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Leach v. State

Court of Appeals of Arkansas, Division III

October 26, 2016



          Timothy C. Sharum, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, Judge.

         Appellant 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.

         I. Background

         Prior 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 sex-offense-specific treatment.

         Leach 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.

         The day after the assessment was performed, Leach was arrested for breaking into cars with several other individuals.[1] 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.

         II. Standard of Review

         A 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.

         The 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.

         III. Juvenile-Transfer Hearing

         At the 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 ...

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