Court of Appeals

Cite as 2024 Ark. App. 393 ARKANSAS COURT OF APPEALS

LILLIAN HOUSELOG

V. STATE OF ARKANSAS

DIVISIONS III & IV No. CR-23-567

APPELLANT

APPELLEE

Opinion Delivered: June 5, 2024 APPEAL FROM THE SEVIER

COUNTY CIRCUIT COURT [NO. 67CR-22-174]

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.

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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).

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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

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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.

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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.

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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.

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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.

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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.

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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. § 9-27-318 The 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

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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.