State v. Shawn Davis Schulpius

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.
March 10, 2026
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. 2023AP2154 Cir. Ct. No. 1995CF954690

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF SHAWN DAVIS SCHULPIUS:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHAWN DAVIS SCHULPIUS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEAN M. KIES, Judge. Affirmed.

Before White, C.J., Geenen, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2154

¶1 PER CURIAM. Shawn Davis Schulpius appeals from an order of
the circuit court denying his petition for discharge from his WIS. STAT. ch. 980
(2019-20)1 commitment. Schulpius argues that the circuit court erroneously
excluded one of his treatment providers from testifying at his discharge trial
regarding the “incidents and opinions set forth by her in the Treatment Progress
Notes[.]” We assume without deciding that the circuit court erroneously excluded
the treatment provider’s testimony. Nonetheless and for the following reasons, we
conclude that any error in excluding the treatment provider’s testimony was
harmless. Accordingly, we affirm the circuit court’s order.

BACKGROUND

¶2 In December 1991, one week before his 18th birthday, Schulpius
was convicted of first-degree sexual assault of a four-year-old boy for whom he
had been babysitting. State v. Schulpius, 2006 WI 1, ¶4, 287 Wis. 2d 44, 707
N.W.2d 495. He was sentenced as an adult to an indeterminate term of not more
than five years in the Wisconsin prison system. Id. The assault occurred
approximately two months before Schulpius’s 18th birthday. Id. At the time of
his conviction, Schulpius already had a long history of sexually assaulting minors,
and in 1995, just prior to Schulpius’s release from prison, the State filed a petition
requesting that Schulpius be committed as a sexually violent person under WIS.
STAT. ch. 980. Schulpius, 287 Wis. 2d 44, ¶¶5-7. The circuit court granted the
State’s petition and committed Schulpius to a secure mental health treatment
facility. Id., ¶7. Schulpius was later placed on supervised release, but his

1
Because the relevant statutory language has not changed, all references to the
Wisconsin Statutes are to the 2019-20 version.

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No. 2023AP2154

supervision was revoked when it was discovered that Schulpius violated his
conditions of release.

¶3 In October 2019, Schulpius filed a petition for discharge.
Schulpius’s witness list for this discharge trial included Amity Olson, a treatment
provider for Schulpius at Sand Ridge Secure Treatment Center. The witness list
indicated that Olson would testify “to any of the incidents and opinions set forth
by her in the Treatment Progress Notes[.]” The State objected to Schulpius calling
Olson as a witness, arguing that she was a “mental health professional” under WIS.
STAT. § 980.031(5) who had not provided a written examination report.
Regardless, the State stipulated to the admission of Olson’s treatment progress
notes. At the final pretrial hearing, the circuit court concluded that Olson was a
“mental health professional” and therefore was required to produce a pretrial
examination report under § 980.031(5), but clarified that Olson’s treatment notes
containing her assessments and impressions of Schulpius were admissible at trial.

¶4 At trial, Dr. Anthony Jurek testified for the State. Dr. Jurek, a WIS.
STAT. ch. 980 evaluator with the Department of Corrections, reviewed Schulpius’s
annual ch. 980 evaluations, annual treatment program reviews, unit notes, and
individual treatment notes. Dr. Jurek described Schulpius’s sexual offense history,
which began at age 13 when he fondled and had oral sex with his six-to-seven-
year-old step-sister on 30 to 40 occasions. Schulpius committed his “index
offense” (i.e., the 1991 sexual assault of a child) two months before his 18th
birthday.2 Dr. Jurek testified that at the time Schulpius committed the index

2
In a WIS. STAT. ch. 980 case, the “index offense” is “the most recent incident of sexual
misbehavior resulting in official sanction.” State v. Mark, 2008 WI App 44, ¶47, 308 Wis. 2d
191, 747 N.W.2d 727.

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No. 2023AP2154

offense, Schulpius had his own apartment and was living on his own. Schulpius
befriended a 24-year-old woman who claimed to be in a bad relationship and
invited the woman and her four-year-old son to stay with him, so that she could
leave the relationship. While babysitting the boy, Schulpius performed oral sex on
him and made the boy do the same to him. Schulpius was convicted of first-
degree sexual assault of a child and sentenced to prison. Just prior to his release,
the State filed the ch. 980 commitment petition underlying these proceedings.

¶5 Dr. Jurek testified that Schulpius initially participated in penile
plethysmograph assessments (“PPG”) at Sand Ridge which showed he had “sexual
arousal to prepubescent children” and “very little sexual interest in adult sexual
partners.” Schulpius eventually “showed a capacity to interfere in his sexual
interest in children,” but “[h]e was never really able to establish a significantly
competing response for adults compared to the interest pattern that he had in
children.”

¶6 Dr. Jurek also testified that Schulpius participated in polygraph
testing to verify his sexual offense history during his initial time at Sand Ridge.
However, since returning to Sand Ridge in 2017 after his supervised release was
revoked, Schulpius had refused to participate in PPGs or polygraphs. Dr. Jurek
noted that Schulpius’s “unwillingness to participate in polygraph verification of
his denials of masturbating while fantasizing about deviant content makes it
impossible for me to assume he would be successful in the community on
supervised release.”

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¶7 Turning to the criteria for commitment under WIS. STAT.
§ 980.02(2),3 Dr. Jurek testified that he had concluded that Schulpius has two
mental disorders that predispose him to acts of sexual violence: pedophilia and
antisocial personality disorder with narcissistic features. He then addressed
Schulpius’s risk of recidivism, and described several actuarial assessment tools
that evaluators use to calculate a person’s overall risk of reoffending. Dr. Jurek
first described Schulpius’s “static” risk factors, such as age, gender of the victim,
relation to the victim, and past criminal behavior; such factors will always indicate
“an additional risk” of reoffending. Dr. Jurek used the Static-99 assessment
instrument to determine that Schulpius’s static risk of reoffending was somewhere
between 20.7% and 30.9% after five years. However, given Schulpius’s relative
youth—47 years old at the time of Dr. Jurek’s assessments—Dr. Jurek concluded
that Schulpius’s lifetime risk of reoffending was significantly higher than that,
noting that the Static-99 does not consider unreported sexual offenses in
measuring risk. Dr. Jurek testified that the formula recommended in the literature
to account for unreported offenses is to take the five-year estimate of reoffending
and multiply it by two.

¶8 Dr. Jurek addressed his decision to use the Static-99 formula despite
the fact that it is not typically used for assessing juvenile offenders, due to a
tendency to overstate their risk of reoffending. He explained that the typical
juvenile sex offender does not go on to reoffend as an adult, and their victims are

3
“A petition filed under [WIS. STAT. ch. 980] shall allege that all of the following apply”
to the subject of the petition: first, the person must have been convicted of or found delinquent for
a sexually violent offense, or the person has been found not guilty of a sexually violent offense by
reason of mental disease or defect; second, the person has a mental disorder; and third, the person
is a danger to others “because the person’s mental disorder makes it likely that he or she will
engage in acts of sexual violence.” WIS. STAT. § 980.02(2).

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No. 2023AP2154

often close in age to the offender. Dr. Jurek justified the use of the Static-99
formula because Schulpius was not a typical juvenile offender. Schulpius was
only two months shy of his 18th birthday when he committed his index offense,
and at that time, he was living on his own, as an adult. Schulpius pursued a
woman in her 20s for the purpose of gaining access to her four-year-old son.
Dr. Jurek determined that Schulpius is “motivated by a deviant arousal pattern”
and is “very much not like the typical juvenile offender.”

¶9 In addition to static risk factors, Dr. Jurek assessed Schulpius’s
“dynamic risk factors” using the Stabel-2007 assessment tool, which accounts for
changeable circumstances like relationship stability and social influences.
Dr. Jurek also measured Schulpius’s level of psychopathy. Schulpius scored high
on both assessments, raising concern for increased risk of recidivism. Dr. Jurek
testified that Schulpius’s treatment records did not mitigate his high dynamic risk
because of his refusal to undergo polygraph and PPG tests to verify his treatment
progress. Based on these risk assessments, Dr. Jurek testified to a reasonable
degree of certainty that it was “much more likely” than not that Schulpius would
engage in future acts of sexual violence.

¶10 Schulpius called Dr. Lakshmi Subramanian, a psychologist and the
director of the Sand Ridge evaluation unit, to testify in support of his discharge
petition. Dr. Subramanian classified Schulpius as a juvenile offender because he
was under 18 years old when he committed his index offense. Dr. Subramanian
relied on two studies that measured the recidivism rate for juvenile sexual
offenders and concluded that Schulpius presented only a 16.4% lifetime chance of
reoffending. Dr. Subramanian also testified that Schulpius’s refusal to undergo
polygraph or PPG testing did not change her assessment of his progress in
treatment. On cross-examination, Dr. Subramanian agreed that the Static-99

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No. 2023AP2154

coding rules provide that the tool may be used to assess a juvenile offender’s risk
if three conditions are met: (1) the offender was 17 years old at the time of the
offense; (2) the offender was at least 18 years old when he or she was released on
the index offense; and (3) the offense itself is “similar in nature to a typical sex
offense committed by adult offenders.”

¶11 The circuit court denied Schulpius’s petition for discharge. It
observed that the parties’ agreed that Schulpius had been convicted of a sexually
violent offense and had a qualifying mental disorder. The “real question” was
whether Schulpius was more likely than not to commit a future act of sexual
violence. The circuit court stated that the significant differences in the experts’
assessments of Schulpius’s risk came down to whether, based on his index
offense, Schulpius should be considered a juvenile or adult offender.

¶12 The circuit court found Dr. Jurek’s testimony to be “more credible,
compelling, and more thorough than that asserted by Dr. Subramanian.”
Specifically, the circuit court found Dr. Subramanian’s testimony in support of
treating Schulpius as a juvenile offender to be “problematic.” Instead, the circuit
court relied on “the credible testimony” of Dr. Jurek that “Schulpius is not ‘purely’
a juvenile-only sex offender as proposed by Dr. Subramanian.” The court
continued: “His index offense did not involve a peer as a co-offender. It involved
a 4-year-old boy. His index offense involved ‘planning’—he got close to the
victim’s mother and then volunteered to babysit for the child so that he could have
access to the child without supervision.” The circuit court concluded that
“Schulpius has a well-established history of being sexually aroused by

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No. 2023AP2154

prepubescent children” and “[these] are not traits of a typical juvenile sex
offender; they are traits of an adult sex offender.”4

¶13 Schulpius appeals from the circuit court’s order denying his petition
for discharge. Importantly, a few months before Schulpius filed his notice of
appeal in this case, he filed new petitions for discharge or supervised release. The
parties resolved the petitions by stipulating to a joint recommendation for
supervised release, which the circuit court granted in February 2024.5

DISCUSSION

¶14 Schulpius appeals from the circuit court’s order denying his petition
for discharge from his WIS. STAT. ch. 980 commitment, arguing that the circuit
court erred by excluding Olson from testifying at his discharge trial. Whether
Olson should have been allowed to testify is subject to harmless error analysis.
“The court shall, in every stage of a proceeding under this chapter, disregard any
error or defect in the pleadings or proceedings that does not affect the substantial
rights of either party.” WIS. STAT. § 980.038(6). An error is harmless if it is clear
beyond a reasonable doubt that a rational factfinder would have reached the same
result absent the error. State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647
N.W.2d 189. Whether an alleged error was harmless is a question of law that we

4
The circuit court also found that Dr. Subramanian gave “insufficient weight” to
Schulpius’s “refusals to engage in polygraphs and PPGs that could verify his current progress in
treatment and care.” The court explained: “Schulpius (like others who are committed under WIS.
STAT. ch. 980) is expected to comply with treatment and rules before it can be assumed that his
risk can be managed safely in the community.”
5
Though the order granting supervised release is not part of the record before us, this
court may take judicial notice of electronic circuit court docket entries. See Kirk v. Credit
Acceptance Corp., 346 Wis. 2d 635, ¶5 n.1, 2013 WI App 32, 829 N.W.2d 522.

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No. 2023AP2154

decide independently. State v. Ziebart, 2003 WI App 258, ¶26, 268 Wis. 2d 468,
673 N.W.2d 369.

¶15 Schulpius argues that the circuit court’s decision to exclude Olson’s
testimony was not harmless because Olson’s testimony would have contradicted
Dr. Jurek’s conclusion that Schulpius was not participating in treatment.
According to Schulpius, Olson’s treatment progress notes indicate that she agreed
with Schulpius that he had devised methods to manage his deviant thoughts, and if
she had been allowed to testify, she would have explained why Schulpius was
successfully participating in treatment despite his refusal to undergo polygraph or
PPG testing.

¶16 The State argues that excluding Olson’s testimony was harmless
because Schulpius told the circuit court that Olson would testify only about the
incidents and opinions expressed in her treatment progress notes, and the court
ruled that those notes were admissible. Moreover, Olson’s testimony would not
have been relevant to the elements the State had to prove in order to deny
Schulpius’s discharge from commitment (e.g., that Schulpius was no longer
sexually dangerous).

¶17 We agree with the State. We assume without deciding that the
circuit court erred by excluding Olson’s testimony, and we conclude that the error
was harmless.6

6
Because we conclude that the alleged error of excluding Olson’s testimony is harmless,
we do not address whether Olson was required to submit a report under WIS. STAT. § 980.031(5).
See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).

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No. 2023AP2154

¶18 On appeal, Schulpius argues that the circuit court’s decision to
exclude Olson’s testimony prejudiced both his request for discharge and his
alternative request for supervised release if he was not discharged from
commitment. However, because Schulpius was already granted supervised release
in February 2024, Schulpius’s argument that the circuit court should have granted
him supervised release is moot.7 Therefore, we analyze only whether the alleged
error of excluding Olson’s testimony was harmless with respect to the circuit
court’s decision to deny Schulpius’s petition requesting discharge from his WIS.
STAT. ch. 980 commitment.

¶19 At a discharge trial under WIS. STAT. ch. 980, the State must prove
that the committed person: (1) has been convicted of a sexually violent offense;
(2) has a mental disorder; and (3) is dangerous to others because his or her mental
disorder makes it more likely than not that he or she will engage in a future act of
sexual violence. WIS. STAT. § 980.02(2). The circuit court must discharge the
person from the commitment unless the State proves “by clear and convincing
evidence” that the person still “meets the criteria for commitment as a sexually
violent person.” WIS. STAT. § 980.09(3)-(4).

¶20 The first two factors are not in dispute. As to dangerousness, parties
disagree with respect to whether Schulpius, who committed his index offense
when he was 17 years old, should be considered a juvenile offender.

7
“An issue is moot when its resolution will have no practical effect on the underlying
controversy.” State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608
N.W.2d 425. The State argued in its respondent’s brief that the issue of supervised release is
moot because Schulpius was placed on supervised release in February 2024 after filing new
petitions, and Schulpius did not respond to the State’s argument in his reply brief. We take this
lack of reply as a concession that the issue of supervised release is moot. See United Co-op. v.
Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578.

10
No. 2023AP2154

Dr. Subramanian considered Schulpius to be a juvenile offender because he was
under 18 years old when he committed his index offense. She testified that the
static and dynamic risk instruments overestimate the risk to recidivate for juvenile
offenders, and relying on two studies that measured the recidivism rate for
juvenile sexual offenders, she concluded that Schulpius presented only a 16.4%
lifetime chance of reoffending. Dr. Jurek acknowledged that the risk instruments
overstate the risk associated with juvenile offenders, but he testified that Schulpius
should not be considered a juvenile offender. Schulpius was only two months shy
of his 18th birthday when he committed his index offense, and he actively pursued
an adult woman for the purpose of gaining access to her four-year-old child. Dr.
Jurek employed both the Static-99 and Stabel-2007 to assess Schulpius’s risk of
recidivism and concluded that Schulpius was “much more likely” than not to
engage in future acts of sexual violence.

¶21 The circuit court rejected Dr. Subramanian’s opinion that Schulpius
should be regarded as a juvenile offender. It explained that Schulpius was almost
18 when he committed his index offense, and the offense “did not involve a peer
as a co-offender. It involved a 4-year-old boy.” The offense involved planning,
e.g., getting close to the victim’s mother and volunteering to babysit so that he
could have access to the victim without supervision. The circuit court found that
“Schulpius has a well-established history of being sexually aroused by
prepubescent children. [These] are not traits of a typical juvenile sex offender;
they are traits of an adult sex offender.” Olson’s testimony regarding the incidents
and opinions contained in her treatment progress notes would not have been
responsive to the determinative issue of whether Schulpius should be considered a
juvenile offender.

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No. 2023AP2154

¶22 Moreover, because Schulpius did not introduce any of Olson’s
treatment progress notes at trial, we are left to speculate as to what Olson’s
testimony would have been if she had been allowed to expound upon her notes.8
Schulpius asserts that in one of Olson’s notes, she agreed with him that he was
successfully participating in treatment despite his refusal to undergo polygraph
and PPG testing because he had devised intervention techniques to manage his
deviant thoughts.

¶23 Schulpius overrepresents the significance of Olson’s statement in the
treatment note upon which he relies. In the note, Schulpius and Olson were
discussing a treatment evaluation that concluded he was not making significant
progress in treatment due to his unwillingness to participate in polygraph testing. 9
The evaluation explained that he was not consistently managing his dynamic risk
factors, citing several examples, and although Schulpius acknowledged the
accuracy of these examples, the evaluation “did not include how he managed or
intervened, which [Olson] agreed with.” On its face, this note states that Olson
agreed that the evaluation had not included how Schulpius managed or intervened
with his deviant thoughts in the examples listed in the evaluation. It does not state
that Olson agreed that Schulpius’s intervention methods were effective at
mitigating his dynamic risk factors.

¶24 The note also does not state that Olson agreed that Schulpius’s
unidentified intervention methods were adequate substitutes for objective means

8
Schulpius did not introduce any of Olson’s notes at trial, but the State introduced three.
Schulpius’s argument is supported entirely by his speculation about the meaning of one sentence
in one of those notes.
9
The note does not mention anything about Schulpius’s refusal to undergo PPG testing.

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No. 2023AP2154

of verifying treatment progress like polygraph and PPG testing. Dr. Jurek testified
at trial that these tests are used to give objective assessments of an individual’s
treatment progress, and it is unclear how Olson’s testimony elaborating on this
particular note would address the circuit court’s concern that Schulpius was
refusing to engage in testing “that could verify his current progress in treatment
and care.” In other words, even if Olson would have testified that she agreed that
Schulpius had devised effective methods to manage his deviant thoughts, this
testimony would have been non-responsive to the circuit court’s concern that
Schulpius was refusing to engage in objective tests meant to verify his treatment
progress.

CONCLUSION

¶25 Assuming without deciding that the circuit court erred by not
allowing Olson to testify at Schulpius’s discharge trial, we conclude that the error
was harmless. According, we affirm the circuit court’s denial of Schulpius’s WIS.
STAT. ch. 980 discharge petition.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

13