Jabree Bryant v. State of Arkansas

ca04-722

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-722

March 16 , 2005

JABREE BRYANT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR 2003-1937 AND 2003-1951]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Jabree Bryant appeals the order of the Pulaski County Circuit Court denying his motion to transfer his case to juvenile court pursuant to Ark. Code Ann. § 9-27-318 (Repl. 2002). He argues that the trial court's decision to try him as an adult is clearly erroneous in that the decision is not supported by clear and convincing evidence. We affirm.

Bryant was accused of committing, with an accomplice, two armed robberies against customers using ATM machines on two different nights. Bryant was fifteen years old on the dates of the two robberies. Bryant was charged in the criminal division of the Pulaski County Circuit Court as an adult for the armed robberies.

On the evening of March 14, 2003, William Givens pulled up to an ATM machine at Metropolitan National Bank on South University, inserted his card into the machine, and was approached by a young male. The male brandished a gun and demanded money. After the robber made his demand, another man appeared from the dark. Givens gave the two men $300, and they demanded his 1997 Honda Accord, which he surrendered to them. The man holding the gun got into the passenger seat of the Honda, while the other man drove it. Givens later identified Bryant from a photographic line-up as the person who held the gun during the robbery.

A second robbery occurred at the same location on April 22, 2003. On that date, Gregory Dyer went to the ATM to make a night deposit. At the ATM, a male brandishing a gun approached Dyer. Another male also approached Dyer. They demanded money from Dyer, and he gave them fifty dollars he had just received from the ATM. They subsequently demanded more money, so Dyer withdrew another $200 from the ATM and gave it to them. Dyer then managed to drive away from the robbers. Bryant and seventeen-year-old Steven Maxwell were arrested later that night carrying two bags of marijuana, allegedly purchased with money from the robbery, and $150 in cash. Bryant confessed to his role in both robberies and admitted that he held the gun during both robberies, although the gun belonged to Maxwell. According to Bryant, he and Maxwell developed the plan to commit the robberies at an ATM machine after Maxwell opened a checking account at Bank of America and received an ATM card accompanied by safety tips for using the card. Bryant stated that they stole the car in the first robbery because the victim did not have enough money. Bryant mentioned that the gun was loaded during the second robbery. Bryant never told police that he was under duress when committing the robberies or that anyone coerced him into committing them, and Bryant did not attempt to blame anyone else. Bryant said that he committed the robberies "to have money in [his] pocket."

Bryant was charged in Pulaski County Circuit Court as an adult for the two armed robberies, and Bryant moved the court to transfer his case to the juvenile division pursuant to Ark. Code Ann. § 9-27-318 (Repl. 2002). The trial court had a hearing to determine whether to retain jurisdiction or to transfer the case to the juvenile division. A juvenile-probation officer in the intensive-supervision program testified that a juvenile who was adjudicated delinquent for aggravated robbery could face a number of consequences, ranging from commitment to the Division of Youth Services (DYS) to electronic monitoring and probation. The officer stated that a juvenile judge does not determine how long a juvenile will spend at DYS because the law provides that a commitment is for an indeterminate amount of time, not to exceed two years. The officer testified that, in her experience, it is possible for juveniles who have been adjudicated delinquent for more serious offenses to be sent to DYS. The officer opined that probation was a possibility if the juvenile judge ordered it, but she did not presently have any juveniles adjudicated delinquent for Class Y felonies on intensive probation.

Bryant's mother and stepfather both testified at the hearing. Bryant lived with them, and he had never been in any trouble before. His mother testified that, since the robberies, he has been regularly attending church, school, and work. He is prohibited from socializing with Maxwell. Bryant's mother has cut her work schedule back so that she can monitor Bryant's activities, and she testified that she has not had any more problems with Bryant. In his parents' opinions, Bryant was an obedient child, but he is somewhat immature and has a tendency to follow others and be easily influenced by others. They believed that Maxwell pressured Bryant into committing the robberies. They were convinced that if Bryant was treated as a juvenile, with their guidance, he would "do the right thing."

Arkansas Code Annotated section 9-27-318(c)(2)(D) (Repl. 2002) provides that when a case involves a juvenile who is fourteen or fifteen years old when he engages in conduct that, if committed by an adult, would be aggravated robbery, the criminal division of circuit court and the juvenile division of circuit court have concurrent jurisdiction, and a prosecuting attorney may charge the juvenile in either division. Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004). Here, the prosecuting attorney charged Bryant with aggravated robbery as an adult in the criminal division of Pulaski County Circuit Court. Upon the motion of the court or any party, the judge of the division of circuit court in which criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another division of the circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e) (Repl. 2002). Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the judge shall enter an order to that effect. Ark. Code Ann. § 9-27-318(h) (Repl. 2002). Here, Bryant moved to transfer his case to the juvenile division of circuit court, and the trial court denied his motion.

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. Otis, supra. This court will not reverse a trial court's determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. Id. In making the decision whether to retain jurisdiction or to transfer the case, the judge must 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 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 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;

(10) Any other factors deemed relevant by the judge.

Ark. Code Ann. § 9-27-318(g) (Repl. 2002).

After considering all of the factors enumerated in Ark. Code Ann. § 9-27-318(g), the trial court must determine whether there is clear and convincing evidence that the juvenile should be tried as an adult. Otis, supra. The trial court is not required to weigh each factor equally. Id. Here, the trial judge discussed each of the factors in the written order: 1. The offenses charged, two counts of aggravated robbery, are very serious offenses, class Y felonies.

2. The offenses were aggressive, premeditated, and willful, and were committed against persons.

3. The defendant is currently sixteen years one month of age, and was fifteen years seven months, and fifteen years eight months when the two offenses were committed.

4. The defendant's participation, according to his statement, consisted of assisting in the planning of the offenses, and initially approaching the victims while holding a gun on them.

5. A deadly weapon was used in the commission of the offense.

6. The defendant has no prior record of juvenile offenses, antisocial behavior, or pattern of physical violence.

7. The defendant's mother testified that he was immature. It appears to the Court that the defendant has strong family support. The defendant attends school and has an after school job, which demonstrates to the Court that he is of average sophistication and maturity for his age.

8. There were no written reports or other materials introduced relating to the defendant's mental, physical, educational, or social history.

9. There are facilities or programs available to a person the defendant's age. However, the Court does not find the likelihood of rehabilitation in this case to be high.

10. There were two participants in the offense.

11. The Court finds the fact that two offenses were committed is a relevant factor.

Bryant argues that it is clear from the testimony that he is a "good kid" who has "never been in trouble in the past." He points out that he has strong family support and since the alleged offenses, he has regularly been attending school, church, and work. It is clear from the order that the trial judge weighed all the factors, as Ark. Code Ann. § 9-27-318(g) required him to do, and he concluded, based on the evidence, that the case should not be transferred to juvenile court. The testimony at trial supports the findings that the alleged offenses were serious, premeditated, and willful; that Bryant allegedly helped plan the offenses; that Bryant pointed the gun at the victims; that Bryant was allegedly one of two participants in the offenses; and that a deadly weapon wasinvolved in the offenses. Bryant specifically argues that the trial judge clearly erred in not giving enough consideration to the influence that Steven Maxwell had over Bryant. The trial judge did not mention in the order anything about the influence of Maxwell over Bryant. The trial court's failure to specifically mention certain evidence presented by Bryant in its order, however, does not mean that the court ignored the evidence or failed to consider it. Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001). Because the trial judge does not have to weigh each factor equally, and in light of the evidence presented at the hearing, we cannot say that the trial court clearly erred in its decision to retain jurisdiction of this case.

Affirmed.

Bird and Glover, JJ., agree.