Rudolph Eagle and Calvin Lee Eagle v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

RUDOLPH EAGLE and

CALVIN LEE EAGLE

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR00-311

December 6, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SIXTH DIVISION

[NO. CR 99-633]

HON. DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

The appellants in this juvenile transfer case are brothers who were accused of breaking into a home and robbing the occupants while armed with a deadly weapon. The trial court made specific findings of fact relating to the considerations set forth in Ark. Code Ann. § 9-27-318(g) (Supp. 1999) and denied the motion to transfer to juvenile court. This interlocutory appeal followed.

Arkansas Code Annotated § 9-27-318 regulates the transfer of juveniles to circuit court and provides, in pertinent part, that:

(c) A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:

(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult, would be any felony; or

. . . .

(e) Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

. . . .

(g) In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in 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 court which 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.

(h) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

A circuit court's decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). On appeal, we will not reverse a trial court's determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998).

There is no clear error in this case. As the trial judge noted in his findings, there is evidence that Rudolph Eagle, then seventeen years of age, accompanied by Calvin Lee Eagle, then sixteen years of age, kicked in the door of a private residence and robbed the occupants at gun and knife-point. Rudolph was identified by the victims who stated that he was the one wielding the gun. Calvin Lee's fingerprints were found at the scene, and he later admitted to robbing the house. This is unquestionably a serious crime involving premeditation and violence, and both appellants had prior juvenile offenses. The trial judge noted that prospects for rehabilitation are slim because all previous attempts have failed;furthermore, both of the appellants are now over the age of eighteen and are not eligible for juvenile programs. See Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998).

Calvin additionally argues that he was deprived of a meaningful hearing under Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1997), because none of the victims testified at the transfer hearing. This argument is without merit. Thompson merely holds that the trial judge may not base a denial of a motion to transfer solely upon the allegations contained in the information. In the present case, there was evidence that Calvin confessed to the crime, and his fingerprints were found at the crime scene. Police officers who investigated the crime testified without objection that a gun and a knife were employed in the robbery. This is far more than the mere allegations presented in Thompson and, although the testimony of the police officers regarding the victim's statements was hearsay, hearsay evidence admitted without objection can constitute substantial evidence to sustain a conviction. Williams v. State, 65 Ark. App. 176, 986 S.W.2d 123 (1999).

Rudolph argues that the court erred by mentioning certain factors relating only to Calvin in its findings, asserting that the trial court must make an evaluation of "the specific offense and the individual defendant" under Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997). Appellant is reading Fleetwood too narrowly. Fleetwood says, in essence, that a juvenile is not automatically entitled to a transfer to juvenile court simply because he pleads self-defense:

The defense conceded that the offense was both serious and violent but claims that the denial of the motion to transfer was improper because of the affirmative defense of self-defense. The statutory scheme for determining whether a case should be transferred to juvenile court is not dependent upon affirmative defenses. A trial court must evaluate the specific offense and the individual defendant to determine whether a transfer is warranted. It is obvious that Fleetwood was allowed to offer evidence to support his motion; and we have often held that a trial court is in the best position to weigh such evidence. We will not question such a ruling absent evidence that the trial court was clearly erroneous.

Fleetwood v. State, 329 Ark. 327, 331, 947 S.W.2d 387, 388 (1997).

We note that there was no assertion of self-defense in the present case. Apparently, appellant's argument is that the form employed by the trial judge was improper because he combined his findings regarding both appellants in one opinion, rather than writing separate opinions dealing solely with the factors relating to each of them individually. However, while the trial judge wrote a single opinion, he clearly distinguished between the appellants, identifying which factors applied to each of them individually and setting out the reasoning supporting his evaluation. Fleetwood simply does not address matters of form, and we hold that the statutory requirement of written findings concerning enumerated factors was complied with.

Affirmed.

Hart and Meads, JJ., agree.