FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NOS.
60CR-16-765; 60CR-16-766] HONORABLE BARRY SIMS, JUDGE
Fernando Padilla, Public Defender Conflicts, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge
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.
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.
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
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.
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.
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
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).
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
Code Annotated section 9-27-318(g) sets forth all of the
factors the court ...