Shawn Keniston v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

SHAWN KENISTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-88

SEPTEMBER 17, 2003

APPEAL FROM THE CARROLL

COUNTY CIRCUIT COURT,

WESTERN DISTRICT

[NO. CR 02-30WD]

HONORABLE ALAN DAVID EPLEY,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Shawn D. Keniston was charged with rape by engaging in sexual intercourse or deviate sexual activity with another person who was less than fourteen years of age. The crime was allegedly committed between March 20 and March 21, 2002, when Shawn was seventeen years old. After being criminally charged as an adult in circuit court, he filed a motion to transfer the case to the juvenile division of circuit court. Following a hearing on the matter, the trial court denied the motion. Mr. Keniston now appeals, arguing that the trial court erred in denying his motion to transfer.

Debra Reed, appellant's aunt, testified at the hearing. She stated that Shawn began living with her in August 2001. According to Ms. Reed, she had to discipline Shawn for problems he was having in school, which included confrontations with other boys and arguments with teachers. She testified that Shawn's temper would get out of control, and that on two occasions she had visits with his school principal regarding his actions. For his misbehavior, he received detentions at school. Shawn was also grounded by Ms. Reed for problems he was having with alcohol and marijuana.

Ms. Reed testified that before moving in with her, Shawn lived with his sister at a home owned by Shawn's mother, while his mother was out of state driving a truck and otherwise residing in Ohio. His sister enlisted in the Army, and Shawn lived by himself during the summer before the 2001 school year. Prior to that he was under the care of his girlfriend's parents and, before then, he was in juvenile detention in Boone County. Ms. Reed testified that it was her understanding that at one time Shawn was asked to leave the Arkansas Baptist Boys Ranch for threatening and physically confronting his house parent, and that the incident resulted in juvenile proceedings.

Tom Reynolds testified that his daughter is the alleged victim in this case. He indicated that since being charged, there was a protection order against Shawn, and that Shawn violated it. Mr. Reynolds described how, on one occasion, Shawn was riding byhis house with friends and was pointing and laughing. On another occasions, Shawn allegedly confronted Mr. Reynolds while he was working and said "something to the effect of killing my daughter in front of me, and then killing me."

On appeal, Mr. Keniston argues that the trial court erred in failing to grant his motion to transfer the case to juvenile court. He notes that, pursuant to Ark. Code Ann. § 9-27-318(g) (Repl. 2002), the trial court must consider the following factors in deciding whether to retain jurisdiction or transfer the case:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in the criminal division of 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 person 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.

Mr. Keniston asserts that, applying the above factors, his case should have been transferred.

In support of his argument, Mr. Keniston points out that, while Mr. Reynolds alleged that he threatened to kill him and his daughter, there was no police report to corroborate his testimony. Mr. Keniston further asserts that, while there was some evidence of his prior misbehavior, the State failed to prove that the alleged rape for which he was charged was part of a repetitive pattern of offenses, or that he had been previously adjudicated delinquent. As to his chances for rehabilitation, Mr. Keniston notes that he has never been in counseling and submits that he would be a good candidate.

Mr. Keniston acknowledges that he is now eighteen years old, but cites Ark. Code Ann. § 9-28-208 (d) (Repl. 2002), which provides that an order of commitment to the Division of Youth Services may extend through the twenty-first birthday of a juvenile. He further notes that there are other alternatives to commitment, including probation, fines, community service, or residential detention. See Ark. Code Ann. § 9-27-330(a) (Repl. 2002).

Finally, Mr. Keniston acknowledges that the charge of rape is serious. However, the State offered no proof at the hearing regarding the alleged offense. In Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1998), our supreme court held that the trial court may not rely solely upon the allegations contained in the information to support its finding that a juvenile should be tried as an adult due to the serious and violent nature of the crime. Pursuant to Ark. Code Ann. § 9-27-318(d) (Repl. 2002), a meaningful hearing is required in which some evidence must be presented to substantiate the serious and violent nature of the charges contained in the information. Id. In the present case, Mr. Keniston argues that there was no testimony to support the allegations in the information, and that the State has otherwise offered no reason as to why he should be tried as an adult.

A defendant bears the burden of proving the necessity of a transfer from circuit court to juvenile court. Jongewaard v. State, 71 Ark. App. 269, 29 S.W.3d 758 (2000). Once the defendant meets this burden, the State must show countervailing evidence that warrants the circuit court retaining the case. Id. 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) (Repl. 2002); Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998). 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. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). When reviewing the denial of a motion to transfer a case to juvenile court, we view the evidence in the light most favorable to the State and do not reverse unless the trial court's decision is clearly erroneous. Id.

Viewing the evidence in the light most favorable to the State, we hold that the circuit court's decision to retain jurisdiction was not clearly erroneous. In Thompson v. State, supra, cited by Mr. Keniston, the supreme court reversed the trial court's refusal totransfer the case because there was no testimony to substantiate the seriousness and violent nature of the offenses charged. However, in that case the State put on no evidence at the hearing and the juvenile was only sixteen years old. The case at bar is distinguishable because the State offered proof on other factors, and did not rely solely on the seriousness and violent nature of the offense.

In the instant case there was evidence presented to show that Mr. Keniston had a poor previous history. There was evidence that his problems at school included confrontations with other students and teachers, and that he had trouble controlling his temper. There was also testimony that he had a prior history in the juvenile court system after having threatened and confronted a house parent. As further evidence of his misbehavior and propensity for violence, the victim's father testified that Mr. Keniston confronted him and made death threats.

There was also some evidence of Mr. Keniston's maturity level, as he was at one time able to live alone and care for himself. He is currently eighteen years of age, and this bears negatively on whether there are facilities or programs available that are likely to succeed in his rehabilitation. While Ark. Code Ann. § 9-28-308(d) (Repl. 2002) provides, "commitment shall not exceed the twenty-first birthday of a juvenile," young people over the age of eighteen cannot be committed to the Division of Youth Services for rehabilitation unless they are already committed at the time they turn eighteen. Brown v. State, 330 Ark. 518, 954 S.W.2d 276 (1997).

In making its decision on a motion to transfer, 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). In this case the trial court considered all of the applicable factors in light of the proof presented and found by clear and convincing evidence that jurisdiction should be retained. Upon reviewing the proof before the trial court, we cannot say this decision was clearly erroneous.

Affirmed.

Griffen and Neal, JJ., agree.