Booker v. State

James BOOKER, Jr. v. STATE of Arkansas

95-327                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 28, 1996


1.   Juveniles -- denial of transfer from circuit to juvenile court
     -- standard of review -- appellant did not meet burden of
     proof. -- The decision of the circuit court denying transfer
     to juvenile court will not be reversed unless the ruling was
     clearly erroneous; it is the movant's burden to prove that a
     transfer to juvenile court was warranted under Ark. Code Ann.
      9-27-318 (Repl. 1993); this was a burden that appellant did
     not meet.

2.   Juveniles -- juvenile transfer -- determination that juvenile
     should be tried as adult must be supported by clear and
     convincing evidence. -- Pursuant to Ark. Code Ann.  9-27-
     318(f), the determination that a juvenile should be tried as
     an adult must be supported by clear and convincing evidence.

3.   Evidence -- clear and convincing evidence defined. -- Clear
     and convincing evidence is defined as that degree of proof
     that will produce in the trier of fact a firm conviction
     regarding the allegation sought to be established.

4.   Juveniles -- juvenile transfer -- factors to be considered. --
     Under Ark. Code Ann.  9-27-318(e), the circuit court shall
     consider the following factors when making the decision to
     retain jurisdiction or transfer the case to juvenile court:
     (1) the seriousness of the offense, and whether violence was
     employed by the juvenile in the commission of the offense; (2)
     whether the offense is part of a repetitive pattern of
     adjudicated offenses that would lead to the determination that
     the juvenile is beyond rehabilitation under existing
     rehabilitation programs, as evidenced by past efforts to treat
     and rehabilitate the juvenile and the response to such
     efforts; and (3) the prior history, character traits, mental
     maturity, and any other factor that reflects upon the
     juvenile's prospects for rehabilitation.

5.   Juveniles -- juvenile transfer -- specific findings encouraged
     though not required. -- Circuit courts are not required to
     make specific findings of fact in juvenile-transfer cases; the
     supreme court, however, encourages circuit courts to make such
     findings because it would be most helpful on appellate review.

6.   Juveniles -- appellant's association with beating of victim
     was sufficient to satisfy violence criterion. -- The fact that
     appellant later changed his story concerning his personal
     participation in the victim's beating did not change the
     nature of the charges pending against him; it was of no
     consequence that appellant may or may not have personally
     participated in the victim's beating because his association
     with the beating in the course of the crime was sufficient to
     satisfy the violence criterion.

7.   Juveniles -- juvenile transfer -- use of violence --
     sufficient reason for circuit court's denial of transfer. --
     Although it is possible to commit the offense of aggravated
     robbery without the actual employment of violence, that was
     not the case where the evidence showed that appellant and two
     other boys went to a pawn shop to steal some guns and that,
     during the course of the crime, they beat the elderly shop
     owner to the extent that he suffered severe head injuries; the
     circuit court could very easily have found that the evidence
     presented satisfied the first factor provided in Ark. Code
     Ann.  9-27-318(e); this factor alone would have been
     sufficient reason for the circuit court's denial of transfer.

8.   Juveniles -- juvenile transfer -- factors need not be given
     equal weight -- ample evidence presented that offense was
     serious and that appellant employed violence. -- Although a
     circuit court must consider all the factors listed in Ark.
     Code Ann.  9-27-318(e), the court need not give each of the
     factors equal weight; it is permissible to give substantial
     weight to the criminal information; indeed, the criminal
     information, on its own, is sufficient to establish that the
     offense charged is of a violent and serious nature; moreover,
     proof of each factor need not be introduced against the
     juvenile for the circuit court to retain jurisdiction; the use
     of violence in the commission of a serious offense is a factor
     sufficient in and of itself for a circuit court to retain
     jurisdiction of a juvenile's case, but the commission of a
     serious offense without the use of violence is not sufficient
     grounds to deny transfer; the supreme court found that there
     was ample evidence presented at appellant's hearing
     demonstrating that the offense committed was a serious one and
     that appellant employed violence in its commission.

9.   Juveniles -- juvenile transfer -- circuit court could have
     properly considered appellant's subsequent criminal acts --
     denial of transfer not clearly erroneous. -- Although the
     record indicated that appellant had no prior adjudicated
     offenses, the supreme court found that the circuit court could
     properly have considered the testimony concerning his
     subsequent criminal acts; in light of all the evidence
     presented at the hearing, the supreme court could not say that
     the circuit court's denial of transfer of appellant's case to
     juvenile court was clearly erroneous. 


     Appeal from Hempstead Circuit Court, Fourth Division; Jim
Hudson, Judge; affirmed.
     Eugene B. Hale, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 5-28-96   *ADVREP*SC4*





JAMES BOOKER JR.,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



95-327



APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT, FOURTH
DIVISION, EIGHTH JUDICIAL
CIRCUIT, NO. CR 94-9-4,
HON. JIM HUDSON, JUDGE,



AFFIRMED.





     Appellant, James Booker Jr., appeals the order of the
Hempstead County Circuit Court denying transfer of his case to
juvenile court.  This interlocutory appeal is statutorily provided
in Ark. Code Ann.  9-27-318(h) (Repl. 1993).  Jurisdiction is
properly had in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(12). 
We find no error and affirm the denial of the motion to transfer.
     As provided in section 9-27-318(c), Booker was charged by
information in circuit court, alleging that on or about January 14,
1994, he, along with two other juveniles, Mario White and Jay Lee,
committed the offense of aggravated robbery, a Class Y felony, in
violation of Ark. Code Ann.  5-12-103 (Repl. 1993).  Booker was
born December 4, 1977, and was thus sixteen years of age at the
time of the alleged offense.  
     The affidavit of probable cause states that on January 14,
1994, officers of the Hope Police Department responded to a robbery
at Harry's Pawn Shop on South Walnut Street in Hope.  Upon their
arrival at the scene, officers observed that the owner of the pawn
shop, Harry Phillips, had been struck numerous times in the head
with an unknown object and knocked unconscious.  The victim,
Mr. Phillips, who was seventy-six years old at the time, was
subsequently taken to the hospital for treatment.  Officers noted
that during the robbery, several handguns had been stolen from the
pawn shop.  Booker was subsequently arrested for the aggravated
robbery.  Upon Booker's arrest, police recovered two of the guns
stolen from the pawn shop and noticed that Booker wore tennis shoes
which matched footprints found at the scene.           
     Booker moved to transfer his case to juvenile court, and the
circuit court conducted a hearing on the motion.  The state called
two witnesses, Detective Jeffery Neal, of the Hope Police
Department, and Larry Johnson, of the Hempstead County Juvenile
Probation Office.  Booker then took the stand on his own behalf,
and also presented testimony from his mother, Mrs. Michelle Booker,
and his father, Mr. James Booker Sr.
     Detective Neal testified that he had conducted an interview
with Booker, during which the boy's father and attorney were
present.  Detective Neal stated that Booker informed him that he
(Booker) had gone into the pawn shop first, followed by Jay Lee,
and that he (Booker) had been the first one to strike the victim.
Detective Neal stated that he could not recall if Booker had told
him that he had struck the victim with a crescent wrench, however,
the detective stated that a crescent wrench was discovered at the
scene and appeared to have blood on it.  Detective Neal further
testified that Booker stated they went to the pawn shop for the
purpose of stealing guns.  Detective Neal stated that the victim
had suffered severe head injuries caused by a blunt instrument, and
that a crescent wrench would be considered a blunt instrument.    
     Larry Johnson took the stand next for the state.  Johnson
testified that he had known Booker since the juvenile began having
behavior problems at school in the seventh grade.  Johnson stated
that he was not aware of Booker committing any crimes prior to the
robbery on January 14, 1994, but that since that time, he knew that
Booker was being held at the Youth Services Center in Alexander,
Arkansas, after pleading guilty to possessing a firearm.  Johnson
further stated that also subsequent to his arrest for the
aggravated robbery on January 14, 1994, he was aware of Booker's
involvement in another incident involving a firearm.  Specifically,
Johnson stated that he had been contacted by a man concerning an
incident in which Booker and another youth had pulled a gun on the
man's niece.  Johnson stated that he had advised the man to contact
the police, but was not aware whether the man had done so.
     Booker then testified on his own behalf.  Booker stated that
he was doing well at the Youth Services Center, and that he was
learning work skills, such as bricklaying.  Booker said that he
enjoyed his classes, that he was learning to behave himself, and
that he felt he could be rehabilitated.  As to the charges facing
him, Booker stated that he had not struck the victim and that the
robbery had been planned by Mario White and Jay Lee.  On cross-
examination, Booker stated that he was now telling the truth
concerning his participation in the victim's beating, and that he
had lied to Detective Neal in the statement he gave following his
arrest.
     Booker's mother then took the stand and stated that Booker was
doing well at Alexander, and that his prospects for rehabilitation
were good.  Booker's father also testified that he felt his son was
doing well at the Youth Services Center, and that his prospects for
rehabilitation were good.
     At the close of all the testimony, Booker's attorney moved for
additional time to provide the court with letters and reports
concerning Booker's progress at the Youth Services Center.  The
court granted the motion, and stated it would reserve judgment on
the issue of transfer until a later date.  The court did, however,
address Booker's motion for a probable-cause hearing, stating that
it found there was ample probable cause concerning Booker's
involvement in the aggravated robbery.  In its order, the trial
court summarily denied Booker's motion to transfer his case to
juvenile court, and this interlocutory appeal followed. 
     Booker's sole point on appeal is that the circuit court erred
in denying his motion to transfer the charge to juvenile court.  In
support of this point, Booker argues that the state failed to
produce evidence showing that he was involved in a violent offense,
or that the offense committed was one of a repetitive pattern of
adjudicated offenses, or that appellant was beyond rehabilitation. 
     We have repeatedly held that the decision of the circuit court
denying transfer to juvenile court will not be reversed unless the
ruling was clearly erroneous.  See, e.g., Williams v. State, 313
Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).  Further, we have long recognized that it is the
movant's burden to prove a transfer to juvenile court was warranted
under section 9-27-318.  Williams, 313 Ark. 451, 856 S.W.2d 4;
Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991).  This is
a burden that Booker has not met.
     We recognize that pursuant to section 9-27-318(f), the
determination that a juvenile should be tried as an adult must be
supported by clear and convincing evidence.  See, e.g., Davis v.
State, 319 Ark. 613, 893 S.W.2d 768 (1995); Sebastian v. State, 318
Ark. 494, 885 S.W.2d 882 (1994).  We have defined clear and
convincing evidence as "that degree of proof which will produce in
the trier of fact a firm conviction as to the allegation sought to
be established."  Cole v. State, 323 Ark. 136, 140, 913 S.W.2d 779,
781 (1996) (quoting Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991)).
     Section 9-27-318(e) provides that the circuit court shall
consider the following factors when making the decision to retain
jurisdiction or transfer the case to juvenile court:
          (1)  The seriousness of the offense, and whether
     violence was employed by the juvenile in the commission
     of the offense;

          (2)  Whether the offense is part of a repetitive
     pattern of adjudicated offenses which would lead to the
     determination that the juvenile is beyond rehabilitation
     under existing rehabilitation programs, as evidenced by
     past efforts to treat and rehabilitate the juvenile and
     the response to such efforts; and

          (3)  The prior history, character traits, mental
     maturity, and any other factor which reflects upon the
     juvenile's prospects for rehabilitation.

     At the conclusion of Booker's transfer hearing, the court
elected not to make a ruling so that Booker would be allowed to
provide the court with pertinent documents that were not yet
available.  When the circuit court did, however, rule on Booker's
motion, the specific reasoning of the court was omitted from the
order.  We recognize that our previous decisions have held that
circuit courts are not required to make specific findings of fact
in juvenile transfer cases.  Williams, 313 Ark. 451, 856 S.W.2d 4;
Vickers, 307 Ark. 298, 819 S.W.2d 13.  We do, however, encourage
those courts to make such findings, as it would be most helpful to
our review.  Since we have not been provided with any factual
conclusions in this case, we must determine whether, given the
testimony and other evidence presented at the hearing, the circuit
court's decision to retain jurisdiction is supported by clear and
convincing evidence.  
     A review of the record in this case reveals that Booker was
charged by felony information with committing aggravated robbery on
January 14, 1994.  Testimony indicates that Booker took part in the
aggravated robbery of Harry's Pawn Shop, and that during the course
of that robbery, the elderly victim, Harry Phillips, suffered
severe head injuries from being struck with a blunt instrument. 
Booker initially admitted to police that he had taken part in the
robbery and that he had been the one who first struck the victim. 
Booker further admitted that the reason they committed the robbery
was to steal guns from the pawn shop.  At the transfer hearing,
Booker recanted his previous statement concerning his involvement
in the victim's injuries and testified that he had not struck the
victim.  
     The fact that Booker later changed his story concerning his
personal participation in the victim's beating does not change the
nature of the charges pending against him.  In fact, in Guy v.
State, 323 Ark. 649, 916 S.W.2d 760 (1996), we stated that, "[i]t
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."  Id. at 654, 916 S.W.2d at ___ (citing Collins v.
State, 322 Ark. 161, 908 S.W.2d 80 (1995)).  
     Appellant contends the state did not produce any evidence
indicating that Booker was directly involved in the commission of
a violent offense.  Apparently, Booker is basing this argument on
his testimony that he, himself, had not actually struck the victim
during the robbery, and that he was merely a follower, rather than
the mastermind behind the crime.  For the reasons previously cited,
as well as those set out below, Booker's argument must fail.  The
evidence shows that Booker and the two other boys went to the pawn
shop to steal some guns, and that during the course of the crime
they beat the elderly shop owner to the extent that he suffered
severe head injuries.  Although we have previously recognized that
it is possible to commit the offense of aggravated robbery without
the actual employment of violence, that was certainly not the case
here.  See, e.g., Johnson v. State, 307 Ark. 525, 823 S.W.2d 440
(1992).  The circuit court could very easily have found that the
evidence presented satisfied the first factor provided in section
9-27-318(e).  This factor alone would have been sufficient reason
for the circuit court's denial of transfer.
     We have held that although a circuit court must consider all
the factors listed in section 9-27-318(e), the court need not give
each of the factors equal weight and it is permissible to give
substantial weight to the criminal information.  Walker v. State,
304 Ark. 393, 803 S.W.2d 502, reh'g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991).  In fact, the criminal information, on its own,
is sufficient to establish that the offense charged is of a violent
and serious nature.  Davis, 319 Ark. 613, 893 S.W.2d 768; Vickers,
307 Ark. 298, 819 S.W.2d 13.  Moreover, proof of each factor need
not be introduced against the juvenile for the circuit court to
retain jurisdiction.  Davis, 319 Ark. 613, 893 S.W.2d 768; Hogan v.
State, 311 Ark. 262, 843 S.W.2d 830 (1992).  The use of violence in
the commission of a serious offense is a factor sufficient in and
of itself for a circuit court to retain jurisdiction of a
juvenile's case, but the commission of a serious offense without
the use of violence is not sufficient grounds to deny transfer. 
Sebastian, 318 Ark. 494, 885 S.W.2d 882; Blevins v. State, 308 Ark.
613, 826 S.W.2d 265 (1992).  We find that there was ample evidence
presented at Booker's hearing demonstrating that the offense
committed was a serious one and that violence was employed by
Booker in its commission.
     Although we agree with appellant as to his second argument,
that the record indicates Booker had no prior adjudicated offenses,
we nonetheless find that the circuit court could properly have
considered the testimony concerning Booker's subsequent criminal
acts.  The fact that subsequent to his arrest for aggravated
robbery Booker was convicted of a charge involving his possession
of a firearm and was committed to the Youth Services Center could
have been considered by the circuit court as indicative of the
juvenile's prospects for rehabilitation, as provided in section 9-
27-318(e)(3).  The testimony that Booker took part in a second
subsequent offense involving his and another youth's pulling a gun
on a girl is further evidence concerning his dim prospects for
rehabilitation.  We simply cannot say, in light of all the evidence
presented at the hearing, that the circuit court's denial of
transfer of Booker's case to juvenile court was clearly erroneous. 
     Affirmed.
     ROAF, J., dissents for the reasons stated in Butler v. State,
___ Ark. ___, ___ S.W.2d ___ (No. 95-981, May 28, 1996) (Roaf, J.,
dissenting).
     DUDLEY, J., not participating.