Kiser v. State, CR–15–952

• Decision Date: 06 April 2016
• Docket Number: No. CR–15–952,CR–15–952
• Citation: 487 S.W.3d 374,2016 Ark. App. 198
• Parties: Andrew Kiser, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2016 Ark. App. 198

487 S.W.3d 374

Andrew Kiser, Appellant

v.State of Arkansas, Appellee

No. CR–15–952

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: APRIL 6, 2016

The Shaw Firm, PLLC, by: Laren M. Elenbaas, for appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON

, Judge

On April 22, 2015, appellant Andrew Kiser was charged in the criminal division of circuit court with rape committed against his ten-year-old stepbrother. At the time the information was filed, Andrew was seventeen years and nine months old.

On July 17, 2015, Andrew filed a motion to transfer the case to the juvenile division of circuit court and for an extended juvenile jurisdiction (EJJ) designation. A hearing on appellant's transfer motion was held on September 10, 2015. On October 6, 2015, the trial court entered an order denying Andrew's motion to transfer and for EJJ designation, making written findings in support of its decision.

Andrew now appeals from the order denying his motion to transfer to juvenile court. On appeal, Andrew argues that the trial court's denial of his motion to transfer the case and for EJJ designation was clearly erroneous. We affirm.

Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. Ark.Code Ann. § 9–27–318(c)(1)

(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. Ark.Code Ann. § 9–27–318(e). The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Z.T. v. State, 2015 Ark. App. 282, 2015 WL 1952969. The trial 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. Ark.Code Ann. § 9–27–318(h)(2). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Z.T., supra. We will not reverse a trial court's determination of whether to transfer a case unless the 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.

At a juvenile-transfer hearing, the trial court is required to consider all of the following factors:

(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)

. Pursuant to Arkansas Code Annotated section 9–27–318(h)(1), a trial court shall make written findings on all of the factors set forth above. However, there is no requirement that proof be introduced against the juvenile on each factor, and the trial court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. K.O.P. v. State, 2013 Ark. App. 667, 2013 WL 6002068.

The events leading to the rape charge against Andrew occurred on April 20, 2015. On that day, Andrew was caught by his stepmother while in the shower, or immediately after showering, with his ten-year-old stepbrother. Upon being confronted and questioned by his stepmother about what she had seen, Andrew left the house in his car. Fearing that Andrew may have been contemplating suicide, Andrew's father called the police and asked if they could help locate him. Shortly thereafter, the police found Andrew driving on a nearby highway, made a traffic stop, and brought him back to his home.

In his testimony at the transfer hearing, Officer DeWayne Grice stated that he was dispatched to Andrew's home in reference to an alleged sexual assault. In the presence of Andrew's father and his biological mother, Officer Grice read Andrew his Miranda rights, and Andrew initialed a Miranda -rights form indicating that he understood his rights. At first Andrew indicated that he did not wish to make a statement and that he wanted an attorney present, but he changed his mind and gave a statement at the encouragement of his father.¹ Andrew then stated to Officer Grice that he had been involved in a sexual encounter with his stepbrother in the bathroom earlier that morning.

Investigator Samuel Keller arrived at the house shortly thereafter, and he again advised Andrew of his Miranda rights. Andrew again confessed to engaging in sexual contact with his stepbrother that morning. After that, Andrew was taken into custody and transported to the police station, where he was Mirandized and gave a recorded interview. In the recorded interview, Andrew admitted that he had been sexually assaulting his stepbrother for about a year. Andrew stated that, on the morning he was caught by his stepmother, he and his stepbrother had engaged in oral sex and were masturbating each other in the shower. Andrew told the investigator that the sexual abuse of his stepbrother had developed in the previous year from mutual masturbation to more than twenty incidents of oral sex and about three incidents of anal sex. In his statement to the police, Andrew admitted that he knew what he was doing, and he stated further:

I've never felt that it was right. I've always been kind of disappointed in myself. I know that it's not right. I know that it's very, very wrong.

Erin Carroll is the assistant director of clinical services at the Piney Ridge Treatment Center, where Andrew received treatment subsequent to his arrest. Ms. Carroll testified that Andrew was diagnosed as having sexually maladaptive behaviors, but that he readily accepted responsibility for his actions and wanted to get help. Ms. Carroll indicated that Andrew was very cooperative and receptive to treatment. Ms. Carroll stated that Andrew did not meet any diagnostic levels for pedophilia, and that Andrew had conveyed that his actions were the result of confusion about his sexual orientation and access. Ms. Carroll gave the opinion that Andrew was at a low to moderate risk for further sexual offenses. She thought that Andrew was amenable to continuing therapy, which would encompass nine to twelve months of inpatient treatment followed by outpatient treatment.

Scott Tanner serves as the coordinator of the juvenile ombudsman division of the Public Defender Commission. Mr. Tanner gave testimony about the provisions of extended juvenile jurisdiction (EJJ), which is codified at Arkansas Code Annotated section 9–27–501

to –510.

Mr. Tanner testified that EJJ was created in 1999 to provide opportunities for juveniles charged with serious offenses to be afforded rehabilitative services through the juvenile division. Pursuant to the provisions of EJJ, a sixteen-or seventeen-year-old juvenile charged with rape is eligible for an EJJ designation. See Ark.Code Ann. § 9–27–501(a)(4)

. Mr. Tanner stated that if a juvenile is transferred to juvenile court and also receives an EJJ designation, the juvenile court may retain jurisdiction over the juvenile until he reaches twenty-one years of age. Under EJJ, numerous options are available, including a commitment to the Division of Youth Services (DYS). Mr. Tanner testified that there is a DYS facility located in Dermott, which provides treatment for sexually maladaptive behaviors similar to what Andrew had been receiving at the Piney Ridge Treatment Center. Mr. Tanner indicated that Andrew would be a suitable candidate for treatment at the Dermott facility. Mr. Tanner testified that, under the provisions of the EJJ, the juvenile court retaining jurisdiction may also impose an adult prison sentence. Such a sentence may be imposed if the juvenile court makes a finding that the juvenile has violated an order of the court, committed a new offense, or is not amenable to rehabilitation in the juvenile system. See Ark.Code Ann. § 9–27–507.

Andrew's grandfather also testified. He stated that Andrew was a good kid, although he was naive and fairly immature. Andrew's grandfather thought that Andrew was socially unaware as a result of being raised in a rural setting, and he stated that Andrew was not aware of a lot of the nuances of adult life. Andrew had, however, done part-time work for a construction company and worked at McDonald's.

In the trial court's order denying Andrew's motion to transfer and for EJJ designation, ...