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Lindsey v. State

Court of Appeals of Arkansas, Division IV

August 24, 2016



          Stuart Vess, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, Judge.

         The appellant, Raheem Lindsey, appeals an order from the Pulaski County Circuit Court denying his motion to transfer his charges to the juvenile division of Pulaski County Circuit Court. We find no error and 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. 2015). Based on that discretion, and given the felony nature of the charges, the State charged Lindsey, along with a codefendant, T.S., in the criminal division of Pulaski County Circuit Court with thirteen felony counts: three counts of aggravated robbery, three counts of kidnapping, three counts of theft of property, three counts of aggravated assault, and one count of rape.[1] The charges stemmed from a robbery of a Little Rock fast-food restaurant.

         Lindsey filed a motion to transfer his charges to the juvenile division of Pulaski County Circuit Court and asked for his case to be designated as an extended juvenile jurisdiction (EJJ) case. When such a motion to transfer is requested, 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). Here, the circuit court held a hearing pursuant to this statutory mandate.

         At the hearing, Lindsey, as the moving party, bore the burden of proving by clear and convincing evidence that his case should be transferred. Magana-Galdamez v. State, 104 Ark.App. 280, 291 S.W.3d 203 (2009). 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. Neal v. State, 2010 Ark.App. 744, at 6, 379 S.W.3d 634, 637. With the law in mind, we turn to the facts adduced at the juvenile-transfer hearing.

         The circuit court heard testimony concerning the robbery of the fast-food restaurant from the three robbery victims-Erica, Christy, and Jeremy-who were all employees of the restaurant. At the end of their shifts and at closing time, the victims finished cleaning the restaurant, clocked out, and were just leaving the restaurant shortly after midnight when they were approached by two masked, armed individuals. The armed individuals were later identified as Lindsey and T.S. Lindsey and T.S. ordered all three of the victims back into the restaurant at gunpoint. Inside the restaurant, Lindsey ordered Erica and Christy onto the kitchen floor and held them at gunpoint, while T.S. forced Jeremy to attempt to open the security box.

         Jeremy informed both Lindsey and T.S. that the security box would not open because it was on a time lock. Lindsey and T.S. threatened to kill Jeremy if they did not get any money. While T.S. was forcing Jeremy to try to open the security box, Lindsey forced one of the women up from the floor and began pushing her toward the restaurant's bathroom. As he pointed his gun at her, he unzipped his pants and pulled out his penis. Lindsey ordered her to remove her pants and underwear and get down on all fours. After putting on a condom, Lindsey tried to vaginally rape her. When he was unsuccessful at penetrating her, he placed the gun to her forehead and ordered her to perform oral sex on him and threatened to kill all three victims if she did not. After he ejaculated, Lindsey took the woman's cell phone.

         After the sexual assault, Lindsey and the woman returned to the kitchen area, where Jeremy's attempts at opening the security box had been unsuccessful. When all efforts to open the box had failed, including using tools to attempt to pry open the box and beating on the box, T.S. fired his gun at the safe to try to open it. The attempts to open the safe lasted for a couple of hours, according to Jeremy. Before the assailants left, they took the keys to Jeremy's car. After Lindsey and T.S. left in Jeremy's car, the police were called and provided with the information about the robbery and a description of Jeremy's car, an apple-green Chevrolet Caprice.

         Little Rock Police Detective Julio Gil responded to the scene of the robbery after receiving the call around 2:30 a.m. On his way there, he stopped at a car crash. The vehicle involved in the crash was Jeremy's car. It had been traveling eastbound at a high rate of speed in the westbound lane and had crashed head-on with another vehicle. Although no one remained in the vehicles by the time Gil arrived at the scene, Lindsey had been found stuck in the passenger seat of the eastbound car when police first arrived. Lindsey was taken into custody and transported to a local hospital. One gun was recovered from the crash scene, along with a cell phone.

         In response to the testimony about the robbery, Lindsey offered several witnesses on his own behalf. Cristen Barnett, one of Lindsey's former teachers, [2] testified that Lindsey was "a playful student" who was "proficient" in academics and who had never gotten in major trouble or been "disruptive in a negative way" in her classroom. She expressed a hope that he could be capable of rehabilitation. Similarly, Ruth Nash testified that she had known Lindsey since middle school, and she described him as a "very mannerable, respectful young person" with whom she never had any problems. A neighbor, Harold Bell, testified that Lindsey "had a good attitude about life" and was "a really good kid." Bell said that Lindsey was trustworthy, polite, and respectful, and he said he believed Lindsey was capable of being rehabilitated.

         Atondra Burks, Lindsey's mother, testified that Lindsey was seventeen at the time of the robbery.[3] She said he was a fair student who had never been arrested or in trouble before. She acknowledged that he had been in juvenile court for truancy around 2010, but she said he had never been adjudicated delinquent for anything. Burks said this incident was a "very, very big surprise to me, " adding that she felt he must have been in the wrong place at the wrong time with the wrong people. Burks said she definitely believed Lindsey was capable of being rehabilitated and being a productive member of society.

         Michael Lee was a friend of both Lindsey and T.S. from school and had been with the two on the afternoon and evening of the incident. Lee said that the three of them were talking in T.S.'s front yard, and T.S. gave him (Lee) and Lindsey some Sprite laced with Xanax. A car pulled up, and Lee heard T.S. and someone in the car "talking about a lick." Lee said that he told them he "ain't with it" and had T.S. drop him off at his house. On cross-examination, Lee repeated that T.S. had said that "he had a lick for us" and that he was "trying to hit a fast food ...

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