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Yankaway v. State9/29/2004
e unequal to the task of providing services to [appellant] were he to be placed in that system."
Appellant contends that, although the court did not address factors (5), (6), (8), (9), and (10), they are all favorable to him. He also contends that factors (1), (2), and (3) are rendered virtually neutral since capital murder, by its very nature, is a serious offense committed in a brutal manner resulting in the death of a person. Finally, he argues that factor (4) requires the trial court to assume that he was involved in the offense and, as for factor (7), there was evidence that there were programs available for violent offenders.
The trial court is not required to make a specific finding as to each of the ten enumerated factors. Beulah, supra. Moreover, the trial court is not required to give equal weight to each of the statutory factors. See Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996). We note that appellant does not argue that the trial court failed to consider all ten factors. Arkansas Code Annotated section 9-27-318(h) provides that, after considering all ten factors, the trial court must determine whether there is clear and convincing evidence that the juvenile should be tried as an adult. Appellant stands accused of a violent crime; according to his cohorts, there was some degree of planning and it was specifically appellant who sought revenge; appellant has a previous history that includes one violent offense; there are no programs in Mississippi County that are geared toward juveniles charged with capital murder; and appellant was deemed not to be impaired in any way that would make him unable to conform his behavior to the requirements of the law. Given the evidence adduced at the hearing, we cannot say the trial court's denial of appellant's motion to transfer was clearly erroneous.
Appellant also argues that all but two of the factors violate his right to due process by abrogating the presumption of innocence. He contends that, in considering the ten factors, the trial court must make certain assumptions that conflict with the presumption that he is innocent until proven guilty beyond a reasonable doubt. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). If it is possible to construe a statute as constitutional, we must do so. Id. The trial court concluded that consideration of the factors in Ark. Code Ann. ยง 9-27-318(g) did not deprive appellant of his right to a presumption of innocence. We agree. In Delo v. Lashley, 507 U.S. 272 (1993), the Supreme Court noted that the presumption operates at the guilt phase of a trial to remind the jury that the State has the burden of establishing every element of the offense beyond a reasonable doubt. In addition:
[The presumption of innocence] may serve as an admonishment to the jury to judge an accused's guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial.
Bell v. Wolfish, 441 U.S. 520, 534 (1979).
We find no error in the trial court's denial of appellant's motion to transfer his case to the juvenile division of circuit court.
Affirmed.
Pittman and Neal, JJ., agree.
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