Brown County v. J.D.T., 2023AP2339, 7/23/24, District 3 (one-judge decision; ineligible for publication); case activity
J.D.T. challenges the his commitment under ch. 51 (second and third standards). The COA concludes that the county presented sufficient evidence of dangerousness under the third standard, Wis. Stat. § 51.20(1)(a)2.c., and therefore does not address the second standard.
Wis. 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.” The county presented evidence that J.D.T. sexually assaulted a minor, attempted to sexually assault a clinician who evaluated him, and threatened to rape a hospital tech’s mother. (¶¶2-5). The COA rejects J.D.T.’s argument that the facts presented by the county do not support a conclusion of dangerousness under the third standard.
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 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.
(¶15).
The COA dismisses in a footnote J.D.T.’s argument that the circuit court’s conclusion that J.D.T. threatened to rape his own mother (rather than the mother of the hospital tech who was drawing his blood) was clearly erroneous, concluding that it does not affect the overall analysis. (¶4). However, the COA does not address how a verbal threat fits under § 51.20(1)(a)2.c. “pattern of recent acts or omissions.”
The COA also addresses mootness in a footnote. Applying Sauk County v. S.A.M.,
2022 WI 46, ¶¶23-24, 402 Wis. 2d 379, 975 N.W.2d 162, the court concludes that J.D.T.’s appeal of his original commitment is not moot.
Finally, the COA rejects J.D.T.’s hearsay argument as undeveloped and forfeited.
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 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.
(¶15).
