James Rhodes v. State of Arkansas

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James RHODES v. STATE of Arkansas

97-868                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Juveniles -- juvenile transfer -- factors considered. -- In
     determining whether a criminal case should be transferred to
     juvenile court, the trial court must conduct a hearing and
     consider the following factors under Ark. Code Ann. 
     9-27-318(e) (Supp. 1995): (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 a 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; though the
     trial court must consider all of these factors, it is not
     required to give them equal weight; a decision to try the
     juvenile as an adult must be supported by clear and convincing
     evidence; the supreme court will not reverse the trial court's
     decision in this regard unless it is clearly erroneous. 

2.   Juveniles -- juvenile transfer -- denial of -- no actual
     injury need occur if offense is serious and violent. -- In
     denying a transfer to juvenile court, no actual injury need
     occur if the offense is serious and violent; aggravated
     robbery is a serious and violent offense.  

3.   Juveniles -- juvenile transfer -- serious nature of crime and
     violence in commission of offense sufficient factors on which
     to deny transfer. -- Given the serious nature of the crime of
     aggravated robbery, and the evidence of the use of violence in
     the commission of the offense, the supreme court has often
     declined to hold that a trial court was clearly erroneous in
     denying transfer. 

4.   Juveniles -- commitment to Division of Youth Services -- age
     limitation. --  Young people over the age of eighteen can no
     longer be committed to the Division of Youth Services (DYS)
     for rehabilitation unless they are already committed at the
     time they turn eighteen.

5.   Juveniles -- juvenile transfer -- denial of transfer to
     juvenile court supported by clear and convincing evidence. --
     Where appellant was involved in the serious crime of
     aggravated robbery, used of violence in the commission of the
     offense, had a prior history of criminal acts, and, although
     he was almost nineteen years of age, had not been committed to
     DYS, the trial court's decision to deny appellant's motion to
     transfer his charges to juvenile court was supported by clear
     and convincing evidence. 

     Appeal from Pulaski Circuit Court; John W. Langston, Judge; affirmed.
     Bill Luppen, for appellant.
     Winston Bryant, Att'y Gen., by:  Mac Golden, Asst. Att'y Gen., 
for appellee.


     W.H."Dub" Arnold, Chief Justice.
     This is an interlocutory appeal filed by appellant James Rhodes from the Pulaski County
Circuit Courtþs denial of his motion to transfer his criminal case to juvenile court.  Jurisdiction
is properly before this court pursuant to Ark. Sup. Ct. Rule 1-2(11) (1997) as the record in this
appeal was lodged before September 1, 1997, the effective date of our appellate jurisdiction rule
change.  See In Re: Supreme Court Rule 1-2, 329 Ark. 656 (per curiam).  We affirm the trial
courtþs decision.  
     On February 21, 1997, appellant and Damien Deshun Brown were charged by felony
information with aggravated robbery and theft of property.  The charges stemmed from the
December 16, 1996, robbery of the Maple Street Grocery Store in Little Rock.  We affirmed the
denial of Brownþs motion to transfer his case to juvenile court in Brown v. State, 330 Ark. 518,
954 S.W.2d 276 (1997).  The appellant was seventeen-years-old at the time of the commission
of the offenses, and just nine days short of his eighteenth birthday when his transfer motion was
denied by the trial court on April 25, 1997.  The appellantþs date of birth is May 4, 1979.  Thus,
he is now almost nineteen years old.
     At appellantþs transfer hearing, Detective Jeff Norman of the Little Rock Police
Department testified that the appellant and two other subjects entered the store on the date in
question.  One of the suspects had a gun and threatened to shoot a store employee if he did not
open the cash register.  The employee was so nervous that he was unable to open the register. 
After two of the suspects were unable to open the cash register themselves, they grabbed a box
of candy bars and a package of cigarettes then fled on foot.  Appellant and Brown were
apprehended in the area shortly after the robbery.  The store employee identified the appellant
as the person who had held the gun on him.  Appellant admitted his involvement in the robbery
to Detective Norman, confirming that he had held the gun on the employee.
     Appellantþs mother, Mary Rhodes, also testified at the hearing.  She related that her son
had a prior history in juvenile court.  Specifically, her son had been placed on probation for theft
of property on September 12, 1996. One week after the appellant was placed on probation, a
pick-up order and petition for revocation of his probation were filed. After the appellant tested
positive for drugs, he was sent to Recovery Way in Oklahoma.  
     In determining whether a criminal case should be transferred to juvenile court, the trial
court must conduct a hearing and consider the following factors under Ark. Code Ann. 
 9-27-318(e) (Supp. 1995):
      (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 a 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.

Though the trial court must consider all of the factors listed above, it is not required to give them
equal weight.  Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997); Fleetwood v. State, 329
Ark. 327, 947 S.W.2d 387 (1997); Olgesby v. State, 329 Ark. 127, 946 S.W.2d 693 (1997).  A
decision to try the juvenile as an adult must be supported by clear and convincing evidence.  Id. 
We will not reverse the trial courtþs decision in this regard unless it is clearly erroneous.  Id.
     In making his argument that the trial court erred in denying his motion to transfer his case
to juvenile court, the appellant claims that, although the evidence demonstrated that he was in
possession of a handgun, there was no evidence presented that anyone was injured by Brown or
by him.  However, no actual injury need occur if the offense is serious and violent.  Sanders v.
State, 326 Ark. 415, 932 S.W.2d 315 (1996).  We have held that aggravated robbery is a serious
and violent offense.  Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996). 
     Appellant further claims that he has completed a drug recovery program and has made Aþs
and Bþs in training school, demonstrating that he is not beyond rehabilitation. His argument
ignores the serious nature of the crime of aggravated robbery, and the evidence of the use of
violence in the commission of this offense.  Given the presence of these two factors, we have
often declined to hold that a trial court was clearly erroneous in denying transfer.  See Toliver
v. State, 330 Ark. 488, 953 S.W.2d 887 (1997)(collecting cases).  Detective Normanþs testimony
demonstrated that appellant participated in a serious offense and that he held the victim at
gunpoint.  Moreover, Ms. Rhodesþs testimony confirmed that the appellant had a prior history of
criminal acts, from which the trial court could have rightfully concluded that the appellant had
participated in a repetitive pattern of adjudicated offenses showing that he was beyond
rehabilitation.  Finally, the appellant is now almost nineteen years of age.  We have repeatedly
held that young people over the age of eighteen can no longer be committed to the Division of
Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn
eighteen.  Rhodes had not been committed to DYS.  See Brown v. State, supra; Maddox v. State,
326 Ark. 515, 931 S.W.2d 438 (1996); Ark. Code Ann.  9-28-208(d) (Supp. 1995).  For all of
the foregoing reasons, we conclude that the trial court's decision to deny appellantþs motion to
transfer his charges to juvenile court was supported by clear and convincing evidence. 
     Affirmed.