J.S. v. State
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-188
J.S., A MINOR
Opinion Delivered OCTOBER
APPELLANT
28, 2009
V.
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT,
[NO. CR-08-337-A]
STATE OF ARKANSAS
HONORABLE JAY T. FINCH, JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
J.S. was charged in the Benton County Circuit Court with aggravated robbery, felony
kidnapping, felony fleeing on foot with serious physical injury, and criminal use of a
prohibited weapon. J.S. was sixteen at the time of the alleged crimes. The charges stem from
an incident in which appellant and six other teenagers allegedly robbed a Wendy’s restaurant
in Rogers while under the influence of various substances. Although he did not carry the
weapon, J.S. allegedly provided a sawed-off shotgun for the robbery along with the group’s
means of transportation. The kidnapping charge arose out of a co-defendant’s forcing a
Wendy’s employee out of her car. The circuit court denied his motion to transfer to the
juvenile division of circuit court. He appeals. We affirm the circuit court’s order.
For his first point on appeal, appellant contends that the circuit court applied the
wrong burden of proof in deciding whether to transfer appellant’s case: the court used a clearand-convincing burden of proof, and appellant contends the proper burden of proof was by
a preponderance of the evidence. Specifically, appellant claims that he sought to transfer his
case to the juvenile division of circuit court under the extended juvenile jurisdiction (“EJJ”)
designation.1 While appellant agrees that the burden of proof in a transfer hearing is generally
by clear and convincing evidence, see Ark. Code Ann. § 9-27-318(h)(2) (Repl. 2008), he
argues that, where one is requesting transfer to the juvenile division of circuit court under the
EJJ designation, the party requesting the designation only has the burden to prove “by a
preponderance of the evidence that such a designation is warranted.” Ark. Code Ann. § 927-503(b) (Supp. 2009).
Before we determine whether the circuit court used the correct burden of proof, we
must first consider whether the issue is properly before us. Appellant admits that he did not
raise this argument in the circuit court. Our law is well settled that we will not consider issues
raised for the first time on appeal, even constitutional ones, because the trial court never had
the opportunity to rule on them. Thomas v. State, 370 Ark. 70, 74, 257 S.W.3d 92, 96
(2007). A contemporaneous objection is required to preserve an issue for appeal; however,
the supreme court has recognized four exceptions to the contemporaneous-objection rule,
known as the Wicks exceptions. Id. at 74, 257 S.W.3d at 97 (citing Wicks v. State, 270 Ark.
781, 606 S.W.2d 366 (1980)). Wicks presents only the following four, narrow exceptions that
are to be rarely applied: (1) when the trial court, in a death-penalty case, fails to bring to the
We note that appellant did not file a motion to transfer, either with or without an
EJJ designation request, but the court held a two-day hearing on the matter on June 25
and 27, 2008. This hearing was referenced by the court in its omnibus/pretrial order
dated May 5, 2008.
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jury’s attention a matter essential to its consideration of the death penalty itself; (2) when
defense counsel has no knowledge of the error and thus no opportunity to object; (3) when
the error is so flagrant and so highly prejudicial in character that the trial court should
intervene on its own motion to correct the error; and (4) when the admission or exclusion
of evidence affects a defendant’s substantial rights. See Thomas, 370 Ark. at 75, 257 S.W.3d
at 97; Anderson v. State, 353 Ark. 384, 395, 398, 108 S.W.3d 592, 599–600 (2003).
Appellant argues that the court’s alleged error in this case falls within the third and
fourth Wicks exceptions. With regard to the fourth exception, we hold that it does not apply
in this instance because the alleged error did not involve the admission or exclusion of
evidence but the proper burden of proof. The fourth Wicks exception is based on Arkansas
Rule of Evidence 103(d) and, as stated in Wicks, “at most applies only to a ruling which
admits or excludes evidence.” Wicks, 270 Ark. at 787, 606 S.W.2d at 370. Appellant has
cited no contrary authority.
The third exception is also not applicable in this case. This exception applies when
the error is so flagrant and so highly prejudicial in character that the trial court should
intervene on its own motion to correct the error. In this case, appellant argues that the circuit
court used the clear-and-convincing burden of proof rather than by a preponderance of the
evidence in determining whether to transfer his case to the juvenile division of circuit court
under the EJJ designation. First, even if the circuit court used the wrong burden of proof,
we do not find that this affected one of appellant’s fundamental rights, as the supreme court
has required in applying this exception. See, e.g., Anderson, supra. This exception has been
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applied only where the error affected the very structure of the criminal trial. Anderson, 353
Ark. at 396, 108 S.W.3d at 600 (holding error involving companion rights of presumption
of innocence and burden of proof beyond a reasonable doubt constituted a third Wicks
exception); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) (holding error involving
fundamental right to jury trial in criminal case constituted a third Wicks exception). The
alleged error in this case did not occur in the criminal trial itself but in a transfer hearing.
Moreover, the alleged error did not affect the very structure of the criminal trial because the
circuit court did not apply the wrong burden of proof.
Arkansas Code Annotated section 9-27-318(e) permits any party to move to transfer
a case from one division of circuit court to another, in this case from the criminal division to
the juvenile division. The circuit court must then conduct a transfer hearing to make the
determination; make written findings on the ten factors set forth in subsection 318(g); and,
upon a finding by clear and convincing evidence that the case should be transferred to another
division of the circuit court, the court shall enter an order to that effect. Ark. Code Ann. §
9-27-318(e),(g),(h).
A party desiring an extended juvenile jurisdiction designation may request such a
designation and the court shall then hold a designation hearing pursuant to Ark. Code Ann.
§ 9-27-503.
The party requesting the designation has the burden to prove by a
preponderance of the evidence that such a designation is warranted. Ark. Code Ann. § 9-27503(b). “The EJJ designation factors and transfer factors the court must consider are almost
identical. As a result, an EJJ designation hearing and transfer hearing may be conducted at the
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same time.” Connie Hickman Tanner, Arkansas’s Extended Juvenile Jurisdiction Act: The Balance
of Offender Rehabilitation and Accountability, 22 U. Ark. Little Rock L. Rev. 647, 656-57
(2000). However, there can be no EJJ designation unless the case either is already in the
juvenile division or is transferred to the juvenile division. Subsection 503(e) states that if the
court denies the requested EJJ designation, then it shall “proceed with the case as a
delinquency proceeding.” Clearly, this presupposes that, before a request for designation is
considered, the case is in the juvenile division.
For example, in Lofton v. State, 2009 Ark. 341, ___ S.W.3d ___ (2009), the supreme
court affirmed the circuit court’s denial of the appellant’s motion to transfer to the juvenile
division.
With regard to the appellant’s simultaneous request for extended juvenile
jurisdiction, the court stated: “Arkansas Code Annotated section 9-27-318(i) provides that,
upon the finding by the criminal division of a circuit court that a juvenile should be
transferred to the juvenile division, the criminal division may enter an order to transfer as an
extended juvenile jurisdiction case. Here, the circuit court found that Appellant should not
be transferred to the juvenile division. Therefore, extended juvenile jurisdiction is not
applicable in this situation.” Lofton, 2009 Ark. 341, at 4, ___ S.W.3d at ___. The fact that
the hearings are conducted simultaneously does not lessen the requesting party’s burden of
proof regarding his request to transfer from the criminal division to the juvenile division.
Appellant’s case was filed in the criminal division of circuit court. In order for his case
to have been eligible for an EJJ designation, the circuit court must have made a finding by
clear and convincing evidence that the case should have been transferred to the juvenile
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division. The court made no such finding here; rather, it denied appellant’s motion to
transfer. Therefore, we hold there was no error that the trial court should have intervened
to correct and thus no Wicks exception to the contemporaneous-objection rule.
For his second point on appeal, appellant contends that, under either burden of proof,
the court erred in denying his request for transfer to the juvenile division under the EJJ
designation. While appellant does not point to any one of the ten factors the court
considered in deciding whether to transfer, he argues that he did not “murder or rape
anyone,” he was immature, and he was amenable to rehabilitation. We will not reverse a
circuit court’s order denying transfer unless it was clearly erroneous. Lofton, 2009 Ark. 341,
at 4, ___ S.W.3d at ___.
The circuit court denied appellant’s motion to transfer, finding appellant failed to
provide clear and convincing evidence that the case should be transferred and making the
following findings on the ten factors:
a. In regards to the seriousness of the alleged offense and whether the
protection of society requires prosecution in the criminal division of the circuit
court, that the alleged offense is serious in nature and the seriousness requires
prosecution in the criminal division of Circuit court;
b. In regards to whether the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner, that evidence was presented showing
that the alleged offense was committed in an aggressive, willful, or
premeditated manner;
c. In regards to whether the offense was against a person or property, with
greater weight being given to offenses against persons, especially if personal
injury resulted, that the commission of this offense was a crime against persons
and not property;
d. In regards to the culpability of the juvenile, including the level of planning
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and participation in the alleged offense, that the Defendant was as culpable as
his co-defendants;
e. In regards to 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, that the Defendant has no
previous juvenile court history or history of violence;
f. In regards to 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, that the Defendant had the benefit of the opportunity to be in a family
with strong support and who was willing to intervene directly when he was not making good
choices;
g. In regards to whether there are facilities or programs available to the judges
of the juvenile division of circuit court that are likely to rehabilitate the
juvenile before the expiration of the juvenile’s twenty-first birthday, that there
are facilities available on the juvenile level for the Defendant.
h. In regards to whether the juvenile acted alone or was part of a group in the
commission of the alleged offense, that Defendant clearly acted as a member of
a group;
i. In regards to written reports and other materials relating to the juvenile’s
mental, physical, educational, and social history, evidence was presented
regarding his history and reviewed by the Court in the making of this decision.
j. In regards to other factors deemed relevant by the Judge, this Court deems
it relevant that this Defendant participated in much of the planning of the
offense and went to the restaurant twice on the night of the alleged crime,
once before returning to commit the alleged offense.
In making its decision denying appellant’s motion to transfer, the circuit court
specifically addressed each of the ten factors in writing as required by Ark. Code Ann. §
9-27-318(g),(h). The circuit court is not required to give equal weight to each of the
statutory factors, and it may use its discretion in deciding the weight to be afforded to each
factor. Lofton, 2009 Ark. 341, at 4, ___ S.W.3d at ___. While the court noted that appellant
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had no criminal history and that there were rehabilitation facilities available, the court also
found that the alleged offenses were serious; that the alleged crimes were committed in an
aggressive, willful, or premeditated manner; that the offenses were against persons rather than
property; that the appellant was as culpable as his co-defendants; that appellant had the benefit
of a supportive family willing to intervene directly when he was not making good choices;
and that appellant participated in the planning of the offense shortly after this intervention.
In light of the evidence presented at the hearing, we hold that the circuit court’s order is
supported by clear and convincing evidence and that appellant has not shown that the circuit
court’s order was clearly erroneous.
Affirmed.
BAKER and BROWN, JJ., agree.
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