Lillian Househog v. State of Arkansas ( 2024 )

Cite as 2024 Ark. App. 393ARKANSAS COURT OF APPEALS
DIVISIONS III & IV
No. CR-23-567
Opinion Delivered: June 5, 2024
LILLIAN HOUSELOG
APPELLANT
APPEAL FROM THE SEVIER
V. COUNTY CIRCUIT COURT
[NO. 67CR-22-174]
STATE OF ARKANSAS
APPELLEE HONORABLE BRYAN J.
CHESSHIR, JUDGE
REVERSED
MIKE MURPHY, Judge
Appellant Lillian Houselog (“Lillian”), a seventeen-year-old with no criminal
history, job, driver’s license, or car, living with her adult boyfriend, his mother, and his adult
brother, was charged as an adult with abuse of a corpse following her delivery of a live baby
after ingesting “Plan C” abortion medication. Lillian filed a motion to transfer the case to
the juvenile division of circuit court. After a hearing on the motion, the circuit court entered
an order denying her motion to transfer. Lillian now appeals. On appeal, she argues that the
circuit court clearly erred in denying her motion to transfer because the evidence was
insufficient to support the circuit court’s findings. We reverse.
It is within the prosecuting attorney’s discretion to charge a juvenile in the criminal
division of circuit court if the juvenile is sixteen years of age or older at the time of the
conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1)
(Repl. 2020). On the motion of the court or any party, the court in which the criminal
charges have been filed shall conduct a hearing to determine whether to transfer the case.
Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case
should be transferred to the juvenile division of circuit court. Shaw v. State, 2023 Ark. App.
55, 660 S.W.3d 55. The circuit court shall order that the case be transferred only upon a
finding by clear and convincing evidence that the case should be transferred. Ark. Code
Ann. § 9-27-318(h)(2).
At a juvenile-transfer hearing, the circuit court is required to consider all the factors
set forth in Ark. Code Ann. § 9-27-318(g). The circuit court is required to make written
findings on each factor. Ark. Code Ann. § 9-27-318(h)(1). However, there is no
requirement that proof be introduced on each factor, and the circuit court is not obligated
to give equal weight to each factor in determining whether a case should be transferred.
Heard v. State, 2019 Ark. App. 586, 590 S.W.3d 215.
Our standard of review for juvenile-transfer cases states that we will not reverse a
circuit court’s determination whether to transfer a case unless the decision is clearly
erroneous. Walton v. State, 2020 Ark. App. 318, 602 S.W.3d 754. “A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake has been committed.” Id.
at 8, 602 S.W.3d at 758 (emphasis added). The denial of a juvenile-transfer motion is not
clearly erroneous simply because some evidence might weigh in favor of granting the
motion. Shaw, supra. On review, this court will not reweigh the evidence presented to the
circuit court. Id.2
After a thorough review of the entire evidence, we have a definite and firm
conviction that a mistake has been committed.
Factual Background
On November 7, 2022, Sevier County Deputy Justin Richardson was dispatched to
a home in Horatio, Arkansas, where he took a statement from Chloe Simmons. Chloe stated
that earlier that day Lillian sent her a message in which she told her she had taken “Plan C”
pills two days ago. Lillian also told her that she had the baby on the night of November 6,
2022, and that the baby was born alive and further along than she had expected. Lillian held
the baby for approximately ten minutes, suctioned his mouth and nose, and clamped the
cord. Despite Lillian’s efforts to save him, the baby passed away. Lillian told Chloe that she
wrapped the baby in a t-shirt, gave him to her boyfriend, Matthew, and asked him to “do
the rest.” After taking Chloe’s statement, five officers went to Lillian’s residence. The
officers asked Lillian if she was pregnant; she responded that she had a miscarriage. Lillian
was detained, and the officers noticed blood running down the back side of her pants as she
was walking to the patrol car. On November 8, after getting a statement from Matthew,
the officers found the baby’s corpse wrapped in a plastic bag in a dumpster of the trailer park
where Lillian and Matthew lived.
Lillian was detained without charges. On November 9 or 10, she was transported to
the Juvenile Division of the Sevier County Circuit Court for a “First Appearance” and was
ordered to remain in custody for an indeterminate period. On November 30, 2022, Lillian
filed a motion for immediate release because her detainment exceeded the statutory limits
set forth in Ark. Code Ann. § 9-27-313(f).
3
A hearing was held on the motion on December 1, 2022, and the circuit court
suggested to the State that it could cure its failure to timely file a juvenile-delinquency
petition by immediately filing a criminal information charging Lillian as an adult. The circuit
court granted the State’s request for a fifteen-minute recess, allowing the State to file its
criminal information charging Lillian as an adult.
That day, Lillian was charged by criminal information with abuse of a corpse. On
December 28, 2022, Lillian filed a timely motion to transfer the case to juvenile court under
Ark. Code Ann. § 9-27-318.
At the juvenile-transfer hearing held on April 27, 2023, the circuit court first heard
testimony from Lillian’s father, Michael Houselog. Michael testified that he is a retired
educator. He and his now ex-wife adopted Lillian when she was two years old, as well as
her younger biological brother. Michael and his ex-wife raised the children in Poplar Grove,
Illinois. Michael said that Lillian was an average student and had no major disciplinary issues
in school. Lillian began high school in 2019, but at the start of her spring semester, the
COVID pandemic forced her to take online classes. Michael said that this transition was
harder on Lillian than most students. Simultaneously, Michael and his ex-wife were going
through a divorce. During this time, when Lillian was fourteen years old, she met Matthew
Hallmark in an online chat room.
In October 2020, Matthew and his cousin drove to Illinois from their home in
Lockesburg, Arkansas. After her parents asked her not to go, Lillian, then fifteen years old,
left Illinois and went to Arkansas with eighteen-year-old Matthew and his cousin. They
lived with Rhonda Martz, Matthew’s mother; her boyfriend, Pedro; and Matthew’s two
4
brothers. After Rhonda and Pedro failed to pay rent, they were all evicted. Lillian, Matthew,
and Matthew’s older brother moved into a trailer. Rhonda and Pedro lived in a trailer next
door for a period of time, and then Rhonda moved into the trailer with Lillian, Matthew,
and Matthew’s older brother prior to the date of the alleged crime.
In January 2021, Michael took both Lillian and Matthew back to Illinois where they
alternated living with him and his ex-wife for three months. After this, Lillian returned to
Arkansas with Matthew. Michael kept in touch with Lillian with one or two phone calls a
week and frequent texting. He and his ex-wife also tracked her whereabouts using the GPS
on her phone. Michael visited Lillian at least twelve times since leaving in October 2020.
He said that he and his ex-wife always had the expectation that Lillian would come back,
and he knew where she was at all times. When asked, “Mr. Houselog, does that not sound
more like an adult child that a grown parent is going to visit sporadically in a state nine
hours away? Than a 15-year-old child?” Michael responded, “I felt like I was parenting, and
I felt like her mother was parenting.”
Lillian continued attending school online when she moved to Arkansas, but when
she chose to drop out of high school, Michael drove to Arkansas to meet with Leslie Daniels,
the YouthBuild case manager at UA Cossatot, and enrolled her in the YouthBuild program,
a GED and work-training program. She completed her GED in 2022, but, ultimately, she
was asked to leave the program due to lack of participation. Michael was asked again
whether he considered Lillian an adult who was living an independent life, to which he
responded, “I have adult – other adult children and they don’t live a similar life that she
lives. So I would say the answer to that is no. It’s not the same as my older children live. [.
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. .] There was dependency on her mother and father for support, which is much more of
an adolescent action than I would feel portrayed by your question.”
Michael elaborated that he gave Lillian money cards and gifts. He paid her cell phone
bill every month, and his ex-wife bought her clothes. That was as much financial support
as they felt they could give her then.
Dr. Karla Fischer testified next. Dr. Fischer is a research-based psychologist whose
specialization is the psychological effects of domestic violence. She met Lillian in February
2022, and through her meetings, she produced a report titled “Report of Childhood
Trauma and Domestic Violence Evaluation.”1 Dr. Fischer opined that due to domestic
violence by Matthew over the course of their two-year relationship, Lillian was less capable
than a normal person to make decisions independently.
Matthew’s mother, Rhonda Martz, testified about Lillian living with her family.
When asked whether she had any involvement in that decision, Rhonda said no and that
the decision was made by her parents. When asked if she was a parent to Lillian, Rhonda
said, “No, I wasn’t much of, you know, her guardian. She had parents already. She just
lived with me and my sons.” She said that, in general, Lillian was responsible and quiet but
that it was stressful having her live with her family because they were already struggling
financially, and it put a strain on them. Rhonda said, “I didn’t want more responsibility, but
I won’t turn a kid away, you know.”
1
Dr. Fischer was qualified by the circuit court as an expert during the hearing;
however, this report was not admitted as an exhibit. The circuit court sustained the State’s
objection to admitting the report because Dr. Fischer was present to testify about opinions
made in the report.
6
Lillian never had a job in Arkansas, aside from occasional babysitting, and she never
obtained her driver’s license. Rhonda was responsible for Lillian’s transportation. Rhonda
said that her family was evicted from their home, and her older son got a trailer where he,
Matthew, and Lillian moved in. Rhonda and Pedro lived in an RV next to the trailer during
that time until Rhonda moved into the trailer with Matthew, Lillian, and Matthew’s older
brother. Again, there is no evidence in this record that Lillian contributed financially to the
household in which she resided, whether it be rent, utilities, food, or any other necessities.
When asked whether she and Lillian ever had conflicts at home, Rhonda cited a
heated and “cruel” text message that Lillian sent on a suspicion that Rhonda had been
wearing Lillian’s clothes. Rhonda said that Lillian’s behavior prompted her to reach out to
Michael Houselog for help. Regarding Lillian and Matthew’s relationship, Rhonda said they
would argue and break up but would eventually work it out. She said most of the fights
stemmed from “drama” on social media, but overall, they were in “young love” and enjoyed
their time together.
In January 2022, DHS caseworker Rachel Speights investigated a video posted on
social media in December 2021 that was reported on the child-abuse hotline. The video
allegedly showed Matthew hitting Lillian. During a home visit, Lillian explained to Speights
that the video had been taken a month prior while they were camping and that she was the
one who had hit Matthew. She was upset that Matthew was sitting next to another girl, but
their friends separated them quickly and that ended the fight. Speights found alcohol and
Swisher Sweets next to Lillian’s bed and saw that Lillian’s lips were gray and cracked due to
excessive smoking.
7
Camille Stanley, a DCFS employee, also testified about this report. Lillian had been
taken to DCFS where she spoke to Lillian about Michael’s alleged abuse. There were
concerns about who to release Lillian to after the investigation had ended. Because she was
a minor, DHS could release Lillian only to a parent. Stanley contacted Michael Houselog
to inform him that Lillian was in DCFS custody due to suspected neglect or abuse. Michael
drove to West Memphis to pick Lillian up, and after questioning her about the incident, he
inexplicably felt content to drive her back to Matthew’s house in Arkansas rather than back
to Illinois.
Leslie Daniels, the YouthBuild case manager at UA Cossatot, testified that Lillian’s
father had enrolled her in the YouthBuild program in September 2021. The program is for
sixteen- to twenty-four-year-olds who have dropped out of high school. In the program,
students obtain their GEDs and learn a skilled trade in industrial maintenance and welding.
Daniels said Lillian performed well at first but that she became disrespectful and would not
participate. Daniels interpreted this behavior to mean that Lillian wanted to “be grown,”
but Daniels added that she dealt with other similar-acting sixteen-year-olds in the program.
Lillian would not wear the required uniform for welding, and she had a confrontation with
another student who had dated Matthew in the past. Daniels spoke to Michael Houselog
about concerns that Lillian was not participating. Eventually, due to her lack of participation,
Lillian was released from the program. Before Lillian was released, she earned her GED and
all but one of the certifications offered through the program. After her release, Lillian would
continue to attend the YouthBuild program, where Matthew was also enrolled, but she
chose to stay in the truck with her dog while the other students worked.
8
Chloe Simmons, Lillian’s friend and the former girlfriend of Matthew’s brother,
testified about the events leading to the charge. Simmons lived with her boyfriend,
Matthew, and Lillian for approximately five months. She had been living elsewhere for
about a year when the incident occurred, but they had kept in touch. Lillian and Chloe
exchanged text messages around October 27 and 30, 2022, about her Lillian’s pregnancy.
On November 7, 2022, Lillian texted Chloe that she had taken abortion pills and had felt
so sick for two days she could not move. Lillian said that she delivered the baby and that it
was “super traumatic.” Lillian texted her, “He came out alive and way further along than I
thought. It literally looked like a fully developed baby.” She said that he stopped breathing
about ten minutes later. Lillian tried to suction his nose and she clamped the cord, but the
baby did not survive. At some point after the delivery, Matthew returned to their trailer.
Lillian and Matthew were in shock and full of regret because the baby appeared to be nearly
full term. Lillian wrapped the baby’s corpse in a shirt, handed him to Matthew, and asked
him to “do the rest.” She told Chloe that she did not know and did not want to know what
Matthew did with the baby. Before Matthew left with the corpse, Lillian advised him to
put the baby in a place where dogs could not get to him, and she saw him take plastic bags
with him. Lillian told Chloe she wished they could have given him a burial. At the end of
the text conversation, Chloe reported the incident to the police.
Chet Stubbs, the deputy sheriff for the Sevier County Sheriff’s Office, testified that
around midnight on November 7, 2022, he responded to a video he had received from
another deputy concerning a deceased baby. He went to Lillian and Matthew’s residence
where he saw that Lillian looked distressed and had blood on her gray sweatpants. Stubbs
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and the other responding officers entered the residence because there appeared to be an
ongoing medical emergency; however, he was uncertain whether an ambulance had been
called.
Brian Hankins, an investigator for the Sevier County Sheriff’s Office, testified that
he also responded and went to Lillian’s residence the night of November 7. They seized
Lillian’s phone and eventually obtained a search warrant for the phone. Hankins attempted
to interview Lillian at the sheriff’s office, but when Hankins informed her of her Miranda
rights as a juvenile, she requested a lawyer, and the interview ended. Hankins said that Lillian
had a poor attitude toward them and toward the whole situation. He said, “It was actually
to a fact that, you know, she was bleeding everywhere. I mean, it was all over her sweatpants
and she even made a note to tell us that she sat in all three chairs in the interview room to
get blood all over them.” Hankins said all three chairs had to be replaced. He described
Lillian’s attitude as hateful, disrespectful, uncooperative, and lacking remorse.
At the close of the hearing, the circuit court denied Lillian’s juvenile-transfer motion
and entered an order with written findings in support of its decision.
This Court’s Examination of Juvenile-Transfer Cases
This court has developed a rubric across several cases to assess and determine whether
a mistake has been made in juvenile-transfer decisions. In Lopez v. State, 2021 Ark. App.
467, at 16, 637 S.W.3d 318, 328, we looked at whether the written order provided enough
detail and facts to support the court’s conclusion that the juvenile’s request to transfer his
criminal case to juvenile court should be denied.
10
Also in Lopez, we distinguished Spears v. State, 2019 Ark. App. 576, 591 S.W.3d
803,2 to determine whether there were “inconsistent” factual findings material enough to
warrant a reversal of the transfer order. Lopez, 2021 Ark. App. 467, at 15, 637 S.W.3d at
328.
Finally, we have looked at whether the circuit court made specific findings on each
statutory factor tailored to the juvenile and the evidence before the circuit court. Randolph
v. State, 2017 Ark. App. 694, 537 S.W.3d 294.
In Spears, Lopez, and Randolph, this court has illuminated our basic task of reviewing
the entire evidence––where we do not reweigh the evidence––while recognizing that there
is no requirement that proof be introduced against the juvenile on each factor, and that the
circuit court is not obligated to give equal weight to each of these factors in determining
whether a case should be transferred. K.O.P. v. State, 2013 Ark. App. 667. These four tests
together read as follows:
(1) Are the circuit court’s written findings accurate and consistent with the
evidence; and
(2) If any factual findings are not consistent with the evidence, are such
inconsistencies material enough to warrant a reversal of the transfer order?
(3) Does the written order provide enough detail and facts to support the
court’s conclusions; and
(4) Are there specific findings on the statutory factors tailored to the juvenile
and the evidence?
2
In Spears, the denial of a juvenile-transfer motion was reversed and remanded by
this court because we were unable to determine how much weight the circuit court had
given to its accurate findings and how much it had given to its findings that were inconsistent
with the proof at the hearing.
11
See Spears, 2019 Ark. App. 576, 591 S.W.3d 803; Lopez, 2021 Ark. App. 467, 637 S.W.3d
318; Randolph, 2017 Ark. App. 694, 537 S.W.3d 294.
Upon application of the principles set out in Spears, Lopez, and Randolph, and upon
review of the entire evidence, while there may be some evidence to support the circuit
court’s decision not to transfer this case to juvenile court, we are left with a definite and
firm conviction that a mistake has been committed.
Indeed, if we fail to reverse the circuit court on the basis of this record, we will have
ceded meaningful judicial review of juvenile transfers to what would be, in effect, the
absolute discretion of the prosecuting attorneys and the circuit courts.
Legislative Intent and History of Ark. Code Ann. § 9-27-318The General Assembly enacted Ark. Code Ann. § 9-27-318 to ensure that all
juveniles brought to the attention of the courts receive the guidance, care, and control––
preferably in each juvenile’s own home––that will best serve the emotional, mental, and
physical welfare of the juvenile and the best interests of the State. Act 273 of 1989 § 2(1).
The General Assembly also stated that its intent was to protect society more effectively by
substituting for retributive punishment, whenever possible, methods of offender
rehabilitation and rehabilitative restitution, recognizing that the application of sanctions that
are consistent with the seriousness of the offense is appropriate in all cases. Id. § 2(3).
Act 1192 of 1999 codified significant and comprehensive changes in the Juvenile
Code. This included the creation of extended juvenile jurisdiction, the clarification and
expansion of a juvenile’s right to an attorney during the entirety of the proceedings, housing
of juveniles upon imprisonment and clarification of the role of the Division of Youth
12
Services (DYS). Act 1192 also added seven factors to the three existing factors used to
determine whether a case involving a juvenile should be transferred from the adult circuit
court. Before its 1999 revision, Ark. Code Ann. § 9-27-318(e) read as follows:
(e) In making the decision to retain jurisdiction or to transfer the case, the
court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed
by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated
offenses which would lead to the determination that the juvenile is
beyond rehabilitation under existing rehabilitation programs, as
evidenced by past efforts to treat and rehabilitate the juvenile and the
response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other
factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e)(1)–(3) (Repl. 1998).
In Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), our supreme court reversed
the circuit court’s denial of appellant’s juvenile-transfer motion under the previous version
of Ark. Code Ann. § 9-27-318, finding that the decision was clearly erroneous and against
the preponderance of the evidence. Blevins, a sixteen-year-old, was charged with possession
of a controlled substance with intent to deliver. After he was charged, Blevins moved to
transfer his case to the juvenile court.
At the hearing on his motion, Blevins presented testimony that he was sixteen years
old at the time of the incident, he had no prior record, he regularly attended high school,
his grades were Cs and Ds, and he had previously participated in the high school athletic
program. Blevins’s mother also testified that her son lived at home and that she had had no
disciplinary problems with him. However, the circuit court found that the seriousness of
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the crime constituted clear and convincing evidence to deny the transfer. Our supreme
court admonished the circuit court’s failure to provide analysis or evidence to supports its
findings when it stated:
[I]t would have been most helpful to our analysis for the trial court to have
enunciated its rationale; consequently, we can only deduce from the record
that the trial court apparently found that the seriousness of the crime
outweighed the other factors that were proven by Blevins at his hearing, such
as the non-employment of violence in the commission of the alleged offense,
the lack of a repetitive pattern of adjudicated offenses, and his positive
character traits.
Blevins, 308 Ark. at 617, 826 S.W.2d at 267.
Our supreme court ultimately reversed the circuit court’s order, and stated, “To hold
otherwise would be to allow the trial court to simply categorize all felonies as serious, which
they are, and utilize this reason alone to retain jurisdiction rather than transfer the case based
on consideration of all of the statutory factors.” Id., 826 S.W.2d at 267.
For similar reasons, our supreme court reversed the denial of a juvenile-transfer
motion and remanded for an order consistent with its opinion under the previous version
of Ark. Code Ann. § 9-27-318 in Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996).
Green, a fourteen-year-old, was charged with manslaughter after inadvertently, but fatally,
shooting his thirteen-year-old friend in the chest. The testimony at Green’s hearing was that
the shooting was accidental, but Green had a fascination with guns and would often take
his father’s pistol out when he was home alone or with friends. He had no prior criminal
history; he maintained a 3.4 grade point average in school; and he had been inducted into
the Beta Club; but after the shooting, his grade point average dropped to a 2.4. He had been
suspended from school due to the felony charge and was experiencing nightmares that
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required prescription medicine and psychological counseling. At the conclusion of the
hearing on the motion to transfer, the circuit court denied the juvenile-transfer motion,
stating:
I have listened to the testimony and among other things, as it was pointed
out, that Justin is a violent person and there’s two major factors I have given
substantial consideration to. One is the seriousness of the offense and the other
is a death caused by a firearm. These are the two primary factors that I’ve
considered in deciding that this matter should be heard by the Circuit Court
as opposed to juvenile court, although that does not mitigate the evidence of
the type of person that Justin Green is. But under these circumstances the
Court finds the Motion to Transfer should be denied.
Id. at 639, 916 S.W.2d at 758.
Our supreme court reprimanded the circuit court for failing to evaluate factors two
and three and reversed and remanded for transfer to the juvenile court:
Seriousness alone is not a sufficient basis to refuse the transfer. See Holmes v.
State, 322 Ark. 574, 911 S.W.2d 256 (1995). Thus, evidence in support of
applying factor (1) to justify refusal to transfer is incomplete, and factors (2)
and (3) weigh in favor of transfer. True, as mentioned above, the Trial Court
need not have given equal weight to each of the statutory factors for deciding
whether to transfer, but in this instance application of them, no matter how
they are weighed, points decidedly toward juvenile court.
Id. at 641, 916 S.W.2d at 759.
Following the 1999 amendments to section 9-27-318, neither this court nor our
supreme court has reversed in full a juvenile-transfer motion. The 1999 amendments were
intended to expand and clarify the rights of juveniles. Its original purposes rooted in the
efforts “to best serve the emotional, mental, and physical welfare of the juvenile and the best
interests of the state,” were not changed with the passage of Act 1192.
Section 9-27-318(h)(1) now requires the circuit court to make written findings on
ten factors relating not only to the seriousness of the crime but also to other considerations,
15
including whether the alleged offense was committed in an aggressive, violent,
premeditated, or willful manner and the maturity, knowledge, and history of the juvenile
to determine whether rehabilitative services would be effective at the given stage of the
juvenile’s life.
The Circuit Court’s Findings and the Evidence Presented
We discuss below (1) the ten factors required pursuant to Ark. Code Ann. § 9-27-
318(g); (2) the circuit court’s findings in its May 4, 2023 order denying Lillian’s motion; (3)
an evaluation of the evidence presented as compared to the order’s findings; and (4) an
analysis of how this evidence functions under the tests set forth in Spears, Lopez, and
Randolph, supra.(1) The seriousness of the alleged offense and whether the protection of society requires
prosecution in the criminal division of circuit court.
This offense is very serious and requires the protection of society
through the prosecution in the criminal division of circuit court.
The circuit court has merely rewritten the first factor as a conclusion. There are no
“specific findings tailored to . . . the evidence.” See Randolph, 2017 Ark. App. 697, at 8, 537
S.W.3d at 299. There was no evidence presented at the hearing as to the potential threat to
society if the case were transferred to juvenile court. Lillian’s attempt to self-induce an
abortion resulted in a premature birth.3 After trying, and failing, to save her premature baby’s
life, Lillian, who had just delivered a baby and was still bleeding, asked Matthew to take
3
There was no evidence in the record regarding any autopsy or toxicology reports
describing what medication Lillian ingested, whether and in what quantities it was found in
either Lillian or the deceased premature baby, or the expected effects of the medication on
one who has ingested it or on the premature baby.
16
care of “the rest.” What, exactly, is the danger that Lillian poses to society and how does
trying her as an adult further the goal of “the protection of society” any more effectively
than seeking her rehabilitation in the juvenile division?
Here, the written order fails to include details and facts to support the circuit court’s
conclusions. There are no specific findings on the statutory factors tailored either to Lillian
or to the evidence.
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated,
or willful manner.
This offense was committed in a violent, premeditated and willful
manner.
Again, the circuit court simply restates the factor to be considered in conclusory
fashion yet offers no evidence to support its finding. Further, the circuit court found that
three elements of this factor were present but made no specific findings with any detail or
facts to support its conclusions. Thus, it wholly fails to chin the bar required by our
precedent as synthesized in the tests set forth in Spears, Lopez, and Randolph discussed above.
Important to examine here is the criminal charge itself. Pursuant to Ark. Code Ann.
§ 5-60-101 (Repl. 2016), a person commits abuse of a corpse if, except as authorized by
law, he or she knowingly:
(1) Disinters, removes, dissects, or mutilates a corpse; or
(2)(A) Physically mistreats or conceals a corpse in a manner offensive to a
person of reasonable sensibilities.
(B) A person who conceals a corpse in a manner offensive to a person of
reasonable sensibilities that results in the corpse remaining concealed is
continuing in a course of conduct under § 5-1-109(e)(1)(B).
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(C)(i) As used in this section, “in a manner offensive to a person of
reasonable sensibilities” means in a manner that is outside the normal
practices of handling or disposing of a corpse.
(ii) “In a manner offensive to a person of reasonable sensibilities” includes without
limitation the dismembering, submerging, or burning of a corpse.
Lillian argues that there was no evidence showing that she knew where the corpse
would be placed and that the crime was therefore not willful. The only evidence was that
Lillian (1) handed the body to Matthew; (2) did not want to know what he did with it; and
(3) requested that whatever he did, to place it somewhere the dogs could not get it. The
only “willful” action was handing the body to Matthew.
Lillian adds that there was no evidence presented that the alleged crime was
premeditated or violent. The State argues that “the evidence that she took the abortion pills
to terminate her pregnancy was relevant to the court’s findings that she and Matthew
planned, participated, and committed the offense in a premeditated, willful, and violent
manner.”
Evidence of planning to terminate a pregnancy is not evidence of planning to abuse
a corpse. Whether a person medically induces an abortion is irrelevant to charges outside of
that action. We held in Bynum v. State, 2018 Ark. App. 201, 546 S.W.3d 533, that neither
evidence that Bynum had taken pharmaceutical drugs prior to delivery nor evidence of
abortions (or the number of them) she had previously undergone was relevant to the charge
that she had committed the offense of concealing birth. Such evidence did not tend to make
it more or less probable that Bynum had hidden her newborn’s corpse with the purpose to
conceal the birth.
Further, Ark. Code Ann. § 5-61-404 states:
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(a) A person shall not purposely perform or attempt to perform an abortion
except to save the life of a pregnant woman in a medical emergency.
(b) Performing or attempting to perform an abortion is an unclassified felony
with a fine not to exceed one hundred thousand dollars ($100,000) or
imprisonment not to exceed ten (10) years, or both.
(c) This section does not:
(1) Authorize the charging or conviction of a woman with any criminal
offense in the death of her own unborn child; or
(2) Prohibit the sale, use, prescription, or administration of a
contraceptive measure, drug, or chemical if the contraceptive measure,
drug, or chemical is administered before the time when a pregnancy
could be determined through conventional medical testing and if the
contraceptive measure, drug, or chemical is sold, used, prescribed, or
administered in accordance with manufacturer instructions.
(d) It is an affirmative defense to prosecution under this section if a licensed
physician provides medical treatment to a pregnant woman which results in
the accidental or unintentional physical injury or death to the unborn child.
The State argues that Lillian’s ingestion of abortion-inducing chemicals is evidence
of violence and premeditation with respect to the alleged abuse-of-a-corpse crime.
However, the legislature has specifically forbidden that a mother be criminally charged for
the death of her unborn child as a result of her ingestion of the abortion pills. Ark. Code
Ann. § 5-61-404(c)(1) (Supp. 2023). Lillian cannot be charged for that conduct, but the
State has attempted to attach her conduct to the abuse-of-a-corpse charge to demonstrate
premeditation and violence. As with the reasoning in Bynum, the State’s argument goes far
afield of the factors to consider in whether to transfer to the juvenile division.
The evidence presented shows that Lillian did not know what Matthew planned to
do with the deceased baby’s body because no consideration was given to the disposal of the
19
body until the moment Lillian handed the baby to Matthew after he had passed. There was
no evidence at the hearing to support the circuit court’s finding that the offense was
committed in a violent, premeditated, or willful manner. This finding is not merely
inconsistent with, but is wholly unsupported by, the evidence. As part of a review of the
entire evidence, it is certainly material.
(3) Whether the offense was against a person or property, with greater weight being
given to offenses against persons, especially if personal injury resulted.
This offense was committed to a recently deceased person, the
Defendant’s baby.
Both parties delve deep into an analysis of what the abuse-of-corpse charge is meant
to protect: a person or a corpse? Lillian argues that abuse of a corpse does not involve a
“person” but rather a “corpse” and that this factor in the juvenile-transfer statute gives the
circuit court discretion for defendants presenting a threat to others to be prosecuted as an
adult. The State argues that the corpse, “first and foremost was a person.”
Lillian relies on Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995). In Dougan,
our supreme court examined several different authorities’ definitions and interpretations of
“abuse of a corpse,” including the drafters’ intent behind the abuse-of-a-corpse statute. In
ascertaining the common law, we look not only to our own cases but also to early English
cases, early writers on the common law, and cases from other states. Dougan, 322 Ark. at
389, 912 S.W.2d at 403. “Wharton’s Criminal Law, 12th Ed., Vol. II, § 1704, says: ‘Indecency
in treatment of a dead human body is an offense at common law, as an insult to public decency.’” Id.
at 390, 912 S.W.2d at 403 (citing Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949)).
20
Lillian argues that this shows that abuse of a corpse is not committed against a person, but
against “public decency.”
The State argues that in Dougan, our supreme court quotes language in the Model
Penal Code treating the felony offense as a crime against persons: “The overreaching
purpose is to protect against outrage to the feelings of friends and family of the deceased.”
Id. at 390 (quoting Modal Penal Code § 251.10). The State also argued that in Hammonds
v. State, 2010 Ark. App. 465, 375 S.W.3d 713, this court held that the offense was intended
to prohibit neglect as well as the affirmative act of physical mistreatment of the deceased
person. In fact, this court did not state that the offense was intended to protect a deceased
person. Rather, we stated:
The abuse-of-a-corpse statute was formerly designated as Ark. Stat. Ann. §
41-2920 (Repl. 1977), and the commentary provided:
The primary purpose of the section is to protect the feelings of the family
of the deceased person.
The above commentary leaves open the possibility that neglect, as opposed to
some affirmative act of physical mistreatment, may under the right
circumstances satisfy the elements of the statute.
Id. at 4, 375 S.W.3d. at 715.
Consistent with the authorities cited in Dougan, this court cited language in
Hammonds showing that the primary purpose of the statute is to protect the feelings of the
family of deceased persons, not the deceased person himself. The statute was designed to
protect public decency by protecting the feelings of the family of a deceased person.
Again, there was no evidence presented at the hearing that the crime was committed
against a person, and our case law supports the conclusion that the abuse-of-a-corpse statute
21
protects public decency and feelings rather than a person. The circuit court simply applied
the wrong analysis.
(4) The culpability of the juvenile, including the level of planning and participation in
the alleged offense.
The culpability of the Defendant was a major factor in this crime
mainly due to her planning and participation. The culpability of
the Defendant was knowingly, if not purposely.
As with second factor, the lack of evidence introduced regarding Lillian’s violence,
premeditation, and willfulness in the crime is applicable to this factor as well. Because there
was no evidence presented that the events that took place after the baby had passed away
were premeditated or willful, there is also no evidence that the events were planned. Far
from planning the disposal of a corpse, Lillian was trying to save her baby’s life.
There is no evidence in the record from which a fact-finder could conclude that
Matthew and Lillian planned what to do with the corpse. The only evidence available was
that she had ceded subsequent actions to Matthew. The record reveals that Lillian
undisputedly did not accompany him afterward; therefore, there was no way she could
know what Matthew would do next. The findings contain a conclusory statement that
Lillian’s culpability was “knowingly, if not purposely,” yet the written order provides no
details or facts to support the court’s conclusions. Once again, the order fails the tests set
forth in Spears, Lopez, and Randolph.
(5) The previous history of the juvenile, including whether the juvenile had been
adjudicated a juvenile offender and, if so, whether the offenses were against persons or
property, and any other previous history of antisocial behavior or patterns of physical
violence.
The juvenile has not been adjudicated a juvenile offender.
22
Neither Lillian nor the State takes issue with the circuit court’s findings here. We
agree that the circuit court did not err in making this finding.
(6) The sophistication or maturity of the juvenile as determined by consideration of the
juvenile’s home, environment, emotional attitude, pattern of living, or desire to be
treated as an adult.
The juvenile made mature decisions since she was approximately
fifteen (15) years of age, and operated and lived as an adult for
two (2) or more years prior to the crime being committed. She
appeared, by her choices and pattern of living, to be living as an
adult with her boyfriend for at least two (2) years without adult
supervision, control or oversight. The Defendant’s desire to be
treated as an adult was not only apparent by her lifestyle, but how
she treated others in the community and how adults treated her.
While living as an adult with her boyfriend, she obtained her GED
and attended college courses, obtaining her ACT Workkeys
National Career Readiness Certificate, Certificate of Mental
Toughness, Workforce Preparation Certificate, a Core Leadership
Skills certificate, all from the Cossatot Community College of the
University of Arkansas in addition to completing the YouthBuild
Program. The Defendant made her own decisions as to what,
where, when and how she would live her life, as an adult would
make said decisions, for at least two (2) years prior to the crime
and willingly partook in consuming alcohol, illegal substances
and tobacco as adults.
These findings do not accurately reflect the entire evidence presented on Lillian’s
maturity. Some of the circuit court’s specific findings are not only inconsistent with the
evidence but also contradictory.
For example, the circuit court states, “She appeared, by her choices and pattern of living,
to be living as an adult with her boyfriend for at least two (2) years without adult supervision, control
or oversight.” This statement is simply not supported by the evidence.
Lillian lived in the home of Rhonda Martz, Matthew’s mother, and Rhonda’s adult
boyfriend, Pedro. After Rhonda and Pedro were evicted, Lillian and Matthew did not find
23
a place to live on their own; instead, they moved into a trailer with Matthew’s older adult
brother. At no time was Lillian living “without adult supervision, control or oversight.”
Rhonda testified that Lillian kept to herself and played on her phone. Lillian didn’t
cook for herself and Matthew. Rhonda would cook and tell Lillian that supper was ready.
Further, Rhonda described how she and her family were struggling financially and that it
put a strain on them to have another mouth to feed. Certainly, Lillian was not contributing
to the household as an “adult.” Lillian accused Rhonda of wearing Lillian’s clothes. Rhonda
testified that, rather than resolve the issue with Lillian, she reached out to Michael Houselog
for help with her behavior. Regarding Lillian and Matthew’s relationship, Rhonda said they
would argue and break up but would eventually work it out. She said most of the fights
stemmed from “drama” on social media but that overall, they were in “young love” and
enjoyed their time together.
No doubt, adults can engage in petty behavior, engage in social media “drama,” and
act out in fits of jealousy. But under the statute, the question is not whether adults sometimes
engage in childish or adolescent behavior; rather, the question is whether, on the basis of a
review of the entire evidence, Lillian’s pattern of conduct, level of sophistication, and
maturity were more like that of an adult or that of an immature child.
Next, the circuit court found that “[t]he Defendant’s desire to be treated as an adult was
not only apparent by her lifestyle, but how she treated others in the community and how adults treated
her.”
Her “lifestyle” included not having a driver’s license––much less her own vehicle––
with which she could independently transport herself to and from a job. She had no
24
employment other than occasional babysitting jobs. She did not contribute financially to
the rent, utilities, or other household responsibilities. Rhonda was responsible for Lillian’s
transportation. Lillian never sought regular employment. There are two rites of passage that
have long signified the transition from adolescence to adulthood: getting a car and a job. In
Flowers v. State, 2017 Ark. App. 468, 528 S.W.3d 851, this court found that the circuit
court’s findings supported the juvenile’s transfer to adult court; specifically, regarding the
sophistication or maturity of the juvenile, Flowers had graduated high school, had worked
full time since the age of fifteen, and had purchased his own vehicle.
Lillian never sought emancipation from her minor disabilities and thus could not
enter into contracts from which to facilitate an adult “lifestyle.” She was never self-sufficient.
Michael Houselog testified about talking to his daughter frequently, texting frequently,
tracking her with her phone’s GPS, sending her money, and providing her with clothing
from his ex-wife––all while Lillian lived in Arkansas.
With respect to how Lillian treated others in the community and how adults treated
her, it is difficult, if not impossible, to square the entirety of the evidence with the circuit
court’s conclusions regarding sophistication, maturity, and emotional attitude. The record
contains an abundance of examples of immature adolescent behavior. In addition to the
petty rift arising from the accusation that Rhonda was wearing her clothes, Lillian instigated
an altercation with another girl who sat too close to Matthew at a campfire. They had to be
physically separated. In the YouthBuild program, Lillian and a girl who had dated Matthew
had to be kept apart. Deputy Hankins testified that Lillian told him she had intentionally sat
in and soiled three different chairs in an interview room from her postdelivery bleeding. If
25
an adult were to engage in this type of behavior, that person would be called petty, childish,
and immature.
Further, the circuit court found: “The Defendant made her own decisions as to what,
where, when and how she would live her life, as an adult would make said decisions, for at least two
(2) years prior to the crime.”
Michael Houselog traveled to Arkansas to investigate the YouthBuild program and
to register Lillian. After dropping out of high school, Lillian did not seek out, or register
for, the program. She completed her GED in 2022 but ultimately was asked to leave the
program due to lack of participation. When Lillian began to flounder in the program, Leslie
Daniels did not sit down with Lillian and hash out a plan for success in an adult manner;
rather, Ms. Daniels reached out to Michael as the responsible party.
When asked, “Mr. Houselog, does that not sound more like an adult child that a
grown parent is going to visit sporadically in a state nine hours away? Than a 15-year-old
child?” Michael responded, “I felt like I was parenting, and I felt like her mother was
parenting.” When asked again about Lillian’s independence, Michael stated, “I have adult –
other adult children and they don’t live a similar life that she lives. So I would say the answer
to that is no. It’s not the same as my older children live.” He continued, “There was
dependency on her mother and father for support, which is much more of an adolescent
action than I would feel portrayed by your question.” Between the evidence presented by
Rhonda and Michael, the circuit court’s finding that Lillian had no adult supervision, control
or oversight when she went to Arkansas is simply not consistent with the entire evidence
presented at the hearing.
26
Citing Lillian’s achievements in the YouthBuild program as evidence of her adult
decision-making is also inconsistent with the evidence presented. As previously stated,
Lillian did not enroll herself in the program, her father did. While Daniels explained that
Lillian was a good student while in the program, she stopped participating in the program,
she refused to wear the required uniform, and she was disrespectful. Although Ms. Daniels
said that Lillian’s disrespectful attitude was indicative of her “acting grown,” Ms. Daniels
admitted that other sixteen-year-olds in the program had acted similarly. This is objectively
not mature, adult behavior. It is more the behavior of an adolescent.
Again, Lillian did not have a driver’s license during this time. She relied on Rhonda
for transportation while in Arkansas, and her father drove her to and from Illinois several
times while she was living with Matthew. By any stretch, this would severely restrict the
“what, where, when, and how” of her lifestyle. She was not financially independent. The
circuit court’s finding that Lillian made “her own decisions as to what, where, when and
how she would live her life” is neither an accurate nor a complete representation of Lillian’s
life during this time. Other than choosing where to live, which was with Matthew, she was
directed by her father to attend the YouthBuild program, she had to ask Rhonda to be
driven anywhere she was going, and she did not have money to support herself.
The evidence does not support the circuit court’s finding that Lillian acted as an
autonomous, independent adult.
(7) Whether there are facilities or programs available to the judge of the juvenile division
of circuit court that are likely to rehabilitate the juvenile before the expiration of the
juvenile’s twenty-first birthday.
This Court finds that there are few, if any, viable options remaining
in the juvenile division of circuit court that are likely to rehabilitate
27
the Defendant before the expiration of her twenty-first (21st)
birthday.
There was no evidence presented to support this finding. No evidence was
introduced as to what services might be available to Lillian because the State objected to the
introduction of affidavits from the coordinator of the Juvenile Ombudsman Division of the
Arkansas Public Defender Commission, the DHS coordinator of the Interstate Compact for
Juveniles (“ICJ”), and an ICJ publication to explain to the court the juvenile services
available to Lillian and how she would be supervised if she returned to Illinois to live with
her parents. The State objected on the grounds that the affiants would not be available for
cross-examination, and the circuit court sustained the objection. Despite the lack of
evidence that there are services available, the circuit court found that “few” services are
available. The circuit court’s finding on this factor is another example of the circuit court
making a finding with no supporting evidence.
(8) Whether the juvenile acted alone or was part of a group in the commission of the
alleged offense.
From the testimony and evidence submitted during this hearing,
the Defendant appeared to have planned and acted with her
boyfriend, who is the Co-Defendant in this matter.
Again, there was no evidence presented that Lillian planned, premeditated, or acted
willfully to abuse a corpse. The State’s argument is not convincing that this offense was
planned by Lillian because she planned to have an abortion. The act of having an abortion
is separate from the abuse-of-a-corpse offense with which she was charged, and it should be
treated as such. See Bynum, 2018 Ark. App. 201, 546 S.W.3d 533 (holding that whether
Bynum had taken pharmaceutical drugs prior to delivery or whether there was any evidence
28
of abortions she had previously undergone was irrelevant to the charge that she had
committed the offense of concealing birth; they did not tend to make it more or less
probable that Bynum had hidden her newborn’s corpse with purpose to conceal the birth).
(9) Written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and
There were not any written reports submitted dealing with the
Defendant’s mental, physical, educational and social history,
except for the report from the Defendant’s expert. The court did
not allow the introduction of such report into evidence in that it
contained “testimony” that was contrary to the expert’s actual
testimony, and it contained “opinions” that the expert was not
qualified to give based upon her experience. Furthermore, said
expert testified in person as to all the “history” of the Defendant.
Lillian argues that the circuit court clearly erred by not admitting Dr. Karla Fischer’s
report for consideration and by not considering Dr. Fischer’s testimony. Arkansas Code
Annotated § 9-27-318(g)(9) states that “in the transfer hearing, the court shall consider all
of the following factors including written reports and other materials relating to the juvenile's
mental, physical, educational, and social history.” (Emphasis added.) Lillian argues that the
circuit court was statutorily required to consider Dr. Fischer’s report, and its failure to do so
was erroneous.
Although the circuit court did not allow Dr. Fischer’s report to be admitted into
evidence, the circuit court was correct that Dr. Fischer testified as to Lillian’s history.
Specifically, Dr. Fischer testified that Matthew had subjected Lillian to domestic abuse and
that this abuse made her less capable than a normal person of making decisions
independently. The circuit court’s characterization of Dr. Fischer’s opinions appears to be
inconsistent with the evidence presented. On this issue, Dr. Fischer presented ample
29
evidence of the effects of domestic abuse on the psychological welfare and development of
adolescents, and in particular the effects it had on Lillian, but the circuit court found that
Dr. Fischer expressed opinions in her report that she was not qualified to make.
(10) Any other factors deemed relevant by the judge.
This Court also finds as a major factor the Defendant’s father’s
opinion as to the mental maturity and decision making ability
very relevant in this decision. The Defendant’s father is an
educated, retired school teacher, special education teacher,
principal and superintendent of schools. His experience appears
to be great in dealing with juveniles. He described the Defendant
as a student who did not struggle with schoolwork. When the
Defendant decided at the age of sixteen (16) years of age to move
to Arkansas with her boyfriend, he and the Defendant’s mother
allowed the move and adhered to the Defendant’s decision. After
a few months, the Defendant and her boyfriend moved back to
Illinois and stayed with them for three (3) months. When the
Defendant decided to move back to Arkansas with her boyfriend,
the father drove both the Defendant and her boyfriend back to
Lockesburg, Arkansas, “to their house . . . and left them there.”
Later, when Arkansas DHS took custody of the Defendant, the
father met DHS in West Memphis, Arkansas, taking possession
back of the Defendant. However, the father drove the Defendant
straight back to Lockesburg at the Defendant’s request and left
her there with her boyfriend. Father admitted that all of this was
an adult decision on the part of the Defendant that he and the
mother allowed. It was apparent from the testimony that the
father believed that the Defendant was mature enough mentally
and physically to make said decisions and live as an adult in
another state. Except for the Defendant’s expert, which this Court
did not find credible, there was not any significant testimony that
the Defendant was not mature and capable of making adult
decisions. Actually, all the remaining testimony of anyone who
spent significant time with the Defendant was that the Defendant
lived like an adult and made decisions like an adult with other
adults believing she was capable of making said decisions as an
adult.
Here, the circuit court relied heavily on Michael Houselog’s testimony as a “major
factor” as to Lillian’s mental maturity and decision-making abilities. Again, this appears to
30
be inconsistent with Michael’s testimony as a whole. Michael was asked several times
whether he believed Lillian was operating as an adult. Each time, he denied that she was
behaving as an adult behaves. This aspect of Michael’s testimony is not included in the
circuit court’s findings.
In its findings, the circuit court stated, “It was apparent from the testimony that the father
believed that the Defendant was mature enough mentally and physically to make said decisions and
live as an adult in another state.” This is not what he said. In addition to his testimony that
both he and his wife asked Lillian not to go to Arkansas, Michael repeatedly said that he
provided Lillian financial support, he talked to her frequently both on the phone and via
text message, he paid her cell phone bill, he enrolled her in school when she elected to drop
out of high school, and he believed both he and his ex-wife were parenting her. He
characterized her behavior as adolescent. Lillian’s journey to Arkansas, which ended in this
tragedy, began as a consequence of Michael and his ex-wife enabling their fifteen-year-old
daughter’s immature impulse to leave Illinois with an adult she had met on the internet. It
was not the reasoned decision of a minor making adult decisions that caused Lillian’s
interstate move.
The circuit court went on to state in its findings, “Except for the Defendant’s expert,
which this Court did not find credible, there was not any significant testimony that the Defendant was
not mature and capable of making adult decisions. Actually, all the remaining testimony of anyone who
spent significant time with the Defendant was that the Defendant lived like an adult and made decisions
like an adult with other adults believing she was capable of making said decisions as an adult.”
31
Testimony from Rhonda Martz showed that Lillian was responsible and quiet but
still someone she considered a dependent living in her home. Even when they were forced
to move out of their home, Rhonda lived in an RV next to the trailer where Lillian,
Matthew, and Matthew’s older brother lived. Lillian’s father enrolled her in the YouthBuild
program, and when she began showing disinterest in the program, it was Michael whom
the program director, Leslie Daniels, called. Ms. Daniels did not treat Lillian as the
responsible party in that situation, and despite saying that Lillian’s disrespectful behavior was
an attempt to “act grown,” Daniels acknowledged that many other sixteen-year-olds in the
program behaved the same way.
The evidence showed that Lillian decided to move to Arkansas to live with her
boyfriend in the throes of emotional turmoil caused jointly by the COVID pandemic and
her parents’ divorce. However, Michael Houselog did not ever say that this behavior was
mature, adult, or independent of his or his ex-wife’s supervision. Giving equal weight to
Michael Houselog’s testimony as the circuit court did, Michael’s entire testimony suggests
that he did not believe his daughter to be a mature, independent adult. Again, this finding
by the court is inconsistent with the proof and material to a determination of whether to
reverse the circuit court’s decision.
The Entire Evidence Does Not Support the Circuit Court’s Decision
Simply put, the entire evidence reveals that during her time in Arkansas, Lillian was
an immature, isolated, dependent, abused teenager prone to fits of jealousy, anger, and petty
disputes. At the same time, following a painful birth without labor and delivery medications
and suffering postpartum bleeding, she tried to resuscitate her baby and managed to clamp
32
the umbilical cord as she suctioned fluid to help the baby breathe. She expressed great
anguish, regret, and pain in her texts to Chloe. Lillian was a young, unsophisticated, scared
child caught in a situation that her maturity level was ill-equipped to handle.
As to the crime she was charged with, there was no evidence introduced that the
crime was violent or that granting her transfer would pose a threat to society. Lillian did not
believe she was delivering a fully formed baby, and when she did, she attempted to keep
him alive. There was no evidence presented that she planned, premeditated, or willfully
committed the alleged crime. There was no evidence that she is a violent person. She is
merely a young girl who, without any support, had just given birth in a trailer. It is hard to
imagine that anyone who goes through that would instantly revert to a violent person who
would commit a premeditated and willful crime.
We recognize that the circuit court is not required to give equal weight to each of
the juvenile-transfer factors. Shaw, 2023 Ark. App. 55, 660 S.W.3d 591. However, as stated
earlier, this court has reversed and remanded juvenile-transfer cases when we are unable to
tell how much weight the circuit court gave to its accurate findings and how much it gave
to its findings that were inconsistent with the proof at the hearing. Spears v. State, 2019 Ark.
App. 576, 591 S.W.3d 803.
Here, as in Spears, it is unclear how much weight the circuit court gave to findings
inconsistent with the evidence presented at the hearing, but it appears to be significant. The
circuit court’s inconsistent findings, specifically as to Lillian’s adult, independent, mature
lifestyle, the nature of the crime, and Lillian’s involvement prior to and during the
33
commission of the alleged crime, were material to the circuit court’s decision to deny the
transfer.
The present case goes a significant step beyond Spears because the evidence as a
whole, not just certain factors, leaves this court with a definite and firm conviction that the
circuit court clearly erred in denying Lillian’s juvenile-transfer motion.
Despite its revision in 1999, the juvenile-transfer statute’s intent remains the same as
when it was initially enacted: to evaluate and serve the emotional, mental and physical
welfare of the juvenile and to substitute for retributive punishment, whenever possible,
methods of rehabilitation while also imposing sanctions consistent with the seriousness of
the crime.
Examining the evidence against the tests set forth in Spears, Lopez, and Randolph
enumerated above, it does not appear that the circuit court’s written findings are accurate
and consistent with the evidence, and these inconsistencies are certainly material to the
reversal of the transfer order. On several occasions, the circuit court did not provide any
detail or facts to support its conclusions. Finally, there are specific findings on the statutory
factors, however, they are not tailored to the juvenile or to the evidence. On all four tests
gathered from various case law, this circuit court’s order fails when applied against the entire
evidence.
We acknowledge that circuit courts have great discretion to weigh the statutory
factors as they wish when making a juvenile-transfer decision. However, according to our
standard of review, this court has the appellate authority to review the circuit courts’
decisions, considering the entire evidence––not just the weight afforded to individual
34
factors. Here, our review of this order entered by the circuit court reveals that it is
inconsistent with the entire evidence presented. If we do not reverse this order on the entire
evidence, we disregard our standard of review and give circuit courts unfettered discretion
despite the evidence presented at a juvenile-transfer hearing.
Reversed.
VIRDEN, GLADWIN, and HIXSON, JJ., agree.
HARRISON, C.J., and KLAPPENBACH, J., dissent.
BRANDON J. HARRISON, Chief Judge, dissenting. I respectfully dissent from
the majority’s decision to supplant its judgment for the circuit court’s. Because I am not
left with a firm and definite conviction that a mistake was made, I would affirm the denial
of the motion to transfer.
KLAPPENBACH, J., joins.
If/When/How, by: Sara Ainsworth, Farah Diaz-Tello, and Yveka Pierre, pro hac vice;
and University of Arkansas School of Law Legal Clinic, by: Matthew Bender and Jacob Worlow, for
appellant.
Donn H. Mixon; and Juvenile Law Center, by: Marsha L. Levick, pro hac vice, for amici
curiae, Juvenile Law Center, Human Rights Watch, and National Center for Youth Law.
Tim Griffin, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
35