State v. Graham L. Stowe

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.
September 12, 2023
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. 2022AP409-CR Cir. Ct. No. 2004CF124

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GRAHAM L. STOWE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
KENDALL M. KELLEY, Judge. Affirmed.

Before Stark, P.J., Hruz 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. 2022AP409-CR

¶1 PER CURIAM. Graham Stowe appeals an order denying his
petition for conditional release under WIS. STAT. § 971.17(4)(d) (2021-22).1 He
argues that § 971.17(4)(d) is facially unconstitutional because it permits the
continued involuntary confinement of a person who does not have a present
mental disease or defect. Stowe also contends that the State failed to prove by
clear and convincing evidence that he would pose a significant risk of harm to
himself, others or property if he were conditionally released. We reject his
arguments and affirm.

BACKGROUND

¶2 We have previously summarized in a prior opinion some of the
pertinent facts in this appeal:

A criminal complaint alleged that, in the early morning
hours of February 9, 2004, Stowe entered his
ex-girlfriend’s residence and forced her and their
two-year-old daughter out of bed at gunpoint. Stowe
subsequently tied up and handcuffed his ex-girlfriend, her
minor brother, and her father. He beat her father with a
baton and doused him with gasoline. Stowe repeatedly
stated he was going to take his ex-girlfriend somewhere
and force her to watch him commit suicide. He also
threatened to kill her father and sister. Stowe’s
ex-girlfriend was ultimately able to call 911, and she later
escaped with her daughter after police arrived at the
residence. While police remained outside the residence,
Stowe took some pills—after again indicating he wanted to
kill himself—and then passed out. His ex-girlfriend’s
father and brother were then able to escape.

Stowe was charged with eleven counts as a result of these
events. He entered pleas of not guilty by reason of mental
disease or defect (NGI) to each of the charges against him.
Stowe subsequently entered no[-]contest pleas to
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP409-CR

first-degree recklessly endangering safety, intimidation of a
victim, felony bail jumping, and three counts of false
imprisonment. The circuit court found Stowe NGI [that is,
not guilty by reason of mental disease or defect] with
respect to those offenses, and the remaining charges were
dismissed. The court ordered Stowe committed to the
Department of Health and Family Services for institutional
care for thirty-nine years and six months.

In April 2007, the circuit court entered an order
conditionally releasing Stowe. However, in June 2009, the
Department of Health Services (DHS) petitioned to revoke
Stowe’s conditional release. The petition alleged Stowe
had violated his rules of conditional release by entering a
bar where his ex-girlfriend worked, and an attached report
indicated he had repeatedly violated his rules on other
occasions, despite numerous warnings. The circuit court
revoked Stowe’s conditional release in July 2009.

Stowe petitioned for conditional release three more times
between 2010 and 2012. The circuit court denied each of
Stowe’s petitions, and we affirmed those decisions on
appeal.…

In July 2013, Stowe escaped from a minimum security unit
at Mendota Mental Health Institute. The record indicates
Stowe “impulsively took off from [Mendota] when he
thought that security guards were going to place him in a
more secure unit.” He evaded capture for over three
months. He was subsequently convicted of escape and
sentenced to prison. After serving the initial confinement
portion of his sentence, Stowe was returned to Mendota to
serve the extended supervision portion of his sentence
while serving his commitment and was placed in a
maximum security unit.

State v. Stowe, No. 2016AP2367-CR, unpublished slip op. ¶¶2-6 (WI App
Dec. 27, 2017) (last alteration in original; citations omitted).2 Since 2013, Stowe

2
An unpublished, per curiam opinion “may not be cited in any court of this state as
precedent or authority,” except as otherwise provided in WIS. STAT. RULE 809.23(3)(a). See id.
We do not, however, rely on State v. Stowe, No. 2016AP2367-CR, unpublished slip op. (WI App
Dec. 27, 2017), as precedent or authority. Rather, we cite it to efficiently summarize some of the
pertinent facts, which are supported by the record in this appeal.

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No. 2022AP409-CR

has filed several other petitions for conditional release, but those petitions were
either denied by the circuit court or withdrawn by Stowe.

¶3 In July 2021, Stowe filed a new petition for conditional release—the
petition at issue in this appeal. The circuit court, in turn, ordered that Stowe be
examined by Drs. Deborah Collins and Robert Barahal to evaluate whether Stowe
“is appropriate for conditional release.” See WIS. STAT. § 971.17(4)(c). Collins
and Barahal filed written reports, and, shortly thereafter, the court held a hearing
on Stowe’s petition, at which Collins, Barahal, three Mendota employees, and
Stowe testified.

¶4 Doctor Collins opined “to a reasonable degree of professional
certainty that Mr. Stowe, if conditionally released at this time, would pose a
significant risk of bodily harm to himself, others, or serious property damage.”
The primary factors that informed Collins’ opinion were Stowe’s index offenses,
his extensive legal history, “a remarkable pattern of antisocial behavior,” and a
2017 suicide attempt. Collins also noted that “authority figures” were “a real
problem area” for Stowe and that he would continue to encounter authority figures
if he were conditionally released. As for a diagnosis, Collins believed that Stowe
had an “[o]ther specified personality disorder with antisocial traits and [an
u]nspecified other (or unknown) substance-related disorder.”

¶5 Conversely, Dr. Barahal opined, to a reasonable degree of
professional certainty, that Stowe would pose a “low” risk of bodily harm to
himself or others if he were conditionally released and that he endorsed Stowe’s
conditional release “[w]ith the appropriate safeguards in place.” Among other
things, Barahal noted that Stowe was removed from “suicide precautions” around
2018 and that there have not been any reports of Stowe causing bodily harm to

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No. 2022AP409-CR

others since 2004. Barahal acknowledged that Stowe had “four lesser events since
January of 2020,” but he stated that none of those incidents involved violence and
he considered Stowe to have “a very good track record.” Barahal also recognized
that Stowe did not have a mental illness, but he agreed with Collins that Stowe had
“a variant of antisocial personality disorder.”

¶6 Most of the witnesses also discussed an August 2020 incident in
which Stowe had an altercation with another patient at Mendota. According to a
second-by-second narrative of the surveillance footage, another patient appeared
to spit on Stowe while Stowe was watching television, prompting Stowe to stand
up and walk toward the patient. The patient then “swung” his hands at Stowe
several times, apparently striking Stowe in the face and neck area at least once.
Mendota staff members then entered the room, ended the standoff between Stowe
and the patient, and sent them both to their respective rooms. Stowe described this
narrative in his testimony and emphasized that “at no point did [the footage] show
[him] swinging … [or] provoking that attack.”

¶7 Khalipha Sanneh, a nurse clinician at Mendota, testified that he did
not witness the actual August 2020 altercation but interacted with Stowe
immediately after it occurred. Sanneh stated that Stowe was “quite angry,”
“disrespectful,” used “foul language,” refused to speak to Sanneh, and said he
would “only talk to an American.” Sanneh also noted that Stowe “refuse[d] to
go … where [Mendota employees] wanted [him] to go” and that they had to “put
hands on” Stowe while escorting him to his seclusion room. Sanneh
acknowledged, however, that Stowe was generally respectful and positive in other
interactions.

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No. 2022AP409-CR

¶8 Sanneh also identified a report that he had helped prepare after the
incident, which was later entered into evidence. That report included a narrative
written by a different nurse who observed part of the incident. The nurse stated
that Stowe “postur[ed] at” the patient who allegedly spat on him and that Stowe
directed a profane, racial epithet at that patient. The nurse also described Stowe’s
behavior as being “uncooperative, non-redirectable, unpredictable and
jeopardizing the safety and security of the unit.” At one point, Stowe apparently
stated that “he does not know why there are black people in this country, and that
he wishes that they were shot dead and moved back to where they came from.”

¶9 Tyson Varney, a unit manager of the patient transition unit at
Mendota, testified that he had reviewed reports and security camera footage from
the August 2020 altercation and did not believe Stowe “was violent” or
“physically aggressive” toward the other patient. Varney further described his
typical interactions with Stowe as being “calm” and “appropriate.” Varney noted
that Stowe’s security level is the “least restrictive” and that Stowe is being
“administratively held” in a maximum security unit because of his “history of
elopement,” not because of any violent or dangerous conduct.

¶10 Finally, Jennifer Zehr, a clinical social worker at Mendota, testified
that she and Stowe had weekly, individual therapy meetings for a period of time.
She stated that Stowe “demonstrated good insight,” accomplished the goals that
they initially set, and made progress. Zehr also discussed a letter from Stowe’s
treatment team, which stated that “Stowe has consistently demonstrated the ability
to remain safe on the unit, interact with peers and staff, and has not experienced
seclusion or restraint for a period of one year.”

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No. 2022AP409-CR

¶11 Following the witnesses’ testimony and oral argument, the circuit
court denied Stowe’s petition for conditional release. From the outset, the court
noted that “the language in [Dr. Barahal’s] report … tends to be much more
aspirational than it does concrete.” The court also noted that it perceived
Barahal’s testimony and demeanor “as intentional advocacy on the part of
Mr. Stowe rather than a dispassionate presentation of reasoned conclusions that
are based on the current facts and circumstances and the relevant and applicable
science.” In reaching its decision, the court also considered Stowe’s index
offenses, his conduct that led to the prior revocation of his conditional release, his
2013 escape, his potential for self-harm, the August 2020 altercation, and his
victim mentality. Ultimately, the court found that if conditionally released, Stowe
would “pose[] a significant risk of bodily harm to himself or others.”

¶12 Stowe now appeals.3 Additional facts will be provided as necessary
below.

DISCUSSION

I. Constitutionality of WIS. STAT. § 971.17(4)(d)

¶13 Stowe argues that WIS. STAT. § 971.17(4)(d) is facially
unconstitutional because it permits the continued involuntary confinement of a
person who does not have a present mental disease or defect. Stowe
acknowledges that our supreme court has “upheld a predecessor NGI conditional

3
On February 17, 2023, we placed this appeal on hold pending the resolution of Stowe’s
2019 petition for conditional release that we remanded in State v. Stowe, No. 2021AP431-CR,
unpublished slip op. (WI App Feb. 17, 2023). We later removed the hold after Stowe withdrew
his 2019 petition.

7
No. 2022AP409-CR

release statute against a facial challenge” in State v. Randall, 192 Wis. 2d 800,
532 N.W.2d 94 (1995) (hereinafter, “Randall I”), even though that statute
“permit[ed] the continued confinement of a sane but ‘dangerous’ insanity
acquittee.” See id. at 824, 837. Nonetheless, he argues that Randall I was
“wrongly decided” because the United States Supreme Court had previously held
that an NGI “acquittee may be held as long as he is both mentally ill and
dangerous, but no longer.” See Foucha v. Louisiana, 504 U.S. 71, 77 (1992).
Stowe concedes that we have rejected his previous facial challenges to
§ 971.17(4)(d) based on Randall I, but he nevertheless “renews and preserves the
facial challenge for subsequent review.”

¶14 As the State correctly observes—and Stowe concedes—we are
bound by our supreme court’s prior precedent in Randall I. This court does not
have the “power to overrule, modify or withdraw language from a previous
supreme court case.” Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246
(1997). Accordingly, we reject Stowe’s argument that WIS. STAT. § 971.17(4)(d)
is facially unconstitutional. See Randall I, 192 Wis. 2d at 833 (“We read Foucha
to permit the continued confinement of insanity acquittees based on dangerousness
alone under a statutory scheme, such as Wisconsin’s, where the nature of the
commitment bears some reasonable relation to the purposes for which the
individual is committed.”).

II. Sufficiency of the evidence

¶15 Stowe next argues that the State failed to prove, by clear and
convincing evidence, that he would pose a significant risk of harm to himself or
others if he were conditionally released. In particular, Stowe emphasizes that his
index offenses occurred nearly twenty years ago, that he “has not committed a

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No. 2022AP409-CR

violent act since the index offense[s],” and that his treatment team has advocated
for him to be transferred to a less secure treatment facility. Stowe also faults the
circuit court for “heavily [relying] on the index offense[s] and the circumstances
that led to Stowe’s revocation from conditional release more than a decade ago.”

¶16 When presented with a properly filed petition for conditional release
under WIS. STAT. § 971.17(4), the circuit court “shall grant the petition unless it
finds by clear and convincing evidence that the [petitioner] would pose a
significant risk of bodily harm to himself or herself or to others or of serious
property damage if conditionally released.”4 Sec. 971.17(4)(d). In making that
determination, the court may consider:

the nature and circumstances of the crime, the [petitioner’s]
mental history and present mental condition, where the
[petitioner] will live, how the [petitioner] will support
himself or herself, what arrangements are available to
ensure that the [petitioner] has access to and will take
necessary medication, and what arrangements are possible
for treatment beyond medication.

Id. These statutory factors are not an exhaustive list, see id., but they guide courts
in “a careful balancing of society’s interest in protection from harmful conduct
against the [petitioner’s] interest in personal liberty and autonomy,” see Randall I,
192 Wis. 2d at 839.

¶17 As an initial matter, the parties dispute the relevant standard of
review. Stowe argues that we should employ the mixed standard of review set
forth in State v. Jefferson, 163 Wis. 2d 332, 471 N.W.2d 274 (Ct. App. 1991),

4
The circuit court did not find that Stowe would pose a significant risk of serious
property damage if he were conditionally released. We therefore confine our analysis to the
evidence supporting Stowe’s significant risk of bodily harm to himself or others.

9
No. 2022AP409-CR

which defers to the circuit court’s factual findings but independently determines,
as a matter of law, whether those facts establish dangerousness. See id. at 338.
The State, on the other hand, argues that the proper standard of review is the
sufficiency of the evidence test applied in State v. Randall, 2011 WI App 102, 336
Wis. 2d 399, 802 N.W.2d 194 (hereinafter, “Randall III”). In reply, Stowe
contends that Randall III “wrongly departed from [the] well-established standard”
in Jefferson.

¶18 In Randall III¸ we held that the sufficiency of the evidence test is
the proper standard of review for a circuit court’s conditional release
determination. Randall III, 336 Wis. 2d 399, ¶13. In doing so, we rejected the
petitioner’s argument that, pursuant to Jefferson, we should independently review
the circuit court’s dangerousness determination. Randall III, 336 Wis. 2d 399,
¶¶11, 13. We concluded that Jefferson was distinguishable because it involved “a
review of a revocation of conditional release,” whereas Randall III involved a
circuit court’s “denial of conditional release in the first instance.” Randall III,
336 Wis. 2d 399, ¶12. This case, like Randall III, involves the denial of
conditional release in the first instance, rather than the revocation of conditional
release. Randall III is therefore controlling with respect to the proper standard of
review.

¶19 “The sufficiency of the evidence test asks whether a [circuit] court
could reasonably be convinced by evidence it has a right to believe and accept as
true.” Id., ¶13 (quoting State v. Wilinski, 2008 WI App 170, ¶12, 314 Wis. 2d
643, 762 N.W.2d 399). In a sufficiency of the evidence review, we defer to the
circuit court’s credibility determinations and evaluation of the evidence. Id., ¶14.
We also “draw on [the court’s] reasoning and adopt [its] reasonable inferences.”
Id.

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No. 2022AP409-CR

¶20 Here, sufficient evidence supported the circuit court’s determination
that Stowe would pose a significant risk of bodily harm to himself or to others if
he were conditionally released. Doctor Collins expressly opined that Stowe would
pose such a significant risk, and Stowe does not challenge Collins’ ability to
provide that opinion. Moreover, Stowe’s “horrific” and violent index offenses,
combined with his conduct leading to the revocation of his conditional release, his
2013 escape, his 2017 suicide attempt, and his recent loss of control during the
August 2020 incident, provide a sufficient basis for the court to infer and believe
that Stowe would pose a significant risk of bodily harm to himself or to others if
he were conditionally released.

¶21 Stowe disagrees with the circuit court’s ultimate findings, suggesting
the court gave too much weight to his index offenses and his revocation from
conditional release. To that end, Stowe stresses that he is no longer mentally ill,
has not committed any acts of violence since the index offenses, and has made
“significant progress.” Stowe also suggests that his nonviolent response to the
August 2020 incident should be viewed as significant progress.

¶22 Although Stowe views his conduct and progress in the light most
favorable to his position, the circuit court did not share those same views, nor was
it required to, based on the available evidence. As the court explained, it
considered Stowe’s more recent conduct—i.e., the August 2020 incident—in light
of Stowe’s index offenses, which demonstrated Stowe’s capacity to harm himself
or others, and which is a permissible consideration under WIS. STAT.
§ 971.17(4)(d). The court also expressed a reasonable concern about Stowe’s lack
of control during the August 2020 incident, and it reasonably inferred that Stowe
had not made enough progress to reduce his significant risk of harm to himself or
others. Stowe might not have committed any recent acts of violence toward

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No. 2022AP409-CR

others, but the court inferred that Stowe is better behaved in Mendota because of
the “controlled environment” and his awareness that there will be “an immediate
and perhaps even harsh response to [losing] … control.” Finally, the court
reasonably believed that Stowe’s risk of self-harm—which was evident as recently
as 2017, when he attempted suicide—aggravated his risk to others because he
might seek to hurt others while trying to hurt himself, which he did during his
index offenses.

¶23 Stowe also suggests that the State failed to present any “evidence of
current dangerousness.” We disagree. The circuit court was permitted to infer
from the evidence—including the more recent August 2020 incident—that Stowe
would still pose a significant risk of bodily harm to himself or others if he were
conditionally released. Even though the record contains some generally positive
evidence about Stowe’s behavior, the court was not required to give that evidence
any greater weight than the other evidence in the record. Again, we are required
to defer to the court’s evaluation of the evidence and its inferences therefrom. See
Randall III, 336 Wis. 2d 399, ¶14. Accordingly, we conclude that the court had
sufficient evidence to find that Stowe would pose a significant risk of bodily harm
to himself or others.

By the Court.—Order affirmed.

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

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