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Despain v. State

Court of Appeals of Arkansas, Division III

January 24, 2018

DE'KOTA DESPAIN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-16-58] HONORABLE DAVID W. TALLEY, JR., JUDGE

          Jeff Rosenzweig; and Katherine Streett, Arkansas Public Defender Commission, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, Judge.

         Appellant De'Kota Despain, a sixteen-year-old juvenile, was charged as an adult in the Columbia County Circuit Court with capital murder, aggravated residential burglary, aggravated robbery, and felony theft of property valued at over $25, 000. Despain filed a motion to transfer the case to the juvenile division of the circuit court under its extended juvenile jurisdiction (EJJ). The circuit court denied Despain's motion to transfer, and Despain has timely appealed. We affirm.

         I. Background

         On April 13, 2016, Douglas Harwell, Despain's neighbor, died of gunshot wounds. The Arkansas State Police investigated Harwell's death and developed Despain as a possible suspect. Despain admitted that he and his friend, Keaton Taylor, planned an attack on Harwell several days in advance and that the motive for the shooting was theft. Despain intended to use the stolen goods to enter the drug business.

         On the day of Harwell's death, Despain and Taylor went to Harwell's home. Despain walked behind Harwell, who was seated outside in a chair, and shot him once in the back and once in the head. Despain and Taylor then dragged Harwell inside the home and left him. Despain returned later that evening and stole several guns, a watch, and a cell phone. He loaded the guns into Harwell's truck and drove to Magnolia, Arkansas, where he gave the guns to someone else. Despain's home was searched pursuant to a warrant, and Harwell's wallet, watch, and cell phone, as well as the gun used in the murder, were recovered.

         II. Procedural History

         The State charged Despain as an adult with capital murder, aggravated residential burglary, aggravated robbery, and felony theft of property valued at over $25, 000. See Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2009) (A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony.). Despain filed a motion seeking to have his case transferred to juvenile court under EJJ.

         Upon filing the motion to transfer, the circuit court fulfilled its statutory duty to conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. See Ark. Code Ann. § 9-27-318(e). At the transfer hearing, Despain presented evidence concerning his character, his demeanor, his level of maturity, and his home environment. Several former teachers and school officials testified on his behalf. They testified that, academically, Despain was an average student who did not live up to his potential.[1] Behaviorally, Despain was described by these witnesses as polite, well mannered, helpful, and knowing right from wrong. Despain did not exhibit any real discipline problems until he reached the high school campus. After he became a teenager, Despain became disrespectful in his home, struggled in some of his classes, and was eventually dropped from school for truancy. Socially, Despain was described as a little immature in his interactions, seeking attention from both his teachers and his peers. Despain was considered neither a follower nor a leader, and there was evidence he was bullied.[2]

         Despain also presented testimony from family members concerning the make up of his family and his home environment. Despain's biological parents are Sarah Caldwell and Kevin King. Despain's adoptive parents are his grandparents, Elizabeth and Anthony Despain.[3]Caldwell and King voluntarily terminated their parental rights to Despain but did not do the same with another child, Amy, Despain's biological sister.[4] The witnesses opined that Despain was troubled and resentful that his biological parents would choose to terminate their rights to him but not to his sister. As a result, Despain's contact with Caldwell and King was limited and sporadic. However, Despain's contact with Caldwell became more frequent as he got older, and they spoke on the phone regularly. He was even allowed to drive unaccompanied to visit her in Oklahoma during one spring break.

         Despain was described by his family as sensitive, kindhearted, fun loving, gullible, and generous. They further described him as being a follower-an insecure kid, who tried and wanted to fit in, but really did not. They all agreed that he was bullied at school, which led to problems both at school and at home, including an attempted suicide at the age of twelve.[5]In response to the bullying, Despain switched school districts. Despite the new school environment, Despain exhibited behavioral issues. He began to skip school; he became disrespectful; he stole money and credit cards from his grandmother; he was sending inappropriate texts to a girl; and he was accused of raping two young boys. As a result, his adoptive parents filed a family-in-need-of-services (FINS) petition to help deal with his issues, and a juvenile-delinquency action was later filed after the rape allegation emerged.

         Concerning his juvenile history, Ellana Stuart, the juvenile intake officer, testified that Despain's initial contact with the department was a diversion plan as a result of the inappropriate contact with a girl in the fall of 2014. A FINS case was later opened in the spring of 2015 after he stole a credit card from his grandmother, was accused of being disrespectful to his mother, and because of truancy; and in the fall of 2015, he was charged as a juvenile for rape. Scott Tanner, the juvenile ombudsman, explained the alternatives available in the juvenile system. He explained the option of sentencing Despain under EJJ. He testified that an EJJ designation would allow Despain to be treated in the juvenile system until the age of 21 and that if rehabilitation did not occur, he could be placed in the adult system.

         Lastly, Despain presented the testimony of Dr. James Moneypenny. Dr. Moneypenny testified that he had reviewed the literature on adolescent brain development and opined that Despain had the brain development of a 13- to 14-year-old and, while not intellectually stunted, was immature in his development.[6]

         In addition to the evidence from Despain, the court received evidence from the Arkansas State Police. Investigator Louis Imsler testified regarding his investigation, the incriminating statements given by Despain ...


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