Kindle v. State

Jared Benjamin KINDLE v. STATE of Arkansas

96-431                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Juveniles -- considerations for transfer of juvenile from
     circuit to juvenile court -- burden of proof and factors on
     review. -- A defendant seeking a transfer has the burden of
     proof to show that, under the factors delineated in section
     Ark. Code Ann.  9-27-318(e), a transfer is warranted; if the
     defendant meets the burden, then the transfer is made unless
     there is clear and convincing countervailing evidence that he
     should remain in circuit court; clear and convincing evidence
     is that degree of proof which will produce in the trier of
     fact a firm conviction as to the allegation sought to be
     established; the appellate court will not reverse a decision
     on a motion to transfer unless it is clearly erroneous; in
     reviewing a denial of a motion to transfer, the appellate
     court views the facts in light most favorable to the State. 

2.   Juveniles -- transfer from circuit to juvenile court --
     factors considered in making determination. -- The factors to
     be considered in deciding whether to transfer a case to
     juvenile court are the seriousness of the offenses, along with
     the prior history, character traits, mental maturity, and any
     other factors that reflect upon the juvenile's prospects for
     rehabilitation; a trial court is not required to give equal
     weight to each factor, nor is proof required to be presented
     with regard to each factor; the serious and violent nature of
     the crimes with which a juvenile is charged is an adequate
     reason to deny a motion to transfer, without regard to the
     evidence of other factors. 

3.   Juveniles -- act of appellant sufficiently violent to uphold
     denial of transfer to juvenile court -- trial court's ruling
     not clearly erroneous. -- Where there was testimony that
     appellant held a pistol to the victim's head and that he
     attempted to pull the trigger, sufficient violence was
     employed so as to uphold the denial of the transfer to
     juvenile court; accordingly, the trial court's ruling was not 
     clearly erroneous.
     

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

     Robert H. Dudley, Justice.
     This is another interlocutory appeal from an order denying a
motion to transfer a case to juvenile court.  Jared Benjamin Kindle
was charged in circuit court with aggravated robbery and attempted
capital murder.  He was sixteen years old at the time of the
offense.  At the hearing on his motion to transfer, he presented
evidence from a psychiatrist, an assistant principal, two teachers, 
and his grandmother and grandfather.  The testimony showed that he
made good grades and was well behaved at home and in school.  The
psychiatrist testified that Kindle has attention deficit disorder,
which gives him low frustration tolerance, impulsiveness, an active
fantasy life, and poor judgment.  
     The victim of the aggravated robbery testified that Kindle
held a loaded pistol to his head and tried to pull the trigger. 
Kindle confessed that he held the pistol on the victim, that he had
planned the robbery for about a week, and that he waited until all
the customers left the store before he attempted the robbery.  He
denied attempting to pull the trigger. 
     In its ruling, the trial court recognized that there were a
number of factors mitigating in favor of transfer, including the
possibility of rehabilitation, but indicated that the seriousness
of the offense and the fact that Kindle planned the robbery for a
considerable period of time outweighed the mitigating factors.  The
trial court denied the motion. 
     Kindle argues that the trial court's decision to deny the
transfer was clearly erroneous.  The applicable parts of the
juvenile code and our interpretations of the code are as follows. 
A prosecutor has the discretion to file charges in circuit court
when the case involves a juvenile sixteen years of age and the
alleged act constitutes aggravated robbery and attempted capital
murder.  Ark. Code Ann.  9-27-318(b)(2)(J) (Supp. 1995).  A
defendant seeking a transfer has the burden of proof to show that,
under the factors delineated in section 9-27-318(e), a transfer is
warranted.  Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995).  If
the defendant meets the burden, then the transfer is made unless
there is clear and convincing countervailing evidence that he
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)
(Supp. 1995).  Clear and convincing evidence is that degree of
proof which will produce in the trier of fact a firm conviction as
to the allegation sought to be established.  Holmes v. State, 322
Ark. 574, 911 S.W.2d 256 (1995).  We will not reverse a decision on
a motion to transfer unless it is clearly erroneous.  McGaughy v.
State, 321 Ark. 537, 906 S.W.2d 671 (1995).  In reviewing a denial
of a motion to transfer, the appellate court views the facts in
light most favorable to the State.  Wicker v. State, 310 Ark. 580,
839 S.W.2d 186 (1992).
     The factors to be considered in deciding whether to transfer
a case to juvenile court are the seriousness of the offenses, along
with the prior history, character traits, mental maturity, and any
other factors that reflect upon the juvenile's prospects for
rehabilitation.  Myers v. State, 317 Ark. 70, 72, 872 S.W.2d 246,
248 (1994); Ark. Code Ann.  9-27-318(e).  A trial court is not
required to give equal weight to each factor, nor is proof required
to be presented with regard to each factor.  Pennington v. State,
305 Ark. 312, 807 S.W.2d 660 (1991).  We have held that the serious
and violent nature of the crimes with which a juvenile is charged
is an adequate reason to deny a motion to transfer, without regard
to the evidence of other factors.  Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994).
     Here, there was testimony that Kindle held a pistol to the
victim's head and that he attempted to pull the trigger.  These
facts are aligned with those in cases in which we have held that
sufficient violence was employed so as to uphold the denial of the
transfer to juvenile court.   See, e.g.,  Butler v. State, 324 Ark.
476, 922 S.W.2d 685 (1996) (holding that use of shotgun in
robberies "made use of" violence); Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996) (holding that use of pistol at school to
intimidate a student employed violence).  Accordingly, we cannot
say that the trial court's ruling was clearly erroneous.
     Affirmed.
     Roaf, J., dissents.  See dissenting opinion of Justice Roaf in
Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996).