Otis Brewer, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA02-931

MARCH 19, 2003

OTIS BREWER, JR. AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [CR2002-1421]

STATE OF ARKANSAS HONORABLE WILLARD PROCTOR, JR JUDGE

APPELLEE

AFFIRMED

Appellant, Otis Brewer, Jr., appeals from an order of the Pulaski County Circuit denying his motion to transfer the case against him to juvenile court. For reversal, appellant contends that the circuit court erred in refusing to transfer his case to juvenile court. We affirm.

On June 5, 2002, appellant was charged by felony information with the crimes of capital murder, aggravated robbery, and battery in the first degree. The charges stemmed from the March 1, 2002, robbery of Sim's Barbecue located on 33rd Street in Little Rock. At the time of the alleged offenses, appellant was seventeen years old. His date of birth is July 17, 1984.

At the transfer hearing, Ronald Settlers, the owner of Sim's Barbecue, testified that, while standing behind the counter of the restaurant, he saw two men wearing ski masksstanding in the door of the restaurant with guns. Settlers stated that it was around 8 p.m. and that there were about six customers in the restaurant. He also stated that he did not know the men. Settlers testified that his first instinct was to reach for the .380 Colt that he kept under the counter. Settlers further testified that he shot one of the men when he ran toward the counter demanding the money bag. He stated that immediately thereafter, the other man started shooting and that he and the man exchanged gunfire as the men fled. Settlers testified that afterwards, one of the men was found dead in front of the restaurant. Settlers also testified that, as a result of the exchange, he sustained a gun shot wound to his thumb.

Officer Ronnie Smith of the Little Rock Police Department testified that about fifteen minutes after the shooting, appellant was arrested. He stated that appellant was arrested at his sister's home, which was about six blocks from the restaurant. Officer Smith testified that a ".22 automatic" was retrieved from the home. He also testified that Keith Thomas, the get-away driver, was also arrested. Officer Smith further testified that the dead suspect was identified as Willie Tally. He stated that autopsy results revealed that Tally had been shot by both a .380 caliber gun and a .22 caliber gun.

Katie Dow, a special education teacher at Sylvan Hills Middle School, testified that appellant was a student in her class two years ago. She also testified that appellant had learning disabilities and described appellant as reserved and a follower.

Douglas Murphy, appellant's stepfather, also testified. He described appellant as immature and "on the slow side." Murphy testified that appellant did not have a prior criminal history and that appellant had never been in trouble in juvenile court. He alsotestified that he had never experienced any problems with appellant that involved violent or aggressive behavior.

At the conclusion of the hearing, the circuit court denied appellant's motion to transfer. In his ruling from the bench, the circuit judge stated that he found the following:

That the offense is a serious offense and the protection of society does require prosecution as an extended juvenile jurisdiction offender or in circuit court; the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; the offense was against property, and personal injury resulted; the juvenile has not acknowledge [sic] culpability and was not solely responsible for the commission of the offense in any event; the juvenile does not have a previous history of being adjudicated a juvenile offender; the sophistication and 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 is that the juvenile is immature and a slow learner; there are no facilities and programs available to the court which are likely to rehabilitate the juvenile prior to expiration of the court's jurisdiction; the juvenile did not act alone in the commission of the offense, and there are no written reports; however, there are other materials relating to the juvenile's physical, mental, educational, and social history; the juvenile suffers from asthma and [a] leg injury that he has had since early childhood; the juvenile has a brain clot that may impair his learning and health; the juvenile was in special education classes and was a hard worker but needed assistance in activities of daily living; the juvenile was at North Little Rock High School, but because of his falling behind was seeking a GED. And for all these- for all the foregoing reasons, this matter should not be transferred to juvenile court.

Appellant now argues that the court's decision not to transfer the case was clearly erroneous. 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). A circuit court's decision to retain jurisdiction of criminal charges against the juvenile must be supported by clear and convincing evidence. 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 trierof fact a firm conviction as to the allegations sought to be established. Id. We will not reverse a circuit court's decision to retain jurisdiction unless the decision is clearly erroneous. See Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998).

When deciding whether to retain jurisdiction or to transfer a case to juvenile court, the circuit court must consider 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 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 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) (Repl. 2002); Witherspoon v. State, 74 Ark. App. 151, 46 S.W.3d 549 (2001). A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. Heagerty v. State, 62 Ark. App. 283, 971 S.W.2d 793 (1998).

Here, while acting in concert with two other individuals, appellant went into a restaurant brandishing a weapon while customers were present. During the commission of the robbery, appellant exchanged gunfire with the restaurant's owner, and as a result of appellant's actions, the owner sustained a gunshot wound and one of appellant's cohorts died. Furthermore, the court found that appellant had failed to acknowledge his culpability. The court also found that there were no programs likely to rehabilitate appellant prior to the expiration of the court's jurisdiction. Therefore, based on the foregoing, we conclude that the circuit court's decision to retain jurisdiction was not clearly erroneous.

Affirmed.

Gladwin and Baker, JJ., agree.