Nelson v. State

2016 Ark. App. 148, 485 S.W.3d 284, 2016 Ark. App. LEXIS 152
CourtCourt of Appeals of Arkansas
DecidedMarch 2, 2016
DocketCR-15-714
StatusPublished

This text of 2016 Ark. App. 148 (Nelson 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
Nelson v. State, 2016 Ark. App. 148, 485 S.W.3d 284, 2016 Ark. App. LEXIS 152 (Ark. Ct. App. 2016).

Opinion

CLIFF HOOFMAN, Judge

| Appellant Neil Taylor Nelson appeals from the Washington County Circuit Court’s order denying his motion to transfer his cáse to the juvenile division or, in the alternative, to extend juvenile jurisdiction. On appeal, Nelson argues that the circuit court erred in denying his motion. We affirm.

On November 19, 2013, Nelson (DOB 11/22/95) was charged as an adult with four counts, of raping his eleven-year-old cousin in violation of Arkansas Code Annotated section 5-14-103 (Repl. 2013). Oh March 19, 2015, Nelson filed a motion to transfer his case to the juvenile division or, in the alternative, to -extend juvenile jurisdiction based on the fact that he was seventeen years of age when the offenses were alleged to have been committed.

A juvenile-transfer hearing was held on May 7; 2015. • Detective Rick Frisby testified that Mary Rose Morelik, Nelson’s step-grandmother, brought her granddaughter, H.M., to the Springdale Police Department in November 2013 because she suspected that H.M. had 12been sexually assaulted' by Nelson. According to Frisby, H.M. disclosed during the interview that Nelson had used a spoon to unlock her bedroom door and had digitally penetrated her. H.M. indicated that her grandparents had been locking her bedroom- door in an attempt to protect her from Nelson, who also resided in the home. Frisby testified that a fork with broken tines was found inside the residence, and Morelik informed him that Nelson had used the fork to unlock H.M.’s door. Nelson was interviewed and admitted that he had sexual intercourse with H.M. on four separate occasions. He further admitted that it was his idea and indicated that it was a mistake.

Jeremy Kelly testified that he had been Nelson’s probation officer from February 2012 until August 2013. Kelly indicated that Nelson had previously been adjudicated a juvenile delinquent in 2012 based on his commission of several criminal offenses, including theft of property and breaking or entering. Kelly stated that Nelson did not do well on probation initially, and it was revoked. Kelly testified that Nelson then received a second term of probation, which he successfully completed in August 2013. According to Kelly, if Nelson’s current case was transferred to the juvenile division, he would not be eligible for any rehabilitative services through the juvenile court because he was older than eighteen years of age. Kelly stated that the only option would be to refer Nelson to the Department of Youth Services (DYS) so that he could be placed in one of two inpatient juvenile detention facilities.

Scott Tanner, the juvenile ombudsman who provides postdispositional advocacy for youth committed to DYS, also testified that Nelson would be limited to two inpatient treatment programs through DYS due to his age. Tanner indicated that these programs 13would require a minimum of twelve to fourteen months and that Nelson would then need to undergo a risk assessment or another psychosexual evaluation prior to placement in the community. Tanner stated that all of this treatment would have to be completed by Nelson’s twenty-first birthday. Tanner testified that another option would be an extended-juvenile-jurisdiction (EJJ) designation. With that option, Nelson would have the right to a jury trial in the juvenile division. If the allegations were found to be true, Nelson would still have to complete treatment through DYS and then undergo outside treatment, a risk assessment, and another hearing to determine whether he had been rehabilitated. Again, Tanner testified that all of these requirements would have to be completed before Nelson turned twenty-one years old.

Lewanna Hellwig testified that she was Nelson’s special-education teacher at Springdale High School. She indicated that Nelson’s academic performance was poor and that he read and wrote on a first-grade level. She stated, however, that Nelson did not put forth a lot of, effort in her classroom. Hellwig indicated that Nelson was aware of the difference between right and wrong and that he understood that his actions had consequences.

LaDena Eads, the assistant principal in charge of special services, testified that Nelson scored in the extremely low range of functioning on an intelligence test and that he had below-average verbal skills. Eads indicated that Nelson had learning disabilities and that he qualified for an individual-education plan.

Stephen Nichols testified that he is a psychologist and that he had examined Nelson on two occasions to determine his mental status and fitness to proceed in court. Nichols | indicated that Nelson was fit to proceed. In addition, although Nelson had a mental defect in the form of a mild intellectual disability, Nichols testified that Nelson understood the criminality of his conduct and was able to conform his conduct to the requirements of the law. According to Nichols, it was clear that Nelson had the ability to understand the difference between right and wrong.

Susan Moody, Nelson’s mother, testified that Nelson was born in the Marshall Islands and that he was premature and weighed only two pounds at birth. Moody stated that Nelson had medical issues and that he was in the hospital on four occasions when he was a baby. Since the family had moved to the United States, Moody testified that Nelson had resided with his grandfather the majority of the time.

Following the hearing, the circuit court entered an order on May 21, 2015, denying Nelson’s motion to transfer his case to juvenile court or, in the alternative, to extend juvenile jurisdiction. Nelson filed a timely notice of appeal from this order.

For his sole point on appeal, Nelson argues that the circuit court erred by denying his motion to transfer or for an EJJ designation. Specifically, Nelson contends that the circuit court failed to consider and give appropriate weight to evidence that was admitted concerning his intellectual disability and his educational background.

Pursuant to Arkansas Code Annotated section 9-27-318(c)(l) (Repl. 2016), a prosecuting attorney may charge a juvenile in either the criminal or the juvenile division of circuit court when the case involves a juvenile who is at least sixteen years old when he has engaged in conduct that, if committed by an adult, would be a felony. Upon the motion of Neither party, the division of the circuit court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division. Ark.Code Ann. § 9-27-318(e). The movant has the burden of proving the necessity of a transfer, and the circuit court shall order the case transferred only if it finds by clear and convine-: ing evidence that such a transfer is warranted. Nichols v. State, 2015 Ark. App. 397, 466 S.W.3d 431. We will not reverse a circuit court’s decision on whether to ti-ansfer a case unless it 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 definite and firm conviction that a mistake has been committed. Id.

When ruling on a motion to transfer, a circuit court is required to consider and make written findings on all of the following factors set forth in Arkansas Code Annotated section 9—27—318(g):

(1) The seriousness of the.

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Related

Nichols v. State
2015 Ark. App. 397 (Court of Appeals of Arkansas, 2015)

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Bluebook (online)
2016 Ark. App. 148, 485 S.W.3d 284, 2016 Ark. App. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-arkctapp-2016.