Cite as 2013 Ark. App. 706
ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-606
Opinion Delivered December 4, 2013
A.E.L. APPEAL FROM THE WHITE APPELLANT COUNTY CIRCUIT COURT [NO. CR-2013-60] V. HONORABLE ROBERT EDWARDS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
A.E.L. appeals from an order of the White County Circuit Court denying his motion
to transfer his criminal case to the juvenile division. He argues that there was no evidence
presented at the transfer hearing to support certain findings by the circuit court. We disagree
and affirm.
On January 29, 2013, the State filed a criminal information in which it alleged that
appellant committed the following offenses: aggravated assault, felony fleeing, and first-degree
criminal mischief. In an affidavit, Detective Keith Hays with the Searcy Police Department
stated that on December 30, 2012, appellant was driving a vehicle that was stopped for a
traffic violation by Officer Matt Higgins. When Officer Higgins pulled behind appellant’s
vehicle, appellant backed up at a rapid rate of speed and struck the patrol unit, disabling the
officer’s vehicle. Appellant was pursued by other police units to Gum Springs Cemetery, Cite as 2013 Ark. App. 706
where he destroyed twelve headstones and one statue before wrecking. During the pursuit,
appellant’s vehicle struck and damaged a vehicle driven by Kala Gardner. The affidavit states
that appellant caused $12,992.80 worth of damage in the cemetery, $2000 worth of damage
to Ms. Gardner’s vehicle, and an estimated $15,877.20 worth of damage to Officer Higgins’s
patrol vehicle.
Appellant filed a motion to transfer his case to the juvenile division of the circuit court
on February 1, 2013. At the hearing on appellant’s motion, Tiffany English, a special-
education teacher at Searcy High School, testified that appellant was a student in her class.
She stated that appellant has attention-deficit disorder and that she had not had any discipline
issues with him. Barbara Brown, appellant’s counselor at the high school, testified that she
was not aware of appellant having any disciplinary issues at school.
Appellant’s father testified that appellant was seventeen-and-a-half years old at the time
of the incident that led to the charges. According to appellant’s father, appellant had not had
any serious disciplinary issues prior to the incident.
The State’s case, by agreement of the parties, consisted solely of argument by counsel.
The police officers involved in the incident were present at the hearing. The circuit court
entered an order denying the motion to transfer on March 15, 2013. This appeal followed.
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. Ark. Code Ann. § 9-27-
318(c)(1) (Repl. 2009). On the motion of the court or any party, the court in which the
2 Cite as 2013 Ark. App. 706
criminal charges have been filed shall conduct a hearing to determine whether to transfer the
case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e)
(Repl. 2009). 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.
Ark. Code Ann. § 9-27-318(h)(2) (Repl. 2009). 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. Neal v. State, 2010 Ark. App. 744, at 6, 379 S.W.3d 634, 637. We will not
reverse a trial court’s determination of whether to transfer a case unless that decision is clearly
erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a firm conviction that a mistake has
been committed. Id., 379 S.W.3d at 638.
At a juvenile-transfer hearing, the trial court must consider, and issue written findings
on, the following factors: (1) the seriousness of the alleged offense and whether the protection
of society requires prosecution in the criminal division of circuit court; (2) whether the alleged
offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether
the offense was against a person or property, with greater weight being given to offenses
against persons, especially if personal injury resulted; (4) the culpability of the juvenile,
including the level of planning and participation in the alleged offense; (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; (6) the sophistication or maturity of the
3 Cite as 2013 Ark. App. 706
juvenile as determined by consideration of the juvenile’s home, environment, emotional
attitude, pattern of living, or desire to be treated as an 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; (8)
whether the juvenile acted alone or was part of a group in the commission of the alleged
offense; (9) written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and (10) any other factors deemed relevant by the judge. Ark.
Code Ann. § 9-27-318(g); Neal, 2010 Ark. App. 744, at 6–7, 379 S.W.3d at 638. The trial
court does not have to give equal weight to each factor. Id. at 7, 379 S.W.3d at 638.
In its order, the circuit court made separate written findings with regard to each of the
ten factors. Appellant first argues that there was no evidence presented at the hearing
regarding the first three factors and that, in making its findings on those factors, the circuit
court relied solely upon the criminal information, in violation of our supreme court’s holding
in Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997). Appellant’s argument is
unpersuasive because the circuit court had before it the affidavit of Detective Hays that
described the nature of the offenses alleged to have been committed by appellant. The State
correctly states in its responsive brief that the consideration of the contents of the affidavit by
the circuit court was not objected to by appellant. Therefore, there was evidence, separate
from the criminal information, to support the circuit court’s findings regarding the first three
factors listed in section 9-27-318(g).
Appellant next argues that there was no evidence to support the circuit court’s finding
4 Cite as 2013 Ark. App. 706
regarding the seventh factor, which concerns the likelihood of rehabilitation in the juvenile
system by the juvenile’s twenty-first birthday. In its order, the circuit court states that it is
aware of programs and facilities in the juvenile division designed to rehabilitate delinquent
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Cite as 2013 Ark. App. 706
ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-606
Opinion Delivered December 4, 2013
A.E.L. APPEAL FROM THE WHITE APPELLANT COUNTY CIRCUIT COURT [NO. CR-2013-60] V. HONORABLE ROBERT EDWARDS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
A.E.L. appeals from an order of the White County Circuit Court denying his motion
to transfer his criminal case to the juvenile division. He argues that there was no evidence
presented at the transfer hearing to support certain findings by the circuit court. We disagree
and affirm.
On January 29, 2013, the State filed a criminal information in which it alleged that
appellant committed the following offenses: aggravated assault, felony fleeing, and first-degree
criminal mischief. In an affidavit, Detective Keith Hays with the Searcy Police Department
stated that on December 30, 2012, appellant was driving a vehicle that was stopped for a
traffic violation by Officer Matt Higgins. When Officer Higgins pulled behind appellant’s
vehicle, appellant backed up at a rapid rate of speed and struck the patrol unit, disabling the
officer’s vehicle. Appellant was pursued by other police units to Gum Springs Cemetery, Cite as 2013 Ark. App. 706
where he destroyed twelve headstones and one statue before wrecking. During the pursuit,
appellant’s vehicle struck and damaged a vehicle driven by Kala Gardner. The affidavit states
that appellant caused $12,992.80 worth of damage in the cemetery, $2000 worth of damage
to Ms. Gardner’s vehicle, and an estimated $15,877.20 worth of damage to Officer Higgins’s
patrol vehicle.
Appellant filed a motion to transfer his case to the juvenile division of the circuit court
on February 1, 2013. At the hearing on appellant’s motion, Tiffany English, a special-
education teacher at Searcy High School, testified that appellant was a student in her class.
She stated that appellant has attention-deficit disorder and that she had not had any discipline
issues with him. Barbara Brown, appellant’s counselor at the high school, testified that she
was not aware of appellant having any disciplinary issues at school.
Appellant’s father testified that appellant was seventeen-and-a-half years old at the time
of the incident that led to the charges. According to appellant’s father, appellant had not had
any serious disciplinary issues prior to the incident.
The State’s case, by agreement of the parties, consisted solely of argument by counsel.
The police officers involved in the incident were present at the hearing. The circuit court
entered an order denying the motion to transfer on March 15, 2013. This appeal followed.
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. Ark. Code Ann. § 9-27-
318(c)(1) (Repl. 2009). On the motion of the court or any party, the court in which the
2 Cite as 2013 Ark. App. 706
criminal charges have been filed shall conduct a hearing to determine whether to transfer the
case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e)
(Repl. 2009). 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.
Ark. Code Ann. § 9-27-318(h)(2) (Repl. 2009). 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. Neal v. State, 2010 Ark. App. 744, at 6, 379 S.W.3d 634, 637. We will not
reverse a trial court’s determination of whether to transfer a case unless that decision is clearly
erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a firm conviction that a mistake has
been committed. Id., 379 S.W.3d at 638.
At a juvenile-transfer hearing, the trial court must consider, and issue written findings
on, the following factors: (1) the seriousness of the alleged offense and whether the protection
of society requires prosecution in the criminal division of circuit court; (2) whether the alleged
offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether
the offense was against a person or property, with greater weight being given to offenses
against persons, especially if personal injury resulted; (4) the culpability of the juvenile,
including the level of planning and participation in the alleged offense; (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; (6) the sophistication or maturity of the
3 Cite as 2013 Ark. App. 706
juvenile as determined by consideration of the juvenile’s home, environment, emotional
attitude, pattern of living, or desire to be treated as an 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; (8)
whether the juvenile acted alone or was part of a group in the commission of the alleged
offense; (9) written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and (10) any other factors deemed relevant by the judge. Ark.
Code Ann. § 9-27-318(g); Neal, 2010 Ark. App. 744, at 6–7, 379 S.W.3d at 638. The trial
court does not have to give equal weight to each factor. Id. at 7, 379 S.W.3d at 638.
In its order, the circuit court made separate written findings with regard to each of the
ten factors. Appellant first argues that there was no evidence presented at the hearing
regarding the first three factors and that, in making its findings on those factors, the circuit
court relied solely upon the criminal information, in violation of our supreme court’s holding
in Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997). Appellant’s argument is
unpersuasive because the circuit court had before it the affidavit of Detective Hays that
described the nature of the offenses alleged to have been committed by appellant. The State
correctly states in its responsive brief that the consideration of the contents of the affidavit by
the circuit court was not objected to by appellant. Therefore, there was evidence, separate
from the criminal information, to support the circuit court’s findings regarding the first three
factors listed in section 9-27-318(g).
Appellant next argues that there was no evidence to support the circuit court’s finding
4 Cite as 2013 Ark. App. 706
regarding the seventh factor, which concerns the likelihood of rehabilitation in the juvenile
system by the juvenile’s twenty-first birthday. In its order, the circuit court states that it is
aware of programs and facilities in the juvenile division designed to rehabilitate delinquent
juveniles, but finds that such programs or facilities were not likely to provide rehabilitation
to appellant. Given appellant’s age and the nature of the offenses alleged, we hold that the
circuit court’s finding on this factor was not clearly erroneous.
Finally, appellant argues that there was no evidence to support the circuit court’s
finding under factor ten that, in its opinion, appellant’s age was past the age when disposition
in the juvenile division would benefit the juvenile or society. The testimony at the hearing
was that appellant was less than a year shy of his eighteenth birthday at the time the alleged
offenses were committed and, as is noted above, he is alleged to have committed offenses that
resulted in substantial property damage and posed a risk of injury to others. In light of the
other findings by the circuit court, we hold that the finding under factor ten was not clearly
erroneous.
Affirmed.
PITTMAN and HARRISON, JJ., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.