v. Sammy Baxter

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.
October 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP2044 Cir. Ct. No. 2018CV2374

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PETITIONER,

PETITIONER-APPELLANT,

V.

SAMMY BAXTER,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
JILL J. KAROFSKY, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, 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. 2018AP2044

¶1 PER CURIAM. A petitioner requesting a domestic abuse
injunction appeals the circuit court’s denial of the petition based on the petitioner’s
failure to meet his burden of proof. We do not identify the petitioner by name in
light of the nature of the allegations, but refer to him as “the petitioner.” We reject
the single argument made by the petitioner on appeal.

¶2 On September 4, 2018, the petitioner filed a petition seeking a
temporary restraining order against Sammy Baxter and the scheduling of an
injunction hearing pursuant to WIS. STAT. § 813.12(2), (5)(a).1 The allegations in
the petition included that Baxter and the petitioner were in a domestic relationship
and that the petitioner was in imminent danger of physical harm. The court
commissioner entered a temporary restraining order and scheduled an injunction
hearing before the circuit court.

¶3 As scheduled, on September 5, 2018, the circuit court heard
evidence from five witnesses, including the petitioner and Baxter, and rendered a
decision denying an injunction against Baxter.2

¶4 Pertinent to the issue raised on appeal, one recurring theme of the
petitioner’s allegations (not necessarily credited by the circuit court) was that
Baxter on multiple occasions had told the petitioner that she was going to hurt
herself, and that Baxter used such threats as means to intimidate and manipulate
him, including to coerce him into engaging in sexual activity with her. In one of

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
At the same hearing the court also resolved a separate petition for an injunction. We do
not address the separate petition further in this opinion but, instead, limit our discussion to the
arguments the parties now make regarding denial of the instant petition.

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No. 2018AP2044

many examples of his testimony on this theme, the petitioner testified that in July
2017 he did not want to have contact with Baxter “because she was unpredictable;
and if things stopped going her way, she would try to commit suicide or she would
harm herself.”

¶5 At the conclusion of the hearing, the circuit court determined that the
petitioner had failed to meet his burden of proof to merit an injunction. The court
declined to make a finding about whether Baxter had talked to the petitioner about
hurting herself. Instead, the court analyzed the case based on the assumption that
Baxter had talked about hurting herself, but found that these assumed self-harm
statements would not have involved her threatening or manipulating the petitioner.

¶6 The circuit court made a broad point that could at least be interpreted
as the following proposition: if one person coerces another person into
participating in sexual intercourse or sexual contact by use of a threat to harm him
or herself, this could not fall within the “domestic abuse” definition of a violation
of or a threat to violate WIS. STAT. § 940.225(1), (2) or (3), which are first, second,
and third degree sexual assault. See WIS. STAT. § 813.12(1)(am)3., 6. We
question this proposition based on the key concept of consent in the sexual assault
context. However, we need not analyze the point because the court proceeded to
make a finding that “what kept coming up through the testimony was not that Ms.
Baxter was threatening [the petitioner],” only that “she was going to hurt herself.”
All Baxter did in this regard was to tell petitioner “that she was hurting herself and
that she was threatening suicide.” The court noted that “there was other evidence
that was introduced about [Baxter’s] behavior,” but that the thrust of the credible
evidence involved only these statements that she was hurting herself or would hurt
herself, not accompanied by threats amounting to “domestic abuse.”

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No. 2018AP2044

¶7 The petitioner acknowledges, as he must, that the ultimate decision
whether to grant an injunction is a matter for circuit court discretion. Our review
“ultimately is limited to whether that discretion was properly exercised.” Welytok
v. Ziolkowski, 2008 WI App 67, ¶23, 312 Wis. 2d 435, 752 N.W.2d 359; see also
Forest Cty. v. Goode, 215 Wis. 2d 218, 225, 572 N.W.2d 131 (Ct. App. 1997)
(“Normally, injunctive relief is ordered in the discretion of the trial court, and this
court will not change the trial court’s decision unless it is an erroneous exercise of
discretion.”). A circuit court’s discretionary determination will be affirmed where
it is “demonstrably made and [is] based upon the facts appearing in the record and
in reliance on the appropriate and applicable law.” Sunnyside Feed Co. v. City of
Portage, 222 Wis. 2d 461, 468, 588 N.W.2d 278 (Ct. App. 1998). Moreover,
“[f]indings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.” WIS. STAT. § 805.17(2).

¶8 The petitioner argues that the court erroneously concluded that
threats of self-harm in general cannot constitute coercive conduct so as to qualify
as sexual assault. As noted above, we believe that this point in itself may well
have merit. However, he fails to persuade us that the court clearly erred in finding
that the evidence showed, at most, only that Baxter had talked of self-harm or
potential self-harm, without threatening or manipulating the petitioner in any act
of “domestic abuse.”

¶9 The petitioner argues that the court “did not exercise a sound
reasoning process” because the court could have reasonably credited evidence
that, at various times, Baxter: bit him; picked up and dropped his laptop; and
poured soda over food or in a food preparation area. The petitioner’s argument is
deficient in multiple respects, each deficiency compounding others.

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No. 2018AP2044

¶10 First, he fails to provide citations for a number of references
purportedly based on evidence presented at the hearing, and we will not abandon
our neutral role to comb the record on his behalf.

¶11 Second, even when the petitioner does properly cite to the record, he
frequently points to testimony that the circuit court was not obligated to credit,
appearing not to understand the circuit court’s critical role in determining
credibility.

¶12 Third, he appears to operate from the false premise that any conduct
that could support an injunction, because the conduct could satisfy one of the WIS.
STAT. § 813.12(1)(am) standards, must result in an injunction. This premise turns
the discretionary standard on its head and ignores a critical word in § 813.12(4):
“A judge … may grant an injunction ….” (Emphasis added.)

¶13 We deny Baxter’s motion for attorneys’ fees pursuant to WIS. STAT.
§ 809.25(3). While the petitioner makes some frivolous arguments, we are not
persuaded that all arguments advanced by petitioner on appeal are wholly
frivolous. See Baumeister v. Automated Products, Inc., 2004 WI 148, ¶26, 277
Wis. 2d 21, 690 N.W.2d 1.

By the Court.—Order affirmed.

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

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