Porter v. State

• Decision Date: 22 September 1993
• Docket Number: No. CACR,CACR
• Citation: 861 S.W.2d 122,43 Ark.App. 110
• Parties: Ronald PORTER, Appellant, v. STATE of Arkansas, Appellee. 92-975.
• Court: Arkansas Court of Appeals

Page 122

861 S.W.2d 122

43 Ark.App. 110

Ronald PORTER, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 92-975.

Court of Appeals of Arkansas,

Division II.

Sept. 22, 1993.

Jesse L. Kearney, Pine Bluff, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

PITTMAN, Judge.

Ronald Porter appeals from his conviction at a jury trial of first-degree criminal mischief and burglary, for which he was sentenced to three years in the Arkansas Department of Correction and fined $5,000, respectively. Appellant argues four points for reversal in this appeal. We find no error and affirm.

Appellant was sixteen years old in October 1991 when he allegedly burglarized Westside School and caused in excess of $35,000.00 damage to school property. Appellant was charged as an adult in Bradley County Circuit Court with the felonies of burglary and first-degree criminal mischief.

At the time of these crimes, appellant was on probation after having been adjudicated a delinquent by the Bradley County Juvenile Court as a result of a May 1991 theft of property valued at more than $200.00. A petition to revoke appellant's prior probation, alleging as grounds for revocation appellant's activities at Westside School, was filed in juvenile court. After a hearing on January 24, 1992, the juvenile court revoked appellant's probation and ordered him placed into the custody of the Division of Children and Family Services.

On January 27, 1992, appellant filed a motion in the circuit court for an order dismissing the criminal prosecution on double jeopardy grounds or, in the alternative, transferring the case to juvenile court and enjoining further prosecution in the criminal proceeding. On January 28, appellant filed a petition for a writ of prohibition in the supreme court, also seeking to halt the prosecution on double jeopardy grounds. On January 29, the supreme court denied appellant's petition for a writ of prohibition without prejudice to his raising the issue of double jeopardy on appeal. Also on January 29, after a hearing, the circuit court denied appellant's motion to dismiss or transfer. The case proceeded to trial, and appellant was found guilty of both charges.

Appellant first contends that the evidence was insufficient to sustain his convictions. We do not address the issue because it was not preserved for appeal. Where there has been a trial by jury, a defendant's failure to move for a directed verdict at the conclusion of the State's evidence and again at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence. Ark.R.Crim.P. 36.21(b). Here, appellant did not move for a directed verdict at either time, and we cannot consider his argument. Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).

Appellant next contends that the trial court erred in denying his motion to dismiss under both the Fifth Amendment to the United States Constitution and Art. 2, § 8 of the Arkansas Constitution. He argues that it violated the prohibition against being "twice put in jeopardy" for the same offense to be prosecuted on charges of burglary and criminal mischief when proof of that same criminal conduct had served as the basis for the revocation of his probation. We find no error.

We agree with appellant that a juvenile "who has been subjected to an adjudication proceeding pursuant to a petition alleging him to be a delinquent" cannot then be tried on "criminal charges based upon facts alleged in the petition to find him delinquent." Ark.Code Ann. § 9-27-319(a) (Repl.1991) (emphasis added); see Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). However, that is not what happened in this case. Rather, the criminal conduct for which this appellant was tried and convicted in circuit court had merely been used as a basis for revoking his probation, which had been ordered as a result of the prior, unrelated adjudication of delinquency for the May 1991 theft of property. The detention imposed upon revocation of that probation was imposed for the prior, unrelated theft of property. As we recently held in Lawrence v. State, 39 Ark.App. 39, 839 S.W.2d 10 (1992), the prohibition against double jeopardy does not bar a criminal prosecution simply because the same criminal conduct has previously served as the basis for the revocation of the defendant's probation.

Appellant's third argument for reversal is that the court erred in denying his alternative motion to transfer the matter to juvenile court. We cannot agree.

Since appellant was sixteen years old at the time of the acts in question, and since those acts would constitute felonies if committed by an adult, the prosecuting attorney had the discretion either to file a delinquency petition in juvenile court or to file criminal charges in circuit court and prosecute appellant as an adult. Ark.Code Ann. § 9-27-318(c) (Supp.1991). Because appellant moved to transfer the case to juvenile court, the circuit judge held a hearing to determine whether to retain jurisdiction or to grant the motion to transfer. Ark.Code Ann. § 9-27-318(d). At the conclusion of the hearing, the court found by clear and convincing...