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Holmes v. State

Court of Appeals of Arkansas, Division III

January 23, 2019

JAYLON HOLMES APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO. 60CR-17-4177] HONORABLE BARRY A. SIMS, JUDGE.

          Quentin E. May, PLC, by: Quentin E. May, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, Judge.

         Appellant Jaylon Holmes (DOB: 03-12-02) appeals from the order of the Pulaski County Circuit Court denying his motion to transfer his case to the juvenile division of the circuit court. He argues that the circuit court's denial of his motion to transfer was clearly erroneous or, in the alternative, that the court should have transferred the case and designated it as extended juvenile jurisdiction ("EJJ"). We affirm.

         Holmes was charged as an adult in the Pulaski County Circuit Court with two counts of aggravated robbery. His charges arose out of two separate aggravated robberies-- one that occurred on October 15, 2017, and the other on October 18, 2017; Holmes was fifteen years old at the time. Holmes filed a motion to transfer this case to the juvenile division of the circuit court on January 17, 2018. The circuit court conducted a hearing on Holmes's motion on February 15, 2018.

         Testimony at the hearing indicated that on October 15, 2017, two of Holmes's codefendants entered a Jimmy John's restaurant just before it closed and committed robbery. Both men had their faces covered, and one of them had a firearm. Surveillance video showed an older model Pontiac Sunfire leaving the scene. Holmes admitted to police that he and another codefendant waited inside the vehicle during the robbery.

         On October 18, 2017, Holmes admitted to police that he and a codefendant had robbed a Metro PCS store at gunpoint and had stolen money and cellphones from the business. Holmes identified himself to police as the person depicted in the surveillance-video photographs wearing the Spider-Man mask pointing the gun at the employees. The Metro PCS employees saw the men leaving in a vehicle that matched the description of the one used to flee from the Jimmy John's restaurant on October 15. Within an hour of the Metro PCS robbery, police officers located and arrested Holmes and three codefendants at one of the codefendant's home. Inside the home, officers found two firearms matching those shown in the Metro PCS surveillance video, a Spider-Man mask, and new Metro PCS cellular phones.

         Holmes's probation officer, Jennie Promack, testified that Holmes had been involved in the juvenile-justice system since 2014. While he had "passed on" to ninth grade in the fall of 2017, his record in eighth grade was terrible--including routine tardiness, unexcused absences, constant suspensions, and very poor grades. Promack testified that her records indicated that Holmes had thirteen school disciplinary sanctions and numerous suspensions. He was arrested for possessing a handgun on school property in early 2017, and the juvenile court ordered him to wear an ankle monitor. Holmes cut off the ankle monitor on May 19, 2017, and was arrested four days later on charges of theft by receiving and felony fleeing. The juvenile court also ordered Holmes to attend anger-management classes, but after he missed three classes, the referral was closed for noncompliance.

         Promack testified that she referred Holmes for a drug-and-alcohol assessment, a psycho-social assessment, and entry into the Civilian Student Training Educational Program ("C-Step") as ordered by the juvenile court; however, Holmes was arrested on the charges in this case so he never received any of those services. Promack also testified that based on the individuals with whom Holmes associated and posts made on Facebook, she believed that Holmes was a member of a gang.

         Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile aged fourteen or fifteen years old when he or she engages in conduct that, if committed by an adult, would be aggravated robbery. See Ark. Code Ann. § 9-27-318(c)(2)(D) (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 the circuit court. Ark. Code Ann. § 9-27-318(e).

         The 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 the 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 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 committed. Id.

         Arkansas Code Annotated section 9-27-318(g) sets forth all the factors the court shall consider in a transfer hearing:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal ...

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