State v. J. A. V.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 23, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2081 Cir. Ct. No. 2024JV58

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

J.A.V.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
PAUL BUGENHAGEN, JR., Judge. Affirmed.
No. 2024AP2081

¶1 GUNDRUM, P.J.1 Joshua2 appeals from a nonfinal order of the
juvenile court, contending the court erroneously exercised its discretion in waiving
him into adult court. For the following reasons, we disagree and affirm.

Background

¶2 The State filed a delinquency petition charging Joshua with 15
counts of possession of child pornography and one count of first-degree sexual
assault of a child under the age of 13. The State alleged in relevant part as
follows.

¶3 A detective received a CyberTip indicating someone at Joshua’s
address uploaded files depicting child sexual abuse material. The material
included videos of adult men performing all manner of repulsive sexual acts with
various male children from approximately six months old to twelve years old.3
Sixteen-year-old Joshua admitted to law enforcement that he looked at child
pornography and “sometimes” prefers very young children. He further admitted
that when he was 14 years old, he took a 4-year-old boy into his bedroom, showed
the boy pornography, and had the boy touch Joshua’s erect penis for
approximately five minutes.

¶4 About one year earlier, law enforcement had made contact with
Joshua at his home in connection with a child pornography CyberTip they had

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
2
A pseudonym for J.A.V.
3
Because graphic detailing of the specifics of the various repulsive acts is unnecessary
for resolution of this appeal, we will not detail them here.

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No. 2024AP2081

received. With regard to that incident, Joshua’s mother informed law enforcement
she had found child pornography on Joshua’s computer and had “wiped” the
computer and was working to get Joshua help. A “Waiver Court Report” filed by
Joshua’s social worker, an employee of the Waukesha County Department of
Health and Human Services, indicated Joshua was not charged with any offense in
connection with that investigation.

¶5 Along with the delinquency petition, the State filed a petition for
waiver of jurisdiction. The juvenile court held a hearing on the waiver petition,
which hearing included testimony from a detective who investigated the current
child pornography and assault allegations, Joshua’s social worker, and a
psychologist. The juvenile court determined waiver into adult court was
appropriate and so ordered. Joshua filed a petition to appeal a nonfinal order,
which we granted.

Discussion

¶6 Joshua contends the juvenile court erroneously exercised its
discretion in waiving him into adult court because it (1) “failed to consider
Joshua’s lack of a prior record” and (2) “misstated the length of supervision
available to Joshua under the serious juvenile offender program.” We conclude
the court did not erroneously exercise its discretion.

¶7 Our supreme court has made clear that

The decision to waive juvenile court jurisdiction under
WIS. STAT. § 938.18 is committed to the sound discretion of
the juvenile court. We will reverse the juvenile court’s
decision to waive jurisdiction only if the court erroneously
exercised its discretion. A juvenile court erroneously
exercises its discretion if it fails to carefully delineate the
relevant facts or reasons motivating its decision or if it
renders a decision not reasonably supported by the facts of

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No. 2024AP2081

record. In reviewing the juvenile court’s discretionary
decision to waive jurisdiction, we look for reasons to
sustain the court’s decision.

State v. Tyler T., 2012 WI 52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192 (footnote
omitted; citations omitted).

¶8 In deciding whether to waive a juvenile into adult court, the juvenile
court “shall base its decision” on, as relevant: (1) the personality of the juvenile;
(2) the juvenile’s prior record; (3) the type and seriousness of the offense at issue;
and (4) “[t]he adequacy and suitability of facilities, services and procedures
available for treatment of the juvenile and protection of the public within the
juvenile justice system, and … the suitability of the juvenile for placement in the
serious juvenile offender program ….” WIS. STAT. § 938.18(5)(a)-(c). Ultimately,
to waive a juvenile into adult court, the juvenile court must conclude the State
proved by clear and convincing evidence that “it is contrary to the best interests of
the juvenile or of the public” for the case to be heard in juvenile court.
Sec. 938.18(6) (emphasis added).

¶9 Joshua asserts the juvenile court erroneously exercised its discretion
because in making its waiver determination, it “wholly failed to consider” and
“simply ignore[d]” “the second statutory factor”—the juvenile’s prior record, WIS.
STAT. § 938.18(5)(am). Joshua is mistaken.

¶10 Early in its oral ruling, the juvenile court acknowledged that one of
the criteria for its waiver determination was Joshua’s “prior record, if any.” In
consideration of Joshua’s overall record, the court noted that Joshua “found
himself involved in, first, viewing adult pornography around the age of 11 and that
graduated to child pornography.” The court noted that Joshua “was consuming
incredibly destructive material,” recognizing not only “[t]he specific harm that’s

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No. 2024AP2081

done to the infants, toddlers and children” in the child pornography videos Joshua
was consuming, but also “the damage that that causes to [Joshua], himself, by
observing that at a young age and how that impacts him.” The court recognized
that Joshua “is essentially a victim in a lot of this as well,” with the conditions at
home being such that he was able to “consum[e] [such] incredibly destructive
material.”

¶11 The juvenile court further noted that

at some point prior to … any prosecution start[ing], law
enforcement had contact with [Joshua] and his family
regarding child pornography. I understand that it was
attempted to be dealt with at that point. Law enforcement
didn’t have any other contact other than meeting him one
day at his home and, I guess, for lack of any better word …
warning [him] about the type of conduct. My
understanding through that is that his mother was aware of
it [and] had disposed of that computer. That matter was
closed out.

The court noted that “things didn’t stop after the contact with the police. [Joshua]
noted he knew how to re-install the app and get back to the files.” The court also
observed that Joshua’s prior conduct was harmful to himself—he was a victim
himself—because he “was leaving [his] home [and] having sexual encounters with
… adult males,” adding that this “is a large consideration for the [c]ourt as to the
appropriateness of placement at home.”

¶12 The second factor also includes consideration of Joshua’s “motives
and attitudes.” See WIS. STAT. § 938.18(5)(am). Related to this, the juvenile court
recognized that Joshua himself referred to his attraction to child pornography as
“an addiction.” The court also recognized that the facts related to Joshua’s alleged
assault of a four-year-old boy show that it was not a “youthful curiosity-type

5
No. 2024AP2081

issue[] that [led] to the sexual contact” but was “more akin to the planned out,
premeditated steps of allegedly having a child come up to the bedroom.”

¶13 In his brief-in-chief, Joshua refers us to the waiver court report
submitted to the juvenile court by Joshua’s social worker, which in addressing the
“motives and attitudes” consideration of the second factor, indicated that Joshua
“has expressed his remorse for the alleged offenses.” The court saw things
differently with regard to this consideration, however, noting that “the type of
images [Joshua] was watching, what was described, … it flies completely
contrary” to a “determination that he’s empathetic, that he is remorseful and feels
bad for the victims.”

¶14 Thus, the juvenile court did consider the second factor, not only as it
related to Joshua’s “motives and attitude,” but also as it related to his prior contact
with law enforcement at his home regarding an earlier CyberTip, which
investigation resulted in the matter being “closed out” after only a warning by law
enforcement. With no other evidence of any other incidents of prior wrongdoing
by Joshua having been presented to the court, obvious and implicit from the
court’s discussion regarding that one prior instance of contact with law
enforcement is the fact that the court was aware Joshua had no other prior
interactions with the justice system. Thus, the court did not “fail[] to consider” the
second factor related to waiver.

¶15 Joshua also asserts the juvenile court erroneously exercised its
discretion because it erroneously believed supervision under the serious juvenile
offender program would end after three years whereas the relevant statute actually
allows for five years’ supervision. Joshua forfeited this argument.

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No. 2024AP2081

¶16 In State v. Benson, 2012 WI App 101, 344 Wis. 2d 126, 822
N.W.2d 484, Benson argued he was entitled to resentencing because the circuit
court sentenced him based on inaccurate information in an expert’s report
provided to the court. Specifically, he argued, as we phrased it, that the report
“gave the court the mistaken impression that Benson had a level of Ambien in his
system at the time of the crash which was well above the therapeutic level,
suggesting he had misused the drug, and that the court relied upon this
misimpression in fashioning Benson’s sentence.” Id., ¶16. We concluded that
“[b]ecause Benson’s counsel himself submitted [the expert’s] report to the court
and failed to correct or object to the Ambien-related information prior to Benson’s
sentencing, Benson cannot now claim his due process rights were violated by the
court’s consideration of that same information. He has forfeited the issue.” Id.,
¶17. We face a similar circumstance in this case.

¶17 During cross-examination of the social worker, the following
exchange took place:

[Joshua’s counsel:] Okay. Now while the Department is
not recommending placing [Joshua] in the serious juvenile
offender program, this is a charge that does give the [c]ourt
that option?

[Social worker:] It does. It does. Our juvenile court can
order this youth or stay an order for SJO, which would be
relative to, I believe, a three-year ability for the youth to
remain in that program for three years for additional
supervision—

[Joshua’s counsel:] And—

[Social worker:] —which would put him at about the age
of 18.

(Emphasis added.)

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No. 2024AP2081

¶18 Joshua acknowledges in his brief-in-chief that “[t]he [juvenile]
court’s belief that the serious juvenile offender program could only last for three
years may have been based on incorrect testimony concerning the length of time
that a court may place a child in the program,” citing to this exchange between his
counsel and the social worker. We see nothing else in the record that the court
may have been drawing from when it indicated Joshua could only be supervised in
the serious juvenile offender program for three years.

¶19 While counsel’s initial question to the social worker did not
specifically invite him to mention any length of time related to the serious juvenile
offender program, by adding “And” during the exchange, counsel would have
given the juvenile court the impression the social worker was correct in
representing that supervision under the serious juvenile offender program was
available for “three years.” Counsel also then made no effort to correct the
misinformation through either further testimony by the social worker or otherwise.
Then, following testimony and argument by the parties, as the court was
explaining its findings related to waiver, and before it announced its decision, the
court stated:

The [c]ourt is familiar that there is a possibility of
serious juvenile offender programming that would extend
supervision out for a couple of extra years. Actually, I
should make sure I have it correct.… I’ll put it this way,
because it’s not completely critical to the findings, … I
would still have to look at if it’s three years from the time
he turns 18 or three years from the time of disposition that
that can go out for. I believe it’s three years from the time
of disposition, but if I’m wrong on that, it would add
essentially another year onto it if it’s from the time he turns
18. But it’s not dispositive for my determination here
today.

8
No. 2024AP2081

(Emphasis added.) Counsel for Joshua made no objection to or effort to correct
the court’s apparent misunderstanding that supervision under the serious juvenile
offender program could only last for three years.

¶20 Then, when later announcing its decision, the juvenile court stated:

So the [c]ourt is finding on really two parts here, one,
that the seriousness of this type of offense is one that is
contrary to the best interest of the public to be dealt with in
juvenile court. Also further finding that it’s not in the best
interest of the juvenile to only have a—yes, it is a
significant time in the life of a juvenile, but as court
officials, as people that deal with these types of issues, see
these are not … 20-week programs, these are not one-year
programs, these are not even three-year programs. Sadly at
times, these are lifetime programs. I hope that is not the
case.

(Emphasis added.) Counsel again made no objection to or effort to correct the
court’s belief that the serious juvenile offender program was only available for
three years.

¶21 In light of this record, Joshua cannot be heard on appeal to complain
about the juvenile court’s understanding of the duration of the serious juvenile
offender program when he, through counsel, gave indication that such an
understanding was correct and made no correction or objection to the court’s
misunderstanding of a three-year limit.4

4
“Application of the forfeiture rule is appropriate in many instances to ensure that
parties and circuit courts have ‘notice and a fair opportunity to address issues and arguments,
enabling courts to avoid or correct any errors with minimal disruption of the judicial process.’”
State v. D.E.C., 2025 WI App 9, ¶67, 415 Wis. 2d 161, 17 N.W.3d 67 (citation omitted). The
forfeiture rule, as our supreme court has stated,

promotes both efficiency and fairness, and “go[es] to the heart of
the common law tradition and the adversary system.”

(continued)

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No. 2024AP2081

¶22 For the foregoing reasons, we affirm.

By the Court.—Order affirmed.

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

The … rule serves several important objectives. Raising
issues at the [circuit] court level allows the [circuit] court to
correct or avoid the alleged error in the first place, eliminating
the need for appeal. It also gives both parties and the [circuit]
judge notice of the issue and a fair opportunity to address the
objection. Furthermore, the [forfeiture] rule encourages
attorneys to diligently prepare for and conduct trials. Finally, the
rule prevents attorneys from “sandbagging” errors, or failing to
object to an error for strategic reasons and later claiming that the
error is grounds for reversal.

State v. Huebner, 2000 WI 59, ¶¶11-12, 235 Wis. 2d 486, 611 N.W.2d 727 (first alteration in
original; citations omitted).

10