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Yankaway v. State9/29/2004
Ark. Code Ann. § 9-27-318(e) (Repl. 2002). Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the judge shall enter an order to that effect. Ark. Code Ann. § 9-27-318(h) (Repl. 2002). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001). We will not reverse a trial court's determination of whether to transfer a case to juvenile court unless that decision is clearly erroneous. Id.
Arkansas Code Annotated section 9-27-318(g) (Repl. 2002) lists factors the trial court must consider in deciding whether to retain jurisdiction in the criminal division or to transfer the case to the juvenile division:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or 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 the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court which are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of circuit court's jurisdiction;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
In an order filed on June 6, 2003, the trial judge addressed appellant's argument that the factors set out in Ark. Code Ann. § 9-27-318(g) violate his rights under the Arkansas and United States Constitutions in various ways. After careful consideration, the trial court found that courts indulge in criminal justice mechanisms all the time that appear to be in direct conflict with the presumption of innocence and listed examples such as pre-trial detention, imposition of money bail, and no-contact orders. The court explained that the rights of the accused must be balanced against the interests of society and that the presumption of innocence actually protects the accused at trial but has limited applicability outside the fact-finding process. The trial court denied appellant's motion to transfer, finding that the State had established by clear and convincing evidence the following factors in particular: (1) the offense was a serious one that resulted in the death of a person; (2) it was committed in a brutal manner; (3) it was committed against a person; and (4) appellant had a significant amount of culpability. The court also found that the testimony indicated that the "usual mechanisms established for the rehabilitation of juvenile offenders would b
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