v. Randy L. Johnson

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.
February 21, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP394 Cir. Ct. No. 2023CV20

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

PETITIONER,

PETITIONER-RESPONDENT,

V.

RANDY L. JOHNSON,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Barron County:
JAMES C. BABLER, 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. Randy Johnson appeals from an order granting the
Petitioner a four-year domestic abuse injunction. He challenges the denial of his
No. 2023AP394

motion to dismiss the petition and to vacate a temporary restraining order (TRO),
as well as the issuance of the injunction.1 We affirm.

BACKGROUND

¶2 According to the petition, after the Petitioner moved out of
Johnson’s house, Johnson “continuously harassed, verbally abused, and
threatened” the Petitioner multiple times over the ensuing seven months. In one
message, which the Petitioner took to the police, Johnson threatened to show up at
the Petitioner’s residence or place of employment. In addition to sending the
Petitioner messages, texts, and mail after she asked him to leave her alone,
Johnson told the Petitioner in reference to another ex-girlfriend that he “shot that
bitch, threw her in the lake[.] She would be dead, I would just do time.” The
Petitioner further alleged that she greatly feared Johnson and was always on alert
for him when out shopping, at work, or at home.

¶3 In response to the petition, the circuit court issued an ex parte TRO.
Johnson moved to dismiss the petition and to vacate the TRO, asserting that the
facts alleged in the petition were insufficient to establish grounds for relief.
Specifically, Johnson argued that the alleged facts did not establish that he was a
current household member of the Petitioner; that he had engaged in any of the six
types of domestic abuse specified in WIS. STAT. § 813.12(1)(am) (2021-22);2 or

1
We note that Johnson did not file a reply brief, which this court may construe as a
concession to any arguments raised in the respondent’s brief. We have nonetheless chosen to
address the merits of Johnson’s appellate issues.
2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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that he represented a “potential danger posed to the [P]etitioner” under
§ 813.12(3)(aj) and (4)(aj).

¶4 At a hearing on the motion to dismiss the petition and to vacate the
TRO, the circuit court first noted that the domestic abuse statute also applied to an
individual with whom the Petitioner had a prior dating relationship, which the
Petitioner had alleged by checking a box on the petition. See WIS. STAT.
§ 813.12(1)(am). The court then observed that Wisconsin is a notice pleading
state, and it concluded that the Petitioner’s general allegations that Johnson had
made threats against her and that she was afraid of him were sufficient to sustain
the TRO and survive the motion to dismiss.

¶5 At the bench trial, the Petitioner testified that Johnson had sent her
messages stating that he knew where she lived and worked; that he would find her;
that people like her “need to be exterminated”; that she “need[ed] to die”; and also
questioning whether there was “[a]ny real reason why [he] shouldn’t want to beat
the shit out of [her].” The Petitioner also said that Johnson repeatedly called her
names such as “fucking cunt,” “fucking bitch,” and “scum of the earth.”

¶6 The Petitioner further testified that she had previously been in a
live-in relationship with Johnson for seven years. During that time, the Petitioner
stated Johnson had a history of “attacking” her—including incidents in which he
grabbed and dragged her out of the house, pressed his knee to her chest, grabbed
her around the neck, and pulled his vehicle in front of hers in traffic as she was
trying to leave.

¶7 Johnson took the stand and denied that he had ever physically
harmed the Petitioner. He acknowledged sending the messages in which he told
the Petitioner that people like her need to be exterminated and questioning why he

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should not “beat the shit out of” her. He asserted that the primary reasons he had
sent the messages to the Petitioner were to recover money the Petitioner owed him
and to arrange the return of his belongings. Johnson said that he had never
intended to harm or threaten the Petitioner, only to express his anger at how she
had treated him. He noted that he had never made any actual contact with the
Petitioner after she moved out.

¶8 Johnson also introduced two exhibits in which he had handwritten
the content of about forty texts he claimed the Petitioner had sent him in response
to texts he had sent her. These texts ranged from two to eight words, including
such phrases as “[l]eave us all alone,” “move on,” “leave me alone,” “[a]ll your
messages I never read,” “you threaten me,” “you threatened me for the last time,”
and “it has been over 2 months.”

¶9 The circuit court found the Petitioner’s testimony regarding prior
physical abuse to be more credible than Johnson’s testimony, and it concluded that
the Petitioner’s testimony along with Johnson’s admission that he asked the
Petitioner if there was reason he should not “beat the shit out of” her were
sufficient to establish grounds for the injunction. The court entered a four-year
injunction. Johnson appeals, challenging the denial of his motion to dismiss the
petition and to vacate the TRO and the entry of the domestic abuse injunction.

DISCUSSION

I. Motion to Dismiss the Petition

¶10 When reviewing a motion to dismiss, we accept as true all facts
pleaded and reasonable inferences therefrom. Reetz v. Advocate Aurora Health,
Inc., 2022 WI App 59, ¶6, 405 Wis. 2d 298, 983 N.W.2d 669. We will

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independently determine as a question of law whether those facts state a
cognizable claim. Id. A claim should be dismissed only if the plaintiff or
petitioner “cannot recover under any circumstances.” Id. (citation omitted).

¶11 A petition for a domestic abuse injunction must allege facts
sufficient to show that the respondent engaged in, or based upon prior conduct
may engage in, domestic abuse of the petitioner. WIS. STAT. § 813.12(5)(a)3.
Domestic abuse is defined to include intentional infliction of physical pain,
physical injury or illness; intentional impairment of physical condition; sexual
assault; stalking; destruction of property; or threats to do any of those things.
Sec. 813.12(1)(am).

¶12 Johnson contends that the allegations in the petition were insufficient
to show that he had engaged in any of the six enumerated types of domestic abuse.
More specifically, he argues that: (1) the allegation that he “threatened” the
Petitioner did not explicitly state that he threatened her with physical pain or
injury; and (2) the allegations that he “harassed” the Petitioner and threatened to
show up at her residence or place of employment do not meet the definition of
stalking because he had not shared a household with the Petitioner for over six
months.

¶13 Johnson’s argument on the first point fails to take into account
reasonable inferences that may be made from the facts alleged in the petition.
When taken in conjunction with the Petitioner’s asserted fear of Johnson and the
alleged statement Johnson had made about another ex-girlfriend, it is reasonable to
infer that the threats to which the Petitioner referred may have included threats of
physical harm.

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¶14 Johnson’s argument on the second point is based upon a misreading
of the stalking statute. WISCONSIN STAT. § 940.32(2)(a) provides that someone
who “engages in a course of conduct directed at a specific person that would cause
a reasonable person under the same circumstances to suffer serious emotional
distress or to fear bodily injury to or the death of himself or herself or a member of
his or her family or household” is guilty of stalking. The statute does not require
that the stalker be a member of the victim’s household. It merely includes a threat
of harm to a member of the victim’s household as a mode of committing the
offense.

¶15 The allegations that Johnson harassed the Petitioner and threatened
to show up at her residence or place of employment were sufficient to show that
Johnson had engaged in or threatened to engage in stalking. It follows that the
circuit court properly denied the motion to dismiss because the petition alleged
sufficient facts to state a claim that Johnson had engaged in domestic abuse.

II. Motion to Vacate the TRO

¶16 Johnson next argues that the petition failed to provide grounds for
the TRO because it did not allege sufficient facts from which the circuit court
could conclude that there was “potential danger posed to the petitioner” under
WIS. STAT. § 813.12(3)(aj). That statute provides:

In determining whether to issue a temporary restraining
order, the judge or circuit court commissioner shall
consider the potential danger posed to the petitioner and the
pattern of abusive conduct of the respondent but may not
base his or her decision solely on the length of time since
the last domestic abuse or the length of time since the
relationship ended.

Id.

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¶17 Johnson does not explain why a challenge to the TRO would not
now be moot, given that the TRO was superseded by the domestic abuse
injunction and is no longer in effect. See generally Portage County v. J.W.K.,
2019 WI 54, ¶11, 386 Wis. 2d 672, 927 N.W.2d 509 (holding an issue is moot
when its resolution will have no practical effect on the underlying controversy). In
any event, we have already explained why the facts alleged in the petition were
sufficient to show that Johnson had engaged in domestic abuse of the Petitioner.
The circuit court could reasonably determine that such abuse also posed potential
danger to the Petitioner.

III. Domestic Abuse Injunction

¶18 The determination of whether proper grounds exist for issuing an
injunction is a mixed question of fact and law. We will not set aside the factual
findings of the circuit court unless they are clearly erroneous. See WIS. STAT.
§ 805.17(2). In addition, because the court is in the best position to observe
witness demeanor and to gauge the persuasiveness of testimony, it is the “ultimate
arbiter” for credibility determinations when acting as a fact finder, and we will
defer to its resolution of discrepancies or disputes in the testimony and its
determinations of what weight to give to particular testimony. Johnson v. Merta,
95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980); see also § 805.17(2). We will
draw an independent conclusion, however, as to whether the established facts
fulfill the legal standards for abuse necessary to support an injunction. M.Q. v.
Z.Q., 152 Wis. 2d 701, 708, 449 N.W.2d 75 (Ct. App. 1989).

¶19 Here, Johnson first asserts that the Petitioner’s testimony was not
credible because she claimed in the petition: “I asked him in early messages to
leave me alone. I have since not responded.” Johnson contends this assertion

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No. 2023AP394

conflicted with Johnson’s texts exhibits and the Petitioner’s own
acknowledgement at trial that she had sent multiple short responses to messages
Johnson sent her. Johnson’s argument is unpersuasive.

¶20 First, the circuit court was free to find the Petitioner’s testimony
credible regarding past physical abuse, even if it did not find her testimony fully
credible regarding how often she responded to Johnson’s texts. Second, any
impeachment value of the discrepancy regarding the Petitioner’s responses to
Johnson’s texts was limited.

¶21 The content of the texts Johnson asserted that the Petitioner sent him
was entirely consistent with the Petitioner’s assertion that Johnson sent her
threatening texts after she asked him to leave her alone. The brevity of the texts
was also generally consistent with the Petitioner’s assertion that she did not
“respond” to Johnson’s messages, in the sense that she did not engage in any
protracted dialogue with him.

¶22 Johnson next contends that the circuit court failed to demonstrate a
“process of reasoning” in reaching its conclusion. As we noted above, however,
this court independently determines whether the established facts fulfill the legal
standard required to obtain an injunction.

¶23 The incidents in which Johnson grabbed the Petitioner and dragged
her out of the house, pressed his knee to her chest, and grabbed her around the
neck involved the intentional infliction of physical pain or injury. The texts
Johnson sent the Petitioner saying that people like her need to be exterminated and
questioning why he should not “beat the shit out of” her involved veiled threats of
future infliction of pain or injury and constituted harassment within the meaning of

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the stalking statute. Therefore, the evidence provided reasonable grounds to
believe that Johnson engaged in, or would engage in, domestic abuse.

By the Court.—Order affirmed.

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

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