STATE OF ARKANSAS APPELLEE
FROM THE POLK COUNTY CIRCUIT COURT [NO. 57JV-18-6] HONORABLE
JERRY RYAN, JUDGE
Crawford Law Firm, by: Brandon Crawford, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
J. GLADWIN, JUDGE
appeals his adjudication of delinquency by the Polk County
Circuit Court. He argues that the circuit court violated his
due-process rights by adjudicating him delinquent for an
offense for which the State did not charge-specifically by
sua sponte amending the charge from second-degree terroristic
threatening to second-degree assault at the conclusion of the
bench trial. We affirm.
March 6, 2018, the State filed a petition in the juvenile
division of the Polk County Circuit Court seeking to
adjudicate I.K. delinquent for committing the offense of
terroristic threatening in the first degree, a Class D
felony, in violation of Arkansas Code Annotated section
5-13-301(a)(1) (Supp. 2017). In the petition, the State
alleged that appellant threatened to "shoot up" the
Mena High School campus.
April 4, 2016, at the beginning of the hearing on the
petition, the State amended the charge to terroristic
threatening in the second degree, a Class A misdemeanor, in
violation of Arkansas Code Annotated section 5-13-301(b)(1)
(Supp. 2017). At the end of the evidence the circuit court
[T]o sustain a charge of terroristic threatening in the
second degree under Title 5 Chapter 13 section 301, the
statute requires that a person commits the offense of
terroristic threatening in the second degree if with the
purpose of terrorizing another person, the person threatens
to cause physical injury or property damage to another
Now, the evidence that I've heard here today, the
conversation that took place between [I.K.] and Dustin was
not with the purpose of terrorizing Dustin, by making those
threats. However, when he said, "No, if I shoot up your
school I will tell you, but if I come to school that day,
you're f***ed." Then, that to me constitutes assault
in the second degree, which is defined as:
A person commits assault in the second degree if he or she
recklessly engages in conduct that creates a substantial risk
of physical injury to another person.
Whether it was a joke or not it was reckless. You're
guilty of assault in the second degree. And that's what
the Court finds. I'm gonna place you on probation for a
period of six months, [I. K.], under the standard conditions
of probation. I'll need an order prepared to that effect.
And you will need to meet with Ms. Hillard just as soon as we
leave court. Okay. Anything else, in this matter?
circuit court in effect sua sponte amended the charge to
assault in the second degree, a Class B misdemeanor, in
violation of Arkansas Code Annotated section 5-13-206(a)
(Repl. 2013), at the end of the trial and sentenced I.K.
accordingly. Although counsel and the circuit court
subsequently discussed the possibility of a diversion, it is
undisputed that neither I.K.'s counsel nor the State
objected to the circuit court's sua sponte change in the
charge. I.K. was sentenced to six months of supervised
probation pursuant to an order of adjudication filed on May
18, 2018. He filed a timely notice of appeal, and this appeal
argues that the circuit court erred in sua sponte amending
the charge to an uncharged, non-lesser-included offense. The
United States Supreme Court has extended constitutional
due-process protections to juveniles. See In re
Gault, 387 U.S. 1, 33 (1967). In Gault, the
Court held that juveniles should be afforded the right
against self-incrimination and the right to counsel under the
federal Constitution. Id. at 36. The Court's
holding affirmed that "[d]ue process of law is the
primary and indispensable foundation of individual freedom.
It is the basic and essential term in the social compact
which defines the rights of the individual and delimits the
powers which the state may exercise." Id. at
juvenile proceedings need not conform with all the
requirements of a criminal trial, essential requirements of
due process and fair treatment must be met. Golden v.
State, 341 Ark. 656, 21 S.W.3d 801 (2000). We have held
that "[n]otice, to comply with due process requirements,
must be given sufficiently in advance of scheduled court
proceedings so that reasonable opportunity to prepare will be
afforded, and it must 'set forth the alleged misconduct