Maddox v. State

Kristy MADDOX v. STATE of Arkansas

96-552                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 4, 1996


1.   Juveniles -- juvenile transfer -- factors considered. -- Under
     Ark. Code Ann.  9-27-318(e) (Supp. 1995), the circuit court
     must consider the following factors in determining whether to
     retain jurisdiction or transfer a case to juvenile court: (1)
     the seriousness of the offense and whether violence was
     employed by the juvenile in the commission of the offense; (2)
     whether the offense is part of a repetitive pattern of
     adjudicated offenses that would lead to the determination that
     the juvenile is beyond rehabilitation under existing
     rehabilitation programs, as evidenced by past efforts to treat
     and rehabilitate the juvenile and the response to such
     efforts; and (3) the prior history, character traits, mental
     maturity, and any other factor that reflects upon the
     juvenile's prospects for rehabilitation.

2.   Juveniles -- juvenile transfer -- decision must be supported
     by clear and convincing evidence -- court not required to give
     factors equal weight. -- The decision to retain jurisdiction
     must be supported by clear and convincing evidence; in making
     its decision, the trial court need not give equal weight to
     each of the statutory factors; furthermore, the trial court's
     denial of a motion to transfer will be reversed only if its
     ruling was clearly erroneous.

3.   Juveniles -- juvenile transfer -- use of violence --
     sufficient for circuit court to retain jurisdiction. -- The
     use of violence in the commission of a serious offense is a
     factor sufficient in and of itself for a circuit court to
     retain jurisdiction of a juvenile's case, but the commission
     of a serious offense without the use of violence is not
     sufficient grounds to deny the transfer.

4.   Juveniles -- juvenile transfer -- first-degree criminal
     mischief satisfies seriousness requirement. -- Criminal
     mischief in the first degree is a Class C felony, and it
     satisfies the seriousness requirement in juvenile-transfer
     cases.

5.   Juveniles -- juvenile transfer -- violent act lay at core of
     alleged crime -- sufficient to sustain refusal to transfer. --
     In this case, the trial court noted that the underlying facts
     would likely support an aggravated assault charge as well as
     a charge of criminal mischief; the supreme court has observed
     that the crime of aggravated assault is not only serious but
     that no violence beyond that necessary to commit aggravated
     assault is necessary to meet the requirement under Ark. Code
     Ann.  9-27-318(e)(1); the supreme court concluded that a
     violent act lay at the core of the alleged crime, the willful
     throwing of a glass bottle at a moving vehicle containing
     three passengers; these facts were sufficient to sustain a
     refusal to transfer to juvenile court.

6.   Juveniles -- juvenile transfer -- appellant's age was relevant
     to prospects for rehabilitation. -- Young people over the age
     of eighteen can no longer be committed to the Division of
     Youth Services for rehabilitation unless they are already
     committed at the time they turn eighteen; the fact that
     appellant had turned eighteen and could not be committed to
     the Division of Youth Services was highly relevant to her
     prospects for rehabilitation as a juvenile; it is a factor
     that the supreme court considers important in reviewing a
     trial court's denial of a motion to transfer; the circumstance
     lent additional support to an affirmance.


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

     Robert L. Brown, Justice.
     This is a juvenile-transfer case.  On October 16, 1995, an
information was filed charging appellant Kristy Maddox with
criminal mischief in the first degree, a Class C felony.  She was
accused of intentionally throwing a Mountain Dew bottle from a
moving vehicle and striking the victim's automobile, causing damage
in excess of $500.  Maddox, who was 17 years old at the time of the
alleged incident, and who turned 18 on February 4, 1996, moved to
have the charge transferred to juvenile court.  Her motion was
denied.  She now appeals that denial. 
     Only two witnesses testified at the juvenile-transfer hearing. 
Pamela Maddox, the appellant's mother, related to the court that at
the time of the hearing, Maddox was living with her and assisting
around the house by doing chores and taking care of her younger
siblings.  She testified that Maddox was not currently in high
school, but that she was working on her G.E.D. and planned to
attend college in the Fall.  She stated that she had a good
relationship with her daughter, but that she did have to call the
police on one occasion for an undisclosed "family disturbance." 
She and the prosecutor agreed that Maddox had no prior criminal
history.
     Sherry Lynn Kinnamon, the victim, was called as a witness by
the prosecution.  She testified that on April 20, 1995, she was
driving her grandparents from Huntsville to the VA Hospital in
Fayetteville when she noticed a red pick-up truck following very
closely behind her.  She stated that she tapped her brakes a few
times to get the driver's attention and slowed so that the truck
could pass, but that the driver would not do so.  Even when given
a straight stretch of road with no cars approaching, the driver of
the truck would not pass her.  She explained that the driver
instead pulled alongside her car several times, and that the driver
and two passengers would simply look at her, then drop back behind
her car, where they made obscene gestures.  She stated that she
slowed her car to two-miles-an-hour so that the truck would pass,
but that it again would not.  Finally, she accelerated, and the
truck pulled alongside her car.  Maddox hung out of the window on
the passenger's side of the truck, held by her belt loops.  She was
holding a full glass bottle of Mountain Dew, and she and the other
occupants of the truck were yelling obscenities at Kinnamon. 
Kinnamon testified that Maddox then intentionally threw the glass
bottle at her car.  It dented the front of the hood and cracked the
windshield.  Kinnamon said that after she regained her composure,
she pursued the truck and got its license plate number.  No one was
injured, but she estimated that the damage to her car was  about
$800. 
     The trial court denied the motion to transfer after
determining that Maddox's intentional throwing of the Mountain Dew
bottle at Kinnamon's car was not only a serious act but a violent
one.  The court emphasized the harassing nature of the episode and
referred to an incident in Oklahoma where a person was killed
because an object had been thrown at his vehicle.  The court noted
that Maddox had no prior criminal record and mentioned that there
had been no evidence introduced, one way or the other, with regard
to her prospects for rehabilitation.
     Maddox claims in her appeal that the trial court clearly erred
in retaining jurisdiction of this matter.  The Arkansas Juvenile
Code provides that the circuit court shall consider the following
factors in determining whether to retain jurisdiction or transfer
a case to juvenile court:
     1) The seriousness of the offense, and whether violence
     was employed by the juvenile in the commission of the
     offense;
     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 rehabilitation programs, as evidenced by
     past efforts to treat and rehabilitate the juvenile and
     the response to such efforts; and
     3) The prior history, character traits, mental maturity,
     and any other factor which reflects upon the juvenile's
     prospects for rehabilitation.
Ark. Code Ann.  9-27-318(e) (Supp. 1995).  The decision to retain
jurisdiction must be supported by clear and convincing evidence. 
Ark. Code Ann.  9-27-318(f) (Supp. 1995).  In making its decision,
the trial court need not give equal weight to each of the statutory
factors.  Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996); Ring
v. State, 320 Ark. 128, 894 S.W.2d 944 (1995).  Furthermore, the
trial court's denial of a motion to transfer will be reversed only
if its ruling was clearly erroneous.  Booker v. State, 324 Ark.
468, 922 S.W.2d 337 (1996); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993).
     Maddox asserts a twofold challenge to the denial of her motion
to transfer.  She first urges that the trial court did not
recognize the relevance of her mother's testimony and emphasizes
that her mother presented sufficient evidence of her character
traits to support a positive finding on the issue of her prospects
for rehabilitation.  She further argues that the charge of criminal
mischief is a crime against property which the trial court
improperly characterized as "violent" in order to keep the matter
in circuit court.
     The State responds that criminal mischief is a Class C felony
that satisfies the seriousness criterion for purposes of section 9-
27-318(e) and that violence was employed in the commission of this
offense.  The State also questions whether the mother's testimony
was really relevant to the criterion of rehabilitation, when there
was no showing that Maddox was remorseful or willing to accept
responsibility for her actions.  Finally, the State contends that
the fact Maddox was 18 at the time of her hearing is sufficient,
standing alone, to affirm the trial court's ruling.
     In recent years, this court has fashioned the following rule
in juvenile-transfer cases: 
     The use of violence in the commission of a serious
     offense is a factor sufficient in and of itself for a
     circuit court to retain jurisdiction of a juvenile's
     case, but the commission of a serious offense without the
     use of violence is not sufficient grounds to deny the
     transfer.
Booker v. State, 324 Ark. at 474-75, 922 S.W.2d  at 340.  See also
Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Blevins v.
State, 308 Ark. 613, 826 S.W.2d 265 (1992).  In Green v. State,
supra, this court noted that manslaughter, a Class C felony, was a
serious offense: "No doubt the offense charged is serious. 
Manslaughter is a class C felony.  If [the appellant] were
convicted he would be sentenced to imprisonment for not less than
three nor more than ten years."  Green v. State, 323 Ark. at 640,
916 S.W.2d  at 759 (citing Ark. Code Ann. 5-4-401(a)(4) (Repl.
1993)).  Criminal mischief in the first degree is also a Class C
felony, and it satisfies the seriousness requirement.
     The question we next address is whether the trial court was
correct in its finding that Maddox committed a violent act.  We
agree with the trial court that she did.  This is not a case where
a juvenile merely committed a crime against property such as we had
in Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991).  In
Pennington, two 17-year-olds broke about 30 tombstones in a
cemetery and were charged with criminal mischief.  The circuit
court refused to transfer the cases to juvenile court, and we
reversed on the basis that the trial court gave too much deference
to the prosecutor, after the court acknowledged that violence was
not embraced in the young men's actions.
     In the instant case, the trial court noted that these facts
would likely support an aggravated assault charge as well as a
charge of criminal mischief.  This court has observed that the
crime of aggravated assault is not only serious, but that no
violence beyond that necessary to commit aggravated assault is
necessary to meet the requirement under Ark. Code Ann.  9-27-
318(e)(1).  Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).  We
conclude that a violent act lies at the core of the alleged crime
in the instant case -- the willful throwing of a glass bottle at a
moving vehicle containing three passengers, as testified to by
Kinnamon.  These facts are sufficient to sustain a refusal to
transfer in our judgment.
     There is, too, the fact that Maddox has now turned 18.  Young
people over age 18 can no longer be committed to the Division of
Youth Services for rehabilitation unless they are already committed
at the time they turn 18.  See Ark. Code Ann.  9-28-208(d) (Supp.
1995); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996).  The
fact that Maddox cannot now be committed to the Division of Youth
Services is highly relevant to her prospects for rehabilitation as
a juvenile and is a factor that this court considers important in
reviewing a trial court's denial of a motion to transfer.  See,
e.g., Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992); Bright
v. State, 307 Ark. 250, 819 S.W.2d 7 (1991).  This circumstance
lends additional support to an affirmance.
     Affirmed.
     Roaf, J., dissents.  See dissenting opinion of Justice Roaf in
Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996).