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Austin v. State

Court of Appeals of Arkansas, Division I

March 1, 2017

BRIAN DAWAYNE AUSTIN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NOS. 60CR-16-765; 60CR-16-766] HONORABLE BARRY SIMS, JUDGE

         AFFIRMED

          Fernando Padilla, Public Defender Conflicts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, Judge

         Appellant Brian Dawayne Austin (DOB: 03-24-00) appeals from the circuit court's denial of his motion to transfer his case to the juvenile division of circuit court. He argues that the trial court's denial of his motion to transfer was clearly erroneous. We affirm.

         Austin was charged, along with a codefendant, G.S., in the Pulaski County Circuit Court with aggravated robbery and first-degree battery stemming from two robberies that occurred on January 31 and February 1, 2016. On May 23, 2016, the public defender entered his appearance and moved that the cases be transferred to the juvenile division of circuit court. A juvenile-transfer hearing was held on June 20, 2016, and the circuit court denied the motion from the bench. An order reflecting such was entered on July 11, 2016. The interlocutory appeal is properly before this court.

         At the hearing on the motion to transfer, the investigating officer in the case, Detective Robert Martin, testified that on January 31, 2016, officers responded at 5:06 p.m. to the shooting of Edward Avery. Avery was in his car when he was approached by two African-American males. Avery recounted to officers that the smaller of the two males put a gun to his head, and when Avery attempted to grab the gun, he was shot in the mouth. The two males then fled. Avery later identified both G.S. and Austin from a photo line-up; he described G.S. as the gunman and Austin as the lookout. Ironically, Avery was able to first identify his assailants after seeing local news coverage on area crime in which both G.S. and Austin gave interviews where they stated their fear of violence and their intention to stay off the streets. The televised interviews aired at both 6:00 p.m. and 10:00 p.m. on February 1, 2016.

         That same night, around 11:40 p.m., Austin approached Luis Reyes while he was pumping gas and begged for money; Reyes complied with Austin's demands. When Austin asked for more money and Reyes refused, Austin intimated that he was armed and took all of Reyes's belongings including his car. Austin and G.S. were subsequently stopped in Reyes's car, and Reyes later identified them as the males who had robbed him. Upon his arrest, Austin admitted his involvement in the robbery of Reyes. The State also introduced evidence of at least one prior juvenile case that resulted from a criminal trespass, as well as one truancy case.

         Dewayne Wilkins, Austin's former probation officer, testified that Austin had been placed on probation in 2013. While on probation, Austin's mother had died, and he had not exhausted the services available to him. Wilkins testified that he had not seen Austin since he was thirteen years old.

         Juvenile ombudsman Scott Tanner testified that there are services that would be available to Austin in juvenile court. Austin's father, Eric, explained that he obtained custody of his son in 2013 after Austin's mother died. Eric Austin testified that his son went into a "huge depression" after her death, so Eric sent him to receive treatment at Pinnacle Pointe.

         On appeal, Austin challenges the circuit court's findings and argues that the decision should be reversed because the circuit court clearly erred in finding that the case should not be transferred. The substantive and procedural requirements for the transfer of a case to the juvenile division of circuit court are set forth in Arkansas Code Annotated section 9-27-318 (Repl. 2015). On motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court. See Ark. Code Ann. § 9-27-318(e).

         The moving party bears the burden of proving that the case should be transferred. Z.T. v. State, 2015 Ark.App. 282. 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. R. W.G. v. State, 2014 Ark.App. 545, 444 S.W.3d 376. 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 all of the factors the court ...


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