                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re AUSTIN MATSON, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 24, 2017
               Petitioner-Appellant,

v                                                                  No. 332780
                                                                   Oakland Circuit Court
AUSTIN MATSON,                                                     Family Division
                                                                   LC No. 2015-833608-DL
               Respondent-Appellee.


Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        Respondent committed acts of second-degree criminal sexual conduct against his 2½-
year-old adopted twin sisters when he was 16 years old. The twins reported the incidents three
years later and the prosecution filed two CSC-2 charges against respondent. Because respondent
was a minor when the offenses occurred, jurisdiction was transferred to the family division of the
circuit court (the family court). The prosecution requested that the family court waive
jurisdiction and allow respondent to be tried as an adult. Following a best-interest hearing, the
family court denied the waiver motion. The charges were then necessarily dismissed because the
family court lacked jurisdiction to try the adult respondent as a minor and punishment could not
be provided in the juvenile justice system.

        The prosecution now appeals, claiming that the family court abused its discretion in
denying the waiver motion as respondent admitted his culpability for charges of a serious sexual
offense that were subsequently dismissed. The family court’s discretion reflects a thoughtful and
thorough review of the factors relevant to its jurisdictional determination. We discern no abuse
of discretion and affirm.

                                                I.

       Respondent sexually touched his sisters on three occasions when they were toddlers and
he was 16. When the twins were approximately 5½, one “nonchalant[ly]” told her father
(respondent’s stepfather) that respondent had touched her and her sister in a sexual manner. The
children’s mother, Leanne Swan, “separated respondent from the girls and immediately placed

                                               -1-
respondent in counseling.” Swan took the twins to Care House where trained professionals
conducted a forensic interview. The interviewer recommended that Swan place the girls in
counseling. Although Swan had noticed no difference in her daughters’ behavior, she complied.

        The prosecution filed two CSC-2 charges against respondent three months later. He was
then 19 years old. Generally, the family division of the circuit court has exclusive jurisdiction
over juveniles under 17 years old who have committed criminal offenses. MCL 712A.2(a)(1);
People v Conat, 238 Mich App 134, 139; 605 NW2d 49 (1999). There are certain “specified
juvenile violation[s]” over which the circuit court has automatic jurisdiction. MCL 600.606;
Conat, 238 Mich App at 142-143. CSC-2 as proscribed by MCL 750.520c is not one of these
specified juvenile violations. Id.

        As required by MCL 712A.3(1),1 the matter was transferred to the family division of the
Oakland Circuit Court once the criminal division learned that respondent was under the age of 17
when the offenses were committed. The prosecution then requested that the family court waive
jurisdiction so respondent could be tried as an adult. See MCL 712A.4(1) (“If a juvenile 14
years of age or older is accused of an act that if committed by an adult would be a felony, the
judge of the family division . . . may waive jurisdiction under this section upon motion of the
prosecuting attorney.”); MCR 3.950(A)-(C) (granting family court judges sole authority to waive
jurisdiction in juvenile matters upon motion by the prosecution). As respondent was then an
adult, the family court did not have jurisdiction to adjudicate him delinquent, but retained
jurisdiction “for the limited purpose of holding a waiver hearing pursuant to MCL 712A.4.”
People v Schneider, 119 Mich App 480, 486; 326 NW2d 416 (1982).

       Waiver hearings are comprised of two phases. In the first, the family court must conduct
a hearing “to determine whether there is probable cause to believe that an offense has been
committed that if committed by an adult would be a felony” and that the respondent “committed
the offense.” MCR 3.950(D)(1). See also MCL 712A.4(3). Respondent admitted that he
sexually touched his young sisters and that his acts would be deemed a felony had he committed
them as an adult, thereby waiving the probable cause hearing. MCL 712A.4(3); MCR
3.950(D)(1)(c)(ii).

        During the second phase, the family court must conduct a hearing “to determine whether
the interests of the juvenile and the public would best be served by granting the [waiver]
motion.” MCR 3.950(D)(2). See also MCL 712A.4(4). The prosecution must establish 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). The Legislature has directed family courts to consider
certain criteria at this phase, and to give certain criteria greater weight:




1
  The statute provides, in relevant part: “If during the pendency of a criminal charge against a
person in any other court it is ascertained that the person was under the age of 17 at the time of
the commission of the offense, the other court shall transfer the case without delay . . . to the
family division of the circuit court . . . .”


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       In making its determination, the court shall consider all of the following criteria,
       giving greater weight to the seriousness of the alleged offense and the juvenile’s
       prior record of delinquency than to the other criteria:

       (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.

       (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); see
       also MCR 3.950(2)(d).]

        Despite that the burden was on the prosecutor at the waiver hearing, the prosecutor called
no witnesses. Defense counsel called and directly examined the only witnesses who provided
evidence to the family court. Swan testified that all three children had been in counseling since
her daughter’s report and that respondent had been separated from his sisters. After that time,
Swan mostly spoke to respondent on the telephone. Accordingly, Swan did not have first-hand
knowledge that her son was in counseling, but she “underst[oo]d” he was still attending. She
described that respondent was a good student who had graduated from high school with honors
and was doing very well in his courses at community college. She offered that respondent had
“always been a good child” and had not been in any trouble since these incidents. However,
Swan admitted that even with counseling, she would not feel safe leaving her daughters alone
with respondent.

        John Neumann was court appointed to evaluate respondent but is not respondent’s
therapist. The court qualified Neumann as an expert in the field of child sexual abuse offenders.
Neumann believed respondent was in the “borderline low moderate risk . . . for recidivism.”
“[W]ith the treatment he had had up to that point,” Neumann found that respondent had already
“start[ed] internalizing his issues and bringing resolution to his offending behaviors.” Neumann
took into consideration that respondent no longer had contact with his sisters or any other
“potential victims,” i.e., young children who “could’ve been vulnerable to any forms of offensive
behavior.” The three-year offense-free gap since respondent’s acts was also relevant to
Neumann’s assessment and “significantly” reduced respondent’s recidivism risk. “[I]f
                                                -3-
[respondent] consistently continued to invest in his ongoing treatment,” Neumann opined, his
recidivism risk “would continue to lower and bring resolution to his issue.” Neumann described
the voluntary treatment options available in respondent’s community as “cutting edge.”
Neumann also testified that respondent “told me his intent was to continue” therapy and
treatment.

        Neumann further opined that respondent was not sexually deviant or a pedophile. He
“assum[ed]” respondent was “very, very immature both socially and emotionally” at the time of
his offenses, leaving “gaps in his areas of boundaries and parameters . . . for him to engage and
act out in this way.” By the time of the hearing, respondent was 20 years old. He could then
“differentiate the difference between right and wrong.” Because of his increased maturity,
respondent was able “to integrate and pull together various pieces of his behavior and what led
him . . . to sexually act out.” The offenses ultimately “were a result of his then immaturity and
use of pornography and were opportunistic,” without “any foundations of predatory, pedophilia
or severe deviant sexual pathology.”

       On cross-examination by the prosecution, Neumann conceded that the victims of child
sexual abuse can be impacted for life and may even become sexual predators themselves.
Neumann agreed that “one of the troubling factors” in this case was the familial relation between
respondent and his victims. And Neumann accepted that respondent’s expression of guilt and
remorse did not necessarily mean that he would not reoffend.

        In closing, the prosecution emphasized the seriousness of the crime and the lack of
punishment available if waiver were denied. Respondent countered that despite the severity of
his offense, he had voluntarily participated in counseling, had a strong family support system,
and had a low potential for recidivism, supporting waiver of family court jurisdiction and
dismissal of the charges.

       The family court considered the matter for three months before denying the prosecution’s
motion to waive jurisdiction. The court acknowledged that the offenses were very serious. If
respondent were convicted as an adult offender, he would face a sentence of one to 15 years’
imprisonment and would be required to register as a sex offender for the rest of his life. The
court further acknowledged that its denial of the motion to waive jurisdiction would result in
dismissal of the charges as respondent was now an adult and the family court could not otherwise
assume jurisdiction over him.

       The court conceded that respondent had admitted responsibility for the offenses and that
his victims were very young. But, the court reasoned, Neumann found no evidence of
premeditation. Rather, Neumann opined “that the acts were a result of Respondent’s immaturity,
opportunity, and his use of pornography.”

         The court noted that respondent had no criminal history outside of the incidents
underlying this action. Respondent “was a good student and had no issues in the home growing
up.” Following the incidents, respondent graduated from high school with honors and was an
excellent student at community college. Respondent had been in voluntary counseling since his
sisters reported the abuse. He expressed his intent to continue counseling even after resolution of
the court proceedings. The court found that respondent “has so far been amenable and is

                                                -4-
benefiting from counseling services.” Respondent retained “strong family support” and both of
his parents attended all court proceedings. Overall, respondent did “not appear to have the
foundations of predatory pedophilia or severe deviant sexual pathology.” And despite the lack of
adequate punishment or programming in the juvenile justice system, the court emphasized that
respondent would “continue to decrease his chances of recidivism with continued counseling and
strong familial support, which Respondent indicated he will continue to have.”

       Ultimately, the court found that the only factor weighing in favor of waiving jurisdiction
so respondent could be charged and prosecuted as an adult was the seriousness of the offenses.
Even giving that lone factor great weight, the court did not find that it supported such waiver.
The court therefore denied the prosecution’s motion and the charges were dismissed.

       The prosecution now appeals.

                                               II.

       We review for an abuse of discretion the family court’s denial of the prosecution’s
motion to waive jurisdiction. See In re Wilson, 113 Mich App 113, 121-122; 317 NW2d 309
(1982). See also In re Fultz, 211 Mich App 299, 306; 535 NW2d 590 (1995), rev’d on other
grounds People v Fultz, 453 Mich 937; 554 NW2d 725 (1996). “An abuse of discretion occurs
when the trial court chooses an outcome falling outside the range of principled outcomes.”
People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012). We review for clear error the court’s
findings of fact. MCR 2.613(C); MCR 3.902(A).

       The prosecution contends that the family court improperly analyzed the criteria under
MCL 712A.4(4) and “in effect . . . immunized Respondent from any prosecution whatsoever and
therefore [the jurisdictional waiver denial] was an abuse of her discretion.” We first address the
prosecution’s challenges surrounding factor (a), the seriousness of the offense.

        The family court recognized the seriousness of the CSC-2 charges and the specific acts
committed by respondent, as well as the punishment and reporting requirements respondent
would face if tried as an adult. The prosecution contends that the court should have given this
factor even greater weight than it did, “[g]iven the young age of the victims and Respondent’s
heinous acts of [CSC] against them.” Our Legislature has considered the serious nature of
several criminal offenses and requires automatic waiver to the criminal division where a juvenile
over the age of 14 will be tried as an adult for committing various offenses. Automatic waiver
occurs where a respondent commits first-degree CSC in violation of MCL 500.520b. The
Legislature made the informed decision not to include CSC-2 in the category of offenses
requiring automatic waiver under MCL 600.606. We would be ignoring the Legislature’s policy
decision and creating a judicial automatic waiver rule if we held that the commission of CSC-2,
standing alone, rendered the offense so serious as to demand waiver of family court jurisdiction.

        The prosecution further contends that caselaw supports that a family court abuses its
discretion when its denial of a waiver motion leads to dismissal of the charges. We do not read
the cited case in this narrow manner. In Fultz, 211 Mich App at 301-302, the respondent was
charged seven years after the fact with committing four counts of CSC-1 against his seven-year-
old niece when he was 16. The respondent allegedly handcuffed his victim to a bed and forcibly

                                               -5-
raped her. The victim waited seven years to report the assault because the respondent threatened
her. Id. at 302. The Legislature had yet to enact MCL 600.606 at the time the respondent was
charged. Although a separate statutory provision permitted the prosecutor to proceed against the
respondent as an adult, the prosecutor used his charging discretion to first file a petition in the
probate court to waive its juvenile jurisdiction. Id. at 302-303. The probate court considered
various relevant factors and declined to waive jurisdiction. As a result, the charges against the
then-adult respondent were dismissed. Id. This Court considered the probate court’s analysis of
the factors underlying the waiver decision, including that the respondent had committed no
offenses in the interim, and discerned no factual error or abuse of discretion. Id. at 306-308.

       In dissent, Judge SMOLENSKI reasoned:

       “The appropriate standard for purposes of a phase II hearing is ‘whether the
       interests of the juvenile and the public would best be served by granting the
       motion [for waiver].’ ” In this case, the probate court found that there was
       probable cause to believe that respondent had forced the complainant to engage in
       conduct constituting four counts of [CSC-1]. Respondent was ineligible for
       placement at any juvenile facility because of his age. The complainant claimed
       that she had kept silent about respondent’s alleged sexual assaults because
       respondent had threatened her.

               Therefore, I would hold that under the circumstances of this case the
       probate court abused its discretion in failing to appropriately weigh the
       seriousness of respondent’s alleged crimes, and the best interest of the public
       welfare and the protection of the public security. I do not believe that under
       these circumstances respondent should be rewarded for allegedly living a life free
       of crime for eight years. I would reverse the circuit court’s affirmance of the
       probate court’s order declining to waive jurisdiction, and remand. [Id. at 312-313
       (SMOLENSKI, J., concurring in part and dissenting in part) (emphasis in original,
       citations omitted).]

        In a 5-2 decision, the Supreme Court reversed, holding “[f]or the reasons stated by the
dissenting judge in the Court of Appeals, we find the probate court abused its discretion in
denying the prosecutor’s motion to waive jurisdiction to the circuit court.” Fultz, 453 Mich at
937.

         Fultz does not stand for the proposition that a family court abuses its discretion if its
refusal to waive jurisdiction results in the dismissal of the charges. Rather, the probate court in
Fultz abused its discretion because the respondent’s alleged offense was especially egregious,
requiring a trial on the merits. The victim accused the respondent of holding her prisoner and
restricting her movements in order to perpetrate violent acts of sexual penetration and then
threatening her to secure her silence for several years. If these allegations were found true, it is
very likely the respondent would still pose a danger to society. Declining to waive jurisdiction
and dismissal of the charges against the respondent was therefore not in the best interests of the
public.



                                                -6-
        Here, respondent’s sexual touching of his sisters had not recurred and there is no
allegation that he took any act to prevent his sisters from reporting the abuse. His act, although
deplorable, was not violent and did not involve penetration. The court-appointed evaluator
found respondent’s offense to be born of immaturity and based on opportunity. And the delay in
reporting bore no reflection on respondent. The circumstances do not rise to the extreme level
presented in Fultz.

        Moreover, contrary to the prosecution’s insistence, the family court did assign factor (a)
greater weight as directed by the Legislature. The court simply found that standing alone, even a
heavily-weighted factor (a) did not tip the scales.

       The prosecution also challenges the family court’s conclusion that only factor (a)
weighed in favor of waiver. The prosecution contends that factors (b), (e), and (f) support
waiver of jurisdiction as well.

       Factor (b) focuses on the culpability of the respondent, including the respondent’s role in
planning the offense, as well as any aggravating or mitigating factors within the sentencing
guidelines. In relation to this factor, the court noted that respondent admitted that he committed
the charged acts. The court focused on respondent’s lack of planning, citing Neumann’s
testimony that the acts were crimes of opportunity stemming from respondent’s immaturity and
use of pornography. The court took into account that the young age of the victims was an
aggravating factor.

        Respondent’s admission of culpability can be viewed as a positive as respondent has
actively and voluntarily sought out treatment. It also weighs in respondent’s favor that he lacks
pathology to reoffend. Overall, despite the aggravating factor, we discern no error in the family
court’s analysis and weighing of factor (b).

        Factor (e) considers “[t]he adequacy of the punishment or programming available in the
juvenile justice system.” Factor (f) is closely related, pertaining to the “dispositional options
available for the juvenile.” Accordingly, we consider these factors together. The court aptly
noted that respondent was not eligible for any punishment or programming in the juvenile justice
system, or disposition in family court, because he was 20 years old by that time. The court
recognized, however, that respondent and his mother had voluntarily sought out programming
for respondent outside the juvenile justice system. Respondent had then been in counseling for
over a year and was showing benefit, according to Neumann’s evaluation. Respondent
expressed that he intended to continue therapy. So although official intervention tools did not
exist, respondent was using these tools informally and was receiving the help he needed to
reduce his chances of recidivism.

        The prosecution strenuously argues that the absence of official punishment,
programming, and dispositional options demanded the family court to waive jurisdiction so
respondent could be tried as an adult. However, the prosecution misses the point of juvenile
adjudications. One of the core principles underlying the reformulation of the juvenile justice
system in the early 1900s was that rehabilitation should trump retribution. See People v Hana,
443 Mich 202, 210; 504 NW2d 166 (1993). As the United States Supreme Court reasoned in
finding unconstitutional the imposition against minors of life sentences without the possibility of

                                                -7-
parole, such adult punishments “disregard[] the possibility of rehabilitation even when the
circumstances most suggest it.” Miller v Alabama, 567 US 460, 478; 132 S Ct 2455; 183 L Ed
2d 407 (2012).

       As compared to adults, juveniles have a lack of maturity and an underdeveloped
       sense of responsibility; they are more vulnerable or susceptible to negative
       influences and outside pressures, including peer pressure; and their characters are
       not as well formed. These salient characteristics mean that it is difficult even for
       expert psychologists to differentiate between the juvenile offender whose crime
       reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
       crime reflects irreparable corruption. [Graham v Florida, 560 US 48, 68; 130 S
       Ct 2011; 176 L Ed 2d 825 (2010) (alterations, quotation marks, and citations
       omitted).]

As a result of these differences, “juveniles have lessened culpability” and “are less deserving of
the most severe punishments.” Id. Moreover, “[j]uveniles are more capable of change than are
adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than
are the actions of adults,” supporting rehabilitation over penalty. Id. (citation omitted).

        Michigan’s Juvenile Code embraces the idea that minors are more susceptible to change
and rehabilitation. The code “must be liberally construed in order to provide each child coming
within the juvenile division’s jurisdiction with such care, guidance, and control as will be
conducive to the child’s welfare and the state’s best interest.” People v Dunbar, 423 Mich 380,
386; 377 NW2d 262 (1985). When adjudicating a juvenile, his or her “ ‘prospects for
rehabilitation [must] be seriously considered.’ ” Id. at 387, quoting People v Schumacher, 75
Mich App 505, 511; 256 NW2d 39 (1977). If the juvenile’s rehabilitative chances are not
considered,

       “our duty of liberal construction, aimed at providing care, guidance and control
       similar to that provided by the child’s parents, would have little meaning in the
       instant setting. Similarly, the mandate that the probate court consider whether the
       child’s and the public’s interest are best served by waiver would truly be hollow if
       rehabilitative potential were not seriously weighed.” [Id., quoting Schumacher,
       75 Mich App at 511 (emphasis in original).]

       Given the rehabilitative purpose of the juvenile justice system, it is highly relevant that
respondent has engaged in rehabilitative services, actually reducing his chance of recidivism
according to Neumann. The prosecutor’s failure to present any witnesses countering Neumann
augments the reliability of Neumann’s conclusions. The family court properly considered
respondent’s voluntary rehabilitation measures in denying the waiver motion.

       The prosecution complains, however, that respondent presented no actual evidence that
he was still attending counseling, such as testimony from his therapist or records of his visits.
Pursuant to MCR 3.950(D)(2)(c), the burden was on the prosecution to negate the testimony of
Swan and Neumann that respondent was actively participating in counseling. The burden was
not on respondent to come forward with evidence supporting the denial of waiver. Given the
nature of this case, we discern no error in the court’s analysis of this factor.

                                                -8-
        Overall, the family court properly considered all the factors in MCL 712A.4(4). Its
factual findings were not clearly erroneous given the evidence presented. Although respondent
will face no official penalty or court-ordered rehabilitation, he is already on the road to
remedying the cause of his offense, a result contemplated and approved by the legislatively-
created jurisdictional design. Accordingly, the family court did not abuse its discretion in
denying the prosecution’s motion to waive jurisdiction.

       We affirm.



                                                         /s/ Karen M. Fort Hood
                                                         /s/ Elizabeth L. Gleicher




                                             -9-
