                                 Cite as 2017 Ark. App. 382


                  ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                       No. CR-16-1053



                                                  Opinion Delivered: June   21, 2017
R.J.W.
                                APPELLANT
                                                  APPEAL FROM THE GARLAND
                                                  COUNTY CIRCUIT COURT
V.                                                [NO. 26JV-16-306]


                                                  HONORABLE STEPHEN CHOATE,
STATE OF ARKANSAS                                 JUDGE
                                   APPELLEE
                                                  AFFIRMED;
                                                  MOTION TO WITHDRAW DENIED


                          RAYMOND R. ABRAMSON, Judge

         Appellant R.J.W. was charged in juvenile court with aggravated residential burglary

 and theft of property. The State moved to transfer the case to the criminal division of the

 circuit court so that R.J.W. could be tried as an adult. Following a hearing, the juvenile

 division of the circuit court transferred the case to the criminal division. In its order, the

 circuit court made written findings on the enumerated factors from Arkansas Code

 Annotated section 9-27-318(g) (Repl. 2015).

         Pursuant to Arkansas Supreme Court Rule 4-3(k)(1) (2016) and Anders v. California,

 386 U.S. 738 (1967), R.J.W.’s counsel has filed a motion to withdraw as counsel on the

 ground that the appeal is without merit. The motion is accompanied by a no-merit brief

 containing an abstract and addendum of the proceedings below. The abstract and addendum

 in counsel’s brief include all adverse decisions affecting appellant, and counsel explains in
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the argument portion of his brief why there is nothing in the record that would arguably

support an appeal. The clerk of this court sent R.J.W. a copy of his counsel’s brief and

notified him of his right to file pro se points for reversal. R.J.W. has not filed pro se points;

thus, the State has not filed a response.

       R.J.W.’s counsel sets out three adverse rulings the circuit court made against R.J.W.:

(1) the transfer of the case to the criminal division; (2) the exclusion of R.J.W.’s counsel’s

remarks in closing statements that R.J.W. was not the “ringleader” of the crime; and (3) the

consideration of a video of a custodial interrogation of R.J.W. Pursuant to Anders, we are

required to determine whether an appeal is wholly frivolous after a full examination of all

the proceedings. Anders, 386 U.S. 738; Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918

(2001). The test is not whether counsel thinks the circuit court committed no reversible

error but whether the points to be raised on appeal would be wholly frivolous. Anders, 386

U.S. 738; Eads, 74 Ark. App. 363, 47 S.W.3d 918. We first address the circuit court’s transfer

of the case to the criminal division.

       Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen

years of age or older in the criminal division of circuit court if the juvenile has engaged in

conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-

318(c)(1). On 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. 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 circuit court shall order the case transferred to another division of circuit


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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 that degree

of proof that will produce in the trier of fact a firm conviction as to the allegation sought to

be established. Z.T., 2015 Ark. App. 282. We will not reverse a circuit court’s

determination of whether to transfer a case unless the 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.

       At a juvenile-transfer hearing, the circuit court must consider all the following

factors:

       (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 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 that are likely to rehabilitate the juvenile before the
       expiration of the juvenile’s twenty-first birthday;

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          (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.

Ark. Code Ann. § 9-27-318(g).

          In this case, the evidence presented at the hearing established that R.J.W. was

seventeen years old at the time he was charged with the offenses, that he had prior contact

with juvenile court, that he had violated probation, and that he had been committed to the

Department of Youth Services. The evidence also established that the alleged burglary

involved a firearm, that the victims were an elderly couple who were injured during its

commission, and that R.J.W. knew the victims prior to the burglary. Given this evidence,

we agree with counsel that the transfer decision does not provide a basis for a meritorious

appeal.

          The second adverse ruling was the circuit court’s exclusion of trial counsel’s

statement during closing arguments that R.J.W. was not the “ringleader” of the alleged

offenses. The State objected to the comment because no evidence had been introduced that

R.J.W. was not the “ringleader.” Following the ruling, trial counsel argued without

objection that R.J.W. was a minor at the time and that his codefendants were adults.

          Our supreme court has stated that the circuit court is given broad discretion to

control counsel in closing arguments, and we do not interfere with that discretion absent a

manifest abuse of discretion. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Closing

arguments must be confined to questions in issue, the evidence introduced during trial, and

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all reasonable inferences and deductions that can be drawn therefrom. Leaks v. State, 339

Ark. 348, 5 S.W. 3d 448 (1999). It is the circuit court’s duty to maintain control of the trial

and to prohibit counsel from making improper arguments. Id. Furthermore, it is presumed

that a circuit court in a bench trial will consider only relevant evidence. Marshall v. State,

342 Ark. 172, 27 S.W.3d 392 (2000). We agree with counsel that the circuit court did not

abuse its discretion by excluding the statement and that the ruling provides no meritorious

basis for reversal.

       Counsel asserts that the third adverse ruling concerns the circuit court’s consideration

of a video recording of an interrogation of R.J.W. Specifically, at the hearing, R.J.W.’s

counsel objected to the introduction of the video because the State did not provide trial

counsel with the video before the hearing 1 and the video was not the best evidence of

R.J.W.’s statements to law enforcement. However, the record does not show that the court

ever ruled on the admissibility of the video. The State merely proffered the video. It is well

settled that issues not ruled on by the circuit court will not be considered on appeal. Raymond

v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). Because the court did not make a ruling,

this court cannot consider the issue on appeal.

       Accordingly, we agree with R.J.W.’s counsel that the appeal is without merit, and

we affirm the order transferring R.J.W.’s case to the criminal division of the circuit court.

However, the order appealed from is interlocutory in nature; its effect is merely to determine

in which of two courts R.J.W. will stand trial. Because no trial or direct appeal (in the event



       1
       The State asserted at the hearing that it did not provide trial counsel with the video
because no motion for discovery had been filed.

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of a conviction) has occurred, the case has not concluded. Therefore, we deny counsel’s

motion to withdraw at this time. See Nichols v. State, 2015 Ark. App. 12.

       Affirmed; motion to withdraw denied.

       GLADWIN and GLOVER, JJ., agree.

       Hancock Law Firm, by: Alex R. Burgos, for appellant.

       No response.




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