Jongewaard v. State

29 S.W.3d 758, 71 Ark. App. 269, 2000 Ark. App. LEXIS 660
CourtCourt of Appeals of Arkansas
DecidedOctober 25, 2000
DocketCA 00-92
StatusPublished
Cited by4 cases

This text of 29 S.W.3d 758 (Jongewaard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jongewaard v. State, 29 S.W.3d 758, 71 Ark. App. 269, 2000 Ark. App. LEXIS 660 (Ark. Ct. App. 2000).

Opinion

Wendell L. GRIFFEN, Judge.

Asa John Jongewaard prosecutes this interlocutory appeal from the decision by the Washington County Circuit to deny his motion to transfer a criminal case to juvenile court. Appellant, charged with one count of commercial burglary, nine counts of breaking or entering, and three counts of theft of property, argues that the circuit court’s decision to retain jurisdiction is clearly erroneous because the findings of fact issued by the court did not enumerate the ten factors set out in Act 1192 of 1999. We disagree and affirm.

On August 25, 1999, the Washington County Prosecutor filed an amended felony information against appellant and two other persons for commercial burglary, five counts of breaking or entering, and one count of theft of property. The information was modified on September 22, 1999; four additional breaking or entering charges and two additional theft of property charges were added. Appellant moved to transfer the case to juvenile court, and a transfer hearing was conducted on October 27, 1999.

The circuit judge heard testimony from appellant, bis parents, a family friend, and a juvenile intake officer. During direct examination, appellant testified that he and two friends were arrested in Fayetteville, Arkansas, for breaking into cars and into a Coors beer facility. He testified that the crimes occurred on two or three different nights, and involved seven or eight cars. According to appellant, he and his friends “did it just for something to do, and were under the influence of alcohol when we committed the crimes.” He stated that the idea of breaking into the Coors facility originated when he and several friends were at a shopping center, that one of his friends came up with the idea, and that he had never-broken into any other buildings before. He stated that his cousin kicked down the door at the facility, and that he and two other friends ran inside and took a couple of cases of beer. After they drank several beers, they decided to break into some cars. Appellant testified that he participated in the car thefts by tearing out one or two CD players and speakers and helping his friends lift equipment out of the cars, that his friends used a crowbar to break the windows of the cars, and that they would rip out everything they could. Appellant testified that everything that was stolen was sold, but that he did not receive any benefit from the sale. He admitted his involvement in stealing the items, loading them, and transporting them. Appellant also admitted that on another occasion prior to this event, he and his friends had broken into two or three cars after drinking alcohol. He stated that his purpose for committing the criminal activity was to just go along, and he expressed remorse. Appellant also stated that he had never been arrested prior to August 1999, and that the only contact he had with juvenile court occurred when he was referred for truancy.

Appellant’s testimony during cross-examination revealed numerous contradictions.1 When the trial judge asked appellant why his testimony at trial differed greatly from statements made during his initial interview with the police, appellant responded that he had been confused and scared after his arrest. He admitted making contradictory statements to the police, but said that he could not understand the officers or hear them so he just agreed or disagreed.

The court also heard testimony from Jimmy Blakemore and from appellant’s parents. Blakemore, a retired teacher and friend of appellant’s family, testified that appellant was a model juvenile in terms of respect for his family, adults, and other people. He testified that if the court gave appellant a second chance, appellant would have the support of his family. Appellant’s parents testified that appellant became more respectful and seemed remorseful for his acts following his arrest. Appellant’s father stated that his son’s grades had improved, that he was attending class regularly, and working part-time. He also testified that he had placed more restrictions on appellant and curtailed some of his freedom.

John Michael Dunn, an intake officer with the Washington and Madison County Juvenile court, also testified. Dunn testified that appellant had been classified as Family In Need of Services on July 26, 1999, and ordered to attend school. He testified that appellant did not appear for a review hearing set for October 1999. As a result of appellant’s failure to appear, Dunn stated that a contempt hearing was set. However, the contempt hearing was not held because appellant was in jail.

The trial court denied the motion for transfer. In doing so, the trial court mentioned several factors, including: 1) the fact that appellant originally admitted to the police that he and his friends committed between twenty and thirty felonies, and that he changed his story in court; 2) that appellant testified that his criminal conduct occurred within two or three days despite proof that the conduct began in March 1999; 3) appellant’s lack of credibility; 4) that appellant and his friends broke into a commercial establishment to steal intoxicants; and 5) the interest of the community in the court retaining jurisdiction, given the frequency of the types of crime committed. The court also pointed to the fact that although appellant was classified FINS in July 1999, his criminal conduct continued after that date. It found that the offenses were committed in a premeditated, willful, and to some extent “aggressive” manner, and that appellant was equally culpable with his co-defendants. The court noted that appellant appeared to have the maturity and sophistication of an eighteen-year-old. Based on the fact that appellant was seventeen, the court found appellant’s prospects remote for rehabilitation in the juvenile system because the juvenile court would only have jurisdiction for a limited time. The court entered an order containing written findings of fact that denied appellant’s motion to transfer. On appeal, appellant argues that the circuit court erred because its findings of fact did not detail its decision on the ten factors listed in the statute that now governs transfer of cases between circuit and juvenile court.

In 1999 our juvenile code and the statutes governing juvenile jurisdiction and proceedings underwent substantial changes with the enactment of Act 1192, which contained no emergency clause and became effective on July 30, 1999. One statute affected by the 1999 amendments is Arkansas Code Annotated section 9-27-318 (Supp. 1999), which governs transfer of cases between circuit and juvenile courts. Because trial courts must follow procedural rules in effect at the time of a proceeding, section 9-27-318, as amended, applies to transfer hearings held after July 30, 1999. This is true even when the incident leading to the proceeding occurred prior to July 30, 1999. See Trammell v. State, 70 Ark. App. 210, 214, 16 S.W.3d 564, 567 (2000).

Juvenile and circuit courts have concurrent jurisdiction over juveniles who, at the age of at least sixteen years, engage in conduct that if committed by an adult would constitute a felony. See Ark. Code Ann. § 9-27-318(c)(l) (Supp. 1999). Upon a motion by any party, the court where the charges are filed must conduct a hearing to decide if the court should retain jurisdiction or transfer jurisdiction to another court having jurisdiction. See Ark. Code Ann. § 9-27-318(e) (Supp. 1999).

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Bluebook (online)
29 S.W.3d 758, 71 Ark. App. 269, 2000 Ark. App. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jongewaard-v-state-arkctapp-2000.