Hansen v. State

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Brian Patrick HANSEN v. STATE of Arkansas

95-961                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Juveniles -- transfer from circuit to juvenile court --
     factors. -- The factors to be considered by the circuit court
     in deciding whether to transfer a case to juvenile court are,
     as set forth in Ark. Code Ann.  9-27-318(e) (Supp. 1995): (1)
     the seriousness of the offense and whether violence was
     employed; (2) a repetitive pattern of adjudicated offenses
     indicating that the juvenile is beyond rehabilitation; and (3)
     the prior history and character traits reflecting on the
     juvenile's prospects for rehabilitation; in making its
     determination, the trial court is not required to give equal
     weight to each of these factors.

2.   Juveniles -- decision to hold juvenile for trial as adult must
     be suuported by clear and convincing evidence -- when
     overturned. -- If the trial court decides to hold the juvenile
     for trial as an adult, its decision must be supported by clear
     and convincing evidence; the decision to transfer the case to
     circuit court will not be overturned unless it is clearly
     erroneous.

3.   Criminal law -- statutory rape is serious crime. -- With
     reference to the juvenile-transfer factors, the supreme court
     declared that statutory rape is without question a serious
     crime.  

4.   Juveniles -- commitment to juvenile facility not available for
     person older than eighteen. -- Commitment to a juvenile
     facility is not available for a young person older than
     eighteen; the chance for rehabilitation within the Division of
     Youth Services is nonexistent when a commitment cannot be had
     for a young person older than eighteen.

5.   Juveniles -- trial court did not err in denying transfer. --
     Although Act 1261 of 1995, Ark. Code Ann.  9-28-208(d) (Supp.
     1995), extended commitment time for juveniles beyond age
     eighteen under certain circumstances, the supreme court noted
     that the provision presupposes that the youth has already been
     committed at the time he or she turns eighteen and allows for
     that commitment to continue; that was not the situation in the
     present case, and, under the circumstances, the supreme court
     could not say that the decision of the trial court was clearly
     erroneous in denying the transfer.


     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed.
     Marianne L. Hudson, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Associate Justice Robert L. Brown
February 12, 1996 *ADVREP10*






BRIAN PATRICK HANSEN,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

95-961




APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CR 95-457
HON. WILLIAM STOREY, JUDGE,




AFFIRMED.






     Appellant Brian Patrick Hansen appeals the denial of his
motion to transfer the statutory rape charge (Ark. Code Ann.  5-
14-103(a)(3) (Repl. 1995)), to juvenile court.  We affirm the
decision of the trial court.
     The felony information filed in circuit court charged: "On or
about February 12, 1995, the defendant, (DOB: 3/17/77), digitally
penetrated the vagina of a ten (10) year old female ...."  A motion
to transfer the matter to juvenile court was filed, and a hearing
was held on that motion on July 18, 1995.  By that time, Hansen had
turned 18.  Julie Hansen, Hansen's mother, testified at the hearing
that he had only completed the tenth grade and had recently
obtained his GED and had sought to join the Army.  At the time of
the charged offense, Hansen was living with his fiancée and her
mother.  Julie Hansen admitted on cross-examination that Hansen had
previously been charged with the unauthorized use of a motor
vehicle in Iowa.
     The State called Mike Scott, a former juvenile intake officer
with the Washington County Juvenile Court, as a witness.  Scott
testified that on December 6, 1993, the Fayetteville Police
Department arrested Hansen on a warrant out of Iowa for two counts
of burglary and one count of the unauthorized use of a vehicle. 
Hansen subsequently escaped in handcuffs, and he was charged with
escape.  The escape charge was later dropped.  The disposition of
the Iowa charge is unknown, but Scott indicated that Hansen
received probation.  He also testified that Hansen had been
arraigned earlier that morning on felony charges of theft of
property (a .40 caliber pistol) and fleeing.  Hansen's criminal
history further reflects that other charges of theft of property
and breaking and entering were nolle prossed by the State at the
request of the victim.
     Following the hearing, the trial court made its ruling from
the bench:
          Both of the attorneys recognize that this is
     obviously a very serious offense, these are very serious
     allegations, and I think standing alone it would be
     proper to leave this case in circuit court as opposed to
     transferring it as the defendant requests.  I'll just
     make these additional observations.  The defendant has
     now been charged with three - or actually - yes, three -
     four felonies in this court: Theft of property and
     breaking or entering in case 95-285; rape in the case
     that we're holding this hearing in, 95-457; and only
     today, theft of property - all felonies.  Although there
     obviously has not been a pattern of adjudicated offenses
     in juvenile court, Mr. Hansen certainly has had his
     troubles.  There's at least a suggestion that although he
     was arrested as a juvenile on an Iowa warrant, he
     nonetheless was to some degree treated as an adult in
     Iowa.  He apparently escaped after having been taken into
     custody here in Washington County on that warrant.  He
     has not chosen to offer up any explanation as to how
     those cases were resolved.  Therefore, in my view the
     likelihood of rehabilitation is remote at best, even
     assuming those services were available as an eighteen-
     year-old.  Again, as pointed out by Mr. Threet [deputy
     prosecuting attorney], this offense allegedly occurred
     within a month of his eighteenth birthday and of course
     he is seeking to enter the Army as an adult.
          I think for all those reasons, in my judgment it's
     inappropriate to transfer this case.  The defendant's
     motion is denied.
     Hansen now argues in this interlocutory appeal that the trial
court's denial of the transfer was clearly erroneous under the
factors set forth in Ark. Code Ann.  9-27-318(e) (Supp. 1995).  We
disagree.  Briefly stated, the factors under the statute are (1)
seriousness of the offense and whether violence was employed; (2)
repetitive pattern of adjudicated offenses indicating that the
juvenile is beyond rehabilitation; and (3) prior history and
character traits reflecting on the juvenile's prospects for
rehabilitation.  We have stated that in making its determination,
the trial court is not required to give equal weight to each of
these factors.  Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995);
Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Hogan v.
State, 311 Ark. 262, 843 S.W.2d 830 (1992).  If the trial court
decides to hold the juvenile for trial as an adult, its decision
must be supported by clear and convincing evidence.  Ark. Code Ann.
 9-27-318(f) (Supp. 1995).  The decision to transfer the case to
circuit court will not be overturned unless it is clearly
erroneous.  McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995).
     Statutory rape is without question a serious crime.  Moreover,
as the trial court noted, commitment to a juvenile facility is not
available for a young person older than 18.  We have previously
held that the chance for rehabilitation within the Division of
Youth Services is nonexistent when a commitment cannot be had for
a young person older than 18.  See, e.g., Sims v. State, 320 Ark.
528, 900 S.W.2d 508 (1995); Hogan v. State, supra.
     We are cognizant of the fact that by Act 1261 of 1995 the
General Assembly extended commitment time for juveniles beyond age
18 under certain circumstances:
          (d) Commitment shall not exceed the eighteenth
     birthday of a youth, unless the Department of Human
     Services' State Institutional System Board determines
     that an adequate facility or facilities are available for
     youths eighteen (18) years of age or older.
Ark. Code Ann.  9-28-208(d) (Supp. 1995).  Section 9-28-208(d),
however, presupposes that the youth has already been committed at
the time he or she turns 18 and allows for that commitment to
continue.  That is not the situation in the case before us.  Under
these circumstances, we cannot say that the decision of the trial
court was clearly erroneous in denying the transfer.
     Affirmed.

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