Nichols v. State (Majority)
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2015 Ark. App. 397 ARKANSAS COURT OF APPEALS DIVISION IV ruo. CR-14-579 KHIRY DAUSHON NICHOLS Opinion Delivered APPELLANT J(JNE 1 7, 2075 APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT, lNo. cR-2013-1076-1) STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY, APPELLEE JUDGE AFFIRMED DAVID M. GLOVER, Judge This is the second time this case has been originally filed a motion to withdraw before us. Appellant Khiry Nichols's counsel as counsel and a no-merit appeal from the denial of Nichols's motion to transfer his case to juvenile court; our court denied counsel's nrotion and ordered rebriefingas a merit appeal. Nicholsu. State,2015 Ark. App. 12. Counsel has now filed a merit brief, arguing that the rrial court erred by refusing to transfer Nichols's juvenile court. 'Vy'e case to aflirm. Nichols, who was born in December 1996, was charged by felony information with being an accomplice to aggravated robbery, degree batter!, a Class B a Class Y felony, and being an accomplice to first- felony. These offenses were alleged to have occurred onJune 2073, when Nichols was sixteen years 18, old. He filed a motion to transfer his case to juvenile court or, in the alternative, to extended juvenile jurisdiction. 2015 Ark. App. 397 At the hearing on Nichols's motion to transfer, Shelly Clingan, a licensed social worker employed at the Washington Counfy Juvenile Detention Center, testified that Nichols had been referred for crisis intervention due to elevated screening scores regarding suicide, although he denied being suicidal; he was currently in therapy; he had never been disrespectful to her; he had significant family issues and trust issues, including the fact that he had no relationship with his father; and he had admitted to using marijuana regularly, as well as having experimented with prescription medications and alcohol. She testified Nichols also reported to her that he had been physically abused as a child. Clingan was concerned that Nichols was low functioning and had never had an educational evaluation to determine if he needed assistance. It was Clingan's opinion that he needed to continue with the juvenile- court program, although she acknowledged that Nichols's juvenile probation had been revoked previously because he had run away from home and had cut off his electronicmonitoring device when he ran away from home a second tinre. Scott Tanner, theJuvenile Ombudsman ofthe Public Defender Comnrission, testified as ro the nunrber o[dispositions available through the juvenile systenr and exrended juvenile jurisdiction. He stated that there were a substantial number of Y felony adjudications under extended juvenile jurisdiction. Detective Rick Frisby of the Springdale Police Department testified that onJune 18, 201,3, he investigated a robbery at Brookhaven Apartments in Springdale. When he arrived at the scene, he found a Chevy Impala with gloves, a bloody backpack, a large log, and a brick in the vehicle. One witness related that he had seen three or four African American males cR-14-579 2015 Ark. App. 397 fighting with a Hispanic male. Two suspects were arrested that night, and they both implicated Nichols in the robbery. Nichols initially denied any involvenlent in the incident when questioned by Frisby, but he later admitted to kicking and punching the victim after the victim lost consciousness. However, Nichols, who was the only juvenile of the three suspects, told Frisby that the other suspects "started the whole thing" and that it was one of the other suspect's idea to rob the victim. Detective Frisby stated that Nichols smirked and laughed a little while he talked about the incident. Nichols denied that the brick found in the vehicle was used in the attack; he also wrote a letter of apology to rhe victinr. Detective Frisby was unable ro talk to the victim, a thirry-five-year-old man, at the time of the incident because he was airlifted for medical assistance due to being in a coma; the victinr, who was struck in the face and upper body, remained in a coma fromJune to November. The victinr was wheelchair bound when Detective Frisby spoke r,vith him in January 2014, and he continued to suffer the effects of the injuries he had suscained in the incident. It is within a prosecuting attorney's discretion to charge a juvenile in either the juvenile or criminal division of circuit court ifa juvenile is at least sixteen years old when he allegedly engages in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. $ 9- 27-318(c)(1) (Repl. 2009). On motion of the court orany parg, the court in which the charges have been filed shall conduct a transfer hearing to deternrine whether to transfer the case to another division of circuit court. Ark. Code Ann. $ 9-27-318(e). The nroving parry bears the burden of proving that the case should be transferred. 282. The court shall order the case transferred Z.T. u. State,2015 Ark. App. to another division of circuit court only upon cR-14-579 2015 Ark. App. 397 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 the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. R.W.G. v. State,2014 Ark. App. 545,444 S.W.3d 376. We will not reverse a circuit courr's determination of whether to transfer a case unless that 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 nristake has been comnritted. rd. Arkansas Code Annotated section 9-27-318(9) sets forth all of the factors the court shall consider in a transfer hearing: (1) The seriousness of the alleged offense and whether the protection of sociery requires prosecution in the criminal division of circuit court; (2) Wherher the alleged offense was committed in an aggressive, violent, prenreditated, or willflul manner; (3) Whether the offense was against a person or properry, with greater weight being given to offenses against persons, especially if personal injury resulted; (a) The culpabiliry 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, ifso, whether the offenses were against persons or properry, and any other previous history of antisocial behavior or patterns of physical violence; (6) The sophistication or maturiry 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 .;udge of the juvenile division of circuit court thar are likely to rehabilitate the juvenile before the expiration of the juvenile's twenry-first birthday; (8) Whether the juvenile acted alone or was part of a group in the conrmission of the alleged offense; (9) Written reports and other materials relating to the juvenile's nrental, physical, educational, and social history; and cR-14-579 2015 Ark. App. 397 (i0) Any other factors deemed relevant by the judge. The trial court is required to make written findings on all of the above factors. Ark. Code Ann. $ 9-27-31,8(h)(1). 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. u. State,2013 Ark. App. 667. In Ending that the State had denronstrated by clear and convincing evidence that the ntatter should remain in the criminal division of circuit court and not be transGrred to the juvenile division ofcircuit court as an extended juvenile jurisdiction case, the trial court made the following findings: i. Thar the offense of aggravated robbery is an extremely serious offense. 2.That the oflense was commirted in an aggressive, violent, and willful manner, with the DeGndant admitting to srriking as well as kicking the victim in the case. 3. That the offense was clearly committed against a person. 4. That the Defendant admitted his participation and culpabiliry in the aggravated robbery by striking and kicking the victim. 5. That Defendant was previously placed on probation by the Benton Counry Circuit Court, which probation was revoked and thereafter Defendant was placed on probation for a second time. 6. That Defendant's probation was again revoked after testing positive for marijuana, being kicked off the school bus, and for wrongfully removing his electronic monicoring device. 7. That reasonable cause exists to believe that Deflendant has committed the new offense of aggravated robbery while on probation. 8. That Defendant has conducted himself as an adult by using alcohol, using marijuana, and running away from home. 9. That available programs in the juvenile justice system would not successfully rehabilitate the DeGndant. 10. That Defendant played a prominent role in the offense he and his co-defendants are alleged to have committed. Nichols argues that the trial court's findings were clearly erroneous because the trial cR-14-579 2015 Ark. App. 397 court failed to consider his history, his IQ, and the services he could be provided through the juvenile-justice system; he was one of three participants in the crimes and was the only juvenile; he had limited participation in the planning of the crime; and psychological evaluations indicated that his lack ofjudgment was probably the result ofhis low intelligence. He takes issue with the trial court's findings that he conducted himself as an adult by using marijuana and alcohol and running away, contending that these are not adult activities; that there were no programs in the juvenile-justice system that would successfully rehabilitate him, arguing that this finding ignores the testimony of Shelly Clingan; and that he played prominent role in the o{fense, contending that his participation only occurred at the end a when rhe alleged victim was unconscious. The trial court did take Nichols's IQ into consideration, noting that it was 66. Nichols concedes that the crimes were serious and violent in nature, and they were committed against a person by a group ofpeople. While he wants to point to the fact that the other two suspects were adults, he was no stranger to the court system himsele having been placed on juvenile probation on two occasions and having had that probation revoked both times. His past conduct provided an indication to the trial court that Nichols would be unlikely to have success in juvenile court for a third time. While using marijuana and running away may not be considered adult activities in some circumstances, that does not negate the findings that Nichols was a three-time of[ender who had committed serious offenses in against a person, leaving that person seriously incapacitated. We cannot say a violent manner that the trial court was clearly erroneous in denying Nichols's motion to transfer his case to juvenile court. 6 cR-14-579 2015 Ark. App. 397 Affirmed. ABRAMSoN and BRowN,lJ., agree. Wallace, Martin, Duke and Russell, PLLC, by: Valerie L. Goudie Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee. cR-r4-579
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