Terp Glenn Leeroy Hodge and Christopher David Couch, Jr. v. State of Arkansas

ar00-793

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

TERP GLENN LEEROY HODGE and

CHRISTOPHER DAVID COUCH, JR.

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-793

FEBRUARY 28, 2001

APPEAL FROM THE SALINE

COUNTY CIRCUIT/CHANCERY

COURT, [NO. CR-00-137-3]

HONORABLE GRISHAM A.

PHILLIPS, JR., CIRCUIT/CHANCERY

JUDGE

AFFIRMED

Appellants Terp Glenn Leeroy Hodge and Christopher David Couch, Jr., appeal the denial of their petitions to transfer to juvenile court. Hodge and Couch were housed by the Department of Youth Services in the Alexander Youth Services Center, and between midnight and sunrise on February 16, 2000, they and a third youth escaped the premises by breaking a window and a screen. During their escape, they entered a truck and a car, and in the process took fifty-five cents, two bottles of cologne, a cowboy hat, and candy from the vehicles. Their escape was of short duration, inasmuch as they were captured that day after sunrise. Appellants were each charged in circuit court with one count of second-degree escape, one count of criminal mischief, one count of theft of property, and two counts of breaking or entering. Appellant Hodge was charged with an additional count of theft of

property. At the time of these offenses, both appellants were approximately seventeen-and-a-half years old.

Upon motion to the Saline County Circuit Court, appellants and the other youth presented argument and evidence in an effort to have their charges heard in juvenile court. The trial court granted the motion of the youngest of the three, who was sixteen years old, but he denied the motion as to appellants. This appeal resulted. We affirm because the trial court's decision was not clearly against the preponderance of the evidence.

The party seeking a transfer to juvenile court has the burden of proving that a transfer is warranted. Heagerty v. State, 335 Ark. 521, 983 S.W.2d 908 (1998). If the movant meets that burden, a transfer will be made unless there is clear and convincing countervailing evidence to support a finding that the movant should remain in circuit court. Id. The trial court's decision to retain jurisdiction will not be reversed unless it is clearly erroneous. Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998); Rhodes v. State, 332 Ark. 516, 967 S.W.2d 550 (1998).

The legislature substantially amended the juvenile transfer statute in the 1999 legislative session by enacting Act 1192, which increased the number of factors to consider when contemplating a transfer motion from three to ten. This new law went into effect prior to the commission of the alleged crimes involved in this appeal.

Arkansas Code Annotated section 9-27-318 (Supp. 1999) states in pertinent part:

(g) In making the decision to retain jurisdiction or to transfer the case, the court shall make written findings and consider all of the following factors:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court;

(2) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;

(4) The culpability of the juvenile including the level of planning and participation in the alleged offense;

(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;

(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living or desire to be treated as an adult;

(7) Whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction;

(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;

(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and

(10) Any other factors deemed relevant by the court.

The trial court made written findings as to each of the three youths and found that the petition would be granted as to the youngest of the three but that it would be denied as to appellants. The bases for granting the third defendant's petition were that he was sixteen years old, he had an above average I.Q., and he had been recommended to the serious offender program by the juvenile intake officer. The trial court's decision as to the petitions of appellants was not clearly erroneous, and this is borne out in the evidence presented at the hearing.

Testimony was taken from the three defendants, and there was no dispute that all three essentially agreed to escape through a window of this facility, evidencing apremeditated and willful intent to escape and establishing group criminal activity, both factors supporting a denial of transfer. Moreover, it is apparent that these young men all had significant histories with the Department of Human Services or with the Department of Youth Services.

The mental evaluations by the clinical psychologist, both prepared in 1999, demonstrate the lack of prospects for rehabilitation. Dr. DeYoub remarked of appellant Hodge that his full scale I.Q. is 78 (low functioning) and further that Hodge:

[I]s a neurotic and disturbed, and depressed individual who at the same time holds very antisocial values and beliefs. It really is the worst combination of psychopathic and mentally disturbed characteristics, or what has been referred to as "schizopath."

....

Therapy has only been marginally successful, if at all, because he has so little ability to think abstractly ... and I think he has accomplished very little over the last four or five years [since being removed from his parents' custody and thereafter placed in the Division of Youth Services].

....

This is a profoundly disturbed and antisocial 17-year-old who is a danger to society and himself.

Dr. DeYoub's evaluation of appellant Couch was likewise negative about the prospects of his rehabilitation. Dr. DeYoub noted that Couch's full scale I.Q. is 87 (low average), and stated:

He has a long history of charges and running since 1995. ... He is always on the run.

....

This is a young man who has a history of emotional problems and substance abuse.

....

He already had months of treatment in various facilities. He continues to do poorly in spite of this. ... Everything has been tried with Christopher and nothing is working.

There is also lacking in these appellants' lives any significant parental involvement. The rights of appellant Hodge's parents have been terminated. Hodge was removed from their custody when he was twelve years old. Appellant Couch was raised partially by his grandmother and partially by his father, between running away and being placed in juvenile or drug-treatment facilities. Both had dropped out of school, and there was no proof that either was markedly progressing toward a GED. These are all relevant in the consideration of factors (6) and (9).

We recognize that appellants' counsel is correct when he states that one in the juvenile system can potentially be held until he or she is twenty-one-years old, Ark. Code Ann. § 9-28-208(c) (Supp. 1999), but we see that there is ample evidence indicating that these two young men cannot or will not respond to the State's efforts to rehabilitate them. Considering that the juvenile system staff had no suggestions of programs that might be worthwhile for these offenders, we are not persuaded by appellants' counsel's suggestion that the trial court erred in failing to endorse longer-term rehabilitation.

The trial judge determined that the offense of escape was a serious offense. See factor (1). Moreover, appellant Hodge was evaluated and determined to be a danger to himself andto others with a long history of residential placement with multiple escapes, and he was less than three months away from his eighteenth birthday on the date of the hearing. Therefore, the trial court determined that Hodge was not likely to benefit from any rehabilitation programs available in the juvenile system. As to appellant Couch, the trial court found that he was just a month younger than Hodge with a long history of charges, placements, and escapes, dating back to 1995. This diminished the possibility of rehabilitation, and thus his petition was denied. In this particular case, we cannot say that the trial court made a clearly erroneous decision, even though no violence was perpetrated against any person during the time these multiple crimes were committed. See Landrum v. State, supra. There were multiple other factors supporting the denial of transfer.

Affirmed.

Neal, J., agrees.

Griffen, J., concurs.