Jose Antonio Aldaco v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE LARRY D. VAUGHT

DIVISION IV

JOSE ANTONIO ALDACO

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA00-277

February 21, 2001

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

CR99-1222

HON. WILLIAM A. STOREY,

CIRCUIT JUDGE

AFFIRMED

This is an interlocutory appeal of a circuit court order denying appellant's motion to transfer his case to juvenile court. Appellant Jose Aldaco was charged in Washington County Circuit Court with two counts of accomplice to terroristic act, involving a June 10, 1999, drive-by shooting. For his appeal, appellant contends that the trial court erred (1) when it overruled his hearsay objection to the probation officer's testimony; and (2) by basing its decision to deny the motion to transfer solely on allegations contained in the information without the State presenting evidence that would substantiate the serious and violent nature of the offense. We affirm.

Appellant first contends that the trial court should have excluded hearsay testimony of Debbie Pursely, a juvenile probation officer for Benton County juvenile court, because a probation officer's reports do not fall within the exceptions of Ark. R. Evid. 803(6) or (8). At the hearing on the motion to transfer, Ms. Pursely indicated that she was testifying from the records of appellant's probation officer, Shane Cross, who left the department three weeks prior to the hearing. After Ms. Pursely testified that she had reviewed Mr. Cross's files, appellant's counsel objected on the basis that the State had not established that Ms. Pursely was the custodian of records. The State questioned Ms. Pursely to establish that she was in fact the custodian. The State then asked the court for permission to proceed. The court responded, "I take it to mean that she is the custodian of these records, is that correct?" Ms. Pursely responded affirmatively, and the court said, "Okay." Appellant's counsel then said, "I'll renew my objection, Your Honor, but I gather you've overruled it." The court responded, "Yes, I have."

The trial court inquired whether Ms. Pursely was the custodian of records and accepted that she was. Appellant did not elicit testimony to refute that Ms. Pursely was the custodian of the records. A trial judge has wide discretion in determining the qualification of witnesses and the admissibility of evidence. Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992). A trial court's evidentiary rulings will not be reversed absent a manifest abuse of discretion. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000). We cannot say that the trial court abused its discretion in admitting Ms. Pursely's testimony.

Appellant also contends that a probation officer's records are investigative reports of law enforcement personnel, and thus inadmissible under Ark. R. Evid 803(8). However, appellant did not make this objection to the trial court. A party is bound on appeal by the scope and nature of the objections and arguments presented at trial, and he cannot change the grounds for an objection on appeal. Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995). Accordingly, appellant did not preserve this argument for appeal. But had the argument been preserved, we could not say that the trial court abused its discretion in admitting the testimony because the probation officer's records are not investigative reports. Thus, the records would also have been admissible under Rule 803(8).

Appellant next contends that the trial court's decision to deny the motion to transfer is clearlyerroneous. Prior to its amendment in 1999, Ark. Code Ann. § 9-27-318(e) (Repl. 1998) required the trial court to consider only three factors in deciding whether to retain jurisdiction or to transfer the case. A circuit court was not required to give equal weight to each of the three statutory factors; nor did evidence have to be presented regarding each factor. Jongewaard v. State, 71 Ark. App. 269, 29 S.W.3d 758 (2000). Although neither party argues that we are required to apply Ark. Code Ann. § 9-27-318, as amended, we will consider the amended statute because the hearing on the motion to transfer was held on January 19, 2000, and trial courts must follow procedural rules in effect at the time of a proceeding. Id. This is the case even though the incident leading to the proceeding occurred on June 10, 1999, prior to the amendment going into effect July 30, 1999. Id.

Section 9-27-318(g)(Supp. 1999) provides in 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.

This section does not require a trial judge to enumerate all ten factors in the findings. Jongewaard v. State, supra. The statutory purpose is satisfied when the record shows that the trial court considered the factors in reaching its decision to retain jurisdiction or to transfer the case. Id.

The circuit court's decision to retain jurisdiction must be supported by clear and convincing evidence. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). Id. On appeal, we will not reverse a trial court's decision to retain jurisdiction unless it is clearly erroneous. Id.

Appellant contends that the trial court erred in denying his motion to transfer because there was no evidence that appellant committed the crimes in a violent manner. Citing Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997), appellant argues that a court cannot base its decision on a motion to transfer solely upon the allegations contained in the information. Although not abstracted by appellant, the investigating officer, Officer Hines, testified at the hearing and his testimony is contained in the record on appeal. The appellate court may go to the record to affirm. Turner v. State, 59 Ark. App. 249, 956 S.W.2d 870 (1997).

Officer Hines testified that he responded to a drive-by shooting reported during the early morning hours of June 10, 1999. Officer Hines stated that he met with the victim in the emergency room. The victim was upset and shaking, and he had a bandage on his left arm, which was bleeding. The victim told the officer that he was a passenger in a vehicle when words were exchanged with occupants of a passing vehicle. Officer Hines stated that the victim indicated that gunshots were fired from the passing vehicle, striking the victim in the arm. Officer Hines found the vehicle in which the victim was a passenger and discovered that one of the other passengers had been shot in the finger. The officer testified that a female who had been in the vehicle from which shots werefired made a statement to the Rogers Police Department that appellant did the shooting. Appellant was apprehended and arrested by another officer.

Ms. Pursely testified regarding appellant's history in the juvenile system. She stated that Benton County took courtesy supervision of appellant's probation after he was sentenced in Washington County on September 28, 1999. She indicated that Mr. Cross first met with appellant the first week of October 1999 and that appellant indicated he would not pass the drug screen because he had used marijuana. Subsequently, Mr. Cross was notified by a Rogers detective that there was a felony warrant out for appellant. Ms. Pursely stated that appellant failed to appear at his arraignment on a criminal mischief charge in Benton County on December 1, and was arrested on December 2. Appellant was adjudicated on January 5 and placed on probation. She testified that appellant reported to Mr. Cross on January 6 and again stated that he would not be able to pass the drug test because he had used marijuana two weeks prior. Ms. Pursely stated that besides the felony charges at issue, appellant was to be arraigned on January 24, 2000, for the class C felony of sexual abuse in the first degree. She also testified that appellant would be eighteen on March 12, 2000, and that appellant would be dismissed from the Department of Youth Services under the current law. In her opinion, there was not any service in Arkansas from which appellant could benefit. She stated that if appellant violated probation after age eighteen, he could not be held in a detention center.

Ms. Pursely also testified that a FINS (family in need of services) petition was filed in Benton County Juvenile Court in June 1999, arising out of behavioral problems at Rogers High School and at home. The petition was dismissed due to the charges pending in Washington County Circuit Court and the criminal mischief charge in Benton County Juvenile Court. She stated that, according to the FINS petition, appellant missed approximately thirty-seven days of school duringa four-month period from January to April and had behavioral problems at school involving disrespect to teachers, insubordination, inappropriate drawing material, failing to report for detention, and tardiness.

The trial court found that the crime for which appellant was charged was serious and was carried out in a violent manner. The crime at issue was also against a person. The trial court found that appellant's prospects for rehabilitation were remote considering that appellant entered the juvenile system in June 1999 through a FINS petition as a result of problems he had at Rogers High School. The court noted that appellant had two adjudications of criminal mischief and admitted to using marijuana on two separate occasions. The trial court also stated in its written findings that the likelihood of rehabilitation was slim due to appellant's age and the availability of services in the juvenile system. Appellant's age adversely reflects upon his prospects for rehabilitation. Heagerty v. State, supra. Appellant was seventeen at the time of the hearing in January 2000, and will have his nineteenth birthday on March 12, 2001.

Based on the evidence presented at the hearing and the findings of the trial court, we cannot say that the trial court's decision to deny the motion to transfer was clearly erroneous.

Affirmed.

Stroud, C.J., and Bird, J., agree.