State v. I. T. S.

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.
June 17, 2026
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. 2025AP2517 Cir. Ct. No. 2024JV31

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF I.T.S., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

I.T.S.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Sheboygan County:
ANGELA W. SUTKIEWICZ, Judge. Affirmed.
No. 2025AP2517

¶1 GROGAN, J.1 I.T.S. (“Ira”),2 appeals from a dispositional order
entered following a bench trial wherein the court found Ira delinquent. On appeal,
Ira argues the communications in question did not constitute a “true threat” for
purposes of the First Amendment and that even if this court disagrees, the State
failed to establish WIS. STAT. § 947.019(1)(e)’s remaining elements. Having
reviewed the briefs and Record, this court concludes the communication
constituted a “true threat” and that the State carried its burden of establishing
§ 947.019(1)(e)’s remaining elements. Accordingly, the circuit court did not err,
and the dispositional order is affirmed.

I. BACKGROUND

¶2 On March 8, 2024, the State filed a WIS. STAT. ch. 938 delinquency
petition (the Petition) charging Ira, then 15 years old, with one count of making
terrorist threats contrary to WIS. STAT. § 947.019(1)(e) (create risk of causing
result). The following facts are taken from the Petition. On March 5, 2024, Ira
was serving an in-school suspension after a teacher, Ms. P., discovered a nicotine
“vape” in his possession that morning. That afternoon, while checking on Ira and
assisting him with his work, Ms. P. observed multiple notes, one of which
included the phrase “hit list” and identified multiple first names. The notes
included other statements such as “Don’t let the cops see this,” “Don’t open unless
you got permission,” “Me Dom kill trap goal, we got guns knifs,” “plan to drop
trap and spades on spring break when it’s sumer,” “Plan get ride to Sheboygan wi

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.
2
Ira is a pseudonym. See WIS. STAT. RULE 809.86. This court will also use initials for
some individuals instead of full names to keep Ira’s name confidential.

2
No. 2025AP2517

gun and kick door in and start a fight then pull gun out and shoot!!![,]” “7spade
ido not know wtf to do with them bro but we need more guns me you [two
individuals] everyone in the car[,]” and “iilegle writing don’t let no teachers or
cops or opps see this if you do you’re a new opp!!” 3 Based on a prior unrelated
incident involving Ira, the school resource officer (SRO) believed he was the
“Trap” referenced in the notes.

¶3 A Deputy from the Sheboygan County Sheriff’s Department was
dispatched to the high school to investigate. Upon arrival, the Deputy first met
with the SRO and the principal before speaking with Ira. According to the
Petition, Ira told the Deputy “he was bored with being stuck in school suspension
all day so he decided to create a fake plan” wherein he “pretend[ed] he was a
police officer[,]” and he “stuck with” that explanation even after the Deputy
“explained that did not make sense” because “having a hit list and talking about
shooting people … would not be consistent with police officer’s work.”4

¶4 In April 2024, Ira filed a motion to dismiss alleging WIS. STAT.
§ 947.019(1)(e), as applied to him, violates the First Amendment’s Free Speech
Clause5 and article I, section 3 of the Wisconsin Constitution.6 Ira also argued the
3
The spelling errors are reflective of the spelling errors contained in the notes.
4
Per the Petition, the following day, the Deputy received an email from the SRO with
information regarding text messages Ira had purportedly sent in January 2024 to one of the
students named on the “hit list.” One of those messages referenced an incident where the other
student had apparently “look[ed] at” Ira and questioned whether the student was “trying to fight”
with Ira. The student’s mother also provided the SRO with information purportedly from Ira’s
social media account wherein there was “a video of someone holding a firearm out the window of
a moving vehicle with their finger on the trigger.” To the extent supporting evidence was not
introduced at trial, this court does not consider it on appeal.
5
See U.S. CONST. amend. I.
6
Article I, section 3 provides:
(continued)

3
No. 2025AP2517

State had “failed to establish the first element of the charged petition, by not
indicating facts to suggest that a threat was ‘expressed’ or communicated to any
one person.” See § 947.019(1)(e). According to Ira, the Petition failed to identify
any conduct that would rise to the level of a “true threat” for First Amendment
purposes under the totality of the circumstances, thereby rendering the alleged
conduct forming the basis of the charge protected speech. Relying on cases such
as State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, and State
v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, abrogation
recognized by Kindschy v. Aish, 2024 WI 27, ¶14 n.9, 412 Wis. 2d 319,
8 N.W.3d 1, Ira generally asserted neither the Petition nor the evidence established
any of “the alleged victims felt afraid by the threat, nor took any protective or
preventative actions from the alleged threat” and “the victims did not have a
reason to believe” Ira had “a propensity to engage in violence.” 7 He also argued
there was no showing, as required under Counterman v. Colorado, 600 U.S. 66,
79 (2023), that he had “consciously disregard[ed] the substantial and unjustifiable
risk that the threat would cause harm to another.” Thus, he said, in the absence of
a “true threat,” prosecution under § 947.019 was unconstitutional. Ira’s motion to
dismiss also asserted that because he “did not deliver, send, publish, or make
known the contents of these writings to any of the victims nor any individuals”

Every person may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right, and
no laws shall be passed to restrain or abridge the liberty of
speech or of the press. In all criminal prosecutions or
indictments for libel, the truth may be given in evidence, and if it
shall appear to the jury that the matter charged as libelous be
true, and was published with good motives and for justifiable
ends, the party shall be acquitted; and the jury shall have the
right to determine the law and the fact.
7
Ira also referenced the purported January 2024 text exchange and social media posts
described in the Petition.

4
No. 2025AP2517

and because “[t]here was no intent for these writing to be given to anyone[,]” there
was no “listener” for the purposes of § 947.019(1)(e).

¶5 The circuit court held a hearing on the motion. The State argued that
although Ira was asking for dismissal based on “a freedom of speech argument,”
what Ira was actually saying was that the State cannot establish certain elements of
the crime charged. The State believed proving the elements and whether the
writings constituted a “true threat” were questions for trial. The court agreed,
stating “that whether it’s a true threat would be something that is a trial matter”
and that based “on the face of the petition, it appears to be a true threat.” It also
rejected Ira’s free speech argument because he had failed to “ma[ke] the argument
as to how it is protected speech” and had not sufficiently “fleshed out” that
argument. Accordingly, the court denied the motion to dismiss.

¶6 The matter proceeded to a bench trial in October 2024, where six
witnesses testified—three on the State’s behalf and three in Ira’s defense. Ms. P.,
Ira’s special education teacher and the individual who had discovered the writings,
testified first. Ms. P. explained that on the morning of March 5th, another teacher
had contacted her regarding Ira, whom she had been working with in a special
education capacity for approximately six to seven months. After speaking to Ira in
the hallway, Ms. P. “found a vape in his front pocket” and “brought him to the
principal’s office[,]” at which point the principal placed Ira in an in-school
suspension.8 When asked where Ira served the suspension, she described the room
as being “a little room that holds just a desk right next to the principal’s office.”

8
In his appellate brief, Ira seemingly suggests Ms. P. erred by reporting the vape to the
principal and that if she instead had “simply confiscat[ed] the device and allow[ed Ira] to return to
class” this matter could have been avoided entirely.

5
No. 2025AP2517

She also testified Ira did not have a backpack when he went into the suspension
room and that she had provided him with eight-by-eleven-inch paper and a book.

¶7 Ms. P. confirmed she checked on Ira multiple times throughout the
day and that it was during one of the afternoon check-ins that she discovered the
writings, which ultimately led to the Petition being filed. Specifically, Ms. P.
explained she had seen “a piece of paper that had been folded up and stapled
around the edges” with writing “along the lines of -- do not show teachers or cops”
and that the paper had been “sitting on the corner” of Ira’s desk. Ms. P. said she
asked Ira about the paper but that “he just, kind of, played it off,” and therefore
she “did not go any further with” it at that time and left. However, when she
returned around 1:00 p.m. to assist Ira with an assignment, she noticed a drawing
with “the letter I, a heart, and then a marijuana leaf” underneath his desk and
“asked him to give [her] the whole stack of papers that were underneath his desk.”
While looking through those papers, she also discovered a drawing with a gun and
knives.

¶8 After discovering the “I heart marijuana” drawing and the drawing
with the gun and knives, Ms. P. discussed the inappropriateness of them with Ira
and explained that “someone could see them and take that the wrong way or take it
as a threat.”9 Ms. P. testified Ira “kind of, agreed with me that, ‘Yeah, you’re
right. If someone did see that, that could be taken out of context.’” After
continuing to help Ira with his math assessment, Ms. P. “happened to look up
towards the ceiling” and saw “off the edge of the light … the corner of the piece of

9
According to Ms. P., the principal destroyed these specific documents after she turned
them over to him.

6
No. 2025AP2517

paper.” Ms. P. explained that after drawing Ira’s attention to the paper, “he said,
‘Yes, I didn’t want you or [the principal] to see it.’” Ira retrieved the paper from
the light at Ms. P.’s request.

¶9 Ms. P. went on to further describe the notes/drawings she had
discovered. As for the paper that had been folded in a square on the corner of Ira’s
desk, she testified it had been stapled around the edges and that “what caught [her]
attention” was the visible statement about “not show[ing] teachers or cops” and
that it also said, “Don’t open unless you got permission.” The inside, she said,
contained text stating, inter alia, “Plan to drop trap and Z spades on spring break,”
“Don’t let no teachers or cops or O-P-P-S see this if you do, you’re a new O-P-P,”
and “illegal writing.” She also confirmed the note contained multiple spelling
errors.10

¶10 Regarding the note discovered on the light, she explained it had also
been folded into a square and stapled around the edges, but she did not recall
seeing anything visible on the outside. The inside, however, contained the phrase
“hit list” on the left side of the page. Underneath “hit list” the note contained a list
of students’ first names she recognized as attending the school. The page also had
a list of names on the right side—not underneath the “hit list” column—that Ms. P.
identified as the names of some of Ira’s friends who did not attend the school at
that time. When asked about additional details on the notes, Ms. P. described
language stating “me dom kill trap goal,” “we got guns knives,” “plan get ride to

10
The notes, which Ms. P. reviewed during her testimony, were marked as exhibits at the
bench trial and admitted into evidence. This court has reviewed the notes, which contain multiple
spelling errors, and this court generally uses the spelling reflected in the trial transcript rather than
that of the notes themselves.

7
No. 2025AP2517

Sheboygan get gun and kick door in and start a fight then … pull gun out and
shoot,” “7spade I do not know w-t-f to do with them bro but we need more guns
me you [two named individuals] everyone in the car,” and “Don’t trust L[] no
more he is with trap working on a plan.”

¶11 When asked what she had been thinking after discovering these
notes, Ms. P. testified she “recall[ed] seeing hit list and then … immediately
brought it to our high school principal because my understanding was, a threat is a
threat, and I have to take everything seriously.” She said she viewed it as a
“[p]otential threat” because “[w]hen you see the word hit list -- especially these
days -- in the school, again, you have to take that very seriously.” Ms. P. also
confirmed Ira was the only student who had been in the suspension room, that the
drawings she discovered had not been in the room prior to Ira occupying the room,
and that she did not observe Ira draw or write any of the notes.

¶12 The high school principal testified next and provided similar
testimony regarding the notes’ contents. In particular, he “vividly remember[ed]”
that one of the notes said “hit list” followed by “three names that [he] recognized
as potential students” at the school. He also recalled that the pages included
statements to the effect of “Don’t let any teachers see this, no cops see this, no
opps see this,” that there was a reference to not being able to trust another student
identified in the note, and “a really clear description of what his intentions were
with -- with driving to Sheboygan, knocking down a door, fighting, and then
pulling out a gun and shooting.”

¶13 The principal then explained that after initially reviewing the notes,
he contacted the district superintendent and the school’s SRO, confirmed Ira

8
No. 2025AP2517

remained in the in-school suspension room, and then contacted the county sheriff’s
department. When asked why he had taken these steps, he explained:

This isn’t a normal thing that comes across my desk, and
so it [is] very alarming and a couple things right off the bat,
you know, seeing student’s names that I’m familiar with in
-- in a form of a hit list; and then some other details that --
that I was very concerned with. That, and isolation would
have forced me to call. I do have some history with the --
the student from previous situations that raised my level of
concern even higher.

The principal also explained that because the list only identified students by their
first names and multiple students shared some of those names, he reached out to
the families of students whose names “could be on this list” to “ma[k]e them
aware that there was a situation at school.”

¶14 When questioned about whether Ira had made any comments to him
about the notes, the principal explained Ira had “told [him] that it wasn’t -- he
didn’t mean what he wrote[,]” but he confirmed he did not believe Ira because the
principal recognized the names on the “hit list,” those students were in Ira’s grade,
there was “a previous history of a situation” with Ira, and because of “the detailed
plan[.]” When asked whether the school had been evacuated following Ms. P.’s
discovery of the notes or whether school had been canceled, he confirmed it had
not been.

¶15 The Deputy’s testimony followed. She explained she had spoken
with Ira at the school, Ira was aware of her reason for doing so, and Ira had
informed her that he had created “a fake plan” and had been “pretending that he
was a police officer” because “he was bored while in school suspension.” The
Deputy also confirmed she had spoken to some of the identified students and

9
No. 2025AP2517

families as well as that she had ultimately taken Ira into custody and had not found
any weapons on Ira when she searched him.

¶16 Prior to calling his own witnesses, Ira’s counsel reasserted the
arguments from his pretrial motion to dismiss, arguing the State had failed to
establish the notes in question amounted to a “true threat” for First Amendment
purposes and that the purported threat had not actually been communicated. After
hearing the parties’ respective arguments, the circuit court denied the motion,
stating:

The Court would need to look at the totality of the
circumstances and use some reasonable common sense
here. We have a youth that is in in-school suspension, in a
small room, given supplies by a teacher. He’s not writing
in a journal, or something to that effect. And he decides to
use his time by making a hit list and making a specific plan,
talking about weapons, what he’s going to do as far as
shooting people. And yes, that was stapled and shut, but it
also said don’t let cops or teachers look at it. It seems,
perhaps, it could have been intended for co-actors he was
going to share with it. It’s also reasonable to think perhaps
he was going to want that to be discovered, to place fear in
people that he doesn’t like.

But the Court does know -- it has been established -- the
listener doesn’t have to be the recipient of the threats. So it
does not seem to be something that he was going to keep to
himself and not share. Once again, it does not seem to be
something, like, just writing in a journal to express your
thought to relay them to yourself. It seems like it was
something to be shared, perhaps not with the people on the
hit list, but the listener doesn’t have to be the recipient of
the threat. It’s pretty hard to see what was written on these
pages and not have a reasonable person interpret them as a
true threat, especially with the fact that there was a specific
plan.

The youth’s own words were that he was pretending to
be law enforcement and that’s why he did this -- that makes
no sense at all. Just looking at -- as the Court said --
looking at all the factors and the circumstances here,
especially what -- what the principal said having had some
past history, having known about some interactions, he was

10
No. 2025AP2517

very concerned and that’s why he took the action that he
did. And I don’t know how a reasonable person could have
a document like that, knowing that it could be easily
discovered and not know that that would cause people to be
very scared. That could not be interpreted as a true threat.

Ira then called three witnesses to testify on his behalf—the first two of whom were
students whose names were included on the “hit list” and the third witness had
been identified in the notes as not being trustworthy because he “is wit trap
[potentially the SRO] working on a plan[].”

¶17 The first student witness testified he had not felt scared when law
enforcement informed him about the “hit list,” he had been told Ira was in custody,
he would have felt safe even had Ira not been in custody, and he and Ira did not
have a history aside from an incident a few weeks prior when he told Ira to “[p]ull
up [his] pants” “[b]ecause he was sagging” and others could see his underwear.
The second student witness likewise testified he “wouldn’t say [he felt] scared”
after learning his name was on the “hit list” but rather that he “was shocked”
because he did not have a relationship with Ira and did not know why Ira would
have included his name on the list.

¶18 The final student who testified on Ira’s behalf—the student
identified in Ira’s notes as not being trustworthy—explained he knew Ira, they had
mutual friends, and Ira is a cousin of his “best friend.” Like the prior witness, this
witness also described feeling “shocked” upon learning his name appeared in the
notes but did not feel nervous about attending school the following day. Finally,
the witness surmised that Ira may have been upset with him regarding a prior
incident where he had reported to the SRO about Ira smoking a joint in the school
bathroom and that “6roses,” which appeared in the notes, referred to Roosevelt
Park in Sheboygan.

11
No. 2025AP2517

¶19 Following the close of evidence and the parties’ respective
arguments, the circuit court concluded the State satisfied its burden of proof on the
elements of the charge, and it found Ira delinquent. In doing so, the court
commented at length:

So when we look at the facts here, we have the youth in this
very small room, in school suspension, with the one desk.
He makes this hit list and other very scary statements. We
know he’s the author. He -- he gave statements. He said,
“Well, this was a fake thing I was doing with police.”
Which didn’t make any sense. He didn’t deny writing it. I
don’t think we needed to have him searched, it was clear
that he is the author of these documents.

The documents are extremely concerning. It’s a hit list
with names of students -- a lot of it’s difficult to -- for the
Court to understand. I didn’t know -- I see now it says,
“6roses” -- we now know is a park. So some of it -- it’s
unclear, but I think any reasonable person would see this as
very threatening and scary. And maybe 15-year-olds,
because they didn’t actually see a gun, or no one actually
came to them, maybe because they know that he is in
custody, they know law enforcement’s involved; they don’t
particularly feel scared, they felt shocked.

That wasn’t -- those weren’t all of the victims, those
were two of the possible victims that had other people in
the school with [the same] names. We didn’t hear from
[Frank11], who is the only person in the school with that
name. Not sure if [the third student witness] was a victim
or not. Perhaps the youth was very upset with [the third
student witness] for turning him in to the SRO and that’s
why he wrote, “Don’t trust [him]”, but clearly the youth
intended for someone to see this communication. It wasn’t
a diary, it wasn’t written only for him, it’s clear from
looking at this, his plan of what he’s going to do. “Get a
ride to Sheboygan, kick door in, start a fight, pull gun out
and shoot”, and that’s combined with the fact that his other
documents that he had were drawing of a gun, and drawing
of knives. And then we put this in with it, as well.

11
Frank is a pseudonym.

12
No. 2025AP2517

So I’m not sure if the youth that are possibly named on
the hit list, really understood how scary this was. I’m
thinking that the parents probably did, because it is very
scary to see your child’s name on a hit list. As [the DA]
said, sometimes people carry out what they have written,
and that is certainly something that is scary. And when we
look at whether it -- it caused panic or not, we had the
teacher immediately seeing this and being concerned and
going to the principal.

I don’t think it’s realistic to say the teacher should have
done more, the teacher should have called law enforcement
-- of course the teacher’s going to go to the principal, that’s
what teachers do. As soon as she went to her principal,
immediately the principal got law enforcement, the
principal told the superintendent, the principal told the
school resource officer. He saw this as an unreasonable
and substantial risk. And I would agree with [the DA]; if
he had done nothing or fluffed it off, there would be
outrage. If something had actually happened -- perhaps if
the youth wasn’t taken into custody, if law enforcement
wasn’t called -- we don’t know what would have happened,
and I -- I think everyone would have questioned the
principal. So I think the school did the right thing here, the
teacher and the principal.

Clearly this was meant for it to be seen by others,
clearly it was written by the -- the youth. There was really
nothing in dispute there. And then as far as the true threat,
I think [the DA] did a good job of going over the totality of
the circumstances and all of the factors the Court has to
consider; every one doesn’t have to be met, but once again,
I think the Court covered it, but just to look at the full
context. Pictures of guns and knives that he drew, this list,
the specific things that he was saying that would be done.

These are things that a reasonable person would be very
concerned about. Very unsure exactly why he picked the
juveniles that are on the list, but it doesn’t matter; it just
matters that these were threats. This was meant for
someone; the teacher saw that, reported it to the principal
and this is what we have. So the Court believes the State
has met its burden, and the three elements have been met.

At a subsequent disposition hearing in March 2025, the circuit court placed Ira on
supervision for one year with conditions, allowed for placement in his parents’
home, and indicated Ira could petition the court for expungement if he

13
No. 2025AP2517

successfully completed his period of supervision. Ira appeals from the
dispositional order.

II. STANDARD OF REVIEW

¶20 This court will uphold the circuit court’s factual findings so long as
they were not clearly erroneous. See, e.g., State v. Robinson, 2010 WI 80, ¶22,
327 Wis. 2d 302, 786 N.W.2d 463; Lowe’s Home Ctrs., LLC v. City of Delavan,
2023 WI 8, ¶25, 405 Wis. 2d 616, 985 N.W.2d 69 (The circuit court’s factual
findings “will not be disturbed unless they are clearly erroneous. A finding of fact
is clearly erroneous if it is against the great weight and clear preponderance of the
evidence.” (internal citation omitted)). “The weight and credibility to be given to
testimony is uniquely within the province of the trial court.” Noble v. Noble, 2005
WI App 227, ¶16, 287 Wis. 2d 699, 706 N.W.2d 166. This court “independently
appl[ies] constitutional principles to those facts.” Robinson, 327 Wis. 2d 302,
¶22; State v. A.S., 2001 WI 48, ¶¶18-19, 243 Wis. 2d 173, 626 N.W.2d 712.

¶21 “[I]n reviewing the sufficiency of the evidence,” “appellate court[s]
may not substitute [their] judgment for that of the trier of fact unless the evidence,
viewed most favorably to the state and the conviction, is so lacking in probative
value and force that no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 507, 451
N.W.2d 752 (1990). “If any possibility exists that the trier of fact could have
drawn the appropriate inferences from the evidence adduced at trial to find the
requisite guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.” Id.

14
No. 2025AP2517

III. DISCUSSION

¶22 The issue presented requires this court to determine whether the
writings at issue constitute a “true threat” for purposes of the First Amendment,
and if so, whether the State also established the remaining elements of WIS. STAT.
§ 947.019(1)(e).

¶23 On appeal, Ira challenges the circuit court’s conclusion that the
writings in question constitute a “true threat” under the First Amendment—a
requirement for establishing a violation of WIS. STAT. § 947.019(1)(e). In arguing
that the totality of the circumstances confirms no “true threat” existed, Ira focuses
largely on his position that the evidence failed to establish that he either delivered
or intended to deliver the notes in question. For support, he points to the fact that
he drafted these notes “while confined in a secluded place that had room for only
one student[,]” he had folded and stapled the notes to prevent others from seeing
their contents, that one of the notes indicated permission was required before
viewing, and he had attempted to conceal one on a light or in the ceiling of the
in-school suspension room. Ira also asserts the State failed to establish the
“writings conveyed ‘a real possibility that violence will follow’” because Ms. P.
had described it as only a “‘potential’ threat,” because he believed the principal’s
testimony established his actions were “partially motivated by pragmatic
administrative concerns[] such as getting out in front of any rumors and making
sure his bosses heard about the situation from him first” as opposed to believing
something nefarious was actually afoot, and because the student witnesses whose
names appeared on the notes were not scared when they learned of the “hit list.”

¶24 Regarding the remaining totality of the circumstances
considerations, Ira argues that the fact the notes “lack grammatical structure, are

15
No. 2025AP2517

littered with misspellings and rife with an impenetrable slang perhaps known only
to [himself], and are rendered in a childlike, hard-to-decipher, writing” all weigh
against a conclusion that they clearly signaled he had any real plan for violence.
He further contends the State failed to establish: (1) a clear “intent to communicate
these alleged threats to anyone”; and (2) that Ira had previously “made any similar
threats” to the named students or that the identified students “had reason to believe
[Ira] had a propensity for violence.” Ira also asserts the State failed to present
evidence establishing he “consciously disregarded a substantial risk that his
communications would be viewed as threatening violence.” See WIS. STAT.
§ 947.019(1)(e); WIS-JI—CRIMINAL 1925B. This is so, he says, because the
evidence does not support a conclusion that he acted recklessly, which would
require evidence that he understood others might view the writings as threats.

¶25 Finally, Ira argues the State failed to establish he had “create[d] an
unreasonable and substantial risk of … causing public panic or fear[,]” see
WIS-JI—CRIMINAL 1925B, because Ira’s notes “were simply too ambiguous and
childlike to have been taken sufficiently seriously to create a reasonable
probability of panic or fear,” and the State did not establish Ira was aware of any
risk of the impact his notes might have on others.

¶26 The State challenges Ira’s contention that it failed to establish the
writings amounted to “true threats” and that it had likewise failed to establish the
remaining elements under WIS. STAT. § 947.019(1)(e). It says the totality of the
circumstances establish this was a “true threat” because: (1) there was no
justifiable or otherwise innocent context for Ira’s having written the notes, which
it said distinguished this case from Douglas D., 243 Wis. 2d 204; (2) the names on
the “hit list,” despite being only first names, were nevertheless the names of
students attending the same high school and who Ira would have had contact with;

16
No. 2025AP2517

(3) unlike in Douglas D., where the challenged writings were drafted by more than
one person, Ira alone had drafted the notes in question here; (4) Ms. P.
immediately reported the notes to the principal, who thereafter contacted the
superintendent, SRO, and sheriff’s department; (5) it was clear Ira intended
someone to view the notes; and (6) the notes included a plan. The State further
argues the notes “created an unreasonable and substantial risk of causing panic or
fear” given their contents, recitation of a “hit list,” and plans referencing guns and
killing—particularly in light of the current environment regarding school
violence—and that Ira was aware of such risk given the references to not allowing
law enforcement or teachers to view them.12

¶27 WISCONSIN STAT. § 947.019 provides that “[w]hoever, under any of
the following circumstances, threatens to cause the death of or bodily harm to any
person or to damage any person’s property is guilty of a Class I felony”:

(a) The actor intends to prevent the occupation of or cause
the evacuation of a building, dwelling, school premises,
vehicle, facility of public transportation, or place of
public assembly or any room within a building,
dwelling, or school premises.

(b) The actor intends to cause public inconvenience.

(c) The actor intends to cause public panic or fear.

(d) The actor intends to cause an interruption or
impairment of governmental operations or public
communication, of transportation, or of a supply of
water, gas, or other public service.

12
In his Reply brief, Ira faults the State for failing to acknowledge State v. A.N.G.,
No. 2019AP1100, unpublished slip op. (WI App May 21, 2020), which Ira had drawn analogies
to in his moving brief. A.N.G. is an unpublished opinion citable only for its persuasive value, and
regardless of whether the State attempted to distinguish that case or not, A.N.G. is not binding on
this court. See WIS. STAT. RULE 809.23(3)(b).

17
No. 2025AP2517

(e) The actor creates an unreasonable and substantial risk
of causing a result described in par. (a), (b), (c), or (d)
and is aware of that risk.

Sec. 947.019(1). Thus, to establish a violation of § 947.019(1)(e), the charge
alleged in the Petition, the State must establish Ira: (1) “threaten[ed] to cause the
death of or bodily harm to any person or to a person’s property”; (2) “creat[ed] an
unreasonable and substantial risk of” any of the circumstances set forth in
§ 947.019(1)(a)-(d); and (3) “[was] aware of that risk.” See WIS-JI—CRIMINAL
1925B; § 947.019(1)(e). For purposes of the first element—a threat to cause death
or bodily harm—the State must establish the threat was a “true threat” not
protected by the First Amendment’s free speech clause.13 See, e.g., WIS-JI—
CRIMINAL 1925B; Counterman, 600 U.S. 66; Kindschy, 412 Wis. 2d 319.

¶28 This court has reviewed the Record and arguments presented on
appeal and concludes both that the circuit court’s factual findings were not clearly
erroneous and that it correctly concluded the State established each of WIS. STAT.
§ 947.019(1)(e)’s requirements.

13
The jury instruction includes the following explanation of what constitutes a “threat”
under WIS. STAT. § 947.019(1)’s first element:

A “threat” is an expression of intention to do harm and may
be communicated orally, in writing, or by conduct. This requires
a true threat. “True threat” means that a reasonable person
would interpret the threat as a serious expression of intent to do
harm, and the person making the statement is aware that others
could regard the statement as threatening violence and delivers it
anyway. It is not necessary that the person making the threat
have the ability to carry out the threat. You must consider all the
circumstances in determining whether a threat is a true threat.

WIS-JI—CRIMINAL 1925B. Wisconsin’s jury instructions provide persuasive authority for
interpreting statutes. See State v. Rardon, 185 Wis. 2d 701, 706, 518 N.W.2d 330 (Ct. App.
1994).

18
No. 2025AP2517

¶29 As set forth above, to prove a violation of WIS. STAT.
§ 947.019(1)(e), the State must first establish the existence of a “true threat.”
“True threats are ‘serious expression[s]’ conveying that a speaker means to
‘commit an act of unlawful violence.’” Counterman, 600 U.S. at 74 (alteration in
original; citation omitted). “The ‘true’ in that term distinguishes what is at issue
from jests, ‘hyperbole,’ or other statements that when taken in context do not
convey a real possibility that violence will follow[.]” Id. “Whether the speaker is
aware of, and intends to convey, the threatening aspect of the message is not part
of what makes a statement a threat[.]” Id.

¶30 “The existence of a threat depends not on ‘the mental state of the
author,’ but on ‘what the statement conveys’ to the person on the other end.” Id.
(citation omitted). “True threats subject individuals to ‘fear of violence’ and to the
many kinds of ‘disruption that fear engenders.’” Id. (citation omitted). Thus,
“whether a statement is a true threat does not require an inquiry into the speaker’s
subjective mindset.” Kindschy, 412 Wis. 2d 319, ¶14. However, while “the test
for whether a statement is a true threat is objective,” “before a person may be
criminally convicted for making a true threat, the First Amendment requires proof
of the speaker’s subjective intent.” Id., ¶15. Thus, “proof that the speaker acted at
least recklessly is required.” Id. “Recklessness in this context means that the
speaker ‘consciously disregarded a substantial risk that his communications would
be viewed as threatening violence.’” Id. (quoting Counterman, 600 U.S. at 79).

¶31 Our supreme court has previously counseled that courts are to
consider the totality of the circumstances in determining the existence of a “true
threat.” See, e.g., Perkins, 243 Wis. 2d 141, ¶¶30-31; Douglas D., 243 Wis. 2d
204, ¶¶33-34. Our supreme court has identified multiple factors a court should
consider when addressing the totality of the circumstances:

19
No. 2025AP2517

[H]ow the recipient and other listeners reacted to the
alleged threat, whether the threat was conditional, whether
[the threat] was communicated directly to its victim,
whether the maker of the threat had made similar
statements to the victim on other occasions, and whether
the victim had reason to believe that the maker of the threat
had a propensity to engage in violence.

Douglas D., 243 Wis. 2d 204, ¶34 (second alteration in original; footnote omitted;
citation omitted). This list is non-exhaustive. Id.

¶32 In addressing whether the notes in question amount to a “true
threat,” the circuit court engaged in a lengthy totality of the circumstances
analysis, which is set forth in large part above. This court agrees with that
analysis and adopts it as a part of its own analysis. First, in regard to how the
recipient and listeners reacted, the evidence establishes that Ms. P. and the
principal, the first individuals to see the notes, took Ira’s notes seriously. They
believed the notes contained true threats because they contained a “hit list”
identifying names of students who attended the school and because they also
referenced guns and plans to kill. The Deputy likewise took the notes seriously, as
indicated by the fact that she ultimately took him into custody. Although the
students named in the notes apparently did not appear to be scared, as the circuit
court aptly observed, 15-year-old students may have a sense of bravado,
particularly given that they were aware Ira had been taken into custody and that
law enforcement was investigating the matter. It does not appear that Ira had
made similar threats to the students named in the note previously or that the named
students had reason to believe Ira might actually engage in violence. However,
the principal testified, albeit vaguely, that due to a prior incident involving Ira, he
did have concerns.

20
No. 2025AP2517

¶33 This court also disagrees with Ira’s repeated protestations—both
pretrial, at trial, and on appeal—that he did not “deliver” the notes within the
meaning of the “true threats” analysis. Rather, those communications were, as the
circuit court concluded, clearly intended to be seen by someone. And, although
the outside of one of the stapled notes reflected it should not be opened without
permission, the mere suggestion that permission could be obtained indicates Ira
did not intend to keep the note private, but rather that he intended someone to view
its contents. These were not writings in a private journal or diary, and at least one
of the notes was out in the open on Ira’s desk. To the extent the notes suggest
potential co-actors, that too, as the circuit court suggested, could reasonably be
construed as an intention to share these notes with others. Taken as a whole, the
circuit court’s factual finding that this was not a private writing is not clearly
erroneous.

¶34 There is also no question that a reasonable listener would construe
these as being a “serious expression of intent to do harm.” See WIS-JI—CRIMINAL
1925B. Ira was serving an in-school suspension at the time these notes were
drafted and discovered. In today’s society, where mass shootings and gun
violence are far too common—particularly in our schools—a note stating it is a
“hit list” identifying the names of students currently attending the school and
known to the writer would certainly cause grave concern, particularly when
discovered in the school itself. See, e.g., Douglas D., 243 Wis. 2d 204, ¶28.
While this court does not suggest that discovering such communications in the
school setting alone is sufficient in and of itself to establish that a threat is a “true
threat” under the First Amendment, it is certainly a factor worthy of consideration
under the totality of the circumstances—and it is a factor that undoubtedly weighs
on how the recipient or listener may construe the threat.

21
No. 2025AP2517

¶35 Finally, this court is also satisfied that the Record sufficiently
establishes that Ira was aware of the concerns these notes would cause. Ms. P.
testified she had discussed the inappropriateness of other drawings discovered
during his in-school suspension—the drawing with a picture of a heart and
marijuana leaf and the drawing with guns and knives—and that Ira had
acknowledged such drawings could cause concern. His understanding that others
could perceive those drawings as threats clearly indicates he likewise understood
that a “hit list” note would likewise cause concern, particularly in light of the other
notes that discussed guns and killing. Additionally, the text on the outside of one
note indicating that “cops” should not be allowed to see it similarly suggests Ira
realized the note would undoubtedly give cause for alarm and that law
enforcement would take it seriously, particularly given that the notes were
discovered within a school. This is a reasonable inference. And finally, as the
State points out, Ira folded the notes and indicated they should be hidden from
teachers and law enforcement, which also reasonably suggests Ira understood that
others—particularly the very teachers and law enforcement from whom he wished
to conceal the communications—would take them seriously.14 In light of the
foregoing, this court concludes the notes in question constitute a “true threat” for
First Amendment purposes. There is sufficient evidence to reasonably infer these
were true threats not protected by the First Amendment.

14
The Record contains references to a prior similar incident involving Ira; however, the
details related to that incident are sparse. This court notes that court reports and transcripts in the
Record indicate that the current matter was the second time a petition had been filed alleging Ira
had engaged in terrorist threats, with the prior matter (which reports indicate would be dismissed)
allegedly having occurred in early December 2023. It is not entirely clear whether that prior
matter is the matter the principal referred to in his testimony.

22
No. 2025AP2517

¶36 Turning to the two remaining factors the State must establish
pursuant to WIS. STAT. § 947.019(1)(e)—that Ira “create[d] an unreasonable and
substantial risk of causing a result described in par. (a), (b), (c), or (d)” and that Ira
was aware of that risk (e.g., that he was reckless)—this court readily concludes the
State carried its burden. The notes in question were discovered while Ira was at
school, the notes contained a “hit list” that included names of current students at
the school, and the notes made multiple references to weapons, violence, and
killing. Such threats could lead to an evacuation of school premises or the
cancellation of classes—although that ultimately did not occur here. See
§ 947.019(1)(a). Likewise, such communications can easily be construed as
“caus[ing] public panic or fear.” See § 947.019(1)(c). Again, this is especially
true in light of the relative frequency with which violence occurs in our schools
and in our society. Finally, as stated above, the evidence establishes Ira was aware
of the risk these notes were likely to cause these reactions and results. The fact
that he drafted these notes while in an in-school suspension, despite understanding
the impact they would have, certainly satisfies the recklessness requirement. See
Kindschy, 412 Wis. 2d 319, ¶15 (“Recklessness in this context means that the
speaker ‘consciously disregarded a substantial risk that his communications would
be viewed as threatening violence.’” (quoting Counterman, 600 U.S. at 79)).

¶37 In summary, this court concludes the notes in question constituted a
“true threat,” and because the circuit court’s conclusion that the State had
established all necessary elements required to sustain a conviction under WIS.
STAT. § 947.019(1)(e) was not erroneous, it likewise did not err in denying Ira’s
motion to dismiss following the close of the State’s evidence at trial.

By the Court.—Order affirmed.

23
No. 2025AP2517

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

24