Brooks v. State

Derelle BROOKS v. STATE of Arkansas

CR 96-296                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Juveniles -- juvenile transfer -- factors. -- Under Ark. Code
     Ann.  (Supp. 1995), a circuit court and a juvenile court have
     concurrent jurisdiction, and a prosecuting attorney may charge
     a juvenile in either court where a case involves a juvenile
     who was at least sixteen years old when he engaged in conduct
     that, if committed by an adult, would be any felony; in making
     the decision to retain jurisdiction or to transfer the case,
     the court must consider the following factors: (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 those
     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 -- court not required to give
     factors equal weight. -- In juvenile-transfer determinations,
     the trial court is not required to give equal weight to each
     of the statutory factors.

3.   Juveniles -- juvenile transfer -- serious and violent nature
     of offense sufficient basis for denying motion. -- The serious
     and violent nature of an offense is a sufficient basis for
     denying a motion to transfer and for trying a juvenile as an
     adult.

4.   Juveniles -- juvenile transfer -- information was sufficient
     evidence of serious and violent nature of crime -- no
     additional element of violence necessary. -- The information,
     which charged a class Y felony, was sufficient evidence of the
     serious and violent nature of the crime to support an order
     denying the seventeen-year-old appellant's motion to transfer
     the case to the juvenile division of chancery court; no
     element of violence beyond that required to commit the crime
     is necessary.

5.   Criminal law -- statutory rape is serious offense -- trial
     court did not err in concluding that statutory rape involved
     violence. -- It is undisputed that statutory rape is a serious
     offense; given the allegations in the case, the supreme court
     could not say that the trial court erred in its conclusion
     that the offense charged, statutory rape, involved violence.

6.   Juveniles -- eighteen year old cannot be committed to youth-
     services center. -- A person who has reached his eighteenth
     birthday cannot be committed to a youth-services center; 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; although Ark. Code Ann. 
     9-28-208(d) (Supp. 1995) extended the commitment time for
     juveniles beyond age eighteen under certain circumstances, it
     presupposes that the youth was committed upon reaching
     eighteen and that the commitment will continue.

7.   Juveniles -- juvenile transfer -- trial court's decision that
     juvenile should be tried as adult was not clearly erroneous. -
     - The decision that a juvenile is to be tried in circuit court
     as an adult must be supported by clear and convincing
     evidence; the supreme court will not reverse the trial court's
     decision unless it determines that the decision was clearly
     erroneous; where the evidence showed that the statutory
     factors were satisfied, the supreme court could not conclude
     that the trial court's decision was clearly erroneous.


     Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge;
affirmed.
     Cross, Kearney & McKissic, by: Jesse L. Kearney, for
appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     Derelle Brooks, a seventeen-year-old, was charged with rape in
Jefferson Circuit Court on August 7, 1995.  He moved to transfer
the case to the juvenile division of chancery court.  The motion
was denied.  The Trial Court's statement on the matter emphasized
the seriousness of, and violence involved in, the offense.  We
affirm the decision.
     A "criminal charge sheet" found in the record states that Mr.
Brooks placed his finger in the vagina of the two-year-old victim,
causing her to bleed.  Evidence presented by Mr. Brooks in support
of the transfer motion showed that he and the infant victim were
foster children in the same foster home.  
     Mr. Brooks was charged with statutory rape.  Ark. Code Ann. 
5-14-103(a)(3) (Repl. 1993).  It was alleged that Mr. Brooks
committed the offense by engaging in sexual intercourse or deviate
sexual activity with another person less than fourteen years of
age.
     Mr. Brooks's motion contended he was seventeen and had no
prior felony convictions or delinquency adjudications.  He contends
his motion to transfer should have been granted because he has not
previously been adjudicated as a delinquent, and because there have
been no past efforts to rehabilitate him.
     Section 9-27-318 (Supp. 1995) provides in part:

     (b) A circuit court and a juvenile court have concurrent
     jurisdiction and a prosecuting attorney may charge a
     juvenile in either court when a case involves a juvenile:
     (1) At least sixteen (16) years old when he engages in
     conduct that, if committed by an adult, would be any
     felony;
                             * * * 
     (e) In making the decision to retain jurisdiction or to
     transfer the case, the court shall consider the following
     factors:
     (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.

     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);  Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). 
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, 900 S.W.2d 508 (1995);  Holland v.
State, 311 Ark. 494, 844 S.W.2d 943 (1993).  
     The information, in this case charging a class Y felony, is
sufficient evidence of the serious and violent nature of the crime
to support an order denying the motion to transfer.  See Lammers v.
State, 324 Ark. 222, 920 S.W.2d 7 (1996);  Cole v. State, 323 Ark.
136, 913 S.W.2d 779 (1996).  No element of violence beyond that
required to commit the crime is necessary.  Holmes v. State, 322
Ark. 574, 911 S.W.2d 256 (1995);  Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). 
     It is undisputed that statutory rape is a serious offense. 
See Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996).  Mr.
Brooks contends, however, that the Trial Court erroneously
considered that violence was allegedly employed in its commission. 
He argues that the statute does not require violence to commit
rape, and further, that no evidence of violence was produced by the
State.  The State submits that rape is inherently violent and notes
the allegation that the two-year-old victim suffered severe
bleeding.  Given the allegations in this case we cannot say the
Trial Court erred in its conclusion that the offense charged
involved violence.  We need not consider whether statutory rape is
an inherently violent offense.
     The second statutory factor involves prior adjudicated
offenses.  The only evidence of a prior adjudicated offense
committed by Mr. Brooks consisted of a reference to probation in
his "Social History" report.  That document, generated by the
Department of Human Services, contained the following statement:
"However, the record does indicate that Derelle was placed on
probation for the threat to kill his foster brother in West
Memphis, Arkansas."  
     The third factor involves a determination of the probability
that the juvenile will be rehabilitated.  The statute allows the
Trial Court to consider the prior history, character traits, mental
maturity, or any other factor which reflects upon the juvenile's
prospects for rehabilitation.  The Trial Court noted evidence
showing Mr. Brooks had been relocated in the foster home system
some forty-seven times, largely because of his conduct.  The Trial
Court noted specific instances of prior conduct and failure,
despite admission to counseling centers, to respond to rehabilition
efforts.  The incidents included fighting at school, attacking a
counselor, attacking a foster-parent with a knife, attempting to
strangle a dog, molesting a three-year-old girl, and masturbating
over an eighteen-month-old girl.  Finally, the Trial Court pointed
to the fact that Mr. Brooks was only four months away from his
eighteenth birthday.  Mr. Brooks turned eighteen on April 29, 1996.
     A person who has reached his eighteenth birthday cannot be
committed to a youth-services center. Ark. Code Ann. 9-27-331(a)(1)
(Supp. 1995).  Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992); 
Bright v. State, 307 Ark. 250, 252, 819 S.W.2d 7 (1991).  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.  Hansen v. State, supra.  See, e.g.,  Guy v. State,
323 Ark. 649, 916 S.W.2d 760 (1996);  Sims v. State, supra;  Myers
v. State, 317 Ark. 70, 876 S.W.2d 246 (1994);  Hogan v. State,
supra.  Although Ark. Code Ann.  9-28-208(d) (Supp. 1995) extended
the commitment time for juveniles beyond age eighteen under certain
circumstances, it presupposes that the youth was committed upon
reaching eighteen and that the commitment will continue.  Hansen v.
State, supra.  
     The decision that a juvenile is to be tried in circuit court
as an adult must be supported by clear and convincing evidence. 
Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995);  Williams v.
State, supra.  We will not reverse the Trial Court's decision
unless we determine the decision was clearly erroneous.  Ring v.
State, supra;  Vickers v. State, 307 Ark. 928, 819 S.W.2d 13
(1991).  We can reach no such conclusion in this case.
     Affirmed.
     ROAF, J., dissents.  See dissenting opinion of Justice Roaf in
Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996).