Clinkscale v. State

• Decision Date: 02 May 2018
• Docket Number: No. CR–17–861,CR–17–861
• Parties: Adrian CLINKSCALE, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

550 S.W.3d 49

Adrian CLINKSCALE, Appellant

v.STATE of Arkansas, Appellee

No. CR–17–861

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: May 2, 2018

Fernando Padilla, Public Defender Conflicts, for appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Chief Judge

Appellant Adrian Clinkscale appeals from the Pulaski County Circuit Court's August 1, 2017 order and August 23, 2017 amended order, which denied his motion to transfer to juvenile court. He argues that the circuit court's denials of his motion to transfer the case to juvenile court are clearly erroneous. We affirm.

On February 15, 2017, appellant was charged in the criminal division of the Pulaski County Circuit Court with nine counts of committing a terroristic act and one count of criminal mischief in the first degree. Because he was sixteen years old at the time of the alleged offenses and seventeen years old at the time of the hearing, appellant filed a motion to transfer to the juvenile division of the circuit court on June 19, 2017.

The investigating officer, Det. Roy Williams, testified that on January 7, 2017, he was contacted to investigate a shooting that occurred at 2705 Lewis Street. During the investigation, Detective Williams made contact with the resident of the home who had reported the shooting. The resident said that she "had not seen anything because she was inside during the shooting." Detective Williams stated that he met with two individuals who witnessed the shooting and that they had seen a red Dodge Avenger being driven down Lewis Street with a man known as "Adawg" hanging out of the passenger-side window firing at the residence with a semiautomatic handgun with an extended clip. One of the individuals told him that "Adawg" was a former friend named Adrian Clinkscale. Detective Williams testified that at the time of the shooting, several people had been inside the home and at least three individuals had been outside the home. He further testified that no one had been injured by appellant's bullets but that the residence and several nearby vehicles had been damaged.

When asked about his prior knowledge of appellant, Detective Williams testified that appellant had been known as both a victim and a suspect in previous cases. Detective Williams also testified that he was familiar with appellant's involvement with "the West Side Bloods of John Barrow," a street gang.

Frankie James, appellant's science instructor, testified on his behalf. She testified that appellant had been a very good student, had achieved As and Bs in her classes, and had attended her lunchtime-tutoring program. She testified that, although appellant is immature, she "never had any problems with him, he's salvageable, a very smart young man." However, James also testified that she was not acquainted with appellant's home life or gang activity.

Scott Tanner, coordinator of the Juvenile Ombudsman Division through the Public Defender Commission, testified on behalf of appellant and discussed generally the programs and facilities available in the juvenile court and in extended juvenile jurisdiction. He testified that he did not know appellant and had not previously evaluated him.

After the July 24, 2017 hearing on appellant's motion, the circuit court entered an order denying the transfer. On August 10, 2017, appellant filed a motion for reconsideration, noting objections to the language of the original order.¹ Following a hearing on appellant's motion, the circuit court entered an amended order again denying the transfer. Appellant now timely appeals.

A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in either 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 (Repl. 2015). 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 having jurisdiction. Id. 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. Id. Clear and convincing evidence is proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. McClure v. State , 328 Ark. 35, 942 S.W.2d 243 (1997). On review, the circuit court's denial of a transfer is not reversed unless the decision is clearly erroneous. Beulah v. State , 344 Ark. 528, 42 S.W.3d 461 (2001). 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. Johnson v. State , 356 Ark. 534, 157 S.W.3d 151 (2004).

Pursuant to Arkansas Code Annotated section 9–27–318(g), the circuit court must consider the following factors at a transfer hearing:

(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 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). The circuit court is required to make written findings on all of the factors set forth above. Ark. Code Ann. § 9–27–318(h)(1). However, there is no requirement that proof be introduced against the juvenile on each factor, and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Kiser v. State , 2016 Ark. App. 198, 487 S.W.3d 374.

In this case, the circuit court made findings regarding each factor listed in section 9–27–318(g). The amended order denying the transfer provided as follows:

1. The Defendant is charged with nine counts terroristic act—occupiable structure and one count criminal mischief in the first degree. These are serious offenses, the nature of which and protection of society would favor prosecution in the criminal division of circuit court.

2. The offenses charged were committed in a violent, aggressive, and willful manner.

3. The offenses charged were committed against person and property.

4. The Defendant acted as part of a group, but appears to have been a major participant in that group.

5. The Defendant has one pending charge in the juvenile division of circuit court, which is a case that was recently transferred from the adult division.

6. The Defendant is immature. The unrebutted testimony was that the defendant is a member of the Westside Bloods, a street gang. Testimony was also presented that the Defendant has been the victim of several shootings and will not cooperate with law enforcement in the investigation of these incidents.

7. The Defendant's date of birth is March 22, 2000. He is seventeen years old, and he was sixteen years old at the time of the alleged offenses. The adult division of circuit court therefore has jurisdiction pursuant to Ark. Code Ann. § 9–27–318(c)(1). There are facilities and programs available to the judge of the Juvenile Division of Circuit Court, but the Court finds that these programs and facilities are not likely to rehabilitate the Defendant prior to his twenty-first birthday.

8. The Defendant acted with at least one other person in the commission of these offenses.

9. The Court has not been provided with written reports or other materials relating to Defendant's mental, physical, educational, and social history.

10. No family members testified on the Defendant's behalf. It was stipulated by the parties that the Defendant's mother could not be present because she was incarcerated. One of the Defendant's teachers did appear and testify that he was an "A/B" student in her class and was respectful and courteous. On the same date as this hearing, the Court held a transfer hearing on the

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