J.B.G. v. State of Arkansas

2020 Ark. App. 43, 594 S.W.3d 109

• Court: Court of Appeals of Arkansas
• Decided: January 22, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 43 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.10 12:23:50 DIVISION I -05'00' No. CR-19-602 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: January 22, 2020

J.B.G. APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72JV-19-131]

STATE OF ARKANSAS HONORABLE STACEY APPELLEE ZIMMERMAN, JUDGE AFFIRMED

MIKE MURPHY, Judge

JBG appeals the order of the Washington County Circuit Court transferring his case

from the juvenile division to the criminal division of the circuit court. On appeal, he argues

that the circuit court erred in finding that his case was eligible for transfer under Arkansas

Code Annotated section 9-27-318(b)(1) and (2) (Repl. 2015). We affirm.

On March 3, 2019, a delinquency petition was filed against fifteen-year-old JBG for

crimes stemming from an alleged burglary of an Ace Hardware store in Prairie Grove,

Arkansas. The State alleged that JBG, along with three others, broke into the store;

destroyed a glass door, an alarm system, and two gun cases; and stole seventy-seven firearms.

JBG was charged with accomplice to theft of property, a Class B felony; accomplice to

commercial burglary, a Class C felony; minor in possession of a handgun, a Class D felony;

and accomplice to criminal mischief in the first degree, a Class D felony. On March 15, 2019, the State filed a motion to transfer JBG’s case from the juvenile

division to the criminal division of the circuit court. JBG opposed the motion, and a hearing

was held on the State’s motion on April 9, 2019. At that hearing, the court first heard

testimony from Captain Jeff O’Brien of the Prairie Grove Police Department. Captain

O’Brien testified that there was a burglary on February 15, 2019, at Ace Hardware in Prairie

Grove. Approximately seventy-seven firearms were stolen. The suspects also destroyed a

glass entry door and two large glass gun cases.

Captain O’Brien testified his investigation led him to JBG and three other

individuals. O’Brien testified that one of the individuals admitted to police that JBG was

with him during the burglary. Another one identified JBG in a photograph taken from the

hardware store’s surveillance footage. He testified that at the time of the hearing, police had

recovered only twenty-seven of the firearms and that several of them had been used in the

commission of crimes. Detective O’Dell of the Fayetteville Police Department testified that

one firearm had been used in a homicide. JBG’s probation officer also testified. At the

conclusion of the State’s evidence, JBG moved to dismiss the motion to transfer, arguing

that his case should not be transferred to the criminal division of the circuit court because

there was no evidence that he committed a felony while armed with a firearm. He further

argued that his case was not eligible for transfer pursuant to Arkansas Code Annotated

section 9-27-318(b)(2), because there was no evidence he possessed a handgun for the

purpose of felony possession of a handgun by a minor. The court ruled against JBG and

granted the State’s motion to transfer. JBG now appeals, arguing that the circuit court erred

2 by finding that his case was eligible for transfer to the criminal division pursuant to Arkansas

Code Annotated section 9-27-318(b)(1) and (2).

Under Arkansas Code Annotated section 9-27-318(b), when certain conditions are

met, the State may file a motion in the juvenile division of circuit court to transfer a case to

the criminal division of circuit court. Relevant here, the State may do so when the case

involves a fifteen-year-old juvenile who commits a felony while armed with a firearm or

when a juvenile at least fourteen years old engages in conduct that constitutes a felony under

Arkansas Code Annotated section 5-73-119(a) (Supp. 2019). 1 Ark. Code Ann. § 9-27-

318(b)(1)(F), (b)(2).

On appeal, JBG argues that the circuit court erred when it found that he committed

the crimes “while armed with a firearm” because there was no proof that JBG or any of the

others possessed a firearm before they stole the firearms. That is, they did not commit the

crimes while armed. He argues that the act of stealing firearms does not mean that he was

armed while committing the act. He further argues that there was no evidence or testimony

that he possessed a handgun as contemplated under section 9-27-318(b)(2).

The moving party bears the burden of proving that the case should be transferred.

Brown v. State, 2016 Ark. App. 254, at 4, 492 S.W.3d 126, 129. The court shall order the

case transferred to another division of the circuit court only upon a finding by clear and

1 Arkansas Code Annotated section 5-73-119(a)(1) states that no person in Arkansas under eighteen years of age shall possess a handgun. A handgun is defined as any firearm, other than a fully automatic firearm, with a barrel length of less than twelve inches that is designed, made, or adapted to be fired with one hand. Ark. Code Ann. § 5-73-301(4) (Supp. 2019). A violation of section 5-73-119(a)(1) is a Class D felony if the person has previously been adjudicated delinquent for any offense that would be a felony if committed by an adult. Ark. Code Ann. § 5-73-119(a)(2)(B)(ii).

3 convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2).

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. R.W.G. v. State, 2014 Ark.

App. 545, 444 S.W.3d 376. We will not reverse a circuit 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.

JBG first argues that because he became armed only by virtue of the crime he was

committing, he was not, then, committing the crime while armed. JBG would have this

court adopt the “loot doctrine,” which provides that if the firearm is loot obtained in the

course of a burglary, then the defendant is not “armed” as contemplated under the firearm-

enhancement statutes. See, e.g., People v. Williams, 63 A.D.2d 1035 (N.Y. App. Div. 1978).

Thus, he reasons, his case is not eligible for transfer under Arkansas Code Annotated section

9-27-318(b)(1)(F). We need not address this argument, however, because JBG’s case is also

eligible for transfer due to his possession of a handgun under subsection (b)(2). Ark. Code

Ann. § 9-27-318(b)(2).

JBG contends subsection (b)(2) is inapplicable because there was no evidence that he

committed a felony while armed with a firearm. However, JBG’s accomplice identified him

in the surveillance photo that showed them burglarizing the hardware store where they stole

seventy-seven firearms and damaged property, and Detective O’Dell testified that one of

the recovered firearms was a Smith & Wesson Mag .460—a handgun. Though JBG argues

that there was never any proof that he possessed a handgun, at the very least, his accomplices

4 possessed the firearms as they were taking them from the hardware store. “An accomplice,

even of minor age, is responsible for the activities of his cohort.” Holmes v. State, 2019 Ark.

App. 21, at 6, 569 S.W.3d 895, 899. It was therefore not clearly erroneous for the circuit

court to find JBG in possession of a firearm. Thus, his case was eligible for transfer to the

criminal division pursuant to Arkansas Code Annotated section 9-27-318(b)(2), and the

circuit court’s decision to transfer JBG’s case to the criminal division was not clearly

erroneous.

Affirmed.

GRUBER, C.J., and GLADWIN, J., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.