State v. Jason B. Helmeid

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.
April 4, 2023
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. 2021AP2003-CR Cir. Ct. No. 2005CF13

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON B. HELMEID,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Pepin County:
THOMAS W. CLARK, 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).

¶1 PER CURIAM. Jason B. Helmeid appeals from a circuit court
order revoking his conditional release from the custody of the Department of
No. 2021AP2003-CR

Health Services (the department) and returning him to institutional care. Helmeid
argues that the State failed to meet its burden to prove either that he had violated
any rule or condition of his conditional release or that “the safety of [himself] or
others requires that conditional release be revoked.” See WIS. STAT.
§ 971.17(3)(e) (2021-22).1 We conclude that the evidence the State presented at
Helmeid’s revocation hearing was sufficient to support revocation of Helmeid’s
conditional release. Accordingly, we affirm.

BACKGROUND

¶2 In 2005, the State charged Helmeid in a criminal complaint with two
counts of second-degree sexual assault of a child under sixteen years of age. The
complaint alleged that the fifteen-year-old victim was visiting her friend’s home
when Helmeid trapped her in the bathroom, held her hands behind her back,
touched her breasts over her clothing, and then put his hand inside her pants and
touched her vaginal area. The victim was “scared” and tried to get away from
Helmeid. Eventually, the victim began kicking the washer and dryer located in the
bathroom, and the owner of the home used a key to enter the bathroom and told
Helmeid to “get out.” A few months later, the victim was again visiting her friend,
and Helmeid approached her outside the home and touched her breasts, buttocks,
and vagina before “rubbing his penis against [the victim’s] body.” Law
enforcement was subsequently contacted.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted. We note that a portion of WIS. STAT. § 971.17 has been amended since the State filed its
petition to revoke Helmeid’s conditional release. See 2021 Wis. Act 131, § 53. Because the
amendments do not impact the sections of the statute at issue in this case, however, we will cite to
the 2021-22 version of the statute.

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¶3 Helmeid pled not guilty by reason of mental disease or defect (NGI)
to one count of second-degree sexual assault of a child. As to the second count,
Helmeid pled guilty to an amended charge of fourth-degree sexual assault, a
misdemeanor. Helmeid was committed to the custody of the department for a
period of twenty-five years. In 2006, the circuit court ordered Helmeid’s
conditional release, as well as two years of probation on the misdemeanor
conviction.

¶4 Since that time, Helmeid’s conditional release has been revoked and
reinstated multiple times. On May 25, 2021, the department filed a statement of
probable cause for detention and petition for revocation of conditional release with
the circuit court, which is the operative petition for the purpose of this appeal.2
That petition alleged the following:

On or around 5/14/21, Jason Helmeid made lewd sexual
comments towards [a] female who clearly appeared
underage. This behavior is in violation of CSPR003 and 4
of the Rules of Supervision signed by him.

On or about 5/14/21, Jason Helmeid did get into a
physical altercation at the Stable Living Group Home. This
behavior is in violation of CSPR003 signed by him.

On or about 5/18/21, Jason Helmeid did urinate in the
juice for the group home and placed it back in the
refrigerator. This behavior is in violation of CSPR003 of
the Rules of Supervision signed by him.

On or about 5/18/21, Jason Helmeid rubbed a piece of
pizza on his genitals and fed it to another resident of the
group home. This behavior is in violation of CSPR003 of
the Rules of Supervision signed by him.

2
The operative conditional release order was issued on February 4, 2019, and amended
on March 27, 2020, to remove some privileges and impose additional monitoring and treatment.

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No. 2021AP2003-CR

Since on or before 5/18/21, Jason Helmeid has been
abusive towards his dog. This behavior is in violation of
CSPR003 of the Rules of Supervision signed by him.

¶5 The circuit court held a hearing on the petition on August 2 and 3,
2021. On the first day, the State called Sherfeng Vue—Helmeid’s case manager,
who works for Lutheran Social Services on behalf of the department. Vue
testified that he helps “supervise [Helmeid’s] conditions that [have] been set by
the [c]ourt to make sure he follows his conditions and connect and support him out
in the community.” Vue had filed a supplement to the State’s petition “in support
of [his] belief” and the department’s belief that “Helmeid has violated the terms of
his conditional release, that his conditional release should be revoked[,] and [that]
he should be returned to the institution at Winnebago.” However, when it became
apparent that Vue had not personally observed any of Helmeid’s alleged
violations, the court adjourned the hearing so the State could call the appropriate
witnesses to testify.

¶6 The hearing continued the next day, and the State called
Zachary Argo—the house manager at Stable Living, where Helmeid was residing
before revocation of his release. Argo explained that his role is to ensure that the
residents of the facility adhere to their rules of supervision, to report any behavior
outside of those rules or any misconduct, to make sure they take their medications,
to transport them to appointments, and to otherwise assist with their daily tasks. If
a resident violates his rules of supervision, Argo creates an incident report and
sends that report to the individual’s case manager and probation and parole officer.

¶7 Argo testified about the alleged rule violations Helmeid committed.
First, Argo recounted that on one occasion, he, Helmeid, and the other two
residents of Stable Living were driving to an appointment when Helmeid made

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“lewd comments” about two “visually underage girls.” According to Argo, the
girls appeared to be “10-year olds,” and when Helmeid saw them he stated, “I
want to get me some of that,” which was clearly “alluding to … a sexual thing.”
Argo responded by stating “that’s just not right … that’s unacceptable.”
Helmeid’s “housemates even chimed in and were like, why would you say that?”
Helmeid grew argumentative, explaining that “nobody should tell me what I can
say” and that the girls were “not underage.”

¶8 On another occasion, Argo and Helmeid were in the car when they
passed a “young girl with her mom,” and Helmeid stated, “[D]amn, she’s sexy”
and then added that she had “a nice back end.” Argo responded, “[T]hat’s literally
a 12-year-old, [Helmeid]; what the fuck are you saying?” Helmeid again became
argumentative, stating that “it’s nobody’s business but mine who I’m looking at.”

¶9 Argo further reported that he “repeatedly” saw Helmeid try to get
into “physical altercations” with his fellow housemates. And it was reported to
Argo, as the house manager, that Helmeid got into a physical altercation with
another Stable Living staff member. According to Argo, he received a call
reporting that the staff member discovered that Helmeid was urinating into apple
juice bottles and trying to make a housemate drink it, but when the staff member
questioned Helmeid about it, Helmeid attempted to attack the housemate and
began “pushing” the staff member. Argo arrived at Stable Living to find Helmeid
sitting next to the housemate “laughing hysterically,” and when Argo asked
Helmeid why he was laughing, he admitted that the housemate “just drank my
urine.” Helmeid continued, “I have been peeing in the bottles and feeding it to
him.” Helmeid also told Argo that “he had been taking and wiping the other
resident’s pizza in between his butt cheeks and his balls and then feeding [it] to the
resident.”

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No. 2021AP2003-CR

¶10 During closing arguments, the prosecutor argued for revocation of
Helmeid’s conditional release. The prosecutor observed that Helmeid was
committed to the department’s care based on an NGI plea to a charge of
second-degree sexual assault of a child. As a result, and due to Helmeid’s
continued “lack of insight regarding the appropriateness of having sexual thoughts
about underage girls,” the prosecutor reasoned that Helmeid “is not in a condition
that is going to assure public safety if he is allowed to remain in the community.”
The prosecutor also argued that Helmeid’s acts of feeding his housemates urine
and pizza that Helmeid rubbed on his buttocks and genitals supported the
conclusion that “Helmeid’s adjustment to living in the community has not been
successful to this point.” According to the prosecutor, these acts not only posed “a
danger” to the affected housemates, but they also showed that “Helmeid’s criminal
thinking has not changed.”

¶11 The circuit court first addressed the allegations that Helmeid made
sexual comments about young girls. The court found that it would accept Argo’s
testimony that “these were clearly underage females around 10 years old.” The
court noted that the comments Helmeid made about the young girls violated his
conditional release rules. The court then addressed Helmeid’s reaction when he
was confronted about the comments, observing that Helmeid’s comments
evidenced a “clear lack of progress” toward successfully adjusting to conditional
release. Given that lack of progress, the court expressed a “concern about the
safety of the public.” Accordingly, the court determined that the comments both
violated Helmeid’s rules of supervision and “show[ed] a concern for the safety of
others.”

¶12 Further, the circuit court found that urinating into bottles to have his
housemate drink the urine “clearly is a safety concern.” According to the court,

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No. 2021AP2003-CR

“deceiving [a] fellow resident into drinking urine could certainly have [an] impact
on their health and would also be a violation of [Helmeid’s] behavioral rules.”
The court also addressed Argo’s testimony that Helmeid engaged in physical
altercations with both staff and fellow residents, concluding that this behavior
“would also be a threat to the safety of others at Stable Living.” The court
concluded that the State had met its burden and revoked Helmeid’s conditional
release. Helmeid appeals.

DISCUSSION

¶13 A defendant who has been adjudicated NGI is committed to the
department for a specified period. WIS. STAT. § 971.17(1). As part of this
commitment, the circuit court must determine whether either institutional care or
conditional release is warranted. Sec. 971.17(3)(a). If the court places a
defendant in institutional care, he or she may later petition for conditional release
after six months. Sec. 971.17(4)(a). “If the court finds that the person is
appropriate for conditional release,” then the department will “prepare a plan that
identifies the treatment and services, if any, that the person will receive in the
community.” Sec. 971.17(4)(e)1. A conditionally released individual “is subject
to the conditions set by the court and to the rules of the department of health
services.” Sec. 971.17(3)(e).

¶14 Relevant to this appeal, the department may revoke an NGI
committee’s conditional release pursuant to WIS. STAT. § 971.17(3)(e). Under that
paragraph, “[i]f the department of health services alleges that a released person has
violated any condition or rule, or that the safety of the person or others requires
that conditional release be revoked, he or she may be taken into custody under the
rules of the department.” Id. At the revocation hearing, the State “has the burden

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No. 2021AP2003-CR

of proving by clear and convincing evidence that any rule or condition of release
has been violated, or that the safety of the person or others requires that
conditional release be revoked.” Id. If the court determines that the State met its
burden, then it may revoke the order for conditional release and order placement in
institutional care. Id.

¶15 In this case, Helmeid argues that the State failed to meet its burden
of proving by clear and convincing evidence that he either violated a rule or
condition of his conditional release (the rule violation ground) or “that the safety
of the person or others requires that conditional release be revoked” (the safety
ground). See id. For the reasons that follow, we disagree.

¶16 First, Helmeid questions the appropriate standard of review we are to
apply in this case. He claims that “[t]he Wisconsin courts have not addressed the
proper standard for reviewing a circuit court’s decision to revoke conditional
release under WIS. STAT. § 971.17(3)(e).” Nevertheless, he claims “that the most
appropriate standard” is the standard applied in Langlade County v. D.J.W., 2020
WI 41, ¶¶23-25, 391 Wis. 2d 231, 942 N.W.2d 277, which states that we are to
review the court’s decision on a mental commitment as a mixed question of fact
and law. Although the State disagrees that our courts have not addressed this
issue—citing State v. Jefferson, 163 Wis. 2d 332, 338, 471 N.W.2d 274 (Ct. App.
1991)—the State agrees that when reviewing a decision revoking an NGI
committee’s conditional release under WIS. STAT. § 971.17(3)(e), we are to accept
the court’s findings of fact unless clearly erroneous. Jefferson, 163 Wis. 2d at
338. However, the court’s “application of those facts to the law, such as
recommitment for dangerousness … is a question of law which appellate courts
review independently from the [circuit] courts.” Id. We conclude that the parties

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No. 2021AP2003-CR

have agreed on the appropriate standard, and we will apply that standard to this
case.

¶17 Next, Helmeid argues that the State failed to meet its burden to
prove the rule violation ground of WIS. STAT. § 971.17(3)(e) because Helmeid’s
actual rules and conditions of his conditional release were never introduced into
evidence at the revocation hearing. The State concedes this fact on appeal and
“does not argue that there was sufficient evidence to establish that Helmeid
violated his rules or conditions of release.” We agree that the State did not meet
its burden to prove the rule violation ground in this case, and we therefore will
address this ground no further.3

¶18 On the safety ground, Helmeid first claims that the State’s petition
did not allege the safety ground as a basis to revoke his conditional release. Citing
State v. Mahone, 127 Wis. 2d 364, 370, 379 N.W.2d 878 (Ct. App. 1985),
Helmeid argues that there are certain procedural due process guarantees provided
to NGI committees. He claims that the “[m]ost relevant here is the second on the
Mahone list, that the person be given ‘written notice of the claimed violation.’”
See id. According to Helmeid, “[t]he State did not allege that ‘the safety of

3
We pause here to note that some of Helmeid’s arguments on appeal—indeed, perhaps
even the entire appeal—could have been avoided if the State had properly presented its case
before the circuit court. The State’s pleadings and proof with regard to its petition to revoke
Helmeid’s conditional release were poorly crafted and incomplete. Just like a commitment under
WIS. STAT. ch. 51, there are “important liberty interest[s] at stake” for NGI committees. See
Langlade County v. D.J.W., 2020 WI 41, ¶43, 391 Wis. 2d 231, 942 N.W.2d 277. “Freedom
from physical restraint is a fundamental right that ‘has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action.’” Id., ¶42 (citations
omitted). Thus, hearings and the procedures used to revoke conditional release “cannot be
perfunctory under the law. Attention to detail is important.” See Outagamie County v.
Melanie L., 2013 WI 67, ¶94, 349 Wis. 2d 148, 833 N.W.2d 607 (discussing involuntary
medication orders).

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No. 2021AP2003-CR

[Helmeid] or others requires that conditional release be revoked.’” Instead, he
argues, “[t]he State only alleged that Helmeid had violated various rules of
supervision.” Thus, given that the safety ground served as a basis for the circuit
court’s decision to revoke his conditional release, Helmeid claims his due process
rights were violated.

¶19 In response, the State argues that Vue’s supplement to the petition
for revocation “plainly alleged dangerousness,” and, therefore, Helmeid’s
argument on this point fails.4 As noted above, Vue filed a Conditional Release
Adjustment Summary for Helmeid (Vue’s supplement) on June 9, 2021, and
copies were sent to all interested parties.5 Vue’s supplement recounted Helmeid’s
most recent rule violations and noted that “Helmeid has struggled with his mental
health and sexual thoughts and behaviors.” Vue explained that Helmeid’s
treatment team took steps to help Helmeid succeed on conditional release—
including “increased engagement in sex offender treatment, increased supervision
levels at the group home, removal of independent community time privileges,
prior approval for visits from relatives and removal of his vehicle at the group
home”—but he noted that those “interventions” “have not been successful in the
community.” Vue concluded by stating, “Due to Mr. Helmeid’s recent behaviors,
the treatment team believes that if he remains in the community, there is the

4
We question whether Helmeid forfeited this notice issue. Our review of the record on
appeal does not reveal that Helmeid raised this issue before the circuit court at the hearing, and
the parties’ arguments before this court do not otherwise suggest that this issue was presented to
the circuit court. See Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10-11, 261 Wis. 2d 769,
661 N.W.2d 476. Nevertheless, the State does not argue forfeiture before us; therefore, we will
address the merits of the notice issue.
5
We note that Vue also testified at the hearing, Vue’s supplement was referenced during
his testimony, and the parties both addressed it in their respective arguments before the circuit
court.

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No. 2021AP2003-CR

potential serious risk to his own personal safety and to the safety of other residents
and the community.”

¶20 We agree that Helmeid was provided with sufficient notice that the
State intended to proceed under the safety ground. First, we agree with the State
that Vue’s supplement plainly alleged dangerousness. Second, Helmeid’s counsel
obviously read Vue’s supplement—which contained information in support of a
finding that Helmeid violated the safety ground and not just his conditional release
rules—because he referenced Vue’s statements in his closing remarks. Third, the
State’s standard form petition clearly referenced WIS. STAT. § 971.17(3)(e), and it
stated the specific facts the State planned to present in support of its request for
revocation. Under these circumstances, the State provided “written notice of the
claimed violation.” See Mahone, 127 Wis. 2d at 370. The facts alleged in the
petition supported revocation on the safety ground, not just the rule violation
ground.

¶21 Finally, Helmeid fails to explain how his due process rights were
affected by any lack of specificity in the State’s petition. For example, he does not
make any claim that he was unprepared or would have offered different or
additional proof if he had been provided with a clearer statement that the State
intended to prove the safety ground using the same facts alleged. The statute is
clear that conditional release can be revoked based upon either a rule violation or
if the safety of Helmeid or others requires it. The State’s petition, as well as Vue’s
supplement, clearly notified Helmeid of what the State intended to prove.
Helmeid’s due process rights were not violated.

¶22 Finally, Helmeid argues that the State failed to introduce sufficient
evidence on the safety ground to support a finding that his conditional release

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No. 2021AP2003-CR

should be revoked. He first claims that “Wisconsin courts have not had occasion
to address the meaning of the phrase ‘the safety of the person or others’ in WIS.
STAT. § 971.17(3)(e).” He suggests that it should mirror the standard for denying
conditional release. Accordingly, he claims:

the [circuit] court may consider, without limitation because
of enumeration, the nature and circumstances of the crime,
the person’s mental history and present mental condition,
where the person will live, how the person will support
himself or herself, what arrangements are available to
ensure that the person has access to and will take necessary
medication, and what arrangements are possible for
treatment beyond medication.

See § 971.17(3)(a), (4)(d). Further, he argues that the court should then also
consider whether there is a “significant risk of bodily harm to [the person] or
others” if conditional release is not revoked, compare § 971.17(3)(a), (4)(d), with
§ 971.17(3)(e), asserting that “[t]here is no rational reason to apply different
standards for denying and revoking conditional release.”

¶23 The State agrees with Helmeid that WIS. STAT. § 971.17(3)(e) “does
not specify the factors relevant to the [circuit] court’s dangerousness
determination” but that “other provisions within … § 971.17 fill in the gaps.” It
also agrees that the factors enumerated under § 971.17(3)(a) and (4)(d) are
relevant considerations. The State does not agree, however, with Helmeid’s
contention that the “safety of the person or others” under § 971.17(3)(e) is the
same as the “significant risk of bodily harm” standard contained in other parts of
the statute. As the State argues, the plain language of § 917.17(3)(a) and (4)(d)
clearly provide that the “significant risk of bodily harm” standard applies when
determining whether to grant conditional release; however, the standard for
revoking conditional release under § 971.17(3)(e) considers only “the safety of the
person or others.”

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¶24 We conclude that we need not decide which is the proper standard
because the State has met its burden of proof under either standard. First, Helmeid
repeatedly expressed sexual interest in, and sexual objectification of, pre-teen
girls. Helmeid’s initial convictions—and the reason for his commitment—were
for sexual offenses against a fifteen-year-old child. We conclude that the circuit
court reasonably considered Helmeid’s criminal history of forcible sexual contact
with a child in finding that his subsequent lewd comments toward young girls
were evidence of the significant risk of bodily harm he continued to pose to others.

¶25 Further, when Helmeid was confronted about his comments by both
of his housemates and Argo, he was argumentative, stating that his sexual thoughts
about children were “nobody’s business.” He then argued that the girls were “not
underage.” We agree with the State that Helmeid’s response is “particularly
concerning” because it “shows that Helmeid is well aware that his sexual
objectification of children is wrong. Yet he continues to do so and refuses to
acknowledge the impropriety of his actions.” See State v. Randall, 2011 WI App
102, ¶¶25-29, 336 Wis. 2d 399, 802 N.W.2d 194 (explaining that Randall had
refused to take responsibility for repeated rule violations and concluding that
“Randall’s devious, secretive and intentional rule-breaking behavior, similar to his
behavior at the time of his crimes, demonstrates that he continues to be
dangerous”).

¶26 Helmeid’s arguments in response are unpersuasive. Helmeid
contends that that State failed to show that he would act on his “articulation of
pedophilic interests.” However, the State was not required to do so. See State v.
Burris, 2004 WI 91, ¶72, 273 Wis. 2d 294, 682 N.W.2d 812 (“A court is not
forced to wait until overtly dangerous acts have been committed; it is not required
to ignore indications that a sexually violent person has disregarded the rules

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No. 2021AP2003-CR

repeatedly in the past and will do so in the future.”). Further, Helmeid suggests
that the girls were not, in fact, underage or that it was unclear whether Helmeid
was talking about the mother or the daughter in his second remarks. However, the
circuit court’s finding that Helmeid had referenced underage females in making
the sexual comments was not clearly erroneous. Helmeid does not present an
argument to the contrary.

¶27 Next, the State presented evidence that Helmeid engaged in
dangerous acts of physical aggression while on conditional release. For example,
Argo testified that he “repeatedly” saw Helmeid try to instigate “physical
altercations with the other resident[s] all the time.” Further, Argo explained that
when a Stable Living staff member questioned Helmeid about urinating into his
housemate’s apple juice, Helmeid attempted to physically attack the housemate
and then pushed the staff member who “tried to get in the way of him attacking
this other resident.” According to Helmeid, this incident—while also being based
on hearsay evidence—is “too isolated and innocuous to be the basis for the
conclusion that he posed a ‘significant risk of bodily injury.’” But the circuit court
found credible Argo’s testimony that he repeatedly saw Helmeid try to get into
physical altercations with his fellow housemates, which clearly posed a significant
risk of bodily injury to those individuals.

¶28 Finally, the State presented evidence that Helmeid engaged in acts
likely to negatively impact his housemates’ health. As noted, the evidence
revealed that Helmeid had been “peeing in apple juice bottles and feeding it to” his
housemate, which Helmeid admitted to Argo while “laughing hysterically.”
Helmeid also admitted to “taking and wiping the other resident’s pizza in between
his butt cheeks and his balls and then feeding [it] to the resident.” Helmeid argues
that these acts are best characterized as “juvenile” and “sophomoric pranks” and

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No. 2021AP2003-CR

that “there was no evidence that they rose to the level of a ‘significant risk of
bodily injury.’” He explained that “[a]t most [these acts] demonstrated an
immature sense of humor, not a reason to confine a person to a mental institution.”
However, we agree with the circuit court’s finding that this behavior was “clearly
a safety concern” that “could certainly have [an] impact on [the housemates’]
health.” There is no question that ingesting another person’s fecal matter or urine
could expose the victim to any number of serious health risks.6

¶29 In conclusion, Helmeid’s attempts to minimize the risk he poses to
others and the harm he caused to them are unpersuasive. We disagree that
Helmeid’s behavior could be properly characterized as just a young man playing
pranks on others. Helmeid’s inappropriate sexual comments about young girls,
given his past criminal history and subsequent failure to take responsibility for his
behavior, clearly caused the circuit court to properly conclude that Helmeid posed
a significant risk to others. Helmeid’s “pranks” and physical altercations with
other residents in his group home appropriately led the court to the same
conclusion. We agree with those conclusions. Further, Helmeid’s inability to take
responsibility for his actions, as well as his escalating anger, were suitable
considerations in determining that Helmeid had not adjusted well to life on
conditional release and that his conditional release should be revoked to protect
the community.

6
We note, for the record, that Helmeid also argues that the circuit court “did not consider
any of the relevant statutory factors” under WIS. STAT. § 971.17(3)(a). However, pursuant to the
plain language of the statute, the factors are non-exhaustive and the court may, but it is not
required to, consider those factors. Sec. 971.17(3)(a); see also State v. Klapps, 2021 WI App 5,
¶39 n.10, 395 Wis. 2d 743, 954 N.W.2d 38 (2020); State v. Randall, 2011 WI App 102, ¶16, 336
Wis. 2d 399, 802 N.W.2d 194.

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No. 2021AP2003-CR

By the Court.—Order affirmed.

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

16