State v. K. J. P.

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.
November 2, 2022
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. 2022AP807 Cir. Ct. No. 2021JV96

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF K.J.P., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

K.J.P.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
MARIA S. LAZAR, Judge. Affirmed.
No. 2022AP807

¶1 NEUBAUER, J.1 K.J.P. appeals from a nonfinal order of the circuit
court waiving juvenile court jurisdiction.2 The State petitioned for an adjudication
of delinquency regarding K.J.P. based on his alleged kidnapping, armed
carjacking, armed robbery, and sexual assault of an eighty-seven-year-old victim.
The State also petitioned for waiver of juvenile court jurisdiction. The circuit
court held a hearing on the waiver petition and granted it, concluding that it was
contrary to the best interests of K.J.P. or the public for the circuit court with
juvenile jurisdiction to hear the case. This court affirms.

BACKGROUND

¶2 Waiver of juvenile court jurisdiction is governed by WIS. STAT.
§ 938.18. State v. X.S., 2022 WI 49, ¶25, 402 Wis. 2d 481, 976 N.W.2d 425. As
relevant to this appeal, § 938.18(5) sets out five criteria a court must consider in
determining whether to waive juvenile jurisdiction: (1) the juvenile’s personality;
(2) the juvenile’s prior record; (3) “[t]he type and seriousness of the offense”;
(4) “[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 (5) “[t]he desirability of trial and disposition of the entire offense in
one court if the juvenile was allegedly associated in the offense with persons who
will be charged with a crime in the court of criminal jurisdiction.”

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3).

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Sec. 938.18(5)(a)-(d).3 The State bears the burden of establishing a basis for
waiver by clear and convincing evidence. See Sec. 938.18(6).

¶3 The circuit court must state its findings with respect to the above
criteria on the record, and if it determines that “it is contrary to the best interests of
the juvenile or of the public to hear the case,” the court must enter an order
waiving juvenile jurisdiction. WIS. STAT. § 938.18(6). With these legal principles
in mind, we turn to the allegations against K.J.P. and the evidence presented at the
waiver hearing.4

¶4 On December 2, 2021, the State filed a petition charging K.J.P. with
first-degree sexual assault, armed robbery, armed carjacking, and kidnapping. The
State also filed a petition to waive juvenile jurisdiction over K.J.P.

¶5 The circuit court held a hearing on the State’s waiver petition on
March 9, 2022. The State presented testimony from three law enforcement
officers who spoke with the victim and K.J.P. on the date of the incident. The
officers’ testimony revealed that the victim reported being approached by a young
male, later identified as K.J.P., while she was returning some books at the library.
After helping her with the books, K.J.P. allegedly took out a knife and told the
victim to get into the passenger seat of her vehicle. According to the victim,
K.J.P. got in the driver’s seat and drove the vehicle to the parking lot of a nearby
apartment complex, where he forced the victim to perform oral sex on him. He

3
The statute also requires the court to determine whether the matter has “prosecutive
merit.” WIS. STAT. § 938.18(4)(a). K.J.P. stipulated that this requirement is satisfied.
4
Like the circuit court, we consider the facts outlined in the delinquency petition and
described at the waiver hearing as allegations, not as facts that have been proven.

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No. 2022AP807

also allegedly attempted to remove the victim’s pants in order to have sex with
her, but “she told him it would not work” because of her advanced age. The
victim also reported being told to “shut up” by her assailant as she prayed out loud
during the incident. When K.J.P. dropped the victim off, he told her he was “the
devil,” knew where she lived, and would kill her and her family “if she does
anything.” After relaying what had occurred and retracing the route K.J.P. had
driven, the victim began shaking, crying, and hyperventilating, prompting officers
to summon an ambulance to transport her to the hospital.

¶6 Officers eventually stopped the victim’s vehicle and apprehended
K.J.P. after a short foot pursuit. According to one of the testifying officers, K.J.P.
was taken to the Waukesha Police Department and given Miranda5 warnings. The
officer testified that K.J.P. said he “became enraged” after helping the victim with
her library books, pulled a knife from his pocket and told the victim to get into the
passenger seat of her vehicle. According to the officer, K.J.P. acknowledged
driving away with the victim and taking her credit card after asking her for money
but denied sexually assaulting her. The officer testified further that he checked
K.J.P.’s record and learned that he had three prior citations for municipal
ordinance violations. Officers later searched K.J.P.’s residence and located
several items underneath grass clippings in a black trash bag that the victim had
identified as being in her vehicle.

¶7 The State also presented testimony from a social worker with the
Waukesha Department of Health and Human Services (DHHS) who prepared a
report recommending against waiver. The social worker testified that DHHS

5
See Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2022AP807

based its recommendation on a belief that K.J.P. should be placed into the
“Serious Juvenile Offender Program,” or SJO, under which he would be
supervised by the Department of Corrections for up to five years if adjudicated
delinquent on the sexual assault count. The social worker described the
allegations against K.J.P. as “probably if not the most severe[,] probably one of
the more severe allegations” he had seen in his twenty years of experience. He
agreed that the alleged offenses were premeditated and committed violently,
aggressively, and willfully. The social worker was unable to determine K.J.P.’s
potential for responding to future treatment because he was not receiving any
treatment while in custody.

¶8 In addition to the witness testimony, the circuit court admitted into
evidence two reports, one prepared by the social worker and the other prepared by
Karyn L. Gust-Brey, Ph.D., a psychologist who had been appointed by the court to
examine K.J.P. and evaluate whether he met the criteria for waiver. Gust-Brey’s
report contained information about K.J.P.’s family, educational history, past
traumatic experiences, and mental health. The report also summarized the results
of several psychological, behavioral, and cognitive tests administered to K.J.P. as
part of the examination. In her report, Gust-Brey diagnosed K.J.P. with
posttraumatic stress disorder with dissociative symptoms, cannabis use disorder,
and adolescent antisocial behavior. She rated him “at the upper limit of the low
range” of dangerousness, “in the middle range in terms of his violent and
aggressive tendencies and planned criminality,” and “within the high range” of the
scale for amenability to treatment. In her opinion, “[K.J.P.]’s case should remain
in juvenile court.”

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¶9 The circuit court announced its findings in an oral ruling on
April 28, 2002.6 After reviewing the allegations against K.J.P., the court
explained the legal standards governing waiver determinations. The court then
analyzed the evidence in light of the five criteria in WIS. STAT. § 938.18(5) and
concluded that the State had met its burden to show “that it would be in the best
interest of this child … as well as in the best interest of the public to waive [K.J.P.]
to adult court.” Specific findings made by the court that are relevant to the issues
raised on appeal are discussed below.

DISCUSSION

¶10 “The decision to waive juvenile court jurisdiction under WIS. STAT.
§ 938.18 is committed to the sound discretion of the [circuit] court.” X.S., 402
Wis. 2d 481, ¶25 (quoting State v. Tyler T., 2012 WI 52, ¶24, 341 Wis. 2d 1, 814
N.W.2d 192). The discretion conferred upon the circuit court includes the ability
to determine how much weight should be afforded to each of the statutory criteria.
See J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991).

¶11 On review, this court “first looks to the record to see whether …
discretion was in fact exercised.” Id. at 961. “The exercise of discretion
incorporates a process of reasoning and proper explanation.” X.S., 402 Wis. 2d
481, ¶33. If discretion was exercised, this court will look for reasons to sustain the
decision. Id., ¶34. We will reverse a waiver determination “if and only if the
record does not reflect a reasonable basis for the determination or a statement of

6
The court placed some of its findings on the record with members of the public present
and discussed other findings in a portion of the hearing that was closed to the public.

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No. 2022AP807

the relevant facts or reasons motivating the determination is not carefully
delineated in the record.” J.A.L., 162 Wis. 2d at 961.

¶12 K.J.P. does not argue that the circuit court failed to exercise
discretion entirely, but rather that it erroneously exercised its discretion in four
respects. We address each below.

Pattern of Living

¶13 K.J.P. argues that the circuit court did not consider his “pattern of
living.” See WIS. STAT. § 938.18(5)(a). A juvenile’s “pattern of living” is one
factor a court must consider in examining the juvenile’s personality. Specifically,
§ 938.18(5)(a) requires consideration of “[t]he 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.”

¶14 The circuit court made findings as to each of these factors in
assessing K.J.P.’s personality. It began by noting the generally positive
impressions of K.J.P. offered by his mother and DHHS. The court stated that
K.J.P. did not have any previous mental health diagnoses or developmental
disabilities, that he was physically mature, and that the social worker did have
concerns about his mental maturity. The court stated further that K.J.P. “primarily
lived with his mother,” that his father “has a history of incarceration and drug
use,” and that his mother also “has criminal matters pending in another county.” It
noted that K.J.P. had “reported mistreatment in his prior foster home” but was not
able to provide many details. The court also noted the social worker’s belief that
K.J.P. “had a lower mental maturity but may not have been on track at school
because of his repeated failure to actually attend school.” The court recognized

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No. 2022AP807

that K.J.P. did not have a record of treatment for mental health concerns and stated
that it gave little weight to the social worker’s and Gust-Brey’s opinions that
K.J.P. showed potential for responding to treatment because of invalid responses
on several of the tests that Gust-Brey administered. Taking all of these factors
into consideration, the court stated that K.J.P.’s personality “sways slightly in his
favor” and against waiver.

¶15 K.J.P. argues initially that the circuit court did not consider his
pattern of living at all, but the transcript of the court’s ruling refutes that
contention. The court specifically identified where and with whom K.J.P. had
lived, the legal problems his parents had experienced, and his history of not
attending school. It also acknowledged that K.J.P. had explained to the police that
he had not been at school on the day of his alleged encounter with the victim
because he had been “out looking for a job to help his mother out.” These facts
pertained to K.J.P.’s pattern of living and were considered by the court.

¶16 K.J.P. also argues that the circuit court merely repeated testimony
and did not adequately explain how his pattern of living “factored into its broader
conclusion” that his personality leaned only slightly against waiver, when it
“should have weighed heavily” in that direction. This court disagrees. The
court’s explanation of the personality criteria was grounded in its balancing of
multiple factors, some of which cut in favor of waiver and some of which did not.
The court’s remarks show that it identified the relevant facts and, weighing them
together, concluded that they essentially balanced each other out, making K.J.P.’s
personality a “neutral” factor or one that leaned slightly against waiver. It is not
for us to second guess whether K.J.P.’s personality weighs slightly or heavily
against or in favor of waiver; that is a matter reserved for the circuit court’s

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No. 2022AP807

discretion. See J.A.L., 162 Wis. 2d at 960. Because the court’s evaluation of this
criteria is supported by a reasonable basis in the record, we will not disturb it.

K.J.P.’s Prior Record

¶17 Next, K.J.P. contends that the circuit court erroneously exercised its
discretion by emphasizing the facts underlying the present case when considering
his prior record. This argument invokes the second criteria listed in WIS. STAT.
§ 938.18(5), which requires the court to consider:

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.

Sec. 938.18(5)(am). K.J.P. argues that the court misapplied this section because it
considered his “motives and attitudes” based on the “unproven allegations” of the
present case, rather than any prior offense. As a result, according to K.J.P., the
circuit court considered his lack of a prior record only “somewhat” favorable to
him and improperly considered the allegations in the present case twice.

¶18 The circuit court began its discussion of this criteria by describing it
as “the easiest and also weigh[ing] in [K.J.P.]’s favor” because:

There is no prior record for [K.J.P.]. He has never
previously been found delinquent of any offense, much less
one that involved the infliction of serious body injury or
sexual assault. There were not prior waivers to adult court.
Detective Stucker did testify [K.J.P.] had been cited for
four to five municipal violations, including battery, two
disorderly conducts, and a theft of a bicycle.

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No. 2022AP807

The court then turned to the DHHS report, which it described as including an
“explanation … regarding the question of the juvenile’s motive [and] attitudes
that’s listed under this criterion.” We understand the court to refer to the portion
of the department’s report that discussed K.J.P.’s motives and attitudes “regarding
the allegations.” The court found several aspects of the department’s discussion of
K.J.P’s motives not credible, including his claims that he had skipped school on
the date in question to look for a job, that he went to the library to warm up in the
cold weather (the library was closed at the time), and that he panicked and ran
from law enforcement after the alleged attack. In contrast to these explanations,
the court believed that K.J.P.’s alleged conduct that day “show[ed] premeditation,
planning, intent, and malicious heart.”

¶19 The State offers two responses to K.J.P.’s argument. First, it argues
that WIS. STAT. § 938.18(5)(am) can reasonably be read to permit consideration of
a juvenile’s “motives and attitudes” with respect to either prior offenses or those at
issue in the waiver proceeding. Second, even if the circuit court improperly
considered K.J.P.’s “motives and attitudes” with respect to the charged offenses,
the State contends that error was not an erroneous exercise of discretion because
the court found that K.J.P.’s lack of a prior record weighed against waiver.
Although this court does not agree with the State’s first argument, the circuit
court’s consideration of K.J.P.’s proffered explanations for his alleged behavior
was not an erroneous exercise of discretion.

¶20 The State’s first argument raises an issue of statutory interpretation,
which we review de novo. See State v. Kleser, 2010 WI 88, ¶36, 328 Wis. 2d 42,
786 N.W.2d 144. WISCONSIN STAT. § 938.18(5)(am) states that the court must
consider the “prior record of the juvenile, including” five specific factors that
follow the word “including.” The use of the word “including” to introduce these

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factors indicates that they fall under the broader rubric of the juvenile’s “prior
record.” See Include, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(unabr. 1993) (defining “include” as “to place, list, or rate as a part or component
of a whole or of a larger group, class, or aggregate … to take in, enfold, or
comprise as a discrete or subordinate part or item of a larger aggregate, group, or
principle”); Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350,
760 N.W.2d 156 (stating that courts may consult dictionaries “to guide the
common, ordinary meaning of words”). Thus, under § 938.18(5)(am), the circuit
court may consider a juvenile’s “motives and attitudes” only with respect to prior
offenses or conduct.

¶21 Nonetheless, the circuit court did not erroneously exercise its
discretion in considering the explanations K.J.P. gave for the conduct underlying
the charges in this case because WIS. STAT. § 938.18(5)(b) directs the circuit court
to consider “[t]he 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.” The statutory directive to consider
premeditation and willfulness reasonably allowed the court to evaluate not only
the unlawful acts K.J.P. is alleged to have committed, but also his explanations for
those acts. Though the court did not cite this portion of the statute, this court must
search the record for reasons to uphold the circuit court’s exercise of discretion.
X.S., 402 Wis. 2d 481, ¶34. Here, though the court associated its discussion of
K.J.P.’s statements to DHHS with the “motives and attitudes” language that
appears in § 938.18(5)(am), its consideration of those statements was permitted
under § 938.18(5)(b) and thus was not an erroneous exercise of discretion.

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Amenability to Treatment

¶22 K.J.P.’s third argument focuses on the circuit court’s consideration
of his amenability to treatment. As part of a court’s analysis of a juvenile’s
personality, the court must consider the juvenile’s “apparent potential for
responding to future treatment.” WIS. STAT. § 938.18(5)(a).

¶23 K.J.P. challenges the circuit court’s finding that he showed no
intention of taking “therapy and treatment seriously” and its decision not to accord
significant weight to the recommendations of DHHS and Gust-Brey. The circuit
court made these determinations based on several considerations. First, it
described the alleged assault of the victim as “deliberate” and reviewed “all the
little efforts that [K.J.P.] took to cover up his criminal conduct,” including
allegedly breaking or hiding some items stolen from the victim. Next, the court
cited K.J.P.’s purported inability to recall the alleged sexual assault, which stood
in contrast to his recollection of many of the other incidents the victim described
to the police and of his alleged efforts to cover up his conduct after the assault.

¶24 In addition, the court found several faults with Gust-Brey’s analysis
and accordingly gave “very little weight” to her opinion that K.J.P. was highly
amenable to treatment and to DHHS’s recommendation against waiver, which
rested in part on her analysis. In the court’s view, Gust-Brey had “place[d]
perhaps too much weight on [K.J.P.]’s and his mother’s concerns about waiver”
and his mental health, which the court said were “newly realized and did not exist
before these offenses.” The court also noted that Gust-Brey had identified a
“significant lack of validity” in multiple tests she administered to K.J.P., which in
its view reflected her belief that “[K.J.P.] was either lying, manipulating, or
exaggerating during the assessments.” In addition, the court stated that Gust-Brey

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did not know of the extent to which K.J.P. allegedly went to conceal his conduct
and believed she would have elevated his level of dangerousness had she been
fully informed of this conduct. Finally, the court cited Gust-Brey’s apparent
unfamiliarity with the SJO program and found that she had not given sufficient
regard to the gravity of the charged conduct, which the court described as
“egregious” and “highly serious.”

¶25 We must accept the circuit court’s findings unless they are clearly in
error. J.A.L., 162 Wis. 2d at 966. “[T]o command a reversal, such evidence in
support of a contrary finding must itself constitute the great weight and clear
preponderance of the evidence.” Id. (quoting Cogswell v. Robertshaw Controls
Co., 87 Wis. 2d 243, 249-50, 274 N.W.2d 647 (1979)). K.J.P.’s disagreements
with the findings upon which the circuit court relied in giving little weight to the
treatability opinion of Gust-Brey do not clear this high threshold. The court could
reasonably conclude that Gust-Brey overstated K.J.P.’s amenability to treatment
because of the validity issues in multiple tests she administered and K.J.P.’s
alleged inability to remember sexually assaulting the victim. The court could
reasonably infer from K.J.P.’s refusal to acknowledge the sexual assault, when
contrasted with his acknowledgment to other charged conduct, that K.J.P. would
not be amenable to the treatment recommended to address the assault. In addition,
the court did not find or presume K.J.P. to be guilty of the sexual assault charge in
the waiver proceeding; it specifically stated that its decision was based on the
allegations in the delinquency petition. None of K.J.P.’s other arguments show
that the court’s consideration of his amenability to treatment was based on clearly
erroneous facts or that its determination lacks a reasonable basis in the record.

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Comparison to B.B. v. State

¶26 Lastly, K.J.P. argues that the circuit court erroneously exercised its
discretion by analogizing his conduct to the homicide offenses at issue in B.B. v.
State, 166 Wis. 2d 202, 479 N.W.2d 205 (Ct. App. 1991). In B.B., this court
upheld a decision to waive jurisdiction over a juvenile accused of shooting five
family members to death, loading their bodies into a vehicle, setting it on fire, and
then burying some of the remains. Id. at 205-06. The circuit court stated that the
offenses alleged against K.J.P. “carry with them the sheer brutality [and] casual
disregard for the personal privacy of the victim that the five first-degree homicides
evidenced in the B.B. case.” K.J.P. disputes this characterization and contends that
the circuit court’s comparison to B.B. was inappropriate because no party at the
hearing disputed that the allegations against him were serious.

¶27 The circuit court did not erroneously exercise its discretion in citing
B.B. Although the court found that the offenses charged against K.J.P. were
comparable in some respects to the homicide offenses in B.B., it specifically stated
that the offenses charged in this case “do not rise to the level of” the conduct at
issue in B.B. The court’s statement reflects its understanding of the difference
between the conduct at issue in B.B., and the charged offenses in the present case.
At the same time, however, it is evident from the court’s remarks that it believed
the type and seriousness of the offenses weighed heavily in favor of waiving
juvenile jurisdiction over K.J.P, as was the case in B.B. Given the nature of the
charged conduct, that belief is supported by the record, and the court did not
erroneously exercise its discretion in relying on B.B.

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CONCLUSION

¶28 The circuit court’s decision to waive juvenile jurisdiction over K.J.P.
was not an erroneous exercise of discretion. The court correctly cited the criteria
governing waiver, identified the relevant facts, applied the criteria to those facts,
and reached a reasonable conclusion that waiver of jurisdiction was appropriate.
K.J.P. has not shown that the court erroneously exercised its discretion in granting
the State’s waiver petition.

By the Court.—Order affirmed.

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

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