Guy v. State

Courtney Carnell GUY v. STATE of Arkansas

95-1148                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 11, 1996


1.   Juveniles -- transfer from circuit to juvenile court --
     factors considered. -- In deciding whether to transfer a case
     to juvenile court, the factors to be considered by the circuit
     court are the seriousness of the alleged offense and whether
     violence was involved, whether the alleged offense is part of
     a pattern of adjudicated offenses, and the prior history,
     character traits, mental maturity, and any other factors that
     reflect upon the juvenile's prospects for rehabilitation.

2.   Juveniles -- transfer from circuit to juvenile court -- party
     seeking transfer has burden of proving transfer is warranted.
     --  The party seeking the transfer from circuit to juvenile
     court has the burden of proving that the transfer is warranted
     under Ark. Code Ann.  9-27-318(e) (Supp. 1995).

3.   Juveniles -- transfer from circuit to juvenile court -- court
     not required to give factors equal weight. -- In juvenile-
     transfer cases, the circuit court is not required to give
     equal weight to each statutory factor, nor is proof required
     to be presented with regard to each factor.

4.   Juveniles -- transfer from circuit to juvenile court --
     circuit court's decision to retain jurisdiction must be
     supported by clear and convincing evidence. -- If the circuit
     court decides to retain jurisdiction of the juvenile's case,
     that decision must be supported by clear and convincing
     evidence; clear and convincing evidence is evidence of a
     degree that produces in the trier of fact a firm conviction as
     to the allegation sought to be established.

5.   Juveniles -- transfer from circuit to juvenile court --
     standard of review. -- The supreme court will not reverse a
     circuit court's decision to retain jurisdiction of a
     juvenile's case unless that decision is clearly erroneous.

6.   Juveniles -- transfer from circuit to juvenile court -- use of
     violence is sufficient factor for circuit court to retain
     jurisdiction. -- The use of violence in committing a serious
     offense is a factor sufficient in and of itself for a circuit
     court to retain jurisdiction of a juvenile.

7.   Juveniles -- transfer from circuit to juvenile court --
     appellant's association with use of weapon in "drive-by"
     shooting was sufficient to satisfy violence criterion. --
     Where the trial court's order specifically found that the
     charges stemmed from a "drive-by" shooting in a residential
     neighborhood, that the charges were serious in nature, and
     that violence was employed in the firing of a total of six
     .380-caliber rounds toward an individual and a residence, the
     supreme court determined that it was of no consequence that
     appellant may or may not have personally used a weapon because
     his association with the use of a weapon in the course of the
     crimes was sufficient to satisfy the violence criterion.

8.   Juveniles -- transfer from circuit to juvenile court -- no
     violence beyond that necessary to commit offense is necessary.
     -- No violence beyond that necessary to commit the offense
     charged is necessary to satisfy the statutory factor of
     violence.

9.   Juveniles -- transfer from circuit to juvenile court --
     circuit court's order retaining jurisdiction affirmed. --
     Where it was not apparent that the trial court failed to
     consider the remaining statutory factors regarding juvenile-
     transfer cases, the supreme court affirmed the circuit court's
     order retaining jurisdiction.


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
affirmed.
     Daniel D. Becker and Michael E. Harmon, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.





Associate Justice Donald L.
Corbin, 3-11-96  *ADVREP5*





COURTNEY CARNELL GUY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



95-1148



APPEAL FROM THE GARLAND COUNTY
CIRCUIT COURT,
NO. CR 95-221-CC,
HON. TOM SMITHERMAN, JUDGE,



AFFIRMED.






     Appellant, Courtney Carnell Guy, appeals the order of the
Garland County Circuit Court denying his motion to transfer his
case to juvenile court.  This interlocutory appeal is authorized by
statute, Ark. Code Ann.  9-27-318(h) (Supp. 1995).  Jurisdiction
is therefore properly in this court.  Ark. Sup. Ct. R. 1-2(a)(12). 
We find no error and affirm the denial of the motion to transfer.
     Consistent with the discretion given in section 9-27-
318(b)(1), appellant was charged by information in circuit court,
along with two others, Jerry Burkes and Tarrel Macon, alleging that
on June 8, 1995, they committed two counts of terroristic act in
violation of Ark. Code Ann.  5-13-310 (Repl. 1993) and one count
of aggravated assault in violation of Ark. Code Ann.  5-13-204
(Repl. 1993).  Appellant was born September 28, 1978, and was
therefore aged sixteen years at the time the crimes were alleged to
have been committed.  We recently affirmed the denial of Macon's
motion to transfer.  Macon v. State, 323 Ark. 498, ___ S.W.2d ___
(1996).  An affidavit of probable cause indicated that a total of
six shots were fired with a weapon at two residences and one person
outside one of the residences near a vehicle.  The affidavit
indicated that one bullet struck the driver's door of the vehicle
and another bullet entered the other residence, struck a metal
object, and landed in the shirt collar of the resident.  According
to the affidavit, four spent .380-caliber casings were found in the
street near the residences.
     Appellant moved to transfer his case to juvenile court, and
the circuit court held a hearing on the motion.  Appellant
presented no evidence or witnesses in support of his motion.  The
state called a single witness, Sharon Smith, a juvenile court
intake officer who was familiar with appellant.  
     Smith testified that appellant had two prior adjudications in
the juvenile system.  In February 1992, appellant was charged with
theft of property valued at less than $200.00; he was sentenced to
a suspended term of ten days in jail, placed on probation, assessed
costs, and ordered to twenty-five hours of community service. 
Appellant was discharged from that probation in September 1992.  In
February 1995, appellant was charged with criminal trespass; he was
again given probation, assessed costs, and ordered to twenty-five
hours community service.  Smith stated that, according to her
files, appellant had not yet completed the community service
requirement.  
     Smith also testified, based on her experience, as to the
possible punishments applicable to appellant's current case. 
According to Smith, jail was not a viable option because Garland
County did not have a juvenile detention facility.  Smith stated
that, if appellant were transferred to a juvenile detention
facility in another county, the maximum time appellant would serve
would be ninety days.  Smith also mentioned the training school,
but stated appellant would only be there for a short time also. 
The only long-term program of which Smith was aware was the serious
offender program; she could not guarantee appellant would be
accepted in that program if adjudicated delinquent on these
charges, although she could recommend that program.  Finally, Smith
testified that, while appellant could remain under a juvenile
court's jurisdiction until aged twenty-one years, he could not be
held in a juvenile facility past his eighteenth birthday on
September 26, 1996.
     On cross-examination, Smith opined that appellant's previous
adjudications were not for serious crimes.  She also stated that,
in addition to jail, the juvenile system had other options for
appellant that had not yet been offered to him. 
     After the hearing, the trial court took the motion under
advisement and later entered an order denying the motion.  In
deciding whether to transfer a case to juvenile court, the factors
to be considered by the circuit court are the seriousness of the
alleged offense and whether violence was involved, whether the
alleged offense is part of a pattern of adjudicated offenses, and
the prior history, character traits, mental maturity, and any other
factors that reflect upon the juvenile's prospects for
rehabilitation.  McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671
(1995) (citing Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994)
and section 9-27-318(e)).  Appellant, as the party seeking the
transfer, has the burden of proving the transfer is warranted under
section 9-27-318(e).  Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).  The circuit court is not required to give equal weight
to each factor, nor is proof required to be presented with regard
to each factor.  McGaughy, 321 Ark. 537, 906 S.W.2d 671.  However,
if the circuit court decides to retain jurisdiction of the
juvenile's case, that decision must be supported by clear and
convincing evidence.  Section 9-27-318(f); Sebastian, 318 Ark. 494,
885 S.W.2d 882.  Clear and convincing evidence is evidence of a
degree that produces in the trier of fact a firm conviction as to
the allegation sought to be established.  Cole v. State, 323 Ark.
136, ___ S.W.2d ___ (1996).  This court will not reverse a circuit
court's decision to retain jurisdiction of a juvenile's case unless
that decision is clearly erroneous.  Id.   
     Appellant does not seriously dispute that he was charged with
serious offenses and that violence was involved, but contends that
the trial court erred in failing to consider the remaining
statutory factors.  Specifically, appellant argues that because he
had two prior adjudications for which he had only received
probation, there were other punishments available to him within the
juvenile system, and therefore it could not be said that he had
little or no prospects for rehabilitation.  Appellant contends he
met his burden as the moving party through Smith's testimony.  
     Appellant's argument is without merit.  This court has
repeatedly held that the use of violence in committing a serious
offense is a factor sufficient in and of itself for a circuit court
to retain jurisdiction of a juvenile.  Holland v. State, 311 Ark.
494, 844 S.W.2d 943 (1993).  The trial court's order specifically
found that the charges stemmed from a "drive-by" shooting in a
residential neighborhood, that the charges were serious in nature,
two of which were Class B felonies with a punishment range of five
to twenty years each, and that violence was employed in the firing
of a total of six .380-caliber rounds toward an individual and
residence.  It is of no consequence that appellant may or may not
have personally used a weapon, as his association with the use of
a weapon in the course of the crimes is sufficient to satisfy the
violence criterion.  Collins v. State, 322 Ark. 161, 908 S.W.2d 80
(1995) (citing Walter v. State, 317 Ark. 274, 878 S.W.2d 374
(1994)).  Furthermore, no violence beyond that necessary to commit
the offense charged is necessary.  Cole, 323 Ark. 136, ___ S.W.2d
___.  It is not apparent that the trial court failed to consider
the remaining statutory factors.  The order made findings with
respect to appellant's age and education level as well as his prior
adjudications and punishments.
     The circuit court's order retaining jurisdiction is affirmed.
     DUDLEY, NEWBERN, and GLAZE, JJ., concur.*ADVREP5A*





COURTNEY CARNELL GUY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



95-1148


Opinion Delivered:  3-11-96





CONCURRING OPINION




                  TOM GLAZE, Associate Justice

     This case is a companion appeal to one we handed down on
February 19, 1996, Macon v. State, 323 Ark. 498, ____ S.W.2d ____,
and involves identical facts and contentions.  There is, however,
a difference in the two juveniles' ages.  That difference is what
prompts my concurring opinion.  
     In Macon, we rejected the seventeen-year-old juvenile's
argument that the trial court had failed to consider factors (2)
and (3) of Ark. Code Ann.  9-27-318(e) (Supp. 1995) when deciding
whether to transfer his case to juvenile court.  We then determined
the proof was sufficient to support the trial court's holding that
Macon's actions and offenses exhibited a serious and violent nature
under  9-27-318(e)(1), and affirmed the decision, denying Macon's
motion to transfer.  We added that Macon failed to show the trial
court clearly erred in finding Macon was not a good prospect for
rehabilitation, especially in view of the fact Macon would turn
eighteen years old within thirty days after the hearing.  See
McGaughey v. State, 321 Ark. 537, 906 S.W.2d 671 (1995).  For
example, a person who has reached his eighteenth birthday cannot be
committed to a youth services center.  Ark. Code Ann.  9-27-
331(a)(1) and 9-28-206 (Supp. 1995); Bright v. State, 307 Ark. 250,
819 S.W.2d 7 (1991).
     The Macon decision is unquestionably controlling here, because
juvenile Courtney Guy's actions and offenses are the same as
Macon's, and therefore support denial of his motion to transfer
under  9-27-318(e)(1).  However, unlike Macon who had turned
eighteen years old only days after his transfer hearing, Guy was
only sixteen at the time of his hearing; thus, existing
rehabilitation programs (such as youth services center) were still
available for Guy, assuming he had met the other requirements of 
9-27-318(e).  Because Guy's prior offenses involved misdemeanor
criminal trespass and theft, I believe he would have been a viable
candidate for rehabilitation except for the seriousness of his and
his accomplices' actions and employment of violence.  
     In sum, I would affirm solely on the basis that Guy failed to
show the trial court erred in finding the proof supported its
denial decision under  9-27-318(e)(1).
     DUDLEY and NEWBERN, JJ., join this concurrence.