie testified, inter alia, that on December 24, 2020, she
received a text message from an unknown number with a bunny emoji and a
message of “[o]nly good little bunnies get their stocking stuffed for Christmas.”
Carrie received a second text a few days later from the same number with only the
bunny emoji. When her sister also received a text from the same number a couple
of days later, the two were concerned that the messages had come from Olson.
Carrie was “[v]ery” frightened by this, and they contacted the police. Police
learned that the text came from a “burner” phone number traced to Olson and
contacted him on December 30, 2020. On December 31, 2020, Carrie received
another text from a different number she did not recognize, which text stated, “I
politely told your friends to piss off yesterday.” Police also connected this text to
Olson.

¶6 Hannah also spoke briefly at the sentencing hearing, asking the
circuit court to “do everything in your power to make sure that [Carrie] is not a
statistic.” At trial, Hannah had testified, inter alia, that Olson resides five houses
away from her, she and Carrie went to elementary school and high school with
Olson, and Hannah graduated high school with him in 2006. In her victim impact

4
No. 2023AP369-CR

statement submitted to the court prior to sentencing, Hannah explained that in
May 2017, after being charged with violating the harassment injunction Carrie
had, Olson “showed up on my doorstep” and “threatened to come after [Carrie]
and our family with everything he had.” Subsequently he “called me 8 times”
between April 13 and 22, 2018, leading to Hannah’s four-year harassment
injunction against him. She further stated she refuses to “walk anywhere near
[Olson’s] house or allow my daughters anywhere near his home for fear that he
could try to get to my sister through my own family.” And, while she and her
husband were away from their home on vacation, they were “terrified to learn that
in many of [Olson’s] voicemail rants to [Carrie], he spoke about watching our
home” and that Olson knew Hannah’s car had not been in the driveway for a
couple of days.

¶7 The State recommended twelve months confinement on each count,
consecutive, pointing out, after referencing the new charges in Fond du Lac
County, that Olson “hasn’t accepted responsibility.” The prosecutor noted a 2010
conviction for possession of narcotic drugs as well as Olson’s three prior
convictions for violating a restraining order. The prosecutor pointed out that when
Carrie got her initial injunction against Olson in 2015,

the Judge says, “Stop calling her. Stop contacting her.”
And I think it’s very rare that we see a ten-year
injunction…. And what that ten-year injunction stated was
that the [c]ourt found that he might sexually assault her,
like, kill her.… [W]hat we commonly see is the four-year
injunction.

And, again, that’s back in 2015. And since then, we
have seen this continued pattern of conduct and obsession
and harassment.

The prosecutor stated, “[N]ow things … have escalated. Because now he’s not
using his phone number. Now he’s concealing his phone number. And he’s

5
No. 2023AP369-CR

calling or texting both [Hannah] and [Carrie]. Again, he knows he can’t contact
them…. And he starts contacting them again.” She informed the court that Olson
has contacted Carrie “over 749 times. Voicemails, messages.” She mentioned
that the voicemails

are sick and perverse, and sexually explicit. And again,
this isn’t somebody who’s ever had a relationship with the
defendant. Neither [Hannah] nor [Carrie]. And this
escalation of now he’s not just contacting them or sending
emoji’s, now he’s leaving these perverse voicemails on her
phone. And as [Carrie] describes, what are you supposed
to do? He’s now had judges tell him to stop contacting her.
He’s had commissioners. He’s been repeatedly told on bail
to stop contacting. And he continues to do it.

….

The most recent case, obviously, just happened a week
and half ago ….

… He served nine months’ jail straight time. That
didn’t do it. He served two years’ probation. That didn’t
do it. I think that the only way that these victims have any
sense of safety is if he’s in custody.

The prosecutor indicated she was not convinced Olson had any probationary
needs, stating,

[Y]ou know, he did the mental health eval[uation]. I
believe that was ordered on the last probation sentence…. I
don’t know that this is a mental health issue. This is a stop
contacting them. They don’t want anything to do with you.
Stop.…

What else can we do? The only reasonable option that
the State sees is that he’s locked up. And that’s why I am
recommending a very lengthy sentence in jail, because I
don’t see any other way to stop him. Nine months wasn’t
enough…. [A]t some point, we have to at least take him
out of the community so these victims can go to sleep at
night….

… [And] a lengthy sentence is absolutely necessary to
impress upon him to stop.

6
No. 2023AP369-CR

¶8 In his comments, counsel for Olson urged the court not “to give that
much weight [to the charged offenses in Fond du Lac] because he hasn’t been
convicted. He hasn’t had an opportunity to defend himself in those cases yet.”
Counsel requested probation for Olson, along with mental health treatment or
counseling.

¶9 When Olson spoke, he told the circuit court that

[t]here’s a lot of things that [Carrie] and [Hannah] are not
being truthful about and that they’re keeping from
people….

I don’t know if they’re doing this willingly because
they’re out to get me, or if they’re being forced or
pressured into doing these things against me and saying
these things against me by someone else that they’re not
mentioning.

[Carrie’s] and [Hannah’s] statements and comments and
testimony evolving over the years have significantly
impacted my mental health and my life in negative ways.
And it’s convinced a lot of people that I’m something that
I’m not. It’s made me fear for my life at times. And the
only person who is at risk of being harmed or injured or
even killed here is me. I have received anonymous death
threats throughout the years from people….

The reason why everything seems so unknown is
because the truth is that [Carrie] and I have been having an
affair, and she is keeping it from her husband….

… [A]s the defendant in these cases, I find myself in a
very uncomfortable situation right now. Because … there
is so much that I want to say and that needs to come out, I
wasn’t prepared … to be saying it here today. I didn’t
think all this stuff was going to get brought up from the
Fond du Lac stuff ….

.…

… I’m going to urge [Carrie] or [Hannah] to tell the
truth…. I believe that [Carrie] is afraid of her husband
finding this stuff out …. I believe that she’s afraid he is
going to harm her or me to find out that his wife has been
having an affair.

7
No. 2023AP369-CR

He stated that “[t]his secret relationship has been going on for seven years. And it
scares me to hear [Carrie] read these statements against me. Because it’s … so
unlike her and her sister, [Hannah].” Olson urged the court to withhold sentencing
“until after the outcome of the Fond du Lac trial has concluded so that all of the
relevant facts and information have come out, and I can speak a little more freely
and open about all this stuff so that you can pass down a more appropriate
sentence.”

¶10 The circuit court spoke next. The court noted that the jury found
Hannah and Carrie credible and that this case actually began seven years earlier
when Carrie was issued a ten-year restraining order “because of what a court
official found to be credible in terms of the evidence before that court official.”
The court emphasized that “[c]ourt commissioners, judges, probation agents,
prosecutors, [and] the victims themselves have all repeatedly told you do not have
contact in any form or fashion…. And you have shown through your repeated
behavior, the rules don’t matter to you.” In clear reference to the new charges
from Fond du Lac County, the court cited to State v. Von Loh, 157 Wis. 2d 91,
458 N.W.2d 556 (Ct. App. 1990), State v. Frey, 2012 WI 99, 343 Wis. 2d 358,
817 N.W.2d 436, and State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d
341, and informed Olson it may consider

[h]istory of undesirable behavioral patterns, including
dismissed, uncharged, or unproven offenses or facts
underlying even expunged offenses, and including conduct
for which defendant was acquitted, if relevant.

So your conduct in any way shape or form that relates to
having contact with [Hannah] and [Carrie] is fair game and
on the table for me to consider.

The court further stated, however, that it did not “need to even consider … the
pending charges in Fond du Lac to know that you have a disturbing and vile

8
No. 2023AP369-CR

obsession with [Carrie]. That’s been made clear. You’ve had a pattern of
disregarding court orders, whether they be restraining oral orders, [or] conditions
of bond.”

¶11 The circuit court continued:

Your conduct, to say is bizarre and intense, would be an
understatement…. Bizarre, intense—what appears to be
sexually motivated by you—behavior, claiming today to
have this seven-year affair with someone who credibly
testified before this [c]ourt about not wanting to have any
contact with you. Both her and her sister talk about—in
their victim impact statements—the effect, the impact, the
fear, how it affects their mental health, their family, they
exercise their Second Amendment rights to have firearms
in their home to protect themselves.

The impact on a victim is a legitimate sentencing
criteria. You know, in and of themselves, a violation of an
injunction is a fairly minor misdemeanor. Of course, in this
case, it comes with the history of having been convicted of
three prior charges of a similar nature. So that’s very, very
aggravated. One would have hoped that being held
accountable by a judge, being put on probation, and at one
point, having nine months’ imposed, would be enough to
send a very clear message to you that no contact means no
contact. But that has not been the case.

The court also noted “there’s some elements of concealing your identity with
phone numbers and how it was all found out.”

¶12 The circuit court indicated that Olson’s prior record was an
aggravating factor. Also related to Olson’s character, the court noted that he has
been able to sustain employment and has the support of family and friends, but he
had “done nothing today to demonstrate to this [c]ourt that you take responsibility,
that you are apologetic or remorseful. On the contrary, you blame the victim.
There’s absolutely no acceptance of responsibility by you.” Instead, Olson spoke

9
No. 2023AP369-CR

of “this big secret affair. And, again, attempt to deflect away from your own
behavior.”

¶13 The circuit court expressed that putting Olson on probation would
“unduly depreciate the seriousness of these offenses,” further stating that
“[c]onfinement is necessary to protect the public, which the public includes these
victims[,] from further criminal activity by you.” The court imposed a sentence of
twelve months of initial confinement followed by three months of extended
supervision, consecutive, for each count. The court did so because “[t]o do
anything other than that would be to give you the absolute wrong message that
continued violations of this restraining order are tolerated. Because they are not.
You must stop.” “These are consecutive sentences,” the court continued, “[a]gain,
because to do anything other than that would be to send a very wrong message to
Mr. Olson that this behavior is tolerated. It is not tolerated. Your history, your
lack of remorse, your deflection, and blame of the victims is, frankly, despicable,
sir. And punishment is what is in order.”

¶14 Olson appeals.

Discussion

¶15 Olson contends the circuit court erred in sentencing him to prison
instead of placing him on probation. More specifically, he asserts the court
erroneously sentenced him based upon its belief he lacked remorse and upon the
newly charged offenses in Fond du Lac County. He maintains he merely exerted
his right to a trial, and the Fond du Lac County charges “should not have been
used against [him].” We conclude the court did not err.

10
No. 2023AP369-CR

¶16 “Sentencing lies within the discretion of the circuit court.” State v.
Kuechler, 2003 WI App 245, ¶7, 268 Wis. 2d 192, 673 N.W.2d 335. Thus, on
appeal, we will not reverse the court’s imposed sentence absent an erroneous
exercise of discretion. See id. “A circuit court erroneously exercises its
sentencing discretion when it actually relies on clearly irrelevant or improper
factors.” State v. Whitaker, 2022 WI 54, ¶11, 402 Wis. 2d 735, 976 N.W.2d 304.
Thus, “a defendant challenging his or her sentence must prove by clear and
convincing evidence that: (1) the challenged factor is irrelevant or improper; and
(2) the circuit court actually relied on that factor.” Id. Our supreme court has
recognized a “strong public policy against interference with the sentencing
discretion of the [circuit] court and sentences are afforded the presumption that the
[circuit] court acted reasonably.” State v. Echols, 175 Wis. 2d 653, 681-82, 499
N.W.2d 631 (1993) (citation omitted).

¶17 Olson challenged at trial the two counts of violating a harassment
injunction, and he lost. As the circuit court noted, the jury found Hannah and
Carrie credible, and it convicted him of those two counts. After these impartial
fact finders found him guilty, he had the opportunity at sentencing to apologize to
Hannah and Carrie for any fear and concern he had caused them and assure them
he would not contact them in the future. Instead, he took a radically different tact
of blaming Hannah and Carrie and concocting a story of a seven-year affair with
Carrie. The court obviously believed Carrie when she informed the court at
sentencing of the message Olson left on her voicemail in February 2021. That
message would cause any court—any human, for that matter—grave concern as to
the danger Olson posed to Carrie and her family. The court noted Olson’s
dangerous history, particularly with regard to these two victims, its great concern
for his lack of remorse, and the fact he has been told by the numerous criminal

11
No. 2023AP369-CR

justice authorities, and of course the victims, to cease having contact with the
victims.

¶18 The circuit court indicated it need not consider the new Fond du Lac
charges “to know that you have a disturbing and vile obsession with [Carrie].”
Even if it had considered the allegations in those charges, such would be
appropriate under the law. See Leitner, 253 Wis. 2d 449, ¶45 (“In Wisconsin,
sentencing courts are obliged to acquire the ‘full knowledge of the character and
behavior pattern of the convicted defendant before imposing sentence.’ A
sentencing court may consider uncharged and unproven offenses and facts related
to offenses for which the defendant has been acquitted. To assure that a circuit
court has full information, prosecutors may not keep relevant information from a
sentencing court.” (citations omitted)). As to Olson’s lack of remorse, that too
was a legitimate consideration for the court in sentencing him. See Whitaker, 402
Wis. 2d 735, ¶12 (recognizing a defendant’s remorse as a “[s]econdary factor[]” a
court can consider in sentencing a defendant).

¶19 The circuit court explained why probation was out of the question
and a strong prison sentence was necessary: “To do anything other than that
would be to give you the absolute wrong message that continued violations of this
restraining order are tolerated. Because they are not. You must stop.” The court
expressed that Olson needed to be punished and that confinement was necessary to
protect the victims “from further criminal activity by you.” The court’s focus on
deterring Olson from future contact with Hannah and Carrie was also a completely
legitimate consideration. See State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535,
678 N.W.2d 197 (stating that punishment of the offender, protection of the
community, and deterrence are proper sentencing objectives).

12
No. 2023AP369-CR

¶20 On appeal, an appellant, such as Olson, bears the burden of
demonstrating that the circuit court erred. See Gaethke v. Pozder, 2017 WI App
38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381. He has not met that burden.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

13