Brown v. State

Damien BROWN v. STATE of Arkansas

97-723                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 13, 1997


1.   Juveniles -- juvenile transfer -- evidence more than
     sufficient to sustain denial. -- Where appellant testified
     that he was eighteen; admitted that he had committed the prior
     crimes of theft, battery, and aggravated robbery; admitted to
     having violated probation; and where both the detective's and
     appellant's own testimony showed that appellant had
     participated in serious offenses where violence was employed,
     appellant's prior history of criminal acts was sufficient for
     the circuit court to conclude a repetitive pattern of
     adjudicated offenses showing he was beyond rehabilitation;
     this evidence bore on all three of the factors that a circuit
     court must consider under Ark. Code Ann.  9-27-318(e) (Supp.
     1995) and was more than sufficient to sustain the court's
     ruling to deny appellant's motion to transfer his charges to
     juvenile court.

2.   Juveniles -- appellant close to nineteen -- persons over
     eighteen cannot be committed to Division of Youth Services. -- 
     Where appellant was close to nineteen years old and had not
     been committed to the Division of Youth Services at the time
     he turned eighteen, he could not now be committed; young
     people over the age of eighteen can no longer be committed to
     the Division of Youth Services (DYS) for rehabilitation unless
     they are already committed at the time they turn eighteen.   

3.   Appeal & error -- issue not raised below will not be
     considered on appeal. -- Appellant's contention that the
     State's evidence was "incompetent" because the detective's
     testimony was hearsay was meritless; where appellant never
     raised the issue below, the supreme court would not consider
     it on appeal. 

4.   Evidence -- appellant never objected to detective's testimony
     -- hearsay admitted without objection can constitute
     sufficient evidence to support denial of motion to transfer. -
     - Appellant's contention that the State's evidence was
     "incompetent" because the detective's testimony was hearsay
     was meritless where appellant offered no objection to any part
     of the detective's testimony; hearsay admitted without
     objection can constitute sufficient evidence to support the
     denial of a transfer motion. 

5.   Evidence -- appellant's contention without merit --
     appellant's testimony alone sufficient to sustain trial
     court's ruling. -- Appellant's contention that the State's
     evidence was "incompetent" because the detective's testimony
     was hearsay was meritless where appellant's testimony alone
     sustained the trial court's ruling because it validated that
     he was over eighteen years old, had a prior history of
     criminal acts, and had previously violated probation in
     juvenile court.  


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     William R. Simpson, Jr., Public Defender, by:  Deborah R.
Sallings, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     This is a companion case to Damien Brown v. State, 97-722,
which is also being handed down today.  Both cases involve Brown's
appeal from an interlocutory order where the circuit court denied
a motion to transfer his case to juvenile court.  Here, Brown was
charged in circuit court with aggravated robbery and theft of
property.  He was nine days short of being eighteen years old when
he allegedly committed the crimes, and had turned eighteen when his
transfer motion was denied.   
     At Brown's transfer hearing, Detective Jeff Norman testified
that Brown had been identified as one of three subjects who entered
a grocery store to steal money.  One of the subjects had a gun and
threatened to shoot the store employee if he did not open the cash
register.  Brown was identified as standing at the front door and
telling the other two men to hurry.  When the men were unable to
open the cash register, they grabbed candy and cigarettes and fled. 
Norman further identified three prior juvenile orders, introduced
into evidence, showing Brown had committed two thefts, battery in
the third degree, and an aggravated robbery.
     Brown also testified, confirming his age to be eighteen and
admitting he had committed the prior crimes of theft, battery, and
aggravated robbery.  He also admitted to having violated probation. 
Detective Norman's and Brown's own testimony showed Brown had
participated in serious offenses where violence was employed, and
his prior history of criminal acts was sufficient for the circuit
court to conclude a repetitive pattern of adjudicated offenses
showing he was beyond rehabilitation.  In sum, this evidence bore
on all three of the factors that a circuit court must consider
under Ark. Code Ann.  9-27-318(e) (Supp. 1995), and it is more
than sufficient to sustain the court's ruling to deny Brown's
motion to transfer his charges to juvenile court.  A factor not to
be forgotten, too, is that Brown is now close to nineteen years
old, and we have repeatedly held that young people over the age of
eighteen can no longer be committed to the Division of Youth
Services (DYS) for rehabilitation unless they are already committed
at the time they turn eighteen.  Brown had not been committed to
DYS.  See Ark. Code Ann.  9-28-208(d) (Supp. 1995); Maddox v.
State, 326 Ark. 515, 931 S.W.2d 438 (1996).
     In conclusion, Brown contends the State's evidence was
"incompetent" because Detective Norman's testimony was hearsay. 
His contention is meritless for several reasons.  One, Brown never
raised the issue below, so this court will not consider it on
appeal.  Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996).  Two,
Brown offered no objection to any part of Norman's testimony, and
this court has held that hearsay admitted without objection can
constitute sufficient evidence to support the denial of a transfer
motion.  Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). 
And three, Brown's testimony alone sustains the trial court's
ruling because it validated that he is over eighteen years old, had
a prior history of criminal acts, and had previously violated
probation in juvenile court.  
     For the reasons above, we affirm.