State v. C. T. P.-B.

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.
September 10, 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. 2024AP189-CR Cir. Ct. No. 2022CF265

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

C. T. P.-B.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Chippewa County:
STEVEN H. GIBBS, 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).
No. 2024AP189-CR

¶1 PER CURIAM. Christopher1 appeals a nonfinal order denying his
petition for reverse waiver into juvenile court.2 The circuit court concluded that
Christopher had not met his burden to show that transferring jurisdiction to the
juvenile court would not depreciate the seriousness of Christopher’s offenses. On
appeal, Christopher argues that the court erroneously exercised its discretion in
that regard. We disagree and affirm the order denying Christopher’s petition for
reverse waiver.

BACKGROUND

¶2 On April 27, 2022, the State charged Christopher with first-degree
intentional homicide, first-degree sexual assault, and first-degree sexual assault of
a child under age thirteen with resulting great bodily harm. According to the
criminal complaint, the victim, a ten-year-old girl, was reported missing on
April 24, 2022, after failing to return from her aunt’s home. The victim’s bicycle
was located in a wooded area, and her body was discovered nearby the following
day. Investigators at the scene noted that the victim was naked from the waist
down and had suffered injuries consistent with blunt force trauma to the head.

¶3 During a forensic autopsy the next day, a pathologist observed bite
marks on the victim’s left buttock; anal tearing; biological evidence consistent
with a sexual assault; and blunt force trauma on the left side of the victim’s face.

1
For ease of reading, we refer to the appellant in this matter using a pseudonym, rather
than his initials.
2
We granted Christopher’s petition for leave to appeal a nonfinal order on February 20,
2024.

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No. 2024AP189-CR

Christopher’s DNA was later found on swabs taken from the victim’s mouth, anus,
and left buttock.

¶4 Police interviewed Christopher, who was fourteen years old at the
time, on April 26, 2022. Christopher told police that he and the victim left a house
together, with the victim on her bicycle and Christopher on a hoverboard.
Christopher admitted that when they left the house, “it was already his intention to
rape and kill” the victim.

¶5 Christopher and the victim were initially on a trail, but Christopher
asked the victim to go exploring off the trail, and they proceeded into the woods.
After they left the trail, Christopher punched the victim in the stomach, knocking
her to the ground, and struck her in the head approximately three times with a
stick. Christopher then straddled the victim, who was lying on her back, and
strangled her until he believed she was dead. At that point, Christopher removed
the victim’s pants and began trying to have sex with her. Christopher told the
police that he remembered biting the victim, but he could not recall where.

¶6 At some point during his assault of the victim, Christopher became
scared and fled the area. He returned home, showered, and put his dirty clothes in
the laundry. When Christopher heard that the victim was reported missing, he
decided that he needed to hide her body better. He therefore returned to the
location of her body, dragged her body a few feet, and covered it with leaves.

¶7 Because Christopher was charged with first-degree intentional
homicide, contrary to WIS. STAT. § 940.01 (2021-22),3 an adult criminal court was
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2024AP189-CR

vested with exclusive original jurisdiction over him. See WIS. STAT.
§ 938.183(1)(am); see also § 938.183(1)(ar) (granting an adult criminal court
exclusive original jurisdiction over “[a] juvenile specified in par. … (am) who is
alleged to have attempted or committed a violation of any state criminal law in
addition to [first-degree intentional homicide,]” if the violations “may be joined
under [WIS. STAT. §] 971.12(1)”). On September 1, 2022, based upon the parties’
stipulation, the court found that the allegations in the criminal complaint provided
probable cause as to the first-degree intentional homicide charge, and it bound
Christopher over for further proceedings. See WIS. STAT. § 970.032(1).

¶8 Christopher subsequently filed a petition for reverse waiver, asking
that his case be transferred to juvenile court. See WIS. STAT. § 970.032(2). To
obtain reverse waiver, a juvenile must prove all three of the following factors by a
preponderance of the evidence:

(a) That, if convicted, the juvenile could not receive
adequate treatment in the criminal justice system.

(b) That transferring jurisdiction to the court assigned to
exercise jurisdiction under [WIS. STAT.] chs. 48 and 938
would not depreciate the seriousness of the offense.

(c) That retaining jurisdiction is not necessary to deter the
juvenile or other juveniles from committing the violation of
which the juvenile is accused under the circumstances
specified in [WIS. STAT. §] 938.183(1)(a), (am), (ar), (b) or
(c), whichever is applicable.

Sec. 970.032(2)(a)-(c). The reverse waiver statute “presumes that the child will be
kept in the adult system unless the court determines” that all three of the statutory
factors are satisfied. State v. Verhagen, 198 Wis. 2d 177, 188, 542 N.W.2d 189
(Ct. App. 1995).

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No. 2024AP189-CR

¶9 The circuit court held a three-day hearing on Christopher’s reverse
waiver petition during August 2023. Christopher called ten witnesses to testify at
the hearing; the State called none. The parties also stipulated to the admission of
the victim’s autopsy report and a Wisconsin State Crime Laboratory Report
regarding DNA analysis of samples taken from the victim’s body.

¶10 Generally, Christopher’s witnesses at the reverse waiver hearing
testified regarding Christopher’s mental health diagnoses and treatment needs, as
well as the treatment and programming available in the juvenile and adult
correctional systems, respectively. We do not provide a comprehensive summary
of the witnesses’ testimony here; instead, we highlight certain testimony that is
particularly relevant to the arguments raised on appeal.

¶11 Casey Gerber, the director of the Wisconsin Department of
Corrections Office of Juvenile Offender Review, testified at the reverse waiver
hearing regarding the services and treatment available at Lincoln Hills School, a
“Type 1” juvenile facility.4 Gerber confirmed that a juvenile placed at
Lincoln Hills is assigned to a mental health clinician within twenty-four hours and
is provided individual therapy and medication management.

¶12 Gerber also testified regarding the Serious Juvenile Offender (SJO)
program, which she described as “a juvenile adjudication that offers a longer term
of supervision than the standard correctional order for certain statutorily eligible
offenses.” Gerber explained that one type of SJO program is the SJO-A, which is

4
Gerber explained that a “Type 1” facility is a facility for juveniles who are ordered to
serve “longer period[s] of confinement than at a detention facility.” Gerber described a Type 1
facility as being “more restrictive” than a detention facility, explaining that a Type 1 facility is
locked and fenced and that juveniles are not permitted to leave the facility.

5
No. 2024AP189-CR

limited to first-degree intentional homicide offenders. Under the SJO-A program,
the juvenile is subject to a dispositional order until he or she turns twenty-five,
with “a minimum confinement of one year before the juvenile can be released
from the Type 1 facility back to the community.” Gerber testified that while it is
possible for a juvenile in the SJO-A program to be confined at Lincoln Hills until
age twenty-five, that “probably won’t happen.”

¶13 At the reverse waiver hearing, Christopher also presented testimony
and reports from three psychologists—Dr. Michael Caldwell, Dr. Steven Benson,
and Dr. James Garbarino. Caldwell diagnosed Christopher with autism spectrum
disorder (ASD) and an unspecified anxiety disorder. He opined that the charged
offenses were “a product of [Christopher’s] mental disorder” and that
Christopher’s “risk for future aggression is directly related to the management of
this mental disorder.” Caldwell also discussed Christopher’s exposure to internet
pornography, which caused Christopher to experience “obsessive sexual thoughts”
that were “distressing to him and were outside of his ability to control or
modulate.” He opined that Christopher’s exposure to pornography “probably
played some role” in his offenses.

¶14 Caldwell stated that he could not provide any assurances that
Christopher would not commit similar offenses in the future. He explained that, as
a result of Christopher’s ASD, Christopher had “a diminished capacity to
understand the harm that [his conduct] would cause to the victim and how the
victim might respond.”

¶15 Caldwell further opined that “[a]ppropriate treatment” for
Christopher “should include a comprehensive treatment plan that would include
individual therapy, and an assessment for psychotropic medications.” According

6
No. 2024AP189-CR

to Caldwell, “effective treatment services that [Christopher] needs are not
typically available in the adult corrections system” but “can be readily accessed
with a juvenile court disposition.” Caldwell also stated that research “has
consistently shown that transferring juveniles into the adult system generally
increases the risk of future violence in the juvenile, and does nothing to deter other
adolescents from offending.”

¶16 Benson diagnosed Christopher with ASD and persistent depressive
disorder. He opined that the “primary causes” of Christopher’s offenses were “the
untreated presence of [ASD] and [Christopher’s] three-year obsession with and
compulsive watching of online pornography … culminating in the viewing of
increasingly violent pornographic videos in the months prior to” the victim’s
death. Benson characterized Christopher’s offenses as a “one-time occurrence
within the context of [ASD] and the compulsive viewing of increasingly violent
pornographic videos.” According to Benson, the type of treatment that
Christopher requires—specifically, “the use of applied behavioral analysis for the
treatment of [ASD] on a daily basis”—is not available in the adult correctional
system.

¶17 Garbarino, in turn, opined that Christopher “is an appropriate
candidate for treatment in a structured residential adolescent treatment program
rather than long-term adult incarceration because the crime[s] for which he is
charged reflected an ‘adolescent crisis’ rather than the culmination of a
long-standing pattern of delinquent and aggressive behavior in childhood.”
Garbarino explained that Christopher’s “immaturity of thought and feeling
characteristic of adolescents generally” was “compounded by the disability of
being on the ‘autism spectrum’ and his immersion in the social toxicity of
internet-based pornography.” According to Garbarino, Christopher “does not

7
No. 2024AP189-CR

require placement in an adult facility which focuses on punishment and the control
of dangerous individuals” but instead needs “the developmental[ly] appropriate
approach of a structured residential treatment program to assist him in maturing
and sexually ‘detoxifying’ to the point where he can function safely in the
community.” Garbarino therefore opined that placing Christopher in “a juvenile
structured residential treatment program until age 25” would be “a sound
decision.”

¶18 Garbarino also addressed deterrence, opining that “[i]t is well
established that teenagers are generally not affected by conventional adult ideas of
deterrence” and that laws increasing the threat of sentencing and incarceration as
an adult have no effect on youth crime rates. Garbarino therefore concluded that
there is “no reason to believe that dealing with [Christopher] in the adult criminal
justice system would have any deterrent effect on other juveniles.” Garbarino
further opined that research on specific deterrence “consistently finds that
adolescent offenders transferred to criminal court have higher rates of reoffending
than … those retained in juvenile court.”

¶19 Finally, Garbarino opined that granting Christopher’s petition for
reverse waiver would not depreciate the seriousness of the offenses. Garbarino
explained that Christopher is “devastated” by his crimes and “certainly appreciates
the seriousness” of his offenses. According to Garbarino, transferring
Christopher’s case to juvenile court “will not signal to him a depreciation of the
seriousness of his crime[s]” but instead “will give him hope that he can be
redeemed and brought to the light, rather than being cast out into darkness.”
Garbarino also opined that reverse waiver would not depreciate the seriousness of
Christopher’s offenses from the perspective of the community at large because
keeping Christopher in adult court would have no general deterrent effect.

8
No. 2024AP189-CR

¶20 The circuit court ultimately issued a twenty-two-page written
decision denying Christopher’s petition for reverse waiver. The court concluded
that Christopher had met his burden of proof with respect to the first and third
reverse waiver factors. Addressing the first factor—whether, if convicted,
Christopher could receive adequate treatment in the criminal justice system, see
WIS. STAT. § 970.032(2)(a)—the court explained that both Benson and Caldwell
had testified that Christopher “requires intensive one-on-one therapy that is not
available in the adult prison system” and that he “would need, at a minimum,
weekly treatment sessions,” which the adult correctional system cannot
accommodate on a long-term basis. Based on that testimony, the court concluded
Christopher had met his burden to prove, by a preponderance of the evidence, that
he “could not receive adequate treatment in the criminal justice system.”

¶21 Turning to the third factor—whether retaining jurisdiction is
necessary to deter the juvenile or other juveniles from committing the charged
offenses, see WIS. STAT. § 970.032(2)(c)—the circuit court noted that the issue of
deterrence is subject to “conflicting views.” The court explained:

Keeping [Christopher] in the adult system for at least
twenty years on a life sentence would surely deter him from
committing future offenses.[5] Will it deter other juvenile

5
Two of the charges against Christopher—first-degree intentional homicide and
first-degree sexual assault of a child under age thirteen with resulting great bodily harm—are
Class A felonies. See WIS. STAT. §§ 940.01(1)(a), 948.02(1)(am). The penalty for a Class A
felony is life imprisonment. WIS. STAT. § 939.50(3)(a). However, when sentencing a person to
life imprisonment, a circuit court “shall make an extended supervision eligibility date
determination … and choose one of the following options:” (1) the person is eligible for release
to extended supervision after serving twenty years; (2) the person is eligible for release to
extended supervision on a specified date set by the court after serving more than twenty years; or
(3) the person is not eligible for release to extended supervision. WIS. STAT. § 973.014(1g)(a).
Thus, if convicted of either Class A felony, Christopher would be subject to life imprisonment,
but with the possibility of being eligible for release to extended supervision after twenty years.

9
No. 2024AP189-CR

offenders from committing offenses? Statistics lend
credence to both views on this. Teenagers process
information and make decisions different from adults.
Punishment is always a determent to bad behavior.

Nevertheless, the court also cited Caldwell’s testimony “that prosecution in adult
court does not provide specific deterrence and actually increases the risk of
re-offending in the future” and that “there is no scientific basis to conclude that
adult court prosecution provides general deterrence.” In apparent reliance on that
testimony, the court determined that Christopher had met his burden of proof with
respect to the third reverse waiver factor.

¶22 Conversely, however, the circuit court determined that Christopher
had not met his burden of proof with respect to the second reverse waiver factor—
whether transferring jurisdiction to the juvenile court would depreciate the
seriousness of the offenses. See WIS. STAT. § 970.032(2)(b). Citing State v.
Kleser, 2010 WI 88, ¶72, 328 Wis. 2d 42, 786 N.W.2d 144 (citing State v.
Dominic E.W., 218 Wis. 2d 52, 58 n.6, 579 N.W.2d 282 (Ct. App. 1998)), the
court noted that the determination of seriousness under this factor is based on “the
specific facts and circumstances of the case” and that “weighing of the facts by the
[circuit] court is implicit in the reverse waiver statute.”

¶23 The circuit court then stated that the following facts were relevant to
its assessment of the seriousness of Christopher’s offenses. On the day of the
ten-year-old victim’s murder, Christopher convinced the victim to leave a
residence and go down a trail with him. When Christopher left the residence, it
was already his intention to rape and kill the victim. Christopher admitted that his
physical assault of the victim was “vicious and brutal in nature, involving
punching the victim, knocking the victim down and hitting the victim with a
stick.”

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No. 2024AP189-CR

¶24 The victim’s autopsy report noted evidence of “homicidal violence,”
which included the following blunt force trauma to the head and body: contusions
and abrasions of the face and head; contusion of the left lower lip mucosa;
contusions and abrasions to the chest, abdomen, and legs; contusions of the left
arm and right foot; abrasions of the hands and feet; and subgaleal hemorrhage.
The evidence of homicidal violence also included evidence of sharp force injury to
the anterior neck, evidence of probable sharp force injury to the left side of the
jaw, and evidence of possible sharp force injury on the inner aspect of the right
thigh.

¶25 Christopher admitted that after violently attacking the victim, he
strangled her until he believed that she was dead. The autopsy report noted
evidence of “manual strangulation,” including: abrasions on the chin, jaw, and
anterior neck; petechiae of the upper and lower eyelids, upper and lower
conjunctivae, and sclerae of both eyes; and hemorrhage of the anterior neck
muscles.

¶26 Christopher also admitted biting the victim, removing her pants, and
trying to have sex with her. The autopsy report noted evidence of sexual assault,
including: lacerations of the anus; a bite mark on the left buttock; white mucoid
material in the rectum/sigmoid colon; contusions of the rectal/sigmoid mucosa;
and hemorrhage of the serosa of the rectum/sigmoid colon.

¶27 After reciting these facts, the circuit court noted that two of the
charges against Christopher are Class A felonies, which are punishable by life
imprisonment, “with a prospect of no possibility of extended supervision.” The
court observed that “there are no more serious crimes than Class A felonies in the
Wisconsin Statutes.”

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No. 2024AP189-CR

¶28 The circuit court then found that Christopher’s actions “were violent
and egregious in nature,” as Christopher “carried out his plan to rape and murder a
ten-year-old girl, viciously and with brutality.” The court further found that
Christopher’s crimes were “clearly premeditated.”

¶29 The circuit court next rejected the defense’s argument that the
Gallion factors—i.e., the protection of the public, the gravity of the offenses, and
the defendant’s rehabilitative needs—“prove[d]” that reverse waiver would not
depreciate the seriousness of Christopher’s offenses. See State v. Gallion, 2004
WI 42, ¶23, 270 Wis. 2d 535, 678 N.W.2d 197; see also WIS. STAT. § 973.017(2).
The court explained that it did not agree with the defense that “a possible
ten[-]year confinement in the juvenile system, registering as a sex offender[,] and
[the fact] that [Christopher] would be vulnerable to the adult system would be
punishment enough for” Christopher.

¶30 For all of these reasons, the circuit court concluded that Christopher
had failed to prove, by a preponderance of the evidence, that reverse waiver would
not depreciate the seriousness of the offenses. The court therefore denied
Christopher’s petition for reverse waiver. See WIS. STAT. § 970.032(2) (stating
that the court “shall retain jurisdiction unless the juvenile proves” all three
statutory factors “by a preponderance of the evidence”). Christopher now appeals.

DISCUSSION

¶31 “A decision to retain or transfer jurisdiction in a reverse waiver
situation is a discretionary decision for the [circuit] court.” Dominic E.W.,
218 Wis. 2d at 56. We will affirm the court’s discretionary decision as long as it
examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could

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No. 2024AP189-CR

reach. Kleser, 328 Wis. 2d 42, ¶37. Importantly, when exercising its discretion, a
circuit court “may reasonably reach a conclusion which another judge or another
court may not reach.” Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16
(1981). Discretionary decisions are not tested by a “subjective standard, or even
by our own sense of what might be a ‘right’ or ‘wrong’ decision in the case, but
rather will stand unless it can be said that no reasonable judge, acting on the same
facts and underlying law, could reach the same conclusion.” State v. Jeske,
197 Wis. 2d 905, 913, 541 N.W.2d 225 (Ct. App. 1995).

¶32 In this case, the sole issue on appeal is whether the circuit court
erroneously exercised its discretion by concluding that Christopher failed to meet
his burden to prove that transferring jurisdiction to the juvenile court would not
depreciate the seriousness of his offenses. See WIS. STAT. § 970.032(2)(b). As the
circuit court correctly noted, when assessing this factor, “the court must decide
under the specific facts and circumstances of the case how serious the offense
was.” Dominic E.W., 218 Wis. 2d at 58 n.6. “[S]uch weighing of the facts by the
[circuit] court is implicit in the reverse waiver statute.” Id.

¶33 In Dominic E.W., for instance, the juvenile defendant was charged
as an adult with battery to a correctional officer. Id. at 53. The circuit court
granted the defendant’s petition for reverse waiver. Id. In addressing the second
reverse waiver factor, the court noted that: (1) “under normal circumstances,” the
defendant’s acts would have constituted misdemeanor battery, “except for the
status of the individual who had been battered”; (2) the battery was impulsive, not
premeditated; (3) there were no ongoing problems between the defendant and
correctional staff before the battery; and (4) the defendant had few, if any,
behavioral issues before the battery. Id. at 57-58. On these facts, the circuit court

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No. 2024AP189-CR

determined that reverse waiver would not depreciate the seriousness of the
offense.

¶34 On appeal, we affirmed the circuit court’s exercise of discretion,
including its consideration of the specific facts surrounding the offense when
addressing the second reverse waiver factor. In particular, we approved the
court’s consideration of the seriousness of the defendant’s conduct—specifically,
“whether it was an egregious type of battery, like the ‘vicious major attack’ in
[Verhagen, 198 Wis. 2d at 192-93], or some lesser type of battery.”6
Dominic E.W., 218 Wis. 2d at 58 n.6.

¶35 Similarly, in this case, the circuit court properly exercised its
discretion by considering the specific facts surrounding Christopher’s offenses and
concluding, based on those facts, that Christopher had failed to meet his burden on
the second reverse waiver factor. In its written decision, the court detailed the
number and severity of the victim’s injuries, as documented in the autopsy report.
The court noted that Christopher admitted committing a physical assault on the
victim that was “vicious and brutal in nature, involving punching the victim,
knocking the victim down and hitting the victim with a stick.” The court also
noted that Christopher admitted strangling the victim until he believed that she
was dead and then removing her pants, biting her, and attempting to have sex with

6
In State v. Verhagen, 198 Wis. 2d 177, 194, 542 N.W.2d 189 (Ct. App. 1995), we
affirmed a circuit court’s denial of a juvenile defendant’s petition for reverse waiver, concluding
that the court had “exercised its discretion and provided a reasonable basis for its decision.” As
particularly relevant to this case, the circuit court in Verhagen concluded that reverse waiver
would depreciate the seriousness of the offense because the defendant’s battery of a youth
counselor in a correctional facility was “a vicious major attack.” See id. at 193.

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No. 2024AP189-CR

her. The court emphasized that the victim’s autopsy found evidence of a sexual
assault.

¶36 The circuit court also emphasized that Christopher convinced the
victim to leave a residence and go down a trail with him, with the specific,
pre-existing intention to rape and kill her. The court found that Christopher’s
actions “were violent and egregious in nature,” that Christopher “carried out his
plan to rape and murder a ten-year-old young girl, viciously and with brutality,”
and that his crimes were “clearly premeditated.” The court also noted that two of
the charged crimes are Class A felonies and that “[t]here are no more serious
crimes than Class A felonies in the Wisconsin Statutes.”

¶37 Under these circumstances, the circuit court found that possible
confinement in the juvenile system for ten years and the requirement to register as
a sex offender would not be “punishment enough” for Christopher. As such, the
court determined that Christopher had not met his burden to show that reverse
waiver would not depreciate the seriousness of the offenses. The court’s decision
shows that it examined the relevant facts, applied a proper standard of law, and
used a demonstrated rational process to reach a decision that a reasonable judge
could reach. As such, the court did not erroneously exercise its discretion.
See Kleser, 328 Wis. 2d 42, ¶37.

¶38 Christopher raises several—often overlapping—arguments in
support of his claim that the circuit court erroneously exercised its discretion. As
an initial matter, Christopher theorizes that the three reverse waiver factors reflect
a legislative determination that, when making reverse waiver decisions, courts
should apply “a Utilitarian theory of punishment, whereby punishment is
forward-looking and serves the purpose of minimizing future harm, rather than a

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No. 2024AP189-CR

Retributive theory of punishment, whereby punishment is backward-looking and
serves the purpose of making a person suffer because they caused harm.”

¶39 Christopher then asserts that the circuit court “correctly applied the
Utilitarian theory of punishment” to the first and third reverse waiver factors but
failed to apply that theory to the second factor. According to Christopher, “Per the
Utilitarian theory of justice, the only level of punishment that is appropriate is that
which will motivate the offender to change their behavior.” Christopher asserts
that, in this case, putting him “in adult prison for life is not necessary” because it
will not serve his treatment needs or promote deterrence. Instead, Christopher
asserts that such an outcome “is only punishment for the sake of punishment,
which is not what the law permits for juveniles.”

¶40 This argument fails because Christopher cites no legal authority to
support it. He cites no case law, specific statutory language, or legislative history
showing that, by adopting the three reverse waiver factors in WIS. STAT.
§ 970.032(2), the legislature intended to restrict circuit courts to applying a
“Utilitarian theory of punishment”—or anything akin to that notion—when
making reverse waiver decisions. Moreover, Christopher cites no legal authority
in support of his claim that “punishment for the sake of punishment … is not what
the law permits for juveniles.”7 This court need not consider arguments that are

7
It is well established that “punishment of the defendant” is a legitimate sentencing
objective in cases involving adult offenders. See State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d
535, 678 N.W.2d 197.

(continued)

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No. 2024AP189-CR

unsupported by references to legal authority, see State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992), and we decline to do so here.

¶41 Christopher next emphasizes that “the case law on reverse waiver is
clear that reverse waiver is available even if the charged offense is serious.” He
contends, “[The fact t]hat juveniles charged in criminal court with first-degree
intentional homicide are statutorily eligible for reverse waiver means that there
will be juveniles so charged for whom reverse waiver is appropriate.” Here,
however, the circuit court did not conclude that Christopher had failed to meet his
burden on the second reverse waiver factor simply because Christopher is charged
with first-degree intentional homicide. Instead, the court determined that under
the specific factual circumstances of this case, Christopher had failed to show that
reverse waiver would not depreciate the seriousness of his offenses. Although the
court noted that Christopher is charged with two Class A felonies, it is clear that
the court’s decision was not based on the classification of the offenses alone but
on the specific factual circumstances surrounding the charged crimes.

¶42 Next, Christopher argues that reverse waiver “does not depreciate
the seriousness of the offense for a fourteen-year-old child with [ASD].”

Additionally, our supreme court has stated that “retribution” is “a legitimate penological
justification for imposing a sentence of life without parole upon a 14-year-old who commits
intentional homicide.” See State v. Ninham, 2011 WI 33, ¶80, 333 Wis. 2d 335, 797 N.W.2d
451. “The heart of the retribution rationale is that a criminal sentence must be directly related to
the personal culpability of the criminal offender.” Id. (citation omitted). “While juvenile
offenders are generally less culpable than adult offenders and therefore generally less deserving
of the most severe punishments, the case for retribution increases with respect to imposing a life
without parole sentence upon a juvenile who intentionally takes the life of another.” Id. (citations
omitted). This reasoning undercuts Christopher’s argument that the law does not permit
punishment as a sentencing objective for juvenile defendants and that, accordingly, a court’s
reverse waiver determination must conform to a Utilitarian, rather than Retributive, theory of
punishment.

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No. 2024AP189-CR

Christopher argues that juveniles “are not miniature adults” because scientific
research shows that “the brain does not fully develop until, on average, age 25.”
Christopher further cites the opinions of Caldwell, Benson, and Garbarino that his
offenses were the result of his ASD, combined with his compulsive viewing of
internet pornography. Christopher argues that, in light of these personal
characteristics, transferring his case to juvenile court would not depreciate the
seriousness of his offenses.

¶43 Christopher’s argument in this regard essentially asks us to ignore
our standard of review. In making its reverse waiver decision, the circuit court
was clearly aware of Christopher’s age, his ASD diagnosis, his viewing of internet
pornography, and the three experts’ opinions regarding those factors as causes of
Christopher’s offenses. The court nevertheless concluded that Christopher had
failed to prove that reverse waiver would not depreciate the seriousness of his
offenses, based on the “violent and egregious” nature of Christopher’s vicious and
brutal attack on a ten-year-old girl and the fact that Christopher’s crimes were
“clearly premeditated.”

¶44 It was within the circuit court’s discretion to weigh these factors in
determining whether Christopher had met his burden of proof as to the second
reverse waiver factor. Although another court could have reached a different
conclusion on the facts presented, that does not mean that the court in this case
erroneously exercised its discretion. Instead, as explained above, the court
examined the relevant facts, applied a proper standard of law, and used a
demonstrated rational process to reach a reasonable conclusion. See Kleser,
328 Wis. 2d 42, ¶37. Christopher’s contention that the court should have given
more weight to certain factors provides no basis for us to reverse the court’s
discretionary decision. See Dane Cnty. Dep’t of Hum. Servs. v. John L.-B.,

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No. 2024AP189-CR

No. 2013AP462, unpublished slip op. ¶68 (WI App May 16, 2013) (“It is not an
appellate court’s role to re-weigh the factors in a circuit court’s discretionary
decision.”).8

¶45 Christopher also asserts that the circuit court erroneously exercised
its discretion because the court found his witnesses’ testimony to be credible as to
the first and third reverse waiver factors but “essentially disregarded” the same
testimony when addressing the second factor. According to Christopher, “[t]his is
problematic because the testimony on all three of the statutory factors overlaps,
particularly for Drs. Benson, Caldwell, and Garbarino.” Thus, Christopher asserts
that it was “inherently inconsistent” for the circuit court to accept his witnesses’
testimony “on some, but not all, of the factors in the reverse waiver statute.”

¶46 We disagree. A trier of fact “is not bound by the opinion of an
expert; rather, it can accept or reject the expert’s opinion.” State v. Kienitz,
227 Wis. 2d 423, 438, 597 N.W.2d 712 (1999). In addition, a fact finder is free to
accept portions of an expert witness’s testimony while rejecting other portions of
the same witness’s testimony. State v. Owen, 202 Wis. 2d 620, 634, 551 N.W.2d
50 (Ct. App. 1996).

¶47 Accordingly, in this case, the circuit court could accept the various
witnesses’ testimony regarding Christopher’s diagnoses, his treatment needs,
whether his needs could be met in the adult correctional system, and whether
retaining jurisdiction in adult criminal court was necessary to deter Christopher
and other juveniles from committing similar offenses. Accepting that testimony,

8
An unpublished opinion authored by a single judge and issued on or after July 1, 2009,
may be cited for its persuasive authority. See WIS. STAT. RULE 809.23(3)(b).

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No. 2024AP189-CR

however, did not require the court to conclude that reverse waiver would not
depreciate the seriousness of Christopher’s offenses. Even after concluding that
the witnesses’ testimony on the aforementioned subjects was credible, the court
could still conclude that the specific factual circumstances surrounding
Christopher’s crimes outweighed those other considerations and showed that
reverse waiver would depreciate the seriousness of the offenses. The court’s
determination regarding the second factor is not inherently inconsistent with its
determinations regarding the first and third factors.

¶48 Christopher next argues that the circuit court failed to use a
demonstrated rational process to examine and apply the relevant facts. He
contends that the court made only “minor, conclusory findings of fact” and
“completely failed to apply those facts to the law.” He further asserts that the
court failed to explain why his placement in the SJO program until age twenty-five
would be an insufficient consequence for his offenses.

¶49 We reject Christopher’s claim that the circuit court’s factual findings
and reasoning were insufficient. The court made numerous factual findings
regarding the circumstances of Christopher’s offenses. The court then specifically
found that Christopher’s conduct was “violent and egregious in nature,” vicious,
brutal, and “clearly premeditated.” Given the aggravated nature of Christopher’s
conduct, the court determined that a ten-year disposition under the SJO program
and the requirement that Christopher register as a sex offender would not
constitute sufficient “punishment” for Christopher’s acts. This explanation was
adequate to show why the court concluded that Christopher had failed to meet his
burden of proof on the second reverse waiver factor. Cf. Verhagen, 198 Wis. 2d
at 193-94 (upholding a circuit court’s denial of a reverse waiver petition where the

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No. 2024AP189-CR

court concluded that reverse waiver would depreciate the seriousness of the
offense because the defendant’s conduct was “a vicious major attack”).

¶50 Finally, Christopher argues that the circuit court failed to apply a
proper standard of law. He notes that the court cited Verhagen for the proposition
that “it is the ‘unusual situation’ where the juvenile is able to prove that transfer of
jurisdiction to juvenile court is appropriate.” See id. at 188. Christopher contends
that this is an incorrect statement of the law because the cited language from
Verhagen comes from a discussion about “which party bears the burden of proof
in the reverse waiver context.”9 According to Christopher, “[t]he ‘unusual
situation’ language quoted by the [c]ircuit [c]ourt comes from the five-factor test
that the [c]ourt of [a]ppeals applied to determine that the burden of proof is on the
juvenile.” Christopher asserts that the Verhagen court “never stated that it is the
‘unusual situation’ where the juvenile is able to meet his [or her] burden of proof.”

¶51 Christopher’s argument on this point is unpersuasive. While the
quoted language from Verhagen does come from a portion of the opinion
addressing the proper allocation of the burden of proof, the Verhagen court
expressly stated: “The unusual situation under the statutory scheme is one in
which the court orders a transfer of jurisdiction to the juvenile court.” Id. at 188.
We agree with the State that while Christopher “attempts to distinguish the
‘unusual situation’ of a juvenile being reverse waived” from the situation of “a
juvenile proving reverse waiver,” “[t]his is a distinction without a difference.” As

9
Verhagen applied a prior version of the reverse waiver statute, which did not specify
which party had the burden of proof on the three reverse waiver factors. See Verhagen, 198
Wis. 2d at 186. Following Verhagen, the statute was amended to specify that the juvenile must
prove all three factors by a preponderance of the evidence. See 1995 Wis. Act 352, § 134.

21
No. 2024AP189-CR

the State aptly notes, “If it is the minor’s burden to prove reverse waiver, and
reverse waiver is presumed to be the ‘unusual’ outcome, then it logically means
that proving reverse waiver will also be unusual.” We therefore reject
Christopher’s argument that the circuit court applied an incorrect standard of law.

¶52 In summary, the circuit court’s written decision shows that in
assessing the second reverse waiver factor, the court examined the relevant facts,
applied a proper standard of law, and used a demonstrated rational process to
reach the reasonable conclusion that Christopher had failed to show that reverse
waiver would not depreciate the seriousness of his offenses. Christopher’s
arguments to the contrary are unpersuasive. Accordingly, we affirm the court’s
order denying Christopher’s petition for reverse waiver.

By the Court.—Order affirmed.

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

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