COURT OF APPEALS

DECISION

DATED AND FILED

September 16, 2021

Sheila T. Reiff

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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1908 Cir. Ct. No. 2019ME25

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF T. W.:

MARQUETTE COUNTY,

 PETITIONER-RESPONDENT,

 V.

T. W.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Marquette County: 

TERESA S. BASILIERE, Judge. Affirmed. 
No. 2020AP1908

2

¶1 BLANCHARD, P.J.1 In September 2019, the Circuit Court of 

Marquette County entered an order involuntarily committing T.W. for mental 

health treatment for six months, pursuant to WIS. STAT. § 51.20. The court’s order

was based on jury findings at a trial that T.W. was mentally ill, a danger to himself 

or others, and a proper subject for treatment. The petition for commitment by the 

Marquette County corporation counsel involved allegations of violent conduct by 

T.W. After hearing additional evidence following the jury trial, the circuit court 

entered an order for involuntary medication during the mental health 

commitment.

2

 T.W. appeals both orders, arguing that the court either erroneously 

exercised its discretion or erred as a matter of law in allowing the admission of 

several categories of evidence at trial. Marquette County argues that this appeal is 

moot, that T.W. forfeited his merits arguments by failing to raise them in the 

circuit court, that the court did not err in allowing the evidence (but that, even if it 

did, any errors were harmless), and that there was no plain error. I conclude that 

the County fails to establish that the appeal is moot, but I affirm for the reasons 

explained below.

BACKGROUND

¶2 In July 2019, T.W. was residing in a group home in Madison. A

group home case manager reported to police that T.W. had “choked” the case 

manager after T.W. refused to take medications.3 Based on this incident, T.W. 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. 

2

 While it is not the focus of this appeal, I note for context that in February 2020 T.W. 

was recommitted for a term of one year. See WIS. STAT. § 51.20(13)(g)2r. and 3. 

3

 Expanding on this factual background, there was testimony at the jury trial in this case 

that, on the same day in July 2019, which was the second day of T.W. refusing to take

(continued)
No. 2020AP1908

3

was detained on an emergency basis under WIS. STAT. § 51.15(1), and venue for 

the case was transferred to Marquette County. Through its corporation counsel,

Marquette County sought to involuntarily commit T.W. for six months pursuant to 

WIS. STAT. § 51.20. The circuit court held a probable cause hearing. After 

hearing testimony from five witnesses—the group home case manager, a Madison 

police officer, an associate manager of a Dane County mental health crisis unit, a 

psychiatrist employed by the Winnebago Mental Health Institution in Oshkosh, 

and T.W. himself—the court determined that there was probable cause to support 

a commitment, allowing the case to proceed to a final hearing.

4

 

¶3 At the jury trial, the County presented evidence that included expert 

testimony of psychologist Robert Schedgick and psychiatrist Robert Rawski. 

Each expert testified that he had conducted a mental health examination of T.W., 

although in each case T.W. declined the expert’s request for a personal interview. 

¶4 Dr. Schedgick testified in part as follows. Based on his review of 

various records, he created a report of examination, which was admitted into 

evidence. T.W. has a “diagnosis of schizoaffective disorder, depressive type.” 

His symptoms include “sudden rapid change of moods accompanying ... 

 

medications: T.W. struck a care provider in the jaw “real hard,” “out of the blue” on the 

provider’s “blind side”; later T.W. punched a second care provider in the face; after which T.W. 

“choked” a case manager who was trying to get him to take his medications, and the case 

manager called police; a responding officer testified that T.W. approached the officer “very 

abruptly” and came “very close,” “very focused on” the officer, and “loaded his rear leg,” with 

his hands “clenched in fists,” at which time three officers “required a good deal of force” to place 

T.W. in handcuffs. 

4

 The Honorable John Jorgensen presided over the hearing and found probable cause, the 

Honorable Mark T. Slate issued the order for a final hearing based on the finding of probable 

cause, and the Honorable Teresa S. Basiliere presided over the jury trial and made the rulings 

challenged in this appeal. 
No. 2020AP1908

4

psychotic behavior, typically delusions, and hallucinations.” T.W. “is a danger to 

others” and is “a proper subject for treatment” because medication or other forms 

of treatment may control and improve his mental health. 

¶5 Dr. Rawski testified in part as follows. Based on his review of 

various records—including one summarizing an interview that Dr. Rawski had

conducted with T.W. in April 2019 and “records that summarize [a] 35 to 40 year 

history of treatable mental illness dating back to the early 1980’s”—Dr. Rawski 

created an examination report that was admitted into evidence. T.W. has 

“[s]chizoaffective disorder,” which is a “similar condition” to schizophrenia, but 

“is differentiated by a presence of mood symptoms that rise to the level of causing 

clinical distress and interfering with his functioning in addition to symptoms of 

schizophrenia.” This has included “episodes” of “mania,” “typically irritable 

mania,” causing T.W. to exhibit “agitation, impulsivity, reckless behavior, 

impaired judgment, clearly acting before thinking,” in addition to “psychotic 

symptoms such as delusions and hallucinations.” When T.W. stops taking 

medication, he becomes “more paranoid, more agitated[,] more delusional, 

experience[s] more voices, start[s] losing sleep, which in turn, fuels more 

irritability and agitation and ... almost invariably” results in him being 

“threatening, intimidating and hostile and final[ly] physically aggressive.” “It is 

my opinion to a reasonable degree of medical certainty that the psychotic 

symptoms and the dangerousness [that T.W. presents are] direct result[s] of not 

taking the medications for his mental illness.” T.W. is dangerous because he 

“refuses to believe” that he has a mental illness that requires treatment. His 

“symptoms are treatable” and “can be controlled.” He “requires a locked inpatient 

unit for the safety of himself as well as the safety of staff and peers in the 

community.” 
No. 2020AP1908

5

¶6 T.W. did not testify at trial. Counsel for T.W. called as a witness a

physician’s assistant who testified to the following. Urine tests revealed that T.W. 

appeared to have a urinary tract infection at the time of the incident in the Madison 

group home and a urinary tract infection can in some cases produce an “[a]ltered 

mental status.”

¶7 In closing argument, T.W. primarily argued that the County failed to 

meet its burden to prove that he was dangerous in light of evidence that T.W.

contended raised the following reasonable inferences: (1) he was in fact taking his 

medications at the time of the incident at the Madison group home that brought a 

police response; and (2) at the time of the incident he was suffering from a urinary 

tract infection that was a contributor to his violent behavior. 

¶8 The jury found that T.W. “is” “mentally ill,” “dangerous to himself 

or others,” and “a proper subject for treatment.” Accordingly, the court filed an 

order of commitment for a term of six months. 

¶9 After hearing separate testimony shortly after trial from psychiatrist 

Heidi Lundeen, who had T.W. as a patient at a mental health facility since his 

admission some weeks earlier, the court separately entered an order for 

involuntary medication and treatment. T.W. does not challenge this order on any

independent ground. 

¶10 T.W. appeals and the parties have briefed the issues, after significant 

delays.

5

 

 

5

 The parties’ briefing on appeal was completed on August 5, 2021, even though the 

challenged circuit court orders were filed nearly two years earlier, in September 2019. On six 

occasions, this court granted T.W.’s motions to extend deadlines to file a postjudgment motion or 

(continued)
No. 2020AP1908

6

DISCUSSION

I. MOOTNESS

¶11 The six-month period of commitment challenged by T.W. has

expired, along with the accompanying order for involuntary medication or 

treatment. For this reason, the County argues, this appeal is moot and it further 

contends that no exception to the mootness doctrine applies. I reject this argument 

based on one position taken by T.W., which the County does not successfully 

rebut. T.W. contends that the collateral consequences of the costs of caring for 

him, for which T.W. is subject to collection under WIS. STAT. § 46.10(2)-(3),

prevent this appeal from being moot.

¶12 Mootness is a question of law that is reviewed on appeal under the 

de novo standard. Marathon Cnty. v. D.K., 2020 WI 8, ¶16, 390 Wis. 2d 50, 937 

N.W.2d 901. “‘An issue is moot when its resolution will have no practical effect 

on the underlying controversy.’” Id., ¶19 (quoted sources omitted). Moot issues 

are, as a general rule, not reviewed on appeal unless one or more of five 

exceptions apply. Id. I conclude that the County fails to show that the appeal is 

moot and therefore I do not consider any of the exceptions to mootness.

¶13 T.W. points out that, pursuant to statute, he “shall be liable for the 

cost of the care, maintenance, services and supplies” that were provided to him 

during his commitment, which are costs that the department “shall” collect. See

WIS. STAT. § 46.10(2), (3). T.W. further notes, without objection on the point 

 

to file a notice of appeal, which delayed the filing of his notice of appeal from March 2020 to 

November 2020. During 2021, this court granted three additional motions by T.W. to extend his 

briefing deadlines and two motions filed by the County for extensions in its briefing deadlines. 
No. 2020AP1908

7

from the County, that the County cannot recover these costs if there was “no valid 

commitment order,” as could be the case if T.W. were to prevail in this appeal. 

See Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431, 436-41, 312 N.W.2d 45 

(1981). 

¶14 On two recent occasions our supreme court has explicitly left open 

the possibility that this statutory obligation of committed persons to pay costs may 

or may not be a collateral consequence of sufficient import to render an appeal of 

a commitment order not moot. See D.K., 390 Wis. 2d 50, ¶25 n.7; Portage Cnty. 

v. J.W.K., 2019 WI 54, ¶28 n.11, 386 Wis. 2d 672, 927 N.W.2d 509. 

¶15 Further, as T.W. notes, our supreme court has relied in part on 

collateral financial consequences of a criminal conviction, given the potential 

effect of these consequences on related civil proceedings, to determine that an 

appeal in the criminal case was not moot, even though the defendant had died 

while pursuing postconviction relief. See State v. McDonald, 144 Wis. 2d 531, 

537-38, 424 N.W.2d 411 (1988) (“Because of these potential collateral 

consequences, it serves the interest of justice to continue the appeal.”). Further, 

since the release of D.K. and J.W.K., the court has favorably relied on reasoning in 

McDonald in the context of determining that an appeal in a mental commitment 

case was not moot, although the court in its recent opinion did not specifically 

mention McDonald’s reliance on collateral financial consequences. See Langlade 

Cnty. v. D.J.W., 2020 WI 41, ¶26 n.5, 391 Wis. 2d. 231, 942 N.W.2d 277
No. 2020AP1908

8

(determining that appeal was not moot despite the death of the petitioner during 

the pendency of the appeal).6

¶16 The County does not dispute that T.W. is subject to collection for the 

costs of his care, nor does it more generally rebut other premises of T.W.’s 

argument. It makes two points on this issue, both unproductive. First, the County 

suggests that Jankowski could have no bearing on the mootness issue because it 

does not address mootness. This misses the point. The County does not dispute 

that, under Jankowski, there could be a well-defined, practical benefit to T.W. if 

he prevails in this appeal. Second, the County surprisingly asserts that our 

supreme court would have deemed the appeal in D.K. moot if the court “wished to 

leave the door open to ... non-constitutional collateral consequences.” This is 

incorrect. The court in D.K. explicitly left open this very door, as it had in J.W.K. 

D.K., 390 Wis. 2d 50, ¶25 n. 7; J.W.K., 386 Wis. 2d, ¶28 n.11.

¶17 Mootness may present a close issue here based on the current state 

of the law in Wisconsin. But to say more would be to venture into potentially 

complicated legal terrain that extends well beyond the scope of the limited briefing 

by the parties on this issue. Under all of the circumstances, I conclude that the 

County has not shown that this appeal is moot.

 

6

 In fairness to the County, T.W. makes his references to State v. McDonald, 144 

Wis. 2d 531, 537-38, 424 N.W.2d 411 (1988), and Langlade Cnty. v. D.J.W., 2020 WI 41, ¶26 

n.5, 391 Wis. 2d. 231, 942 N.W.2d 277, for the first time in his reply brief on appeal. At the 

same time, however, T.W. squarely raises this potential collateral consequence in his opening 

brief as a reason to oppose a mootness determination. Further, the court released D.J.W. well 

before the County filed its brief in this appeal.
No. 2020AP1908

9

II. EVIDENCE OF AGGRESSIVE AND VIOLENT BEHAVIOR

¶18 T.W. argues that, before trial, the circuit court should have barred 

the admission of testimony given by the two experts relating to reports of 

aggressive and violent behavior by T.W. over the years, aside from the specific 

conduct at the Madison group home triggering the petition for commitment. This 

is so, T.W. contends, because all such testimony would be inadmissible “other 

acts” evidence under WIS. STAT. § 904.04(2).

7

 I provide additional pertinent 

background, additional applicable legal standards, and then explain why I reject 

this argument in discussion that includes references to further background.

A. Additional Background

¶19 T.W. filed three motions in limine in the circuit court that the parties 

reference in connection with this issue. 

“Other Acts” Motion

¶20 One was a broad motion to bar all potential “other acts” evidence,

without identifying any particular evidence for potential exclusion. It stated in its 

entirety that it sought an order stating the following:

 

7

 “Other acts” evidence is admissible if: (1) it is offered, not to prove “the character of a 

person in order to show that the person acted in conformity therewith,” but instead is offered for a 

purpose such as showing “opportunity, intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident”; (2) it is relevant (meaning that is has “any tendency to make the 

existence of any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence”); and (3) its probative value is not 

substantially outweighed by the risk of “unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.” WIS. STAT. §§ 904.04(2)(a), 904.01, 904.03; State v. Gutierrez, 2020 WI 

52, ¶29, 391 Wis. 2d 799, 943 N.W.2d 870.
No. 2020AP1908

10

That the County be prohibited from introducing any 

evidence concerning other acts, including but not limited to 

those underlying past civil commitments that may have 

been subject to litigation. WIS. STAT. § 904.04(2). 

The County objected to this motion, arguing that T.W. was seeking to exclude 

evidence that the County should be allowed to offer “to prove a primary element 

of the County’s case—that [T.W.] is mentally ill and dangerous,” and not “to show 

a character trait or [that T.W.] act[ed] in conformity” with a character trait. The 

County analogized the situation to that presented in WIS. STAT. ch. 980 cases 

seeking the commitment of allegedly sexually violent persons. See State v. 

Franklin, 2004 WI 38, ¶24, 270 Wis. 2d 271, 677 N.W.2d 276 (§ 904.04(2) does 

not apply to evidence offered in a commitment proceeding under ch. 980 to prove 

that the respondent has a mental disorder that makes it substantially probable that 

he or she will commit acts of sexual violence in the future.). In the ch. 980 

context, “‘[p]revious instances of violent behavior are an important indicator of 

future violent tendencies.’” See Franklin, 270 Wis. 2d 271, ¶22 (quoting Kansas 

v. Hendricks, 521 U.S. 346, 357-58 (1997)).

“Prior Commitments” Motion

¶21 T.W. separately filed a motion seeking an order providing the

following:

That although none are known to counsel at this time, that 

the County be prohibited from introducing any evidence or 

making reference to past civil commitments [of T.W.]. 

Such evidence is of very limited probative value beyond 

proving that [T.W.] may have acted in conformity with a 

particular character trait. WIS. STAT. § 904.04(1). 

Moreover, the probative value of any such evidence is 

outweighed by the creation of unfair prejudice to [T.W.] 

and confusion for the jury. WIS. STAT. § 904.03.
No. 2020AP1908

11

The County did not object to the “prior commitments” motion, subject to the 

County’s objections to the “other acts” motion. 

“Otherwise Admissible” Motion

¶22 The third potentially related motion was broad like T.W.’s “other 

acts” motion, in that it also did not identify particular evidence for potential 

exclusion. It sought an order providing:

That the County be prohibited from eliciting facts or 

data that are otherwise inadmissible from its expert 

witnesses, unless the Court has previously determined that 

their probative value in assisting the jury to evaluate the 

expert’s opinion or inference substantially outweighs their 

prejudicial effect. WIS. STAT. § 907.03.[

8

]

The County objected to the “otherwise inadmissible” motion, essentially 

contending that T.W. was requesting exclusion of evidence that would be 

“incredibly prejudicial” to the County’s ability to elicit expert testimony regarding 

T.W.’s alleged mental illness, dangerousness, and amenability to treatment. 

 

8

 WISCONSIN STAT. § 907.03 provides, with emphasis now added on a key phrase for the

arguments made on appeal:

The facts or data in the particular case upon which an 

expert bases an opinion or inference may be those perceived by 

or made known to the expert at or before the hearing. If of a 

type reasonably relied upon by experts in the particular field in 

forming opinions or inferences upon the subject, the facts or data 

need not be admissible in evidence in order for the opinion or 

inference to be admitted. Facts or data that are otherwise 

inadmissible may not be disclosed to the jury by the proponent 

of the opinion or inference unless the court determines that their 

probative value in assisting the jury to evaluate the expert’s 

opinion or inference substantially outweighs their prejudicial 

effect.
No. 2020AP1908

12

Hearing And Rulings

¶23 The circuit court held a hearing to address T.W.’s motions in limine, 

including the three quoted above. The court invited the parties to address each

motion individually and it ruled on them one at a time. However, regarding the 

three motions just quoted, there was discussion by the parties and the court that 

overlapped. T.W. argued that the circuit court should order that evidence 

regarding any prior conduct of T.W. “should be limited to” events alleged in the 

emergency detention petition filed regarding the July 2019 incident at the Madison 

group home. Relatedly, T.W. argued that the court should prohibit the County 

from eliciting testimony from either of the two experts that referred to any conduct 

of T.W. that was referenced in any records created and maintained as part of 

evaluations and treatments of T.W. over the years that predated the incident at the 

Madison group home. T.W. characterized his target for exclusion in nearly 

boundless terms: “anything historically asserted.” He generically alleged that 

“historic information” in the reports of the experts was “irrelevant information 

arguably,” but did not point to specific irrelevant information in the expert reports. 

¶24 The court ruled as follows on the three potentially related motions:

 “Other acts” motion. T.W. failed to show the need for a blanket 

exclusion of reference to all of his alleged conduct outside of that 

involving the incident at the Madison group home. The court 

determined that evidence of T.W.’s “history of mental illness” should 

not “be precluded.” 

 “Prior commitments” motion. The County was precluded from 

eliciting evidence that T.W. had ever been the subject of a prior mental 

commitment. The court expressed the view that such evidence “can be 

extremely prejudicial” to someone in T.W.’s position.

 “Otherwise inadmissible” motion. Rulings withheld. The court 

deemed the motion to be “vague.” The court also observed that it was
No. 2020AP1908

13

circular, in that it asked the court to declare a useless generality: no 

inadmissible evidence would be admitted. The court explained that it 

would consider T.W.’s objections to specific offered evidence when

T.W. made objections at trial. 

Failures To Object At Trial

¶25 The County submits that, throughout trial, T.W. raised no objection 

to testimony or the admission of other evidence on the topics referenced in these 

three motions. T.W. does not dispute this. Instead, T.W. takes the position that 

his motions in limine were sufficient to preserve these issues for appeal. 

B. Legal Standards

¶26 “A decision to admit or exclude evidence is within the circuit court’s

discretion,” and will be reversed “only if the circuit court erroneously exercised its 

discretion.” State v. Gutierrez, 2020 WI 52, ¶17, 391 Wis. 2d 799, 943 N.W.2d 

870. This means that an evidentiary decision is upheld on appeal if “the circuit 

court applied the proper legal standard to the relevant facts and reached a 

reasonable discretionary decision,” and an appellate court “‘may not substitute its 

discretion for that of the circuit court.’” Id., ¶27 (quoted source omitted). 

¶27 As to the forfeiture of issues based on a failure to preserve them in 

the circuit court, “‘[t]he general rule is that issues not presented to the circuit court 

will not be considered for the first time on appeal.’” State v. Brereton, 2013 WI 

17, ¶19, 345 Wis. 2d 563, 826 N.W.2d 369 (alteration in Brereton) (quoted source 

omitted). While appellate courts “may choose to consider such issues, 

countervailing considerations of fairness, efficiency, and institutional competency 

are generally persuasive when determining whether an issue raised for the first 

time on appeal should be addressed.” Id. One exception is the plain error 

doctrine. This permits appellate courts to review “fundamental” errors that are
No. 2020AP1908

14

otherwise forfeited by the failure to object in the circuit court. State v. Jorgensen, 

2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. A plain error is 

“fundamental, obvious, and substantial,” such as when “‘a basic constitutional 

right has not been extended to the accused[.]’” Id., ¶¶21, 23 (quoted source

omitted). Appellate courts will deem an error to be “‘plain’” only “sparingly.” 

State v. Bell, 2018 WI 28, ¶12, 380 Wis. 2d 616, 909 N.W.2d 750 (quoted source 

omitted). 

¶28 Regarding circuit court error that might be deemed harmless, “[t]he 

court shall, in every stage of an action, disregard any error or defect in the 

pleadings or proceedings that does not affect the substantial rights of either party.” 

WIS. STAT. § 51.20(10)(c); see also WIS. STAT. § 805.18(2); S.Y. v. Eau Claire 

Cnty., 156 Wis. 2d 317, 328, 457 N.W.2d 326 (Ct. App. 1990) (deeming 

admission of expert’s testimony in involuntary commitment proceeding to be 

harmless error). Applying the harmless error rule in the evidentiary context, in 

criminal cases, courts consider factors that include: (1) the frequency of the error; 

(2) the importance of the erroneously included or excluded evidence to the 

prosecution’s or defense’s case; (3) the presence or absence of evidence 

corroborating or contradicting the erroneously included or excluded evidence;

(4) whether erroneously excluded evidence merely duplicates untainted evidence; 

(5) the nature of the defense; (6) the nature of the State’s case; and (7) the overall 

strength of the State’s case. State v. Martin, 2012 WI 96, ¶46, 343 Wis. 2d 278, 

816 N.W.2d 270.

C. Analysis

¶29 I assume without deciding that T.W. did not forfeit the specific 

positions he advanced in his three motions in limine by failing to preserve them in 
No. 2020AP1908

15

the circuit court. See State v. Bergeron, 162 Wis. 2d 521, 529, 470 N.W.2d 322 

(Ct. App. 1991) (a motion in limine based on a specific argument is sufficient to 

preserve, for purposes of appeal, an objection to the admissibility of evidence

based on that argument). However, to avoid forfeiture on appeal T.W.’s 

arguments on appeal must be limited to the specific arguments that he made in the 

motions in limine. See State v. Bustamante, 201 Wis. 2d 562, 573, 549 N.W.2d 

746 (Ct. App. 1996) (“[I]f the issue raised by appeal is different in fact or law 

from that presented by the motion in limine, then [forfeiture] may be found if no 

objection was made at trial.”) (citing Bergeron, 162 Wis. 2d at 529). As I explain 

below, when T.W. is held to the particular motions in limine that he actually made, 

those arguments fail for various reasons, and any new arguments that he may now 

intend to make based on the plain error doctrine are either undeveloped or 

unavailing.

1. “Other Acts” Motion

¶30 I assume without deciding that, if presented with proper arguments,

a circuit court presiding over a WIS. STAT. ch. 51 mental commitment jury trial

could be obligated to exercise its discretion to apply the rule barring character 

evidence established in WIS. STAT. § 904.04(2) to exclude evidence (in addition to 

applying the standards contained in WIS. STAT. §§ 904.01, 904.03). See WIS.

STAT. § 51.20(10)(c) (“Except as otherwise provided in this chapter, the rules of 

evidence in civil actions and [WIS. STAT. §] 801.01(2) apply to any judicial 

proceeding or hearing under this chapter.”). Thus, I put to the side the County’s 

analogy to WIS. STAT. ch. 980 commitment cases and Franklin, and assume that 

the circuit court was obligated to exercise its discretion to consider applying 

§ 904.04(2) based on T.W.’s “other acts” motion in limine. 
No. 2020AP1908

16

¶31 T.W. argues that the circuit court should have excluded “any 

evidence that he was aggressive or violent in the years preceding the emergency 

detention” based on the incident at the Madison group home because it “was 

irrelevant and[,] worse, was prejudicial to T.W.” To support this argument, T.W. 

cites precedent from the U.S. Supreme Court and our supreme court that, in order 

to satisfy constitutional requirements, the findings of mental illness and 

dangerousness in a mental commitment case “must be current, not retrospective.” 

See J.W.K., 386 Wis. 2d 672, ¶16 (citing Foucha v. Louisiana, 504 U.S. 71, 77-

78 (1992)). I reject T.W.’s argument for the following reasons.

¶32 On this topic, T.W. made sweeping arguments not tied to any 

specific potential evidence in the circuit court and continues in the same mode on 

appeal. He does not begin to provide a basis to conclude that the circuit court did 

not apply a proper legal standard to the relevant facts and reach a reasonable 

discretionary decision as to the admission of any particular evidence. Put 

differently, he fails to explain why the circuit court did not have a reasonable basis 

to deny his pretrial request for a blanket order that would have prohibited the 

County from eliciting any evidence whatsoever about T.W.’s behavior that did not 

involve the events alleged in the emergency detention petition regarding the July 

2019 incident at the Madison group home.

¶33 Much could be said about weaknesses in T.W.’s position that the 

circuit court erroneously exercised its discretion in denying the broad “other acts” 

motion. But one of many examples of potential evidence in the case is sufficient 

to illustrate the point. Dr. Rawski’s report was available to the parties and the 

circuit court as potential evidence at the time the court ruled on the motions in 

limine. Dr. Rawski noted in his report that medical records reflected the following 
No. 2020AP1908

17

events in June 2018, when authorized personnel attempted to administer an 

injection to T.W.: 

[T.W.] became combative and attempted to hit and swing at 

the staff, clench his fists and was resistive to the injection. 

Once the injection was administered, staff slowly backed 

away from him, at which time he lunged at staff and 

stomped his foot in an intimidating fashion, asking, “You 

scared?”

At least on its face, this evidence regarding events allegedly occurring not long 

before the incident at the Madison group home could be highly probative in 

assessing Dr. Rawski’s opinion, also stated in his report, that T.W. “has extremely 

poor insight into his mental illness, the associated dangerousness, his historical 

response to adequate and inadequate treatment, and the expectable risks of 

removing psychotropic treatment altogether.” The “other acts” motion made no 

attempt to apply the three-prong WIS. STAT. § 904.04 to any of the many incidents 

of this type that were potentially at issue at trial.

¶34 To the extent that T.W. intends to argue in the alternative that it 

constituted plain error for the circuit court to have allowed evidence that might be 

deemed “other acts” to be admitted at trial, without objection by T.W., any such 

argument would be completely undeveloped. In his opening appellate brief, T.W. 

makes generic references to “the other acts evidence,” but fails to point to any 

particular “other acts” evidence admitted at trial, much less to evidence, the 

admission of which constituted “fundamental, obvious, and substantial” error. Not 

until his reply brief on appeal does he allude to specific evidence, but even then he 

fails to develop an argument based on the specifics. 
No. 2020AP1908

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2. “Prior Commitments” Motion

¶35 T.W. argues that the experts, in testifying at trial, violated the circuit 

court’s pretrial order prohibiting references to the existence of his prior mental 

commitments. The County contends that the specific references which the experts 

made to T.W.’s history of treatment failed to identify a prior commitment, and that 

instead T.W. “tangentially points to instances where witnesses testified about 

T.W.’s prior hospitalizations and treatment.” In the alternative, the County argues 

harmless error. I reject T.W.’s argument based on harmless error.

¶36 On a threshold issue, I reject the County’s first argument. I conclude 

that the experts’ trial testimony provided a sufficient basis for a reasonable jury to 

readily deduce that T.W. had been subject to mental commitments in the past, 

even if the testimony did not include a specific reference along the lines of, “T.W.

was ordered committed on date X by Judge Y in County Z.”

9

 I do not construe the 

 

9

 Notable was the following testimony by Dr. Rawski, which includes unmistakable 

references to commitments, even if jurors might not have understood all details regarding 

associated legal procedures and standards: 

[T.W.] has been in inpatient settings or in community 

placements for most of the last almost 30 years now and all of 

the last 15 to 17 years. And so he was moving toward 

community placement in [the] spring of this year and they finally 

accomplished that, and I believe it was May when he was finally 

discharged from Trempe[a]leau after having been there for two 

years[,] which is different than Winnebago. You start in a 

locked unit but then you eventually move to less restrictive units 

based upon your behavior and your participation and your 

compliance. 

The jury had context for the “Trempealeau” and “Winnebago” references in this testimony. For 

example, as to “Trempealeau,” Dr. Rawski had in earlier testimony referred to “inpatient records 

over the last couple of years at the Trempe[a]leau County Health Care Center.” As to 

“Winnebago,” pertinent prior testimony included Dr. Schedgick stating that he “went to the 

Winnebago Mental Health Institute on August 12” and “requested to see” T.W., after which T.W. 

“was brought out by the nurse.” These and other references that the jury heard at trial provided a 

(continued)
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circuit court’s order to have been limited to precluding only such specific 

references.10 

¶37 Neither side presents a robust argument on the harmless error topic. 

I conclude that the nature of the references from which jurors could readily deduce 

prior commitments supports the County’s argument of harmless error, when 

considered in the context of the extensive, consistent, and overlapping testimony 

of the two experts and the essentially unrebutted testimony about the specific 

alleged violent conduct at the Madison group home. 

¶38 I make three observations in support of that conclusion. First, T.W. 

fails to point to examples of the County explicitly referring at trial to the fact of 

prior commitments or otherwise improperly exploiting this testimony during trial. 

Second, the testimony of each of the experts conveyed the professional opinion

that, in order to properly present their views on the issues at trial, it was necessary 

for them to explain to the jury T.W.’s long history of mental illness, including 

facts regarding both successful and unsuccessful attempts at treatment, and why 

the experts concluded that some treatment efforts had failed over the years. If 

T.W. intends to argue that it was an erroneous exercise of discretion for the circuit 

court to consider some or all of that history to be relevant, he fails to develop the 

argument. In that sense, the references made by the experts that strongly 

 

strong basis for the jury to deduce that T.W. had been previously committed and confined in these 

institutions. 

10

 It would appear that the County and its witnesses faced significant potential challenges

in conveying relevant treatment and behavioral history at a trial of this type while omitting any 

references that would allow jurors to readily deduce that T.W. had previously been committed. 

But the County failed to raise concerns along these lines when the circuit court was considering 

and making rulings based on the motions in limine. Further, the County does not now argue that 

the circuit court erroneously exercised its discretion in making this ruling.
No. 2020AP1908

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suggested the existence of prior commitments heavily overlapped with the 

untainted evidence. Third, the nature of the defense at trial essentially involved a 

disputed medical-mental health diagnosis: whether T.W.’s actions at the Madison 

group home were driven primarily or in substantial part by the urinary tract 

infection, and not at all or to a lesser degree by mental illness.11 T.W. fails to 

persuade me that learning of the existence of previous commitments would have 

clouded the ability of a reasonable jury to give fair consideration to this defense, 

including the ability to assess what the experts testified to on direct and cross 

examination regarding possible effects of the urinary tract infection.

3. “Otherwise Inadmissible” Motion

¶39 T.W.’s briefing on this topic is undeveloped and I reject his 

argument on that ground. At best, T.W.’s “otherwise inadmissible” evidence 

motion invited the circuit court to rule before trial that any and all references to 

“facts or data” by either expert was presumed to be inadmissible. It is hard to see 

how the court, in the exercise of its discretion, could have granted the motion as it 

was framed. Now, on appeal, T.W. asserts that the “otherwise inadmissible” 

evidence at issue was evidence presented at trial by the experts that he now 

submits constituted hearsay statements. He fails to present an argument on appeal 

involving hearsay that bears any resemblance to the generically phrased motion in 

limine that he presented to the circuit court. The word “hearsay” does not appear a 

single time in the motion in limine, and the word was not used by anyone, even 

 

11

 Counsel explained to the jury in opening that T.W. had a urinary tract infection at the 

time of the incident at the Madison group home, which constituted “the thrust of what we’re 

talking about here.” This prepared the jury to maintain a focus throughout trial on the infection 

and its possible effects on T.W.’s behavior. 
No. 2020AP1908

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once, in connection with discussion of any motion in limine at the hearing at 

which the parties presented arguments and the circuit court made its rulings. 

Given the generic nature of the motion in limine, the circuit court had no reason to 

think that it was not aimed at issues other than hearsay. For that matter, T.W. gave 

the circuit court no reason to think that T.W. might be able to identify only some

testimony in this broad category that would be inadmissible hearsay, while other 

testimony in the category would be admissible. Therefore, granting the generic 

motion would have risked improperly barring the County from offering evidence 

that it should have been allowed to offer. In sum, T.W.’s motion in limine 

provided an insufficient basis to support the argument that he now makes on 

appeal.

III. HEARSAY

¶40 As noted, T.W. failed even to use the word “hearsay” in his motions 

in limine. However, during the course of trial he made the following four 

objections that referenced the concept of hearsay:

 After first raising a foundation objection to testimony by Dr. Schedgick 

about a delusion suffered by T.W. at the time of the incident at the 

Madison group home, T.W. briefly shifted to a hearsay objection, which 

was overruled on the ground that the testimony was necessary for the 

expert to explain the nature of the delusion.

 When Dr. Schedgick began to testify that T.W. had assaulted staff of the 

group home and at a mental health center, T.W. objected on the ground 

of hearsay. This was overruled, apparently on the ground that the 

testimony was not offered for its truth but to explain the expert’s basis 

for a finding of dangerousness. 

 When a police officer testified about a caregiver at the Madison group 

home relating that T.W. had punched him in the face, T.W. objected on 

the ground of hearsay and the objection was sustained. 
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 When a clinical manager at a Madison mental health center testified 

about evidence of violent acts by T.W. at the Madison group home, 

T.W. objected on the ground of hearsay, the objection was sustained and 

the court directed the jury to disregard the witness’s use of the term 

“violent.” 

Thus, T.W. at trial used the word hearsay in objecting only twice during the 

testimony of expert witnesses and prevailed on two of his hearsay objections.

¶41 T.W. does not persuade me that the circuit court’s discretionary 

decision to overrule the objection to Dr. Schedgick’s reference in his testimony to 

a delusion, or its decision to overrule the objection to his reference to evidence 

that T.W. had been assaultive, could have been clearly erroneous. 

¶42 The first objected-to testimony by Dr. Schedgick was somewhat 

confusing:

One of the delusions [that T.W. had at the time of 

the incident at the Madison group home] was the belief that 

an ad from the television had told him that prescription 

drugs he was taking are delusional.

The jury separately heard, without objection by T.W., the following, less 

confusing, testimony from the clinical manager at a Madison mental health center:

[T.W.] informed me that he was told by a television

commercial that he could not take medication, and I

clarified that with him as to whether it was an

advertisement that is frequently on television saying here is 

this medication and it is wonderful and you have all of 

these potential side effects. He said, no, it was a 

commercial that specifically spoke to him telling him not to

take medication because it was going to kill him. 

T.W. does not even begin to explain how it could have been clearly erroneous for 

the circuit court to overrule a hearsay objection to the expert’s testimony when he 

raises no concern at all about the same information being related to the jury, much 
No. 2020AP1908

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more clearly, by the clinical manager. Further, given the testimony of the clinical 

manager, any error in admitting the expert’s testimony would have to be harmless. 

¶43 Similarly, the substance of the second objected-to testimony by Dr. 

Schedgick was admitted without objection by T.W., through testimony by the 

caregiver at the Madison group home, the case manager at the group home, an 

officer who responded to the incident at the group home, and the clinical manager 

at the Madison mental health center. The clinical manager specifically testified, 

without objection, that T.W. “freely admitted” that he had been violent toward

staff. 

¶44 As with the issues above, if T.W. intends to argue that the circuit 

court committed plain error in allowing particular testimony that the court should 

have recognized constituted hearsay, he fails to develop an argument based on 

pertinent legal principles as applied to specific references to the record, as opposed 

to mere generalities.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE 

809.23(1)(b)4.