J.N.A. v. State

• Decision Date: 04 October 2017
• Docket Number: No. CR–16–1085,CR–16–1085
• Citation: 532 S.W.3d 582
• Parties: J.N.A., Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

532 S.W.3d 582

J.N.A., Appellant

v.STATE of Arkansas, Appellee

No. CR–16–1085

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 4, 2017

Dusti Standridge, for appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., and Bryan Foster, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att'y Gen., Little Rock, AR for appellee.

N. MARK KLAPPENBACH, Judge

Appellant J.N.A., a seventeen-year-old male, was accused of breaking or entering into vehicles, fleeing, aggravated assault, resisting arrest, and theft by receiving. The prosecuting attorney filed the petition in the juvenile division of circuit court for these criminal behaviors alleged to have been committed in Fort Smith, Arkansas, in the predawn hours of July 24, 2016. The State filed a motion to have appellant tried as an adult or alternatively be adjudicated under Extended Juvenile Jurisdiction (EJJ). The Sebastian County Circuit Court conducted a hearing on this request and entered an order on September 2, 2016, designating this case as an EJJ matter. Following an October 3, 2016 bench trial, appellant was adjudicated delinquent on all five offenses and placed on probation for an indeterminate period of time not to exceed two years, pursuant to an order entered on October 4, 2016. Appellant filed a notice of appeal on October 27, 2016, specifying that he was appealing the October 4 adjudication and disposition order entered subsequent to the October 3 bench trial. Appellant argues on appeal that the trial court erred in the following ways: (1) by entering a defective order on its face purporting to designate this as an EJJ matter; (2) by finding that this case met the criteria for an EJJ matter; and (3) by finding there to be sufficient evidence that appellant committed aggravated assault. We lack appellate jurisdiction over the EJJ order, and we affirm the adjudication and disposition order.

First, we discuss appellant's first two points on appeal. Because appellant was seventeen years old at the time of the alleged offenses and because one of those offenses was aggravated assault, the State was permitted to request the juvenile division of circuit court to enter an EJJ designation in these delinquency proceedings. See Ark. Code Ann. § 9–27–501(a)(4) (Repl. 2015). The party requesting the EJJ designation has the burden to prove by a preponderance of the evidence that such a designation is warranted. Ark. Code Ann. § 9–27–503(b). The circuit court is required to hold an EJJ designation hearing within certain time limits set forth in Arkansas Code Annotated section 9–27–503(a). The circuit court is required to make written findings, and it must consider all of the following factors in making its determination to designate a juvenile as an EJJ offender:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender;

(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 delinquent 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 and 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 court that are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction;

(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 court.

Ark. Code Ann. § 9–27–503(c). "For purposes of appeal, a designation order is a final appealable order and shall be subject to an interlocutory appeal." Ark. Code Ann. § 9–27–503(f). See also D.B. v. State, 2011 Ark. App. 151, 2011 WL 693585.

Appellant contends that the trial court erred by not making findings on all of the statutory factors and also that the trial court clearly erred in finding that appellant's case warranted an EJJ designation. The State contends that we lack appellate jurisdiction over the EJJ designation order because appellant failed to timely file a notice of appeal from that order, and furthermore, appellant failed to designate this order in his notice of appeal. We agree with the State.

While proceedings involving juveniles are considered civil cases, the Rules of Criminal Procedure apply to delinquency proceedings. D.F. v. State, 2015 Ark. App. 656, 476 S.W.3d 189. Whether an appellant has filed an effective notice of appeal is always an issue before the appellate court. Bilyeu v. State, 342 Ark. 271, 27 S.W.3d 400 (2000). The filing of a notice of appeal is jurisdictional. Smith v. State, 2009 Ark. 85 ; Brady v. Alken, 273 Ark. 147, 617 S.W.2d 358 (1981). Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal. See Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995).

Here, the EJJ designation order was filed on September 2, 2016, but the notice of appeal was not filed until October 27, 2016. This is too late. Arkansas Rule of Appellate Procedure–Criminal 2(a) (2016) requires that the time within which to appeal a judgment or order is within thirty days of the entry of that judgment or order. Compare Ark. R. App. P.–Civ. 4(a) (2016). The EJJ designation order is a final appealable order pursuant to statute, Ark. Code Ann. § 9–27–503(f). Thus, appellant was required to file a timely notice of appeal from the entry of the EJJ designation order.

We note as well that even if the appeal had been timely, appellant did not designate the EJJ designation order in his notice of appeal. Arkansas Rule of Appellate Procedure–Criminal 2(a) requires that a notice of appeal identify "the judgment or order or both being appealed." Compare Ark. R. App. P.–Civ. 3(e). Appellant did not mention the EJJ designation order in any fashion in the notice of appeal. Only the subsequent adjudication order filed on October 4, 2016, is mentioned with specificity. Substantial compliance is required, and there was no substantial compliance in this instance. See Edwards v. State, 2014 Ark. 185, 2014 WL 1673751 ; Wright v. State, 359 Ark. 418, 198 S.W.3d 537 (2004).

Because this was a final order from which appellant had the right to appeal, appellant failed to appeal in a timely fashion, and he failed to designate the EJJ designation order in his notice of appeal, we lack jurisdiction to consider the appellant's first two arguments concerning the EJJ designation order.

Appellant's remaining argument is that the trial court erred by finding in the adjudication and disposition order that there was sufficient evidence that appellant committed aggravated assault. We disagree with his argument.

While a delinquency adjudication is not a criminal conviction, it is based on an allegation by the State that the juvenile has committed a certain crime. A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696. Our standard of review is the same as it would be in a criminal case, that is, whether the adjudication is supported by substantial evidence. Id. Substantial evidence is evidence, direct or circumstantial, that is of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. Id. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the fact-finder. Id. The evidence is viewed in the light most favorable to the State. A.W. v. State, 2017 Ark. App. 34, 510 S.W.3d 811.

The State alleged that appellant committed aggravated assault, specifying that appellant, under circumstances manifesting extreme indifference to the value of human life, purposely engaged in conduct that created a substantial danger of death or serious physical injury to another person. See Ark. Code Ann. § 5–13–204(a)(1) (Repl. 2013). As a result of the difficulty in ascertaining the actor's state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). The fact-finder may draw upon common knowledge and experience to infer the defendant's intent from the circumstances. Id. Appellant specifically argues that there was no evidence that the gun he possessed was loaded, he never verbally threatened the officer who apprehended him, and he never drew the weapon; thus, there was no conduct creating a substantial danger of death or serious physical injury.

In determining whether there was substantial evidence to support the adjudication, we examine the evidence presented to the trial court at this bench trial. Fort Smith police responded to a call that a male (later identified as appellant) was breaking into vehicles. Officer Hulsey began patrolling the area, and he observed Officer Ohm chasing appellant, who was running "full speed." Hulsey repeatedly ordered appellant to stop, but he kept running, so Hulsey also gave chase. Appellant ran through...