FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-16-58]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Rosenzweig; and Katherine Streett, Arkansas Public Defender
Commission, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
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.
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.
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.
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.
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. 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.
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.Caldwell and King voluntarily
terminated their parental rights to Despain but did not do
the same with another child, Amy, Despain's biological
sister. 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
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.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.
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
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
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 ...