FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. CR-2015-726] HONORABLE STEPHEN TABOR, JUDGE AFFIRMED
Timothy C. Sharum, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
Byren Leach, a fifteen-year-old juvenile, was charged as an
adult in the Sebastian County Circuit Court with one count of
rape. Leach filed a motion to transfer the case to the
juvenile division of the circuit court. Following a hearing,
the circuit court denied Leach's motion to transfer.
Leach timely appealed and now argues that the circuit
court's denial of his motion was clearly erroneous. We
are unable to conclude that the circuit court's decision
was clearly erroneous, and we affirm.
to the instant charge, Leach had a history in the juvenile
courts. In 2013, he was adjudicated delinquent after entering
a plea of true to the charge of fourth-degree sexual assault.
Leach admitted abusing a five-year-old male cousin. As a
result of that adjudication, he was placed on probation for
two years and ordered to complete a residential
entered treatment at the Piney Ridge Center and successfully
completed it in September 2014. Following his release from
treatment, he was given a "Juvenile Sex Offender Safety
Plan" with provisions for supervision of his activities
when in the presence of anyone under the age of eighteen.
Leach also participated in outpatient treatment from 2014
through approximately May 2015. In June 2015, the juvenile
court ordered Leach to submit to a "Registration Risk
Assessment." Diana Smith performed that assessment on
June 29, 2015.
after the assessment was performed, Leach was arrested for
breaking into cars with several other
individuals. Three days later, on July 3, 2015, Leach
allegedly raped his twelve-year-old female cousin. The
alleged victim reported to the Fort Smith Police Department
that Leach would sometimes spend days at a time at her home
and would sleep in her brothers' bedroom. On the night of
the assault, she had been asleep but woke up to a sharp pain
in her vaginal area; when she looked down, she realized that
"his thing was inside of her." The police contacted
Leach, who admitted "fingering" and penetrating his
cousin while she was asleep. He was arrested and charged as
an adult with rape.
Standard of Review
prosecuting attorney has the discretion to charge a juvenile,
fifteen years of age, in the juvenile or criminal division of
the circuit court if the juvenile allegedly engaged in
conduct that if committed by an adult would be the offense of
rape. Ark. Code Ann. § 9-27-318(c)(2) (Repl. 2015).
Here, the prosecutor exercised its discretion to charge Leach
as an adult. After being charged in the criminal division of
circuit court, Leach filed a motion to transfer his case to
the juvenile division of circuit court. In response, the
State filed a motion denying that Leach's case should be
transferred to the juvenile division but asserting that, if
it was transferred, it should be designated as an extended
juvenile jurisdiction (EJJ) case.
court held a hearing on the request pursuant to Arkansas Code
Annotated section 9-27-318(e). Leach, as the moving party,
bore the burden of proving that his case should be
transferred. Magana-Galdamez v. State, 104 Ark.App.
280, 291 S.W.3d 203 (2009). The burden of proof in a juvenile
transfer hearing is 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.
juvenile-transfer hearing, Leach called three primary
witnesses: Donna Watson, the director of juvenile services
for Sebastian County; Dr. Curtis Grundy, a licensed
psychologist; and Diana Smith, a psychotherapist at the UAMS
Family Treatment Program, who performed the June 29, 2015
"Registration Risk Assessment" on Leach. Each
witness believed that transfer to juvenile court and an EJJ
designation were appropriate. Each witness reported that
there were services available to Leach within the juvenile
division of the circuit court. Watson testified that if Leach
was committed to the Division of Youth Services, there were
services that would be available to him before his eighteenth
birthday, such as psychological evaluations and sex-offender
treatment. Dr. Grundy's written evaluation noted that
"[t]reatment facilities are available to the court for
the purpose of providing sex offender treatment, which is
appropriate for [Leach's] treatment needs and the
long-term necessity for his ability to manage his future
behavior." Smith recommended that Leach "remain[ ]
in a secure facility until his recent [rape] charges are
adjudicated and disposed. [Leach's] needs would be served
best through the juvenile justice system, where
rehabilitative services within a secure setting are
available." All three witnesses agreed that these
rehabilitative services would not be ...