Opinion
CA 10-794
Opinion Delivered January 19, 2011
Appeal from the Pulaski County Circuit Court, Fifth Division, [No. CR2009-4211], Honorable Ernest Sanders, Jr., Judge, Affirmed.
Appellant N.B. appeals from a decision of the Pulaski County Circuit Court denying his motion to transfer his criminal case to juvenile court. N.B. was charged by information on November 23, 2009, with two counts of committing a terroristic act, two counts of aggravated assault, and one count of aggravated assault on a family or household member arising out of acts allegedly committed on October 5, 2009. After a hearing, the trial court denied N.B.'s motion to transfer. This appeal followed. N.B. contends that the trial court erred by denying his motion to transfer. We find no error and affirm.
On October 5, 2009, N.B.'s son's mother, Tanisha Burrell, called for her sister, Nikeshia Baker, to come pick her up from N.B.'s house. Before going to N.B.'s house, Nikeshia picked up her brother and another individual. By the time Nikeshia made it to N.B.'s house, Tanisha was standing in the street. Nikeshia opened the door of her truck and stepped out, and at that time, she saw N.B. step off of his porch, shout obscenities, and begin "shooting." Nikeshia's brother pulled her vehicle over to the right-hand side of the road. Nikeshia's truck was struck at least once by the gunfire. It was also alleged that N.B. fired shots in Tanisha's direction, causing her to move out of the street. The police were called, and the above mentioned charges were filed against N.B.
At the time the truck was struck, there were two passengers inside of it.
N.B. filed a motion to transfer to juvenile court on December 16, 2009. The transfer hearing took place on April 5, 2010, and the trial court denied N.B.'s motion to transfer from the bench. An order was entered the same day, making findings on the factors set forth in Ark. Code Ann. § 9-27-318(g). More specifically, the court found 1) that the seriousness of the alleged offense and the protection of society justifies prosecution in the criminal division of circuit court; 2) that the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; 3) that the offense was committed against persons; 4) that N.B.'s culpability, including his level of planning and participation in the alleged offense was great; 5) that N.B.'s previous juvenile history justifies prosecution in the juvenile division of circuit court as an extended juvenile jurisdiction; 6) that the sophistication or maturity of N.B. as determined by consideration of his home, environment, emotional attitude, pattern of living, or desire to be treated like an adult justifies prosecution in the criminal division of circuit court; 7) that facilities or programs are available but are not likely to rehabilitate N.B.; 8) that N.B. acted alone in the commission of the alleged offense; 9) that no written reports or other materials relating to N.B.'s mental, physical, educational, and social history were presented at the hearing; and 10) that other relevant factors included the fact that N.B. is charged with committing multiple felony offenses. The order stated that N.B.'s motion to transfer was denied based on the factors and the totality of the circumstances. This appeal followed.
(Repl. 2008).
N.B. argues that the trial court erred by denying his motion to transfer his case to juvenile court. Specifically, N.B. contends: 1) that the court failed to consider if the alleged offenses against him required prosecution in "adult court" for the protection of society; 2) that the court failed to recognize that the offenses against N.B. were not premeditated and this "should go to lessening the overall seriousness of the offense"; and 3) that the court was incorrect in its interpretation and evaluation under factor six, in that the court "stated concern about the father's inadequate supervision and the sister's unwillingness to speak to the police. Factor six is not concerned with the home environment in general, but rather how it pertains to the maturity of N.B." According to this appeal, the "court should have looked at the immaturity of N.B. as demonstrated by his inability to conduct himself in a proper fashion at school" and this factor should "weigh heavily in favor of a transfer."
A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. 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 to another division of circuit court. The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. We will not reverse a trial court's determination of whether to transfer a case unless that decision is clearly erroneous.
Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2008).
Ark. Code Ann. § 9-27-318(h)(2). It must be noted that in counsel's argument, he stated that the court's decision to retain jurisdiction must be supported by clear and convincing evidence; however, that is not the standard under the clear language of the statute.
Richardson v. State, 97 Ark. App. 52, 244 S.W.3d 736 (2006).
Id.
N.B.'s first argument has no merit. The trial court specifically addressed the fact that the protection of society required N.B. to be prosecuted in the criminal division. Without citing to any authority, N.B. argues next that the court should have noted that his crime was not premeditated and that this should lessen the "overall seriousness of the offense." However, the statute does not require such a finding. The court need only consider whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. The court made the requisite findings under the statute. Finally, N.B. argues that the trial court misinterpreted and misapplied factor six and that the factor should have weighed in favor of a transfer. The court is not required to give equal weight to each of the statutory factors, and it may use its discretion in deciding the weight to be afforded to each factor. Therefore, N.B.'s argument that the court should have given more weight to a certain factor is without merit.
As a sidebar, N.B. contends that "many of the factors lean towards granting the motion to transfer. There were no reported injuries other than property damage to the car." Here, the court found that N.B. committed acts against persons. The statute clearly states that greater weight is to be given to offenses against persons. See Ark. Code Ann. § 9-27-318(g)(3).
D.A.S. v. State, 2010 Ark. App. 144 (citing Lofton v. State, 2009 Ark. 341, 321 S.W.3d 255).
Here the fact that N.B. is charged with serious aggressive offenses against persons, his culpability, the unlikely chance that he can be rehabilitated, and the number of felonies he is being charged with is sufficient to support the trial court's decision to retain jurisdiction. We cannot say that denying N.B.'s motion to transfer to juvenile court was clearly erroneous.
Affirmed.
ROBBINS and GRUBER, JJ., agree.