McClure v. State, 96-1310

• Decision Date: 04 April 1997
• Docket Number: No. 96-1310,96-1310
• Citation: 942 S.W.2d 243,328 Ark. 35
• Parties: William Shiloh McCLURE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 243

942 S.W.2d 243

328 Ark. 35

William Shiloh McCLURE, Appellant, v. STATE of Arkansas, Appellee.

No. 96-1310.

Supreme Court of Arkansas.

April 4, 1997.

David H. McCormick, Russellville, for Appellant.

Winston Bryant, Attorney General, Vada Berger, Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant William Shiloh McClure appeals the order of the Pope County Circuit Court denying his motion to transfer the charges against him to juvenile court. We have jurisdiction of this interlocutory appeal. Ark. Sup.Ct. R. 1-2(a)(11) (as amended by per curiam July 15, 1996); Ark.Code Ann. § 9-27-318(h) (Supp.1995). We cannot say the trial court's decision to retain jurisdiction of the case was clearly erroneous, and therefore we affirm.

Pursuant to the prosecutor's discretion in section 9-27-318(b)(1), Appellant was charged in circuit court with one count of delivery of a controlled substance, marijuana, a Class C felony, and two counts of delivery of a non-controlled substance represented to be a controlled substance, methamphetamine, Class B felonies. The information alleged that Appellant was born August 15, 1978, and that the crimes occurred on June 27, 1995, April 18, 1995, and May 12, 1995, respectively. According to the information, he was aged sixteen years when the crimes were committed.

Appellant moved to transfer the charges to juvenile court. After a hearing on the motion, the circuit court considered the three factors in section 9-27-318(e) and decided to retain jurisdiction of Appellant's case. Appellant was aged seventeen years when the hearing was held on his transfer motion. Appellant asserts five points of error in the transfer hearing. We find no merit to his assertions of error and affirm the circuit court's decision to retain jurisdiction.

I. Procedure--Order of Proof

Appellant's first point of error is the manner in which the circuit court conducted the transfer hearing. At the hearing, the State presented two witnesses: James Krohn, Appellant's probation officer, and Aaron Duvall, a criminal investigator for the Pope County Sheriff's office. Appellant then moved for a directed verdict on the basis that the State had not met its burden of proof. Appellant then presented testimonies from three witnesses: himself, his mother, and Kenneth Canitz, the youth director at the Baptist church where Appellant sometimes attended. On appeal, Appellant claims this procedure was error because, as the moving party, it was his burden to prove the transfer was warranted. He contends he was prejudiced by the presentation of the State's case prior to his because that placed him in the position of having to rebut the State's evidence.

Generally, it is the moving party that carries the burden of proof. Specifically with respect to juvenile-transfer motions, a defendant seeking a transfer from circuit court to juvenile court has the burden of proving that a transfer is warranted under section 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). While it is clear that the circuit court did not follow the usual procedure of allowing the party with the burden of proof to present its evidence first, it is equally clear that Appellant did not object in any form or fashion to the unusual procedure of the hearing at issue. In fact, not only did Appellant participate in the hearing without objection, but he even moved for a directed verdict at the close of the State's case and then proceeded with evidence in his behalf.

It is well settled that we do not consider arguments on appeal that were not raised in the trial court. This is sometimes called the contemporaneous-objection rule, and this court has applied it in juvenile-transfer hearings. See, e.g., Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996).

II. Decision to Retain Jurisdiction

Appellant contends the trial court's decision to retain jurisdiction of his case was clearly erroneous. We cannot agree.

A circuit court's decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Section 9-27-318(f); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996). 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. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). When reviewing the denial of a motion to transfer to juvenile court, we view the evidence in the light most favorable to the State. Kindle v. State, 326 Ark. 282, 931 S.W.2d 117 (1996). We do not reverse a circuit court's decision to retain jurisdiction unless the decision is clearly erroneous. Id.

When deciding whether to retain jurisdiction of or to transfer a case to juvenile court, the factors for the circuit court to consider are the seriousness of the offense and whether the juvenile used violence in committing the offense; whether the offense is part of a repetitive pattern of adjudicated offenses leading to the conclusion that the juvenile is beyond rehabilitation in the juvenile system; and the juvenile's prior history, character traits, mental maturity, or any other factor reflecting upon the juvenile's prospects for rehabilitation. Section 9-27-318(e). A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

This court has often said that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and for trying a juvenile as an adult. Id. at 141, 913 S.W.2d at 781 (quoting Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995)). However, that a crime is serious without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction. Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).

Appellant relies heavily on Sebastian. Our statement in that case that the commission of a serious crime without the use of violence is not sufficient standing alone to retain jurisdiction does not mean that the commission of a serious crime without the use of violence is not a factor to be considered. Quite to the contrary, it may be considered; and when combined with evidence of either of the other two factors, it may, depending upon the particular evidence presented, constitute clear and convincing evidence to support a decision to retain jurisdiction.

It is not disputed that Appellant did not employ violence in the commission of these three offenses. However, these three offenses are serious--delivery of a controlled substance and noncontrolled substances represented to be controlled substances, Class B and C felonies. There was some evidence that the deliveries at issue here occurred on school property. There can be no doubt about the seriousness of the increasing drug problem in our state. Those who deliver controlled substances contribute significantly to that problem. In addition, the charge of misrepresenting a non-controlled substance for a controlled substance is indicative of a poor character for dishonesty.

Evidence presented at the transfer hearing revealed the following concerning section 9-27-318(e)(2). On January 7, 1994, Appellant was ordered to receive treatment at the Youth Bridge facility. On July 22, 1994, Appellant pleaded true to the charges of commercial burglary and theft. Appellant had been on probation and had completed the terms of his probation. Thus, Appellant had at least one prior adjudication and at least one attempt at rehabilitation under the juvenile system. One prior adjudication and attempt at rehabilitation does not a repetitive pattern make. Thus, we agree with the trial court that the evidence under this factor is neutral.

As for section 9-27-318(e)(3), the following evidence, as viewed most favorably to the State, was presented. Appellant had been suspended from school for fighting. He worked full-time and was interested in obtaining a GED, but had not done so because he was being given the "run-around." He was interested in attending college in Missouri, but did not know the name of the college. Appellant had once participated in the youth group at the First Baptist Church in Dardanelle, but had not done so in almost two years. Appellant had violated his curfew on the night of the unrelated murder of Kenneth Lloyd. In addition, he furnished ammunition to Kevin Lloyd, who had previously stated he wanted to kill his father Kenneth Lloyd, and then transported Kevin Lloyd shortly after hearing gunshots. All of this evidence indicates that Appellant's character traits are poor and his mental maturity is low.

Appellant is age eighteen or over and has not yet been sent to a juvenile justice facility for the crimes alleged in this case. We stated in Maddox, 326 Ark. 515, 931 S.W.2d 438, that young people over age eighteen can no longer be committed to the Division of Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn eighteen. Ark.Code Ann. § 9-28-208(d) (Supp.1995). The fact that Appellant cannot be committed to the DYS is highly relevant to his prospects for rehabilitation and is important to our review. Maddox, 326 Ark. 515, 931 S.W.2d 438.

Given the aforementioned facts, this case is distinguishable from Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), where we reversed a circuit court's decision to retain jurisdiction of a juvenile who was charged with possession of a controlled substance with intent to deliver, had no prior adjudications, and attended school regularly and made passing grades. Here, we have the commission of a serious offense, a prior adjudication for two offenses that would have been felonies if committed by an adult, previous treatment under the juvenile justice system followed by violation of probation conditions the failure to attend school or obtain a...