Cole v. State

Marshall COLE v. STATE of Arkansas

95-848                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Criminal law -- juvenile transfer -- guidelines for
     consideration of motion to transfer. -- In deciding whether to
     retain jurisdiction of the case, the trial court shall
     consider the seriousness of the offense, whether the offense
     is part of a repetitive pattern of adjudicated offenses, and
     the juvenile's prospects for rehabilitation.

2.   Criminal law -- juvenile transfer -- burden of proof. -- A
     defendant seeking a transfer has the burden of proof to show
     that a transfer is warranted under Ark. Code Ann. 
     9-27-318(e) (Repl. 1993); if he or she meets the burden, then
     the transfer is made unless there is clear and convincing
     countervailing evidence to support a finding that the juvenile
     should remain in circuit court; clear and convincing evidence
     is that degree of proof that will produce in the trier of fact
     a firm conviction regarding the allegation sought to be
     established.

3.   Criminal law -- juvenile transfer -- trial court not required
     to give equal weight to each of the statutory factors --
     violence considered. -- In a juvenile transfer case, the trial
     court is not required to give equal weight to each of the
     statutory factors; moreover, proof need not be introduced
     against the juvenile on each factor; the serious and violent
     nature of an offense is a sufficient basis for denying a
     motion to transfer and trying a juvenile as an adult; no
     element of violence beyond that required to commit the crime
     is necessary under Ark. Code Ann.  9-27-318(e)(1); however,
     that a crime is serious without the use of violence is not a
     factor sufficient in and of itself for a circuit court to
     retain jurisdiction of a juvenile.

4.   Criminal law -- juvenile transfer -- standard of review. --
     The standard of review in a juvenile transfer case is whether
     the trial court's denial of the motion to transfer was clearly
     erroneous.

5.   Criminal law -- juvenile transfer -- prosecutor's discretion
     to file charges in circuit court -- circumstances. -- A
     prosecuting attorney has the discretion to file charges in
     circuit court when a case involves a juvenile fourteen or
     fifteen years of age, and the alleged act constitutes a crime
     listed in Ark. Code Ann.  9-27-318(b)(2) (Supp. 1995); both
     possession of a handgun on school property and aggravated
     assault are included in this list.

6.   Criminal law -- possession of handgun on school property --
     legislative intent behind criminal statute. -- With respect to
     the crime of possession of a handgun on school property,
     codified at Ark. Code Ann.  5-73-119 (Supp. 1995), the
     supreme court has recognized that the intent behind the
     statute is clearly to insure safety at Arkansas's public
     schools.

7.   Criminal law -- information sufficient to establish that
     offense charged is of serious nature. -- The criminal
     information, on its own, is sufficient to establish that the
     offense charged is of a serious and violent nature; here, the
     information alleged that appellant was in possession of a .25-
     caliber pistol at a junior high school and that he committed
     aggravated assault by pointing a loaded gun at several
     students; the supreme court concluded that the crime of
     aggravated assault charged in the present case, involving the
     alleged pointing of a loaded gun at several students at
     school, was inherently violent in nature.

8.   Criminal law -- juvenile transfer -- serious charges
     constituted clear and convincing evidence supporting circuit
     court's decision to deny transfer. -- The fact that appellant
     had no prior adjudications did not render the trial court's
     decision to deny transfer erroneous because it was not
     necessary that proof of each factor listed in Ark. Code Ann.
      9-27-318(e) be presented or that the trial court give each
     factor equal weight; the circuit court, recognizing that it
     was not required to give equal weight to each of these
     factors, based its decision on the extreme seriousness of the
     crimes charged; these charges alone were clear and convincing
     evidence that supported the circuit court's decision to deny
     transfer; the supreme court held that the ruling was not
     clearly erroneous.


     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed.
     John R. Hudson, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.*ARKREP1* 01/22/96







MARSHALL COLE,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,





95-848


APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT (95-193)



HONORABLE WILLIAM STOREY
CIRCUIT JUDGE




AFFIRMED.


                Bradley D. Jesson, Chief Justice




     Appellant Marshall Cole, age fifteen, was charged in circuit
court with possession of a handgun on school property and
aggravated assault.  He filed a motion to transfer his case to
juvenile court.  Following a hearing, the circuit court denied the
motion.  Cole brings this interlocutory appeal from the circuit
court's refusal to transfer his case to juvenile court.  Our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(12), as this
interlocutory appeal is permitted by statute.  See Ark. Code Ann.
 9-27-318 (Supp. 1995).  We affirm.
     The amended information alleged that on February 14 and 15,
1995, Cole and two other juveniles, Brent William Dobbs and Tony
Rios, were in possession of a .25-caliber pistol at Prairie Grove
Junior High School.  It was further alleged that Cole and Dobbs
pointed a loaded gun at several students at the school.
     Cole filed a written motion to have his case transferred to
juvenile court on the grounds that he was only fifteen years of age
at the time of the alleged incidents and that no serious physical
harm or bodily injury occurred as a result of the incidents.  At a
hearing on the motion, Prairie Grove Police Chief Robin Casey
testified that he was called to the school on the morning of
February 15 by Principal Frank Baughman, who told him a student had
threatened another student with a weapon on campus.  Chief Casey
interviewed the alleged victim, Matt Mangin, and based on
information received from him, placed Cole and Dobbs under arrest. 
     In a separate interview, Dobbs stated that he had taken the
weapon to school.  Cole, who had been involved in an altercation
with Mangin, came to Dobbs to get the weapon.  After removing three
to four rounds from the clip, Dobbs gave Cole the weapon.  Dobbs
made no indication, however, as to whether he told Cole that the
gun was loaded or unloaded.  Cole took the gun in a bathroom with
Mangin, and later brought the weapon back to Dobbs.  Dobbs and Cole
later took the gun and placed it in a backpack belonging to Rios. 
     Chief Casey interviewed Cole separately.  Cole denied having
threatened Mangin; rather, he maintained that he just held the gun
out in the palm of his hand and was showing it to Mangin.  During
the course of his investigation, Chief Casey determined that there
were at least two other incidents occurring on the previous day
which involved Cole, Dobbs, and Rios and alleged threats using the
gun.  There were other incidents under investigation relating to
the three defendants and guns that allegedly occurred prior to the
incidents at the school.  In one of these incidents, a mother
reported that her daughter had been similarly assaulted.  Chief
Casey had no knowledge of any other police contact involving Cole
and his department.  On cross-examination, Chief Casey testified
that the gun used in the February 15 incident was not fired, and
that to his knowledge, there were no resulting injuries.      
     Cole's stepfather, Jessie Bounting, testified that, to his
knowledge, his stepson had never been arrested before.  It was
Bounting's testimony that Marshall had been in trouble for "minor
things" in school such as talking in class or disrupting class.  On
cross-examination, Bounting admitted that Marshall had gotten into
trouble for fighting at school.  According to Bounting, Marshall
"hit a kid" on the first day he was in school at Prairie Grove,
having just moved from Kansas.  While Marshall, a ninth grader, was
active in football and baseball and had never failed a grade in
school, he was on medication for attention deficit disorder.   
     At the conclusion of the hearing, the circuit judge announced
his ruling from the bench as follows:
          [I]t is incumbent upon the State to show by clear
     and convincing evidence that basically the case should
     not be transferred to juvenile court . . .  A number of
     those factors have been touched upon by the parties. 
     It's clear to me, and I'm convinced that these crimes,
     aggravated assault and possession of a handgun at school
     or on public school property or on school property, both
     felonies, are extremely serious crimes.  Obviously, for
     years the crime of aggravated assault has been treated
     and dealt with as a serious crime, a crime in which
     there's a potential for injury or death, but for the
     Defendant's conduct in not carrying out that threatened
     violence, it never occurs.  The crime of possession of a
     handgun on school property is a relatively new crime,
     again, a felony.  As I have indicated in a number of
     cases prior to this, I view the proliferation of handguns
     as a terribly serious problem in this community and this
     county and this state and across this country.  To me,
     these are terribly serious crimes and have the potential
     for violence.  The law is clear, I can consider any one
     or more of these factors in determining whether or not
     these cases should be transferred.  I can basically base
     my decision on one factor and, as I was indicating a
     minute ago, it's clear to me, the evidence is clear that
     these two Defendants were involved in this activity,
     direct participants in this activity, and in my judgment,
     should be prosecuted and tried as adults.  And,
     consequently, I'm going to deny their motions. 

Cole filed a timely notice of appeal of the circuit court's denial
to transfer.
     We recently repeated the guidelines under which we consider
motions to transfer in juvenile cases in Holmes v. State, 322 Ark.
574, ___ S.W.2d ___ (December 4, 1995): 
          In deciding whether to retain jurisdiction of the
     case, the trial court shall consider the seriousness of
     the offense, whether the offense is part of a repetitive
     pattern of adjudicated offenses, and the juvenile's
     prospects for rehabilitation.  Ark. Code Ann. 
     9-27-318(e) (Repl. 1993).  A defendant seeking a transfer
     has the burden of proof to show a transfer is warranted
     under Ark. Code Ann.  9-27-318(e). Ring v. State, 320
     Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark.
     613, 893 S.W.2d 768 (1995).  "If he or she meets the
     burden, then the transfer is made unless there is clear
     and convincing countervailing evidence to support a
     finding that the juvenile should remain in circuit
     court."  Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann.  9-27-318(f) (Repl.
     1993).  "`Clear and convincing evidence' has been defined
     by this Court as `that degree of proof which will produce
     in the trier of fact a firm conviction as to the
     allegation sought to be established.'"  Cobbins v. State,
     306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation
     omitted). 
 
          The trial court is not required to give equal weight
     to each of the statutory factors.  Ring v. State, 320
     Ark. 128, 894 S.W.2d 944 (1995). "Moreover, proof need
     not be introduced against the juvenile on each factor." 
     Davis v. State, 319 Ark. at 616, 893 S.W.2d  at 769. "We
     have often stated that the serious and violent nature of
     an offense is a sufficient basis for denying a motion to
     transfer and trying a juvenile as an adult."  Sims v.
     State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995)
     (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678
     (1995)).  No element of violence beyond that required to
     commit the crime is necessary under Ark. Code Ann. 
     9-27-318(e)(1), see Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992), a case in which the underlying crime
     was rape, and we wrote, "Cobbins cannot be read to
     require that an added element of violence must be shown
     under  9-27-318(e)(1), and we believe it would be a
     perverted interpretation to construe that provision in
     such a manner."  Id. at 511, 832 S.W.2d  at 219.  However,
     that a crime is serious without the use of violence "is
     not a factor sufficient in and of itself for a circuit
     court to retain jurisdiction of a juvenile."  Sebastian
     v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994). 
 
          The standard of review in a juvenile transfer case
     is whether the trial court's denial of the motion to
     transfer was clearly erroneous.  Sims v. State, 320 Ark.
     528, 900 S.W.2d 508 (1995).  

322 Ark. at 576-577.  While we recognized in Holmes that, under our
previous holding in Sebastian v. State, supra, the commission of a
serious offense alone without the use of violence is not sufficient
for a circuit court to retain jurisdiction of a juvenile, we held
that the trial court could have relied on the violent nature of the
crime of aggravated robbery in denying appellant's motion to
transfer to juvenile court. Id. at 579.  In so holding, we said
that no violence beyond that necessary to commit the offense of
which the defendant was accused is necessary under Ark. Code Ann.
 9-27-318(e)(1).  Id., citing Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992).  Our decision in Holmes is easily reconciled
with Sebastian v. State, supra, in which the appellant was charged
with two counts of theft by receiving.  While we affirmed the
denial of transfer in Sebastian based on evidence of a repetitive
pattern of offenses, we recognized, citing Blevins v. State, 308
Ark. 613, 826 S.W.2d 265 (1992), that the commission of a serious
offense without the use of violence is not a factor sufficient in
and of itself for a circuit court to retain jurisdiction of a
juvenile.  318 Ark. at 498.  In Blevins, we reversed the circuit
court's decision to deny transfer where the appellant was charged
with possession of a controlled substance with the intent to
deliver.   Unlike the charges of theft by receiving in Sebastian
and possession of a controlled substance with intent to deliver in
Blevins, the crime of aggravated robbery charged in Holmes was
inherently violent in nature.
     A prosecuting attorney has the discretion to file charges in
circuit court when a case involves a juvenile fourteen or fifteen
years of age and the alleged act constitutes a crime listed in Ark.
Code Ann.  9-27-318(b)(2) (Supp. 1995).  Both possession of a
handgun on school property and aggravated assault are included in
this list. See  9-27-318(b)(2)(I) and (b)(2)(J).  With respect to
the crime of possession of a handgun on school property, codified
at Ark. Code Ann.  5-73-119 (Supp. 1995), we have recognized that
the intent behind this statute is clearly to insure safety at
Arkansas's public schools. S.T. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994).  
     Cole acknowledges that the criminal information, on its own,
is sufficient to establish that the offense charged is of a serious
and violent nature.  Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995).  Here, the information alleged that Cole was in
possession of a .25-caliber pistol at Prairie Grove Junior High
School.  The information further alleged that Cole committed
aggravated assault by "unlawfully and feloniously, under
circumstances manifesting extreme indifference to the value of
human life, purposefully engaged in conduct that created a
substantial danger of death or serious physical injury to another
person . . . [by] point[ing] a loaded gun at several students at
school."  As we stated in Holmes v. State, supra, and Slay v.
State, supra, no violence beyond that necessary to commit
aggravated assault is necessary under Ark. Code Ann. 
9-27-318(e)(1).  Unlike the crimes charged in Sebastian v. State,
supra, and Blevins v. State, supra, we conclude that the crime of
aggravated assault charged here, involving the alleged pointing of
a loaded gun at several students at school, is inherently violent
in nature.  Moreover, the allegations in the information indicated
that there were other incidents involving Cole and alleged threats
using the gun in addition to the incident involving Mangin.       
     The fact that Cole had no prior adjudications did not render
the trial judge's decision erroneous, since it was not necessary
that proof of each factor listed in Ark. Code Ann.  9-27-318(e) be
presented or that the trial court give each factor equal weight.
See Holmes v. State, supra.  The circuit court, recognizing that it
was not required to give equal weight to each of these factors,
based its decision on the extreme seriousness of the crimes
charged.  In sum, these charges alone were clear and convincing
evidence which supported the circuit court's decision to deny
transfer.  Thus, we cannot conclude that its ruling was clearly
erroneous.
     Affirmed.