### COURT OF APPEALS DECISION DATED AND FILED
December 19, 2023

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP1987

- CR Cir. Ct. No. 1985CF1242 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
M ICHAEL T. S PENCER ,
D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Michael Spencer appeals from an order denying his petitio n to discharge his commitment as a person adjudged not guilty of aNo. 2021AP1987

- CR

2 criminal offense by reason of mental disease or defect (NG I )

. Spencer challenges the circuit court’s determination that he meets the standard for dangerousness required to continue his NGI commitment. We conclude that the record contains sufficient evidence to support the dangerousness determination , and therefore we affirm.

BACKGROUND

¶ 2 In 1985, Spencer shot and killed his wife and seriously injured his
father

- in

- law. The following year, a jury acquitted Spencer of murder and attempted murder charges on NGI grounds. T he circuit court consequently
committed Spencer to the custody of the Department of Health and Social Services
for institutionalized treatment

. ¶ 3 The circuit court ordered Spencer to be conditionally released from
his NGI commitment in 1988. The court revoked Spencer’s conditional release in 1993, however, after Spencer assaulted a woman with whom he was then in a relationship. The cou rt again granted Spencer ’s conditional release in 1995. The

court then denied petitions to discharge Spencer’s N GI commitment in 2008 and
2016 . It is the court’s denial of Spencer’ s second discharge petition that is the subject of this appeal. 1

¶ 4 The record before the circuit court at the 2016 discharge hearing included all of Spencer’s prior proceedings and psychological reports. In addition,

t he parties each presented expe rt testimony regarding Spencer’s current status

.

1 This court reinstated Spencer’s time to appeal the 2 016 decision after determining that he had been abandoned by his counsel. We subsequently directed the circuit court to issue a written order memorializing its oral decision from the hearing

.No. 2021AP1987

- CR

3 ¶ 5 Doctor Frank Cummings testified for the defense

. Cummings opined that Spencer had a personality disorder with some narcissistic and
obsessive

- compulsive components , as well as an elevated score on the “histrionic scale” dealing with emotion al presentation, but that he was not currently suffering from any “acute diagnosable mental health disorder that

... typically would prompt some kind of treatment or some kind of medication.” Cummings noted that Spencer had been “ relatively symptom free ” fo r at l east the past seven years, during which time he was not taking any medications or receiving any psychiatric

tre atment. Cummings further noted that neither Spencer’s case manager nor his probation officer recommend ed further th erapy, and Cummings himself did not

see any compel ling need for additional mental health services

. Cummings concluded that Spencer did not present a substantial risk of harm to himself or
others.

¶ 6 When asked about Spencer’s prior diagnosis of paranoid
sch izophrenia, Cummings observed that symptoms of mental illness “can wax and wane depending upon situational stressors.” Cummings agreed that if Spencer’s prior schizophrenia diagnosis was correct, then there was a risk th at symptoms could reappear with str ess from future situations , such as Spencer being involved
in domestic relationships or trying to make a living as an artist displaying his work at traveling shows

— a potential career option mentioned by Spencer

. ¶ 7 Doctor Deborah Collins testified for the State. Collins also diagnosed Spencer as having an “unspecified personality disorder with a history of narcissistic, histrionic and obsessi ve

- compulsive features.” In Collins’ opinion, people with personality traits such as Spencer ’ s te nd to lack insight into their own shortcomings, making them less likely to seek help when they need it

. In that respect, Collins was concerned that Spencer rated his own risk of committingNo. 2021AP1987

- CR

4 future act s of violence to be zero. Collins was also concerned that Spencer had demonstrated a pattern of “ boundary issues ” while on conditional release.

¶ 8 Collins further noted that although Spencer had been diagnosed as suffering from a psychotic spectrum disorder at t he time of the offenses, he had never been treated with psychotro pic medications. Collins observed that schizophrenia is an enduring psychiatric condition that does not spontaneously
remit. Given Spencer’s personality disorder and the fact that he had co mmitted violent offenses when not on supervision, Collins concluded that Spencer’s “capacity to navigate stressors independently and adaptively [was] compromised

. ” In Collins’ opinion, without the accountability and support structure of Spencer ’s
conditio nal release, ther e was a significant risk that Spencer would harm himself or others if stressors caused his symptoms to re

- emerge in the future

. ¶ 9 In considering Spencer’s petition for discharge, t he circuit court first
noted that, becau se schizophrenia can wax and wane but cannot be cured , and because aspects of Spencer’s enduring personality disorder also contributed to him shooting his wife and father

- in

- law , Spencer still poss essed the characteristics that
led to the offenses. The co urt next observed that the shootings demonstrated Spencer had the capacity for violence when subjected to stressors. The court agreed with Collins’ opinion that Spencer’s lack of insight into his capacity for
violence created a risk that he would not reco gnize or seek help for problems
associated with future stressors , and that Spencer’s travel and art business created the potential for stressful circumstances

. The court concluded that Spencer’s “dangerousness to others persists , ” and it denied the petiti on for discharge.No. 2021AP1987

- CR

5 DISCUSSION

¶ 10 Pursuant to W IS

. S TAT

. § 971.17(8) (2021

- 22), 2 the commitment, release, and discharge of persons adjudged NGI prior to January 1, 1991, is governed by the 1987

- 88 version of the Wisconsin Statutes, as affected by 1989
Wis. Act 31. A circuit c ourt shall discharge an NGI commitment made prior to
1991 i f the court is “ satisfied ” that the committed person may be “safely discharged

... without danger to himself or herself or to others.”
Sec. 971.17(2) (1987

- 88)

. 3 In making its discharge decision , the court may consider subsequently enacted statutory criter ia regarding dangerousness , including “the nature and circumstances of the crime, the person’s mental history and current mental condition, the person’s behavior while on conditional release, and plans for the person’s living arrangements, support, treatme nt and other required services after termination of the commitment order.” Sec. 971.17(5); State v. Randall (

Randall II ) , 222 Wis. 2d 53, 60

- 61, 586 N.W.2d 318 (1998)

. An NGI acquit t ee who is no longer mentally ill may be recommitted based upon dangerousness alone without violating due process as long as the commitment continues to serve the goal of “ reduc [ing] , to an acceptable leve l , the risk of danger which the individual poses” by , for instance, providing treatment for a

2 All references to the Wisconsin Statutes are to the 2021

- 22 ve rsion unless otherwise noted.

3 We note that the circuit court erroneously applied the test set forth in the current version of the statutes

— namely , that the court “shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage.” See W IS

. S TAT

. § 971.17(5). However, if the court was satisfied by clear and convincing evidence that further supervision was necessary to prevent a significant risk of harm to Spencer or others , it
necessa rily follows that the court was not satisfied that Spence r could be safely released without danger to himself or others.No. 2021AP1987

- CR

6 behavioral disorder

. State v. Randall ( Randall I ) , 192 Wis. 2d 800, 837

- 41, 532 N.W.2d 94 (1995).

¶ 11 As a threshold matter, the parties dispute the applicable standard of
review. The State contends that we must affirm the denial of a petition to discharge an NGI commitment as long as there is any credible evid ence in the record to support the circuit court’s decision , even if contrary evidence was also produced. The State relies on State v. Randall ( Randall III ) , 2011 WI App 102, ¶17, 336 Wis. 2d 399, 802 N.W.2d 194, in which this court applied that deferential
standard for evaluating the sufficiency of the evidence to support the denial of a petition for conditional release from an NGI comm itment.

¶ 12 Spencer asserts that Randall III deviates from the mixed standard of review used by the Supreme Court of Wisconsin to evaluate determinations of dangerousness in other types of civil commitment cases. See, e.g. , Langlade County v. D.J.W. , 2020 WI 41, ¶¶24

- 25, 391 Wis. 2d 231, 942 N.W.2d 277 (applying a mixed standard to review the sufficiency of the evidence to support a dangerousness determination in a W IS

. S TAT

. ch. 51 recommitment). Spencer
contends that this court should up hold any findings of fact made by the circuit court unless they are clearly erroneous, but we should then indepe ndently determine whether those facts satisfy the statutory sta ndard for a continued NGI
commitment

. ¶ 13 We see no principled d istinction between the review of an order denying conditional release from an NGI commitment and one denying discharge
from an NGI commitment. Nevertheless , “ [NGI ] acquittees constitute a special class that should be treated differently from other candida tes for commitment.” Randall I , 192 Wis. 2d at 817 (citation omitted). Therefore, while we recognizeNo. 2021AP1987

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7 that the standard of review set forth in Randall III may deviate from that used in other types of civil commitment cases, we conclude that we are bound by Randall III in a W IS

. S TAT

. § 971.17 case

. See Cook v. Cook , 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 14 Spencer contends that the evidence was insufficient to establish that he is presently a danger to himself or others because he is not currently diagnosed with a major mental illness and he has functioned well in the community for years
without mental health treatment. It is not , however, our job to reweigh the evidence supporting discharge against th e evidence against it

. ¶ 15 Applying a deferential standard of review, w e conclude that the circuit court’s decision to deny Spencer ’s discharge from his NGI commitment was supported by credible evidence. The court could properly determine that Spencer could not be safely released from his commitment without dange r to himself or others because: (1) the shooting of his wife and father

- in

- law evinced a capacity for violence toward others ; (2) Spencer still possessed the personality
disorder t hat contributed to the shootings; (3) the paranoid or delusional symptoms Spencer had previously experienced could recur if he were subjected to stressors in the future; and (4) Spencer lacked the necessary insight to seek help if he experienced future str essors. Meanwhile, the NGI commitment continued to serve the goal of reducing Spencer’s dangerousness because the supervision st ructure provided an opportunity to recognize and address the effect of future stressors on Spencer’s behavior. We therefore af firm.
By the Court.

— Order affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.