                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 29, 2017
               Plaintiff-Appellee,

v                                                                   No. 335820
                                                                    Saginaw Circuit Court
ADRAIN TERELL JOHNSON,                                              LC No. 15-034496-DL

               Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals by right from an order of the Family Division of the Saginaw Circuit
Court (“family court”) waiving the family court’s jurisdiction over the trial to be held on charges
of one count of first-degree home invasion, MCL 750.110a(2), one count of conspiracy to
commit first-degree home invasion, MCL 750.110a(2) and MCL 750.157, and three counts of
armed robbery, MCL 750.529. Defendant is 15 years old, and according to the probable cause
findings, he participated in a home invasion with two accomplices, threatened those present,
including a child, with a gun, and stole a number of possessions. Defendant concedes that he has
“no legal grounds to contest the probable cause findings,” but rather challenges the trial court’s
determination that it was proper for defendant to be tried as an adult under MCL 712A.4(4). We
vacate and remand for further proceedings.

        The family court generally has jurisdiction over criminal proceedings concerning any
child less than 17 years old. MCL 712A.2(a)(1). If the alleged offense is a felony, the family
court may waive its jurisdiction over a child who is at least 14 years old, in which case the child
may be tried in a court of general criminal jurisdiction. MCL 712A.4(1). If the family court first
finds that the prosecution has established each element of the offense and probable cause that the
juvenile committed the offense, the family court must determine “if the best interests of the
juvenile and the public would be served by granting a waiver of jurisdiction to the court of
general criminal jurisdiction.” MCL 712A.4(4); see also MCR 3.950(D)(2). “The prosecuting
attorney has the burden of establishing by a preponderance of the evidence that the best interests
of the juvenile and the public would be served by waiver,” MCR 3.950(D)(2)c), however “[t]he
Michigan Rules of Evidence, other than those with respect to privileges, do not apply,” MCR
3.950(D)(2)(b). The court is required to consider certain enumerated statutory criteria under
MCL 712A.4(4).


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        The only witness at the second phase of the proceedings was defendant’s probation
officer. He explained the criminal charges arise from conduct that occurred a mere sixteen days
after defendant had been released on bond on charges of malicious destruction of a building
under $200, for which defendant was eventually convicted. Several other charges had been filed
against defendant, ranging from domestic violence to unlawful use of a motor vehicle to assault
to a curfew violation, but they were all dismissed; one was dismissed pursuant to a plea, but the
officer did not know why the others were dismissed. Defendant tested positive for marijuana
while on bond. The officer opined that defendant’s grades in school were unremarkable. He
also testified that defendant displayed disrespect for and defiance of authority, and at one point
apparently carved gang graffiti into a door, but all of his incidents were non-violent and he
appeared simply to not “take[] things seriously.” He was unfamiliar with any mental health
issues defendant might have, but noted that he had been advised that defendant “had been on
Ritalin in the past.”

        The officer stated that it was “[his] opinion” that defendant showed no desire to be
rehabilitated. However, he admitted that defendant had been offered absolutely no programming
or services, no counseling, no assessment to determine his needs, or, it would appear, literally
any opportunity to display a desire for rehabilitation. Such services were in fact available; he
based his conclusion that they would be futile entirely on defendant’s “overall behavior in
detention.” Incongruously, the officer also stated that if defendant remained in the juvenile
system, he believed that “all” of the services would be beneficial to defendant: “Intensive
probation, counseling, pretty much everything that we have available in the community to offer
him would be utilized, yes.” The officer admitted that defendant had had no opportunity to show
whether he might benefit. At the conclusion of the hearing, after the court rendered its decision,
the court and attorneys discussed what services might be available to defendant in the adult
system, to the general effect that what was available would be “not terribly extensive” in prison
and “limited” opportunities in jail.

          The court found that the prosecutor demonstrated by a preponderance of the evidence that
it is in the best interests of defendant and society to waive jurisdiction.

        The family court’s findings of fact are reviewed for clear error. MCR 3.902(A); MCR
2.613(C). The decision whether to waive jurisdiction is reviewed for an abuse of discretion. In
re Fultz, 211 Mich App 299, 306; 535 NW2d 590 (1995), rev’d on other grounds 453 Mich 937
(1996). “The trial court abuses its discretion when its decision falls outside the range of
principled outcomes or when it erroneously interprets or applies the law.” People v Lane, 308
Mich App 38, 51; 862 NW2d 446 (2014).

       The family court must consider the following factors in making its determination whether
to waive jurisdiction:

               (a) The seriousness of the alleged offense in terms of community
       protection, including, but not limited to, the existence of any aggravating factors
       recognized by the sentencing guidelines, the use of a firearm or other dangerous
       weapon, and the impact on any victim.



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               (b) The culpability of the juvenile in committing the alleged offense,
       including, but not limited to, the level of the juvenile’s participation in planning
       and carrying out the offense and the existence of any aggravating or mitigating
       factors recognized by the sentencing guidelines.

              (c) The juvenile’s prior record of delinquency including, but not limited
       to, any record of detention, any police record, any school record, or any other
       evidence indicating prior delinquent behavior.

               (d) The juvenile’s programming history, including, but not limited to, the
       juvenile’s past willingness to participate meaningfully in available programming.

               (e) The adequacy of the punishment or programming available in the
       juvenile justice system.

             (f) The dispositional options available for the juvenile [MCL
       712A.4(4)(a)-(f); MCR 3.950(D)(2)(d)(i)-(vi).]

The court must give greater weight to the seriousness of the offense and the juvenile’s record of
delinquency than to other criteria. MCL 712A.4(4). We note that MCL 712A.4(4) is nearly
identical to MCL 712A.18(1)(m), governing sentencing of a juvenile as an adult, and our
Supreme Court has explained that under that section, the trial court need not “undertake a
mechanical recitation of the statutory criteria,” but rather need only express its understanding of
the options it had available and why it chose the option it did “in light of” the statutory factors.
People v Petty, 469 Mich 108, 116-119; 665 NW2d 443 (2003). We presume the same
minimum standard applies here, and thus we heartily commend the trial court for going above
and beyond what Petty requires and greatly appreciate having a better record available for our
review.

       The trial court clearly and reasonably concluded that the alleged offenses were
“extremely serious.” It noted that “the gun was pointed at the baby and others, and . . . the
victims were indeed terrified per their testimony.” These factual findings are supported by the
record. The evidence showed that defendant and two others invaded an occupied home and
robbed those inside the home, who included a baby, at gunpoint. According to one witness, the
three assailants “went row by row” and asked the victims to turn over their “stuff,” and also
“went to other rooms to grab the things.” The victims were all told to go into a corner and the
three assailants threatened to “‘shred the house,’” which was understood to mean “shoot the
house up.” Victims testified that they were scared. We find no error in the trial court’s
conclusion under MCL 712A.4(4)(a).

        The court found that defendant was equally culpable as the other two assailants. This
finding is supported by the record. There was testimony that the assailants repeatedly switched
possession of the gun and took turns either pointing the gun at the victims or going into rooms to
retrieve items. The fact that defendant and the two others entered the home together, demanded
that the victims hand over their property, and were taking turns pointing the gun at the victims
demonstrates shared culpability. We find no error in the trial court’s conclusion under MCL
712A.4(4)(b).

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        The court considered defendant’s prior record of delinquency. The court listed several
incidents of delinquency, including several withdrawn or dismissed petitions and one conviction.
The court noted multiple alleged incidents of domestic violence, a curfew violation, the unlawful
use of a motor vehicle, and one conviction for malicious destruction of property under $200 that
was committed while defendant was on bond for the instant offenses. Additionally, the court
considered defendant’s defiant behavior while in juvenile detention, and drug use while on bond.
As discussed, these findings were supported by the record. We find no error in the trial court’s
conclusion under MCL 712A.4(4)(c).

        The court found that “no services have been implemented but [defendant] has no desire to
be rehabilitated according to his probation officer.” The court reasoned that “dispositional
options within the juvenile system has had no effect on him,” and “[p]erhaps the adult system
will have programs which would be available.” Defendant argues that because no available
programming has been offered to him, it is purely speculative to conclude that he would not take
advantage of or participate meaningfully in the programming. We agree. It is undeniable that
defendant has a history of deviant behavior, but because the family court had never actually
implemented any programming, there could not be any evidence or findings made regarding
defendant’s past willingness to meaningfully participate in programming. Additionally,
discussion on the record after the trial court reached its findings suggest that the programs
available to defendant in the adult program are significantly less comprehensive than the court
apparently believed. The fact that defendant’s defiance was entirely non-violent was given
inadequate weight. The trial court clearly erred in concluding that defendant had not benefitted
from, and would not benefit from, services available to but never offered to him. The trial
court’s conclusions under MCL 712A.4(4)(d), (e), and (f) are therefore necessarily incorrect.

        We disagree with defendant’s contention that the trial court relied exclusively on the
seriousness of the alleged offense. The court did note that it gives “most weight to the . . .
‘seriousness of the alleged offense in terms of community protection,’” but it also systematically
considered all of the factors listed in MCL 712A.4(4) and made its findings for each. Moreover,
consistent with the court’s stated intention, MCL 712A.4(4) states that in a phase two hearing the
court must “giv[e] greater weight to the seriousness of the alleged offense and the juvenile’s
prior record of delinquency than to the other [five] criteria.” However, we conclude that the trial
court’s errors in evaluating his programming history, the adequacy of programming available,
and the available dispositional options contaminates the trial court’s decision sufficiently that it
cannot be upheld. It is apparent that the trial court’s otherwise-excellent analysis was hobbled by
a misapprehension of the programming options available to or appropriate for defendant, and
thus the court could not have arrived at any reasonable conclusion about the extent to which he
might benefit from them.

        We note briefly that defendant’s argument pertaining to the best interests of defendant
and the public is an extremely unimpressive appeal to emotions based on worthless rhetorical
questions that do not in any way resemble a coherent, rational argument. Ordinarily, we would
consider the issue abandoned. “It is not enough for an appellant in his brief simply to announce
a position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959). However, under the circumstances, it is irrelevant, because we conclude that the matter

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must be remanded to the trial court for further consideration in light of our conclusions regarding
programming and dispositional options.

        We emphasize that we do not hold that the trial court should necessarily arrive at a
different conclusion, and no such implication should be drawn. As noted, by statute most
consideration should be given to the seriousness of the offense, which here is undeniable, and the
juvenile’s record of delinquency. However, the trial court’s error in evaluating even relatively
minor considerations to the other factors is so egregious that the decision must be given further
consideration. It is not our role to otherwise usurp the family court’s decision. Notwithstanding
our finding, we again commend the trial court for providing us with a comprehensive record of
its reasoning.

        The family court’s decision to waive jurisdiction is vacated, and the matter is remanded
for further consideration not inconsistent with this opinion. We do not retain jurisdiction.

                                                            /s/ Mark T. Boonstra
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




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