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R.W.G. v. State

Court of Appeals of Arkansas, Division I

October 8, 2014

R. W. G., APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT. No. CR-2013-480-I. HONORABLE JOHN HOMER WRIGHT, JUDGE.

Kelsay Law Firm, P.A., by: Ronald D. Kelsay, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge. GRUBER and WHITEAKER, JJ., agree.

OPINION

LARRY D. VAUGHT, Judge

Seventeen-year-old R.W.G. was charged in Garland County, Arkansas, as an accomplice to first-degree murder. R.W.G. filed a motion to transfer his case to the juvenile division of circuit court. After a juvenile-transfer hearing, the circuit court denied the motion. R.W.G. appeals, arguing that the circuit court erred

Page 377

in denying the motion to transfer his case to the juvenile division. We affirm.

A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2009). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e). The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Lewis v. State, 2011 Ark.App. 691, at 2. We will not reverse a circuit court's determination of whether to transfer a case unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.

Arkansas Code Annotated section 9-27-318(g) sets forth the factors the circuit court must consider and make written findings on at a transfer hearing. Those factors are (1) the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court; (2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; (4) the culpability of the juvenile, including the level of planning and participation in the alleged offense; (5) 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; (6) 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; (7) whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday; (8) whether the juvenile acted alone or was part of a group in the commission of the alleged offense; (9) written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and (10) any other factors deemed relevant by the judge. Lewis, 2011 Ark.App. at 691, 2-3. The circuit court does not have to give equal weight to each factor. Id. at 3.

At the motion-to-transfer hearing, the State presented evidence from Garland County Sheriff's Department Investigator Michael Wright that Dan Roberson, who was seventy-one years old, was abducted, robbed, and murdered on or about July 9, 2013. The State also presented evidence that R.W.G., along with two other adults, Chestly Gaston and Ethan Sallee, were responsible for the crimes. Wright testified that he interviewed R.W.G., who said that he, Gaston, and Sallee had seen Roberson picking up aluminum cans on the side of the road, when Gaston said that Roberson had a lot of money. R.W.G. stated that the group followed Roberson

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back to his house, jumped him, strangled him, put him in the bed of his (Roberson's) truck, drove him to a wooded area, stabbed him, and dumped his body. Wright further testified that R.W.G. provided a general description of where Roberson's body could be found. While R.W.G. told Wright that he (R.W.G.) neither killed Roberson nor witnessed the killing, he said that Gaston killed Roberson and that he (Gaston) had a knife. R.W.G. admitted that he and Sallee burned Roberson's vehicle. Wright testified that Roberson's vehicle was one of three vehicles the trio stole during the weekend. Lastly, Wright did not recall R.W.G.'s having made statements that he was threatened or coerced into participating in the crimes against Roberson.

Sherry Chandler testified that she was the principal at the Jessieville/Fountain Lake Alternative Learning Center (ALC) when R.W.G. was a student there on three separate occasions, beginning in his fifth-grade year. She testified that he was transferred to ALC because of attention deficit hyperactivity disorder (ADHD) and reasoning and comprehension issues in reading and math. She said that he flourished in the program but was a follower who was influenced by his peers. According to Chandler, when R.W.G. returned to traditional school, he had problems with attendance and staying out of trouble; he used vulgar language, refused to follow directions, and bullied students. She said that she felt as though the ALC had ...


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