Charles Robinson, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

CHARLES ROBINSON JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CA02-338

NOVEMBER 6, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR2001-1084,

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED

Charles Robinson Jr. and two co-defendants were charged in Pulaski County Circuit Court with capital murder and aggravated robbery, resulting from the robbery and shooting of pizza deliveryman Herman Lockhart. Robinson filed a motion to have his case transferred to juvenile court. At a hearing on the motion to transfer, the State presented testimony by Detective Ronnie Smith of the Little Rock Police Department and certified copies of Robinson's record in juvenile court. The defense presented testimony of the court appointed psychologist and results of the WASI intelligence test. After conducting the hearing, the trial court denied the motion to transfer. Robinson appeals, contending that the denial was in error. We disagree and affirm.

A circuit court's decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(h) (Supp. 2001); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). We will not reverse the trial

court's decision to retain jurisdiction unless it is clearly erroneous, and we will view the evidence in the light most favorable to the State. Ray v. State, 65 Ark. App. 209, 987 S.W.2d 738 (1999).

Arkansas Code Annotated section 9-27-318(g) (Supp. 2001) directs that the circuit court judge, in deciding whether to transfer a case to juvenile court, shall make written findings and consider all of the following factors:

(1) The seriousness of the alleged offense ...;

(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 judge of the juvenile division of circuit court which are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of circuit 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 judge.

Ark. Code Ann. § 9-27-318(g) (Supp. 2001).

The trial court's order listed six reasons for denying the transfer to juvenile court. Those reasons were as follows: the crime charged was of the most serious matter, the commission of the crime involved the use of force, the crime was committed against a person, the commission of the crime involved planning and premeditation, the criminal history of the defendant, and the defendant's level of maturity.

Robinson contends that the State relied only on factors (1), (2), (3), (5), and (8) of the statute. Our review of the record shows that the trial court, speaking from the bench at the conclusion of the hearing, issued individual findings on all factors except (7), which regards available facilities or programs likely to rehabilitate the juvenile. Robinson did not object below to the exclusion of this factor, nor does he address it in his brief. We note that section 9-27-318(g), which requires the circuit court to consider all ten statutory factors and to make written findings, does not require that all the factors be enumerated in the court's findings. Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001).

We turn to the specific arguments on appeal. Robinson argues initially that the State did not allege that he was the triggerman or that he took action to further the crime, and that, at best, the State proved that he encouraged the offense by his presence. At the hearing, Detective Smith testified that Robinson and two other individuals had been suspects in the homicide of Lockhart, who died after he was shot in the chest. Smith testified that Robinson told him that the other two individuals lay in wait for Lockhart, but that Robinson remainedon the other side of the house and ran when he heard a gunshot. Smith also testified that two witnesses who overheard the three individuals planning the robbery said that Robinson's role was to check the victim's pockets. We find that Detective Smith's testimony is sufficient to substantiate the serious nature of the crimes with which Robinson was charged; the aggressive, violent, premeditated, and willful manner in which it was committed; the fact that three individuals were involved in the commission of the crime; and the fact that the crime was against a person.

Robinson also argues that, although he previously received probation in juvenile court for robbery, it must be assumed that he responded favorably to probation and is not beyond rehabilitation because the State did not introduce evidence of that infraction. The State, noting that Robinson would have been eligible for juvenile programs for only eight months between the hearing date and his eighteenth birthday, and noting that previous juvenile offenders programs seemingly did not alter Robinson's behavior, argues that a transfer to juvenile court would have been a windfall to his recidivism. The State argues that the previous commission of robbery, for which Robinson had received probation, and the subsequent offenses of robbery and capital murder, demonstrate that his behavior had escalated into participation in more violent offenses. We agree, and we find no merit in Robinson's argument.

Robinson complains that the State did not subpoena teachers, counselors, parents, and other adults who could have given the court a clear and comprehensive understanding of his maturity and character. He argues that the court did not conduct a "meaningful hearing" onthe motion to transfer, as is required by Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996).

In Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997), the supreme court expounded upon the "meaningful hearing" it had discussed in Sanders v. State, supra. The Thompson court held that the State cannot merely rest upon allegations in the information that a crime was violent and serious, but that evidence at the hearing must substantiate the serious and violent nature of the charges contained in the information. Robinson cites no authority that the State was required to subpoena witnesses he indicates would have helped the court, and he had the opportunity to subpoena witnesses who he believed would have rebutted the State's evidence. We are satisfied the State met the requirements of Sanders and Thompson by presenting evidence at the hearing that substantiated the serious and violent nature of the charges of aggravated robbery and capital murder.

Lastly, Robinson contends that the motion to transfer to juvenile court should have been granted because he suffers from mental retardation. In Carroll v. State, 326 Ark. 882, 934 S.W.2d 523 (1996), the court rejected a similar claim when the juvenile's intelligence score was seventy-four and there was evidence of his ability to function in society. In the case at bar, the transcript of a sanity hearing was introduced without objection. At the sanity hearing, Dr. Edward Stafford, who examined Robinson, testified that Robinson scored a sixty-six on an intelligence test, and that anything below seventy is considered retardation. However, Dr. Stafford opined that Robinson had more adaptive capacity than the score of sixty-six indicated. He stated that Robinson met his activities of daily living and could takecare of himself. We hold that the trial court did not err in finding that Robinson's level of maturity supported the denial of the motion to transfer.

We find no merit in the arguments Robinson raises on appeal, and we hold that the circuit court did not clearly err in denying his motion to transfer.

Affirmed.

Robbins, J., agrees.

Pittman, J., concurs.