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Kiser v. State

Court of Appeals of Arkansas, Division III

April 6, 2016

ANDREW KISER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23CR-15-287. HON. TROY B. BRASWELL, JR., JUDGE.

         Laren Mary Anne Elenbaas, for appellant.

         Att'y Gen., Valerie Glover Fortner, David Robert Raupp, for appellee.

         KENNETH S. HIXSON, Judge. VIRDEN and BROWN, JJ., agree.

          OPINION

         

Page 375

          KENNETH S. HIXSON, Judge

         On April 22, 2015, appellant Andrew Kiser was charged in the criminal division of circuit court with rape committed against his ten-year-old stepbrother. At the time the information was filed, Andrew was seventeen years and nine months old.

         On July 17, 2015, Andrew filed a motion to transfer the case to the juvenile division of circuit court and for an extended juvenile jurisdiction (EJJ) designation. A hearing on appellant's transfer motion was held on September 10, 2015. On October 6, 2015, the trial court entered an order denying Andrew's motion to transfer and for EJJ designation, making written findings in support of its decision.

         Andrew now appeals from the order denying his motion to transfer to juvenile court. On appeal, Andrew argues that the trial court's denial of his motion to transfer the case and for EJJ designation was clearly erroneous. We affirm.

          Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2015). 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 moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Z.T. v. State, 2015 Ark.App. 282. The trial 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 that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Z.T., supra. We will not reverse a trial court's determination of whether to transfer a case unless the 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.

          At a juvenile-transfer hearing, the trial court is required to consider all of the following factors:

(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, ...

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