State v. S. E. M. T.

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.
December 19, 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. 2019AP1004 Cir. Ct. No. 2018JV439

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

S. E. M. T.,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Dane County: JULIE
GENOVESE, Judge. Affirmed.

¶1 BLANCHARD, J.1 S.E.M.T. appeals two orders waiving juvenile
court jurisdiction over him, sending him to adult court to face charges that include

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1004

first degree sexual assault and armed robbery.2 S.E.M.T. argues that the circuit
court erroneously exercised its discretion in making its waiver decision based on
the following determinations: (1) that S.E.M.T. would likely have the benefit of a
longer period of appropriate treatment in the adult system than would be available
to him in the juvenile system and (2) that the alleged conduct by S.E.M.T. appears
to have been premeditated, despite the fact that the court also found that S.E.M.T.
has an intelligence quotient (IQ) measured at 63. I disagree that the court
erroneously exercised its discretion and accordingly affirm.

BACKGROUND

¶2 The State filed an initial delinquency petition on September 4, 2018,
charging then 16-year-old S.E.M.T. with identity theft and obstructing an officer.
The State alleged that he had withdrawn money from a cash machine using a
stolen debit card. The card had just been taken, on September 1, 2018, from a
woman by someone who also sexually assaulted her. This petition did not allege
that S.E.M.T. had committed the sexual assault.

¶3 However, in a subsequent delinquency petition, filed on
September 11, 2018, the State charged S.E.M.T. with three counts of first degree
sexual assault, and one count each of armed robbery, burglary, and felony
intimidation of a victim. The State alleged that, in the early morning hours of
September 1, 2018, S.E.M.T. had entered the residence of an adult woman without
her permission, brandished a stick, used threats of death, and sexually assaulted
the woman multiple times. In addition, he allegedly took money from her and a

2
This court granted leave to appeal from the non-final waiver orders. See WIS. STAT.
RULE 809.50(3).

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debit card, demanding that she give him the personal identification number for the
card. This petition also alleged that S.E.M.T. had made highly incriminating
admissions to police investigating the sexual assaults.

¶4 The State petitioned the court for a waiver of juvenile court
jurisdiction in both cases. In support, the State stated that S.E.M.T. would turn 17
in July 2019 and argued that the available juvenile court dispositions would “not
provide an adequate length of time for intervention.” The petitions listed
extensive prior dispositions that S.E.M.T. had received in juvenile court and
alleged that his “motives and attitudes are closer to those of an adult than a
juvenile.”

¶5 S.E.M.T. opposed the petitions and the circuit court held a waiver
hearing over the course of four days in February, March, and May 2019, with the
court hearing from ten witnesses. Summarizing the State’s primary arguments at
the close of evidence, the State emphasized the seriousness of the offenses,
arguing that the evidence showed that S.E.M.T.: was familiar with the victim, a
middle aged woman, before the offenses; “targeted” her for multiple, violent
sexual assaults; and showed “no remorse or empathy” at times after the offenses.
The State further noted that, at the time of these serious offenses, S.E.M.T. had six
pending cases, including felonies, and was in a home detention program. The
prosecutor argued, “I don’t believe the juvenile system can protect [S.E.M.T.]
from himself and I certainly don’t believe the juvenile system at this time can
protect the public” from S.E.M.T.

¶6 Summarizing the primary arguments of counsel for S.E.M.T.,
counsel emphasized that S.E.M.T. suffered from “a very complex raft of
significant deficits,” including having the cognitive age of fourth grader, and

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contended that the conduct here, while serious, was “the product of a lot of
different injuries [to S.E.M.T.] that need a lot of attention.” Counsel also
highlighted S.E.M.T.’s good behavior while detained, because “he has done well”
within the confines of the Juvenile Reception Center, “with consistency of rules
and the attention of adults who are trying to work with him.” Counsel argued that
the State was unfairly trying to paint S.E.M.T. as “a budding little sociopath.” The
evidence did not support a finding of “criminal sophistication,” but if he were
convicted and sentenced in the adult system, he would inappropriately end up
surrounded by sophisticated criminals.

¶7 As discussed in more detail below, related to the two specific
arguments raised on appeal, the court granted the State’s waiver petitions.

DISCUSSION

I. Legal Standards

¶8 Appellate courts affirm a circuit court’s decision to waive a juvenile
into adult court unless the court erroneously exercised its discretion. State v.
Tyler T., 2012 WI 52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192. “A juvenile court
erroneously exercises its discretion if it fails to carefully delineate the relevant
facts or reasons motivating its decision or if it renders a decision not reasonably
supported by the facts of record.” Id. I am to look for reasons to uphold the
court’s waiver decision, id., and will reverse it “if and only if the record does not
reflect a reasonable basis for the determination or a statement of the relevant facts
or reasons motivating the determination is not carefully delineated in the record.”
J.A.L. v. State, 162 Wis. 2d 940, 961, 471 N.W.2d 493 (1991).

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¶9 A circuit court addressing a waiver petition is to consider, as
pertinent here:

(a) The personality of the juvenile, including
whether the juvenile has a mental illness or developmental
disability, the juvenile’s physical and mental maturity, and
the juvenile’s pattern of living, prior treatment history, and
apparent potential for responding to future treatment.

(am) The prior record of the juvenile, including
whether the court has previously waived its jurisdiction
over the juvenile, whether the juvenile has been previously
convicted following a waiver of the court’s jurisdiction or
has been previously found delinquent, whether such
conviction or delinquency involved the infliction of serious
bodily injury, the juvenile’s motives and attitudes, and the
juvenile’s prior offenses.

(b) The type and seriousness of the offense,
including whether it was against persons or property and
the extent to which it was committed in a violent,
aggressive, premeditated or willful manner.

(c) The adequacy and suitability of facilities,
services and procedures available for treatment of the
juvenile and protection of the public within the juvenile
justice system, and, where applicable, the mental health
system and the suitability of the juvenile for placement in
the serious juvenile offender program ... or the adult
intensive sanctions program ....

WIS. STAT. § 938.18(5). It is within the circuit court’s discretion how much
weight to give each factor. G.B.K. v. State, 126 Wis. 2d 253, 259, 376 N.W.2d
385 (Ct. App. 1985).

¶10 In order to waive a juvenile into adult court, the circuit court must
conclude that the evidence establishes, to a “clear and convincing” degree, that “it
is contrary to the best interests of the juvenile or of the public” for the case to
proceed in juvenile court. WIS. STAT. § 938.18(6).

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II. Analysis

¶11 S.E.M.T. argues that the circuit court erroneously exercised its
discretion in two specific ways, with some sub-arguments. I address each major
argument in turn.

A. Comparative Availability Of Treatment

¶12 S.E.M.T.’s first argument primarily rests on WIS. STAT.
§ 938.18(5)(c), which, to repeat, directs the court to consider “[t]he adequacy and
suitability of facilities, services and procedures available for treatment of the
juvenile and protection of the public within the juvenile justice system, and, where
applicable, the mental health system and the suitability of the juvenile for
placement in the serious juvenile offender program ... or the adult intensive
sanctions program ....”

¶13 With the WIS. STAT. § 938.18(5)(c) subset of factors as context,
particularly the “adequacy and suitability of” potentially available “treatment,”
S.E.M.T. makes the following argument. The circuit court relied on an inaccurate
understanding of the facts and concluded that S.E.M.T. would likely have the
benefit of a longer period of appropriate treatment in the adult system than would
be available to him in the juvenile system. This breaks down into three sub-
arguments: (1) that the court rested its decision on a misunderstanding that
S.E.M.T.’s proposed treatment at a particular out-of-state residential treatment
program for juveniles (Youth Villages in Tennessee) would last no longer than 10
months; (2) that the court mistakenly thought that placement in Youth Villages
could be under a juvenile order limited to only one year in length; and (3) that the
court had no basis to think that any treatment S.E.M.T. would receive in the adult

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system would be more effective than treatment he would receive in the juvenile
system.

¶14 With that background, I now quote what the court said in explaining
this aspect of its waiver decision:

So then the final factor and the one that I’ve been
really focused on is the adequacy and suitability of
facilities, services in the juvenile system and whether
placement in [the] Serious Juvenile Offender Program[] is
appropriate.

And so I was really thinking maybe there would be
a place out in the country that could provide the services
that would be necessary to deal with [S.E.M.T.’s] issues[.]
You know there are the trauma things, there are the
cognitive issues, but this sexual paraphilia and how do you
treat that? I was not convinced at all that Youth Villages is
going to be able to[,] in four to ten months[,] address this
issue. And if I were to do that, then [the prosecutor is]
right, it would be a one-year supervision order, he’d do
some treatment at Youth Villages for four to ten months
and he turns 17 and he’s out in the community, and I’m just
not at all confident that that is successful.

So if I don’t go that route then I have to look at the
juvenile route: That would be Lincoln Hills. It would
either be Lincoln Hills, [under] a correctional order, he
would be in the Serious Juvenile Offender Program until
he’s 22. I’m not at all convinced that those services are
going to address what’s going on with [S.E.M.T.], and it’s
not going to give the level of supervision that he’ll need. I
think the level of supervision needs to be longer than [until]
he’s 22. We know adolescents[’] brain development
doesn’t complete until 25. [S.E.M.T.] has a lot of stuff
going on inside of himself, and I think he’s going to need to
be supervised well past age 22.

¶15 Alleged misunderstanding that Youth Villages treatment could
last no more than 10 months. This particular sub-argument is unsupported. The
representative of Youth Villages testified unambiguously on direct examination
that “the program can last anywhere from four to ten months,” and when asked to

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No. 2019AP1004

confirm the 4-10 month term on cross examination did so without qualification.
On re-cross examination, the representative testified that it often takes longer for
someone who has a cognitive delay to get through the Youth Villages program.
However, so far as her testimony as a whole revealed, she meant only that such
individuals tend to remain in the program closer to what she had already suggested
was the maximum term of 10 months, as opposed to leaving the program earlier.

¶16 Juvenile order limited to one year. This sub-argument attempts to
attach major significance to a small point. S.E.M.T. focuses narrowly on the
circuit court’s statement, reflected in the excerpt above, that a Youth Villages
disposition would be under a one-year supervision order, which the court said
would be too short to be “successful.” S.E.M.T. points out that, under WIS. STAT.
§ 938.355(4)(am)1., generally speaking a dispositional order “made before the
juvenile attains 18 years of age that places … the juvenile in [a] … residential care
center for children and youth, … shall terminate on the latest of” dates that include
the “date on which the juvenile attains 18 years of age,” “unless the court specifies
a shorter period or the court terminates the order sooner.” S.E.M.T. turns 18 in
July 2020. However, as the State points out and S.E.M.T. does not dispute, even if
the court had decided on the day of its waiver decision (and not later) to send
S.E.M.T. to Youth Villages for the maximum period allowed, this would have
meant that the order could have extended slightly under 14 months. Further, more
realistically, the court would likely not have issued its dispositional order until
around July 1, 2019, for a maximum 380-day order. S.E.M.T. fails to persuade me
that the differences at issue here constitute reliance by the court on a consequential
inaccuracy.

¶17 No basis to think that treatment available in adult system would
be more effective than treatment in juvenile system. This sub-argument is not a

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claim that the court relied on inaccurate information. Instead, it effectively rests
on the unsupported premise that a court weighing pertinent waiver considerations
commits clear error whenever the court fails to make findings that the waived
juvenile would receive longer, higher quality treatment in the adult system than in
the juvenile system. As quoted above, however, WIS. STAT. § 938.18(5)(c) directs
courts to attempt to evaluate “[t]he adequacy and suitability of facilities, services
and procedures available for treatment of the juvenile and protection of the public
within the juvenile justice system.” (Emphasis added). And, this is only one set of
considerations, to be weighed in the court’s discretion in a rational process along
with all other pertinent facts.

¶18 The court here explained why it reached the conclusion that there are
not adequate and suitable services for S.E.M.T. in the juvenile system, which is
the explicit topic of WIS. STAT. 938.18(5)(c). S.E.M.T. fails to explain why this
was not a reasonable application of the paragraph (5)(c) considerations.

¶19 Further, as the State also points out, there was testimony supporting
a finding that S.E.M.T. might receive meaningful treatment in the adult system,
albeit of unknown timing and duration. S.E.M.T. suggests that this is not
sufficient because the State failed to elicit evidence of a guarantee that such
treatment would last longer than the 10 months that the Youth Village program
might last. However, S.E.M.T. fails to support an argument that the court’s
approach was fatally flawed for lack of any such guarantee.

¶20 Stepping back regarding this sub-argument, S.E.M.T. identifies one
basis, depending on the circumstances, that a juvenile could rely on to attempt to
convince a circuit court that waiver is not appropriate. Indeed, such an argument
was suggested to the circuit court here by S.E.M.T.’s counsel. Counsel argued

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that S.E.M.T. needed to go to Youth Village, “a setting he’s never been in before,
which is a 24 by seven, therapeutic environment,” and suggested that this would
give him access to treatment that was far superior to any he could receive in the
adult system. In theory, this argument could have informed a decision by the
circuit court here to deny, not grant, the waiver petition. However, to repeat,
S.E.M.T. fails to explain why the circuit court committed clear error in granting
the waiver petition despite the absence of evidence that S.E.M.T. is guaranteed
long, high quality treatment in the adult system—other factors could have
outweighed this potential consideration.

B. IQ & Premeditation

¶21 S.E.M.T. argues that the court committed clear error in appearing to
credit expert testimony that S.E.M.T.’s alleged conduct was premeditated and not
merely impulsive, despite the fact that the court also found that S.E.M.T. has an
IQ measured at 63. See WIS. STAT. § 938.18(5)(b) (listing as waiver factor
commission of offense in premeditated manner). S.E.M.T. contends that the court
should have determined that, at an IQ this low, premeditated wrongdoing could
not have occurred. This argument depends on S.E.M.T.’s interpretation of isolated
pieces of the record that the circuit court was not obligated to accept and I reject
the argument on that basis.

¶22 The argument is based primarily on testimony given at the waiver
hearing by Dr. Anna Salter, a clinical psychologist who specializes in sexual abuse
cases. After reviewing 400 pages of documents in the case, including police
reports, but without interviewing S.E.M.T., she testified to the conclusion that his
alleged conduct was premeditated. More specifically, she testified that the
conduct alleged here “does not show the signs of a crime that is mitigated by

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adolescent immaturity,” but instead was “an adult-type attack, a home invasion
and attack.”

¶23 S.E.M.T. does not develop an argument that the court should not
have admitted or could not rely on Dr. Salter’s testimony in general. Instead,
S.E.M.T. makes a specific argument based on the following facts: (1) Dr. Salter
testified that she understood S.E.M.T. to have an IQ of 79, based on testing
conducted in 2014; (2) she separately testified that offenders with IQ’s “in the
fifties and sixties” “often cannot consider future consequences of crime, they just
can’t think that far ahead”; (3) the circuit court made a factual finding, based on
more recent testing, that S.E.M.T.’s “full scale IQ is only 63, long-term and visual
memory is low, he’s far behind in comprehension.” Further, S.E.M.T. appears to
assume, with good reason in the record, that the circuit court credited Dr. Salter’s
premeditation conclusion.3

3
The court explained its waiver decision in part as follows:

[Dr. Salter] testified that the alleged crime was not impulsive,
that it involved planning and cover up, and the pornography on
the phone of [S.E.M.T. portraying a] middle-aged woman in
conjunction with the victim in this crime being a middle-aged
woman reflect a paraphilia that we don’t usually see in
adolescent sex offenders.

So [S.E.M.T.] has got a lot going on in terms of where
he came from, what’s going on inside of him.

….

… This was a really serious, horrible rape. I mean I
haven’t seen cases like this in the years that I was [presiding] in
criminal court…. And it involved, … oral sex, it involved
vaginal sex, it involved threats to kill her, it involved having a
weapon, climbing in through the woman’s window in the middle
of the night.

(continued)

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¶24 With that additional background, S.E.M.T.’s argument is that, given
the court’s finding that S.E.M.T.’s IQ is only 63, the court “should have placed
little weight on Dr. Salter’s” conclusion of premeditation. Putting aside other
potential problems with this argument, it rests on a questionable interpretation of
Dr. Salter’s specific testimony that persons with IQs “in the fifties and sixties”
“often cannot consider future consequences of crime, they just can’t think that far
ahead.” The questionable interpretation is that this testimony is necessarily
inconsistent with her testimony that the documents she reviewed reflected
premeditation. Certainly, the circuit court was not obligated to interpret this
specific testimony as S.E.M.T. now interprets it.

¶25 First, “often cannot consider” does not mean “always cannot
consider.” That is, Dr. Salter did not testify that all persons with an IQ of around
63 are incapable of “consider[ing] future consequences of crime[s].”

¶26 Second, a juvenile’s inability to “consider future consequences of [a]
crime” may be related to, but is not equivalent to, an inability to plan and execute
a crime. As a matter of common experience, a young or cognitively limited
person might lack the capacity to think through various “future consequences” of
conduct that he or she is still capable of planning and executing.

And the fact that he knew her, that he’d been to the
house before demanding money that the son owed. The first
thing he said to her, if this is all true, and obviously that there
would have to be a trial, but I’m assuming that it’s true was,
[“B]itch, where’s the money?[”] And then to go ahead and rape
her like that, that to me for a 16-year-old is incredibly serious
and disturbing and concerning.

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¶27 Third, as the State points out, this narrow argument overlooks
important aspects of Dr. Salter’s testimony as a whole, which provided
independent bases for the circuit court to credit her conclusion of premeditation.
Notably, S.E.M.T. fails to take into account detailed testimony by Dr. Salter
explaining why she concluded that specific alleged acts of S.E.M.T. (e.g., ordering
the victim not to look at his face during the sexual assaults) point toward a
conclusion of premeditation.

CONCLUSION

¶28 For these reasons, I reject the two arguments raised on appeal, and
conclude that the circuit court properly exercised its discretion in determining that
clear and convincing evidence establishes that it is contrary to the best interests of
the juvenile or the public for the case to proceed in juvenile court.

By the Court.—Orders affirmed.

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

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