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Clinkscale v. State

Court of Appeals of Arkansas, Division IV

May 2, 2018

ADRIAN CLINKSCALE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-17-537] HONORABLE HERBERT THOMAS WRIGHT, JUDGE

          Fernando Padilla, Public Defender Conflicts, for appellant.

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

          RITA W. GRUBER, Chief Judge

         Appellant Adrian Clinkscale appeals from the Pulaski County Circuit Court's August 1, 2017 order and August 23, 2017 amended order, which denied his motion to transfer to juvenile court. He argues that the circuit court's denials of his motion to transfer the case to juvenile court are clearly erroneous. We affirm.

         On February 15, 2017, appellant was charged in the criminal division of the Pulaski County Circuit Court with nine counts of committing a terroristic act and one count of criminal mischief in the first degree. Because he was sixteen years old at the time of the alleged offenses and seventeen years old at the time of the hearing, appellant filed a motion to transfer to the juvenile division of the circuit court on June 19, 2017.

         The investigating officer, Det. Roy Williams, testified that on January 7, 2017, he was contacted to investigate a shooting that occurred at 2705 Lewis Street. During the investigation, Detective Williams made contact with the resident of the home who had reported the shooting. The resident said that she "had not seen anything because she was inside during the shooting." Detective Williams stated that he met with two individuals who witnessed the shooting and that they had seen a red Dodge Avenger being driven down Lewis Street with a man known as "Adawg" hanging out of the passenger-side window firing at the residence with a semiautomatic handgun with an extended clip. One of the individuals told him that "Adawg" was a former friend named Adrian Clinkscale. Detective Williams testified that at the time of the shooting, several people had been inside the home and at least three individuals had been outside the home. He further testified that no one had been injured by appellant's bullets but that the residence and several nearby vehicles had been damaged.

         When asked about his prior knowledge of appellant, Detective Williams testified that appellant had been known as both a victim and a suspect in previous cases. Detective Williams also testified that he was familiar with appellant's involvement with "the West Side Bloods of John Barrow, " a street gang.

         Frankie James, appellant's science instructor, testified on his behalf. She testified that appellant had been a very good student, had achieved As and Bs in her classes, and had attended her lunchtime-tutoring program. She testified that, although appellant is immature, she "never had any problems with him, he's salvageable, a very smart young man." However, James also testified that she was not acquainted with appellant's home life or gang activity.

         Scott Tanner, coordinator of the Juvenile Ombudsman Division through the Public Defender Commission, testified on behalf of appellant and discussed generally the programs and facilities available in the juvenile court and in extended juvenile jurisdiction. He testified that he did not know appellant and had not previously evaluated him.

         After the July 24, 2017 hearing on appellant's motion, the circuit court entered an order denying the transfer. On August 10, 2017, appellant filed a motion for reconsideration, noting objections to the language of the original order.[1] Following a hearing on appellant's motion, the circuit court entered an amended order again denying the transfer. Appellant now timely appeals.

         A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in either the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318 (Repl. 2015). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Id. 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. Id. Clear and convincing evidence is proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). On review, the circuit court's denial of a transfer is not reversed unless the decision is clearly erroneous. Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001). 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. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004).

         Pursuant to Arkansas Code Annotated section 9-27-318(g), the circuit court must consider the following factors at a transfer hearing:

(1) the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3)whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4)the culpability of the juvenile, including the level of planning and participation in ...

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