Marquis Dewayne Jones v. State of Arkansas

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Marquis Dewayne JONES v. STATE of Arkansas

97-869                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 23, 1998


1.   Juveniles -- juvenile transfer -- statutory factors. -- Upon a finding
     by clear and convincing evidence that a juvenile should be
     tried as an adult, a court shall enter an order to that
     effect; in making that decision, the court must consider the
     following factors set forth at Ark. Code Ann. section 9-27-
     318(e) (Supp. 1997): (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; although the court must consider all of these
     factors, it need not give them equal weight; the appellate
     court will not reverse the court's determination unless it is
     clearly erroneous.

2.   Juveniles -- juvenile transfer -- appellant would soon be beyond age of
     rehabilitation. -- Initial commitment to the Division of Youth
     Services cannot commerce after the eighteenth birthday of the
     youth; appellant, whose eighteenth birthday was approaching,
     would be beyond the age when he could be rehabilitated in the
     juvenile system.

3.   Evidence -- hearsay -- admission without objection may constitute
     substantial evidence. -- Although some of the evidence considered
     by the trial judge may have constituted inadmissible hearsay,
     there was no objection to it; hearsay admitted without
     objection may constitute substantial evidence to support a
     ruling.

4.   Juveniles -- juvenile transfer -- clear and convincing evidence of violent
     act supported denial of motion. -- In light of the statutory
     factors, the trial court had clear and convincing evidence to
     support its denial of appellant's juvenile-transfer motion
     where the terroristic-act charge involved firing a gun at an
     occupied vehicle, an offense involving violence; the mere fact
     that gunfire causes only property damage when aimed at an
     occupied vehicle cannot negate the violent nature of the
     offense; the circuit court's order was not clearly erroneous.

5.   Juveniles -- juvenile transfer -- clear and convincing evidence of
     repetitive pattern of offenses supported denial of motion. -- In light
     of the statutory factors, the trial court had clear and
     convincing evidence to support its denial of appellant's
     juvenile-transfer motion where appellant's current charge
     appeared to be part of a repetitive pattern of adjudicated
     offenses, increasing in seriousness, and where the circuit
     court could have concluded that past efforts at rehabilitation
     had not been successful and did not justify a referral to
     juvenile court; the circuit court's order was not clearly
     erroneous.

6.   Juveniles -- juvenile transfer -- clear and convincing evidence of remote
     prospects for rehabilitation supported denial of motion. -- In light of
     the statutory factors, the circuit court had clear and
     convincing evidence to support its denial of appellant's
     juvenile-transfer motion where appellant's prior history
     demonstrated that his prospects for rehabilitation were
     remote; the circuit's order was not clearly erroneous.


     Appeal from Pulaski Circuit Court, Fourth Division; John W.
Langston, Judge; affirmed.
     Bill Luppen, for appellant.
     Winston Bryant, Att'y Gen., by:  C. Joseph Cordi, Jr., Asst.
Att'y Gen., for appellee.

     W.H. "Dub" Arnold, Chief Justice.
     Appellant, Marquis Dewayne Jones, brings this interlocutory appeal pursuant to Ark.
Code Ann.  9-27-318(h) (Supp. 1997), challenging the Pulaski County Circuit Court's order
denying his motion to transfer a Class B felony terroristic act charge to the juvenile court.  Our
jurisdiction is authorized 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 (June 30, 1997) (per curiam). 
Finding that the trial court's decision was not clearly erroneous, we affirm.
     On February 12, 1997, Marquis Jones was charged by information with committing a
terroristic act and fleeing in violation of Ark. Code Ann.  5-13-310, 5-54-125 (Repl. 1997). 
Because Jones was sixteen years old at the time of the alleged crimes, he requested that the
circuit court conduct a hearing to determine whether to retain jurisdiction or to transfer the case
to juvenile court.  See Ark. Code Ann.  9-27-318(d).  On April 25, 1997, the circuit court held
an omnibus hearing in accordance with sections 9-27-318(e)-(f) and, after reviewing the
evidence, ordered the misdemeanor fleeing charge to be transferred to juvenile court and retained
jurisdiction over the felony fleeing charge.  From this order comes the instant appeal.
     Upon a finding by clear and convincing evidence that a juvenile should be tried as an
adult, a court shall enter an order to that effect.  Ark. Code Ann.  9-27-318(f).  In making that
decision, the court must consider the following factors: (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.  Ark. Code Ann.  9-27-318(e).  Although the court
must consider all of these factors, it need not 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). 
Moreover, we will not reverse the court's determination unless it is clearly erroneous.  Id.
     During the omnibus hearing, Detective Steve Moore, a homicide detective with the Little
Rock Police Department, testified that on September 26, 1996, he investigated a shooting near
13th and Woodrow streets.  Detective Moore reported that Dewayne Boone had related to the
police that he was at 14th and Woodrow streets when a subject he knew as Jones pulled up to
him on a bicycle.  Jones allegedly said to Boone, "What's up?"  He then pointed a gun at Boone
and fired the gun two or three times at Boone's car.  The gunfire damaged the passenger
window, the passenger door, and a rear window.  Boone provided the police with Jones's name
and address, and later positively identified Jones from a police photo-spread.
       Dwayne Wilkins, Jones's juvenile-court "intensive supervision" probation officer, also
testified at the omnibus hearing.  According to Wilkins, an "intensive supervision" officer is
assigned to more serious offenders and oversees compliance with stricter probation rules. 
Wilkins added that such officers have smaller caseloads and surveillance officers on staff due
to the intensity of the program.  Jones was assigned to Wilkins on November 13, 1995 for
probation relating to a minor in possession of a handgun charge.  Wilkins also reported that
Jones was previously on probation in 1992 for two Class C felony counts of theft by receiving.
     According to Wilkins, Jones completed some rehabilitation programs during his
probation, including a program at Recovery Way, a drug and alcohol rehabilitation center, and
individual and family counseling through Stepping Stone.  Following the Recovery Way
program, Jones was required to participate in drug screens.  After testing positive during a drug
screen, Jones was ordered to complete the C Step Program, a ten-week boot camp at Camp
Robinson.  Jones failed to report to C Step.  As a result, the juvenile court issued a pickup
order; simultaneously, Jones was in the county jail on another charge.  Ultimately he was
returned to the juvenile court and sent to training school, the last stop on the juvenile-court
rehabilitation-program line.
     Although Wilkins testified that he believed Jones would still benefit from the juvenile-
court system, he indicated that Jones had expressed an unwillingness to attend the C Step
program.  Additionally, Wilkins testified that Jones had a "couple" of curfew violations, and that
Jones's mother had reported probation violations when Jones had left home a "couple" of times
without permission.
     Jones also received a score of ten on a risk-assessment test, used to determine if a
juvenile should be transferred to the Department of Youth Services.  The assessment test is
based on factors including: (1) the type of offenses committed; (2) the number of felonies in the
last three years; (3) the number of misdemeanors in the past year; (4) the age of the juvenile at
his first adjudication; (5) prior out-of-home placements; and (6) incident offenses (a) related to
drug use, (b) involving weapons, (c) resulting in personal injury to a victim, and (d) involving
gang or peer-group activity.  Commitment to the Department of Youth Services is recommended
for a score of ten points or higher.  Notably, one risk point is assessed for juveniles less than
thirteen years old at the time of their first offense; Jones was twelve years old when he first
entered the juvenile-court system.
     Tina Jones, the appellant's mother, was the final witness in the trial court proceeding. 
She indicated that, at the time of the trial, Jones had completed the eighth grade but was too old
to return to school and too young to pursue a GED.  Ms. Jones suggested that a Job Corps
program out of this geographic area might benefit her son but that Jones had told her that he
believed he could not complete the C Step program.  She also explained that Jones was unable
to attend the C Step program because he had broken his arm twice  prior to two opportunities
to attend C Step.
We can dispense with Jonesþs rehabilitation argument by referring to his age.  See Rice v. State,
330 Ark 257, 954 S.W.2d 216  (1997).  Jonesþs birthday is May 17, 1980.  As initial
commitment to the Division of Youth Services cannot commerce after the eighteenth birthday
of the youth under Ark. Code Ann.  9-28-208(d) (Supp. 1995), Jones will be beyond the age
when he can be rehabilitated in the juvenile system on May 17, 1998, when he turns eighteen.
     We must note that some of the evidence considered by the trial judge may have
constituted inadmissible hearsay.  However, there was no objection to such evidence, and
hearsay, admitted without objection, may constitute substantial evidence to support a ruling. 
Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996) (citing Clemmons v. State, 303 Ark.
265, 795 S.W.2d 927 (1990)).
     In light of the three factors outlined in section 9-27-318(e), the trial court had clear and
convincing evidence to support its denial of the appellant's motion.  First, the terroristic act
charge involved firing a gun at an occupied vehicle, unquestionably an offense involving
violence.  Pursuant to section 5-13-310, the offense of committing a terroristic act results when
a person, while not in the commission of a lawful act, shoots, or in any manner projects an
object, with the purpose of causing injury to persons or property, at a conveyance that is being
operated or that is occupied by passengers.  The mere fact that gunfire causes only property
damage when aimed at an occupied vehicle cannot negate the violent nature of the offense.
     Second, Jones's current charge appears to be part of a repetitive pattern of adjudicated
offenses, increasing in seriousness.  Moreover, he has received the extent of treatment offered
by existing juvenile-court rehabilitation programs, including Recovery Way, Stepping Stone
counseling, and training school.  Regardless of the reason, Jones twice failed to attend the final
court-ordered alternative, C Step boot camp. Jones having exhausted the juvenile-court
programs, the circuit court could conclude that past efforts at his rehabilitation have not been
successful and do not justify referring him back to juvenile court.
     Third, Jones's prior history, including a minor-in-possession-of-a-handgun and two felony
theft charges, curfew violations, and a positive drug screen, demonstrates that Jones's prospects
for rehabilitation are remote.  Reviewing the evidence presented to the trial court under the
section 9-27-318(e) factors, we find that the circuit's order was not clearly erroneous and that
its decision to try Jones as an adult was based on clear and convincing evidence.  Accordingly,
we affirm.