Macon v. State

Terrel Deshawn MACON v. STATE of Arkansas

95-1146                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Juveniles -- decision to retain or transfer case to juvenile
     court -- factors considered. -- In making the decision to
     retain or transfer a juvenile case, the trial court must
     consider (1) the seriousness of the offense and whether
     violence was employed by the juvenile; (2) whether the offense
     is part of a repetitive pattern of adjudicated offenses which
     would lead to the determination that the juvenile is beyond
     rehabilitation under existing programs, as evidenced by past
     efforts to treat and rehabilitate the juvenile and the
     response to such efforts; (3) the juvenile's prior history,
     character traits, mental maturity, and any other factors
     reflecting upon his prospects for rehabilitation. 

2.   Juveniles -- transfer considerations -- not all factors need
     be given equal consideration. -- Proof need not be introduced
     against the juvenile on each factor; also, in making its
     decision whether to retain or transfer a juvenile's case, the
     trial court is not required to give equal weight to each of
     the factors set out in  9-27-318(e).  

3.   Juveniles -- trial court concluded available juvenile
     rehabilitation was limited and inappropriate -- proof was
     sufficient to deny appellant's motion to transfer. -- Where 
     the trial court considered appellant's prior history, noting
     he had been convicted and placed on probation for theft and
     criminal trespass, and concluded the juvenile rehabilitative
     programs available would be extremely limited and
     inappropriate; and where the trial court's findings reflected
     that appellant's offense was both serious and violent, and
     therefore fell within the first factor described under Ark.
     Code Ann.  9-27-318(e), such proof was sufficient to support
     the trial court's decision to deny appellant's motion to
     transfer.  


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
affirmed.
     Daniel D. Becker and Michael E. Harmon, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.*ADVREP6*






TERREL DESHAWN MACON,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



95-1146

Opinion Delivered:  2-19-96

AN APPEAL FROM THE CIRCUIT
COURT OF GARLAND COUNTY,
ARKANSAS, NO. 95-221; HONORABLE
TOM SMITHERMAN, CIRCUIT JUDGE


AFFIRMED




                  TOM GLAZE, Associate Justice

     Appellant Terrel Macon, a seventeen year old, was charged in
circuit court with two counts of terroristic act and one count of
aggravated assault.  Under Ark. Code Ann.  9-27-318 (Supp. 1995),
he moved to transfer his charges to juvenile court, and after a
hearing, the trial judge denied Macon's motion.  He brings this
appeal under  9-27-318(h).
     In making the decision to retain or transfer the case, the
trial court must consider (1) the seriousness of the offense and
whether violence was employed by the juvenile; (2) whether the
offense is part of a repetitive pattern of adjudicated offenses
which would lead to the determination that the juvenile is beyond
rehabilitation under existing programs, as evidenced by past
efforts to treat and rehabilitate the juvenile and the response to
such efforts; (3) the juvenile's prior history, character traits,
mental maturity, and any other factors reflecting upon his
prospects for rehabilitation.   9-27-318(e).  Macon argues no
evidence was presented to show he had committed a repetitive
pattern of offenses, or to show he was beyond rehabilitation.  In
sum, he asserts that the trial court erred because it failed to
consider factors (2) and (3) above.  We do not agree.
     We first point out that proof need not be introduced against
the juvenile on each factor.  Davis v. State, 319 Ark. 613, 893 S.W.2d 768, 769 (1995).  Second, in making its decision whether to
retain or transfer a juvenile's case, the trial court is not
required to give equal weight to each of the factors set out in 
9-27-318(e).  Id.
     Here, the trial court did, indeed, consider Macon's prior
history, noting he had been convicted and placed on probation for
theft and criminal trespass.  While these offenses did not
necessarily show a repetitive pattern, the trial court did consider
the offenses when discussing the lack of rehabilitative programs
for Macon, especially in view of the fact he would turn eighteen
years old within thirty days after the hearing.  See McGaughey v.
State, 321 Ark. 537, 906 S.W.2d 671 (1995).  Accordingly, the trial
court concluded the juvenile rehabilitative programs available to
Macon would be extremely limited and inappropriate.  
     Aside from the rehabilitation issue, we must affirm the trial
court's decision because of its findings reflecting that Macon's
offense was both serious and violent, and therefore fell within the
first factor described under  9-27-318(e) above.  The trial court
found that Macon and others drove by Damien Moore's residence in
Hot Springs, and seeing Moore next to his parked vehicle, shot
twice at him.  They turned their vehicles around, drove by Moore
again and fired four more shots.  One shot struck Moore's car door
and another entered a nearby residence, where a bullet eventually
landed on the collar of the person residing there.  
     Because Macon's actions and offense exhibited a serious and
violent nature, such proof was sufficient to support the trial
court's decision to deny Macon's motion to transfer.  Holmes v.
State, 322 Ark. 574, ____ S.W.2d ____ (1995).  In addition, we also
conclude Macon failed to show the trial court clearly erred in
finding Macon is not a good prospect for rehabilitation. 
Accordingly, we affirm.