Brown County v. J. D. T.

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.
July 23, 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. 2023AP2339 Cir. Ct. No. 2023ME159

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF J. D. T.:

BROWN COUNTY,

PETITIONER-RESPONDENT,

V.

J. D. T.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Brown County:
BEAU G. LIEGEOIS, Judge. Affirmed.

¶1 GILL J.1 John2 appeals orders for his involuntary commitment
pursuant to WIS. STAT. § 51.20 and for his involuntary medication and treatment

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP2339

pursuant to WIS. STAT. § 51.61(1)(g). John argues that Brown County failed to
provide sufficient evidence of his dangerousness and that the circuit court failed to
make the required factual findings regarding his dangerousness. We disagree and
accordingly, we affirm.3

BACKGROUND

¶2 John was emergently detained in April 2023 after he was taken into
custody for sexual assault after sexually touching a minor employee at a restaurant
and “attempting to kiss her.” While in custody, John explained that he had
engaged in sexual contact with the employee because he was “trying to be a
witness to God,” “was trying to spread purity to all women,” and that he would
continue to “spread [his] purity” to women if he were released from custody.

¶3 After a hearing, the circuit court found that there was probable cause
to have John involuntarily committed pursuant to WIS. STAT. § 51.20. The court
ordered that John be examined and scheduled a final hearing. At the final hearing,
the County called three witnesses: Brown County Sheriff’s Office Deputy Joshua
Kraft, hospital clinician Rhyah Jungwirth, and psychiatrist Marshall Bales.

¶4 Kraft testified that he responded to the sexual assault and took John
into custody. Kraft stated that he then transported John to a hospital for “medical
clearance.” While at the hospital, John consented to having his blood drawn.

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.
3
John does not raise any arguments on appeal specifically regarding the order for his
involuntary medication and treatment. Thus, we affirm both the involuntary commitment order
and the order for involuntary medication and treatment.

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No. 2023AP2339

When a hospital technician began drawing his blood, however, John told the
technician that John “was going to rape his mother.”4

¶5 Jungwirth testified to the facts set forth above. See supra ¶2.
Jungwirth also stated that John believed he had “transferred” his “spirit” to the
minor employee—whom he had assaulted—by giving her a dollar bill. Further,
during Jungwirth’s examination of John, John “reached out his hands to touch
[Jungwirth’s] chest” and he would have continued to try to touch her chest if an
officer had not stopped him.

¶6 Doctor Bales testified that he examined John and diagnosed him
with schizoaffective disorder. Bales opined that John continued to be psychotic as
of the date of his examination but that his condition was treatable with
medication.5 Bales stated that he discussed the advantages, disadvantages, and
alternatives to medication with John, but that John responded with a “nonsensical,
almost incoherent” statement that the medication would take away his “God-given
abilities” and that he would not take medication voluntarily. Bales opined that
John was not competent to refuse medication due to John’s mental illness

4
In its oral ruling, the circuit court stated that John threatened to rape his own mother.
On appeal, John argues that the court’s finding regarding this statement was clearly erroneous.
John concedes that he made the comment about raping a mother, but he clarifies that he made this
statement regarding the hospital technician’s mother rather than his own mother.

Assuming without deciding that the circuit court’s statement about John threatening to
rape his own mother was clearly erroneous, the error does not affect our analysis or our ultimate
determination that the evidence was sufficient to establish John’s dangerousness. For purposes of
our analysis, the important point—which John does not dispute—is that John threatened to rape
someone’s mother.
5
According to Dr. Bales, John had been medicated for five days when Bales performed
his examination. Bales stated that “it can take sometimes weeks” to determine the right
combination of medications for a patient.

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No. 2023AP2339

preventing him from understanding the advantages, disadvantages, and
alternatives to his treatment.

¶7 John testified about his religious beliefs, stated that his medication
“is not necessary for human life,” listed some of the disadvantages of his
medication, and stated that there was “false testimony” at the hearing.

¶8 The circuit court found that John was mentally ill, dangerous, and a
proper subject for treatment. Regarding John’s dangerousness, the court noted
that

[John] had one incident where he actually did have sexual
contact with somebody and then made a comment about
just the religious nature of having the sexual contact. And
then we have a witness testifying here today, a female
witness, that he attempted to have sexual contact with her
as well. And then he makes a comment to the police
officer that he is going to rape his own mother.

….

So I think that does meet the standard of [WIS. STAT.
§] 51.20(1)(a)2.b. and c., that there is a substantial
probability by evidence that others are placed in reasonable
fear of violent behavior and serious physical harm to them
as evidenced by a recent overt act to do serious physical
harm.

The court then found John dangerous under § 51.20(1)(a)2.b. and 2.c. and entered
orders for John’s involuntary commitment and for his involuntary medication and
treatment. John now appeals.

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No. 2023AP2339

DISCUSSION

¶9 John argues that the County presented insufficient evidence of his
dangerousness under WIS. STAT. § 51.20(1)(a)2.c.6 Specifically, John contends
that the County “presented no facts” upon which the circuit court could find him
dangerous under § 51.20(1)(a)2.c. Further, John argues that the court failed to
make specific factual findings as to his dangerousness, as is required by Langlade
County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.7

¶10 Whether the County presented sufficient evidence of John’s
dangerousness under WIS. STAT. § 51.20 is a mixed question of law and fact. See
D.J.W., 391 Wis. 2d 231, ¶¶24-25. “[W]e will uphold a circuit court’s findings of
fact unless they are clearly erroneous. A finding of fact is clearly erroneous if it is
against the great weight and clear preponderance of the evidence.” Id., ¶24.
“Whether the facts satisfy the statutory standard is a question of law that we

6
John also argues that the County presented insufficient evidence of his dangerousness
under WIS. STAT. § 51.20(1)(a)2.b. We conclude that the County presented sufficient evidence of
John’s dangerousness under § 51.20(1)(a)2.c., and thus we need not address John’s arguments
regarding § 51.20(1)(a)2.b. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628,
673 N.W.2d 716 (concluding that this court need not address all issues raised by the parties if one
is dispositive).
7
As an initial matter, the County argues that John’s appeal is moot because his
commitment has expired and because John was already subject to a firearm ban due to a prior
involuntary commitment. We reject the County’s argument. Our supreme court has made clear
that an appeal of an expired involuntary commitment order is not moot due to the practical effect
that the appeal will have on the patient’s firearm rights and cost of care. Sauk County v. S.A.M.,
2022 WI 46, ¶¶23-24, 402 Wis. 2d 379, 975 N.W.2d 162. While John may have already been
subject to a firearm ban, reversing the appealed order for John’s commitment would “practically
alter” his “‘record and reputation’ for dangerousness, a factor a reviewing court must consider
when weighing a petition to cancel a firearms ban.” Id., ¶23 (citation omitted). Further, John’s
appeal is not moot due to WIS. STAT. § 46.10(2)’s mandatory language imposing the cost of care
for an involuntary commitment on the patient. See S.A.M., 402 Wis. 2d 379, ¶¶24-25.

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No. 2023AP2339

review de novo.” Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d
542, 895 N.W.2d 783.

¶11 John’s appeal also raises an issue of statutory interpretation, which is
a question of law that we review de novo. See Nowell v. City of Wausau, 2013
WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852. “[S]tatutory interpretation ‘begins
with the language of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.’ Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined words or phrases
are given their technical or special definitional meaning.” State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citation omitted).

¶12 To be subjected to a WIS. STAT. ch. 51 involuntary commitment,
three elements must be proven by clear and convincing evidence: “the subject
individual must be (1) mentally ill; (2) a proper subject for treatment; and
(3) dangerous to themselves or others.”8 D.J.W., 391 Wis. 2d 231, ¶29.
WISCONSIN STAT. § 51.20(1)(a)2.c. provides that an individual is dangerous if he
or she “[e]vidences such impaired judgment, manifested by evidence of a pattern
of recent acts or omissions, that there is a substantial probability of physical
impairment or injury to himself or herself or other individuals.”9

¶13 During an involuntary commitment proceeding, the circuit court
must make “specific factual findings with reference to the subdivision paragraph

8
John does not contest that he is mentally ill and a proper subject for treatment.
9
WISCONSIN STAT. § 51.20(1)(a)2. provides a total of five ways of establishing
dangerousness. The other four ways of establishing dangerousness are not at issue in this appeal.

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No. 2023AP2339

of [WIS. STAT.] § 51.20(1)(a)2. on which” the commitment is based. D.J.W., 391
Wis. 2d 231, ¶40; Trempealeau County v. C.B.O., Nos. 2021AP1955,
2022AP102, unpublished slip op. ¶28 (WI App Aug. 30, 2022) (concluding that
D.J.W. applies to initial commitment proceedings). This mandate has two
requirements: (1) that the circuit court make specific factual findings regarding
the patient’s dangerousness; and (2) that the circuit court identify the specific
standard of dangerousness on which the commitment is based. See Sheboygan
County v. M.W., 2022 WI 40, ¶41, 402 Wis. 2d 1, 974 N.W.2d 733 (Hagedorn, J.,
concurring).

¶14 John largely ignores the evidence of his dangerousness under WIS.
STAT. § 51.20(1)(a)2.c. While John states that the County “presented no facts” to
support the dangerousness finding, the testimony at the commitment hearing tells a
different story. Jungwirth testified that John sexually assaulted a minor in an
effort to “spread his purity,” that John was “trying to spread his purity to all
women,” and that he would continue to attempt to “spread his purity to women”
“if he [were] released from custody.” Jungwirth also stated that John attempted to
reach for her chest during her examination of him and that John would have
continued to try to touch her if an officer was not present. Further, Kraft testified
that during a blood draw, John told a hospital technician that he was going to rape
“his mother.”

¶15 These undisputed facts sufficiently prove, by clear and convincing
evidence, that John engaged in a pattern of recent acts such that he evidences a
substantial probability of physical impairment or injury to himself or others.
While WIS. STAT. § 51.20(1)(a)2.c. does not define “physical impairment” or
“injury,” we conclude that sexual assault and rape certainly fall within the statute’s
meaning of harming others. The facts set forth above establish that John engaged

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No. 2023AP2339

in a pattern of both having sexual contact with women and threatening to sexually
assault women in an effort to “spread his purity” and that John would continue to
commit sexual assault if he were released from custody. Further, the circuit court
could have reasonably found that there was a substantial probability that John
himself would be injured by people acting in self-defense to John’s sexual
assaults.

¶16 Regarding John’s dangerousness, as noted, the circuit court stated
that:

[John] had one incident where he actually did have sexual
contact with somebody and then made a comment about
just the religious nature of having the sexual contact. And
then we have a witness testifying here today, a female
witness, that he attempted to have sexual contact with her
as well. And then he makes a comment to the police
officer that he is going to rape his own mother.

….

So I think that does meet the standard of [WIS. STAT.
§] 51.20(1)(a)2.b. and c.

The court then went on to discuss § 51.20(1)(a)2.b. While the court certainly
could have provided more factual findings regarding § 51.20(1)(a)2.c, the court
made specific factual findings regarding John’s dangerousness and identified the
specific standards of dangerousness on which the commitment was based. Thus,
the court satisfied both of D.J.W.’s requirements. See M.W., 402 Wis. 2d 1, ¶41
(Hagedorn, J., concurring).

¶17 Finally, John argues that the circuit court relied on impermissible
hearsay testimony regarding his sexual assault of the restaurant employee. We
reject this argument as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992). Regardless, Jungwirth testified that John spoke

8
No. 2023AP2339

to her about the sexual assault, but John does not address the admission by party
opponent exclusion to the rule against hearsay. See WIS. STAT. § 908.01(4)(b).
Further, John did not object to the alleged hearsay at the commitment hearing, nor
does he provide this court with an analysis of whether the plain error doctrine
applies to the circuit court’s alleged error in admitting the hearsay. See WIS.
STAT. § 901.03(4); State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754
N.W.2d 77. We therefore conclude that John forfeited his hearsay argument.

By the Court.—Orders affirmed.

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

9