                                 Cite as 2016 Ark. App. 502

                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CR-16-86


BYREN CLAYTON LEACH                                Opinion Delivered   October 26, 2016
                  APPELLANT
                                                   APPEAL FROM THE SEBASTIAN
                                                   COUNTY CIRCUIT COURT, FORT
                                                   SMITH DISTRICT
V.                                                 [NO. CR-2015-726]

                                                   HONORABLE STEPHEN TABOR,
                                                   JUDGE
STATE OF ARKANSAS
                                  APPELLEE         AFFIRMED



                           PHILLIP T. WHITEAKER, Judge

       Appellant Byren Leach, a fifteen-year-old juvenile, was charged as an adult in the

Sebastian County Circuit Court with one count of rape. Leach filed a motion to transfer the

case to the juvenile division of the circuit court. Following a hearing, the circuit court denied

Leach’s motion to transfer. Leach timely appealed and now argues that the circuit court’s

denial of his motion was clearly erroneous. We are unable to conclude that the circuit court’s

decision was clearly erroneous, and we affirm.

                                         I. Background

       Prior to the instant charge, Leach had a history in the juvenile courts. In 2013, he was

adjudicated delinquent after entering a plea of true to the charge of fourth-degree sexual

assault. Leach admitted abusing a five-year-old male cousin. As a result of that adjudication,
                                Cite as 2016 Ark. App. 502

he was placed on probation for two years and ordered to complete a residential sex-offense-

specific treatment.

       Leach entered treatment at the Piney Ridge Center and successfully completed it in

September 2014. Following his release from treatment, he was given a “Juvenile Sex

Offender Safety Plan” with provisions for supervision of his activities when in the presence

of anyone under the age of eighteen. Leach also participated in outpatient treatment from

2014 through approximately May 2015. In June 2015, the juvenile court ordered Leach to

submit to a “Registration Risk Assessment.” Diana Smith performed that assessment on June

29, 2015.

       The day after the assessment was performed, Leach was arrested for breaking into cars

with several other individuals.1 Three days later, on July 3, 2015, Leach allegedly raped his

twelve-year-old female cousin. The alleged victim reported to the Fort Smith Police

Department that Leach would sometimes spend days at a time at her home and would sleep

in her brothers’ bedroom. On the night of the assault, she had been asleep but woke up to

a sharp pain in her vaginal area; when she looked down, she realized that “his thing was

inside of her.” The police contacted Leach, who admitted “fingering” and penetrating his

cousin while she was asleep. He was arrested and charged as an adult with rape.




       1
      Leach was adjudicated delinquent on these charges and placed on probation by the
Crawford County Circuit Court, juvenile division.

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                                     II. Standard of Review

       A prosecuting attorney has the discretion to charge a juvenile, fifteen years of age, in

the juvenile or criminal division of the circuit court if the juvenile allegedly engaged in

conduct that if committed by an adult would be the offense of rape. Ark. Code Ann. § 9-27-

318(c)(2) (Repl. 2015). Here, the prosecutor exercised its discretion to charge Leach as an

adult. After being charged in the criminal division of circuit court, Leach filed a motion to

transfer his case to the juvenile division of circuit court. In response, the State filed a motion

denying that Leach’s case should be transferred to the juvenile division but asserting that, if

it was transferred, it should be designated as an extended juvenile jurisdiction (EJJ) case.

       The court held a hearing on the request pursuant to Arkansas Code Annotated section

9-27-318(e). Leach, as the moving party, bore the burden of proving that his case should be

transferred. Magana-Galdamez v. State, 104 Ark. App. 280, 291 S.W.3d 203 (2009). The

burden of proof in a juvenile transfer hearing is 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. Neal v. State, 2010 Ark. App. 744, at 6, 379 S.W.3d 634,

637. With the law in mind, we turn to the facts adduced at the juvenile-transfer hearing.

                                 III. Juvenile-Transfer Hearing

       At the juvenile-transfer hearing, Leach called three primary witnesses: Donna Watson,

the director of juvenile services for Sebastian County; Dr. Curtis Grundy, a licensed

psychologist; and Diana Smith, a psychotherapist at the UAMS Family Treatment Program,


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who performed the June 29, 2015 “Registration Risk Assessment” on Leach. Each witness

believed that transfer to juvenile court and an EJJ designation were appropriate. Each witness

reported that there were services available to Leach within the juvenile division of the circuit

court. Watson testified that if Leach was committed to the Division of Youth Services, there

were services that would be available to him before his eighteenth birthday, such as

psychological evaluations and sex-offender treatment. Dr. Grundy’s written evaluation noted

that “[t]reatment facilities are available to the court for the purpose of providing sex offender

treatment, which is appropriate for [Leach’s] treatment needs and the long-term necessity for

his ability to manage his future behavior.” Smith recommended that Leach “remain[ ] in a

secure facility until his recent [rape] charges are adjudicated and disposed. [Leach’s] needs

would be served best through the juvenile justice system, where rehabilitative services within

a secure setting are available.” All three witnesses agreed that these rehabilitative services

would not be available to Leach in the adult prison system due to his age. Dr. Grundy noted

that if Leach was tried and sentenced as an adult on the current charge, he would “not be

afforded the sex-offender treatment that he currently needs right now” and that could benefit

him—and society—down the road on his release from incarceration.

       Each witness believed that Leach’s age of fifteen supported transfer to the juvenile

division and an EJJ designation. Watson emphasized that Leach was fifteen years old, stating

that, at age fifteen, “there’s still hope for someone to change, to learn, to become someone

different than who they are.” Dr. Grundy also testified about Leach’s sophistication and

maturity, noting that those factors were consistent with a fifteen-year-old adolescent. He


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explained that the adolescent brain is “prone to impulsivity and poorly-planned behaviors

and brain development” and that brains do not quit developing until an individual is in his

or her early twenties. For that reason, Dr. Grundy opined that EJJ would afford Leach the

opportunity to be involved in a sex-offender-treatment program that was appropriate to his

needs and that could “benefit him and others too, hopefully reducing his risk and teaching

him some skills to manage his behavior.” Smith maintained that Leach, at the age of fifteen,

was not fully developed neurologically, and additional treatment could produce additional

benefit. She noted that, in her years of performing risk assessments, she had seen numerous

juvenile offenders make remarkable changes in their behavior in their late teenage years.

       Each witness also acknowledged, however, that Leach had already been to a treatment

facility based on his previous sexual-assault charge and that he had reoffended despite this

treatment. Dr. Grundy performed a Juvenile Sex Offender Assessment Protocol (J-SOAP),

which resulted in a score that was “associated with present estimation of high risk for sexual

offending.” That “high risk” was based on Leach’s history of multiple sex offenses, the degree

of planning and sexual aggressiveness, and a high degree of sexual drive and preoccupation.

Smith noted that Leach had reoffended after completing his residential sex-offense-specific

treatment. Smith further commented that it appeared that Leach had not been appropriately

supervised, despite the safety plan and conditions of his probation.2 She conceded, however,


       2
        Among the directives of this plan were that Leach was to be supervised at all times
by a responsible adult who was aware of his sexual problem when in the presence of anyone
under the age of eighteen; that he was to have no sexual contact, consensual or otherwise,
with anyone under the age of eighteen; and that he was not to share sleeping arrangements
with anyone under the age of eighteen.

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that there was no guarantee that the treatment would be effective and acknowledged on

cross-examination that she could not call his prognosis good.

       Despite Dr. Grundy’s J-SOAP “high risk” assessment and Smith’s “not good”

prognosis for Leach, both witnesses nonetheless opined that transfer to the juvenile division

with an EJJ designation was still appropriate for Leach. Dr. Grundy concluded as follows:

       [Leach’s] functioning, level of risk, and treatment needs appear appropriate for transfer
       to juvenile court with the provision of extended juvenile jurisdiction. Extended
       juvenile jurisdiction is necessary should his case be transferred, as he will potentially
       require placement in the adult correctional system following treatment services and
       rehabilitative interventions. Nevertheless, Byren’s future risk can be impacted by his
       placement and participation in treatment services during adolescence.

               Byren’s history of sexual offending and treatment history indicate that extended
       juvenile jurisdiction is necessary for the management of his behavior and protection
       of the public. Accordingly, this examiner concurs with the previous recommendation
       by Diana Smith, LCSW, that Byren’s needs would be best served through transfer to
       the juvenile justice system. Byren would benefit from treatment services in a secure
       setting to address sexual offending and to mitigate his future risk.

       At the conclusion of the hearing, the court expressed its difficulties with the case,

noting that it “would be an easy case” if Leach were seventeen or if there had been

testimony that there was a high likelihood of success with rehabilitation. The court was

concerned, however, that the prognosis for reoffending was “so poor.” On the other hand,

though, the court also had “great concern because I know what happens to fifteen-year-olds

in the penitentiary.” The court then announced that it would take the matter under

advisement.

       Shortly thereafter, the court entered an order denying Leach’s motion to transfer.

After considering each of the ten statutory factors, the court concluded that,


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       despite a great reluctance to leave a person of [Leach’s] age to the workings of adult
       incarceration, the motion must be denied. There are essentially no factors, other than
       the court’s reluctance, which argue for transfer. Defendant’s past failure at treatment
       and the age of those he has victimized, as well as the poor prognosis offered by his
       own witnesses, speak to the necessity of denying the motion.

Leach timely appealed, and now asserts that the circuit court’s decision was clearly erroneous.

                                         IV. Analysis

       Pursuant to Arkansas Code Annotated section 9-27-318(g), the trial court shall

consider each of ten factors in a transfer hearing. The trial court is required to make written

findings on all of the factors. Ark. Code Ann. § 9-27-318(h)(1). However, there is no

requirement that proof be introduced against the juvenile on each factor, and the trial court

is not obligated to give equal weight to each of these factors in determining whether a case

should be transferred. D.D.R. v. State, 2012 Ark. App. 329, at 3, 420 S.W.3d 494, 496. We

therefore turn to the circuit court’s analysis and conclusions regarding the statutory factors.

       We first address the factors on which we have no difficulty in concluding that the

circuit court was not clearly erroneous. The first factor is the seriousness of the alleged

offense and whether the protection of society requires prosecution in the criminal division

of circuit court. Ark. Code Ann. § 9-27-318(g)(1). The circuit court found that the charge

against Leach, rape, was a Class Y offense, and that it was “particularly serious.” We cannot

say that the circuit court’s decision on this factor was clearly erroneous.

       The second factor is whether the alleged offense was committed in an aggressive,

violent, premeditated, or willful manner. Ark. Code Ann. § 9-27-318(g)(2). Noting that the

defendant’s witnesses had conceded that the offense was committed in a premeditated and


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willful manner, the court concluded that this factor weighed against transferring the case to

juvenile court. We agree. Dr. Grundy testified that, based on what he had read in the police

investigative report, the assault was not “entirely impulsive in nature” and that it appeared

that there “was a pattern of premeditation.”

       The third factor is whether the offense was against a person or property, with greater

weight being given to offenses against persons, especially if personal injury resulted. Ark.

Code Ann. § 9-27-318(g)(3). The circuit court correctly found that the offense was alleged

to have been committed against a minor. As noted above, the victim was a twelve-year-old

girl. We therefore agree with the court’s conclusion on this factor.

       The fourth factor is the culpability of the juvenile, including the level of planning and

participation in the alleged offense. Ark. Code Ann. § 9-27-318(g)(4). Dr. Grundy testified

that Leach admitted engaging in the charged conduct and acknowledged that his actions

were wrong. Based on this evidence, the court appropriately found that Leach had a high

degree of culpability in this respect.

       The fifth factor is the previous history of the juvenile, including whether the juvenile

had been adjudicated a juvenile offender and, if so, whether the offenses were against person

or property, and any other previous history of antisocial behavior or patterns of physical

violence. Ark. Code Ann. § 9-27-318(g)(5). Here, the court cited evidence of Leach’s history

in juvenile court, including his adjudications for attempted breaking or entering and fourth-

degree sexual assault. This evidence was undisputed, and the circuit court’s decision was thus

not clearly erroneous.


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       The eighth factor is whether the juvenile acted alone or was part of a group in the

commission of the alleged offense. Ark. Code Ann. § 9-27-318(g)(8). The circuit court

found, and the evidence was undisputed, that no one other than Leach was alleged to have

been involved in the incident.

       The ninth factor requires the circuit court to consider reports and other materials

relating to the juvenile’s mental, physical, educational, and social history. Ark. Code Ann.

§ 9-27-318(g)(9). On this issue, the court found that the evidence demonstrated that Leach

had failed in his efforts at treatment for inappropriate sexual behavior, and had engaged in

disruptive and otherwise poor behavior in school and in treatment. We note that those same

reports also indicated that Leach was an appropriate candidate for an EJJ designation.

However, we cannot conclude that the court’s assessment of this factor was clearly erroneous.

       The tenth factor allows the court to consider any other factors deemed relevant by the

judge. Ark. Code Ann. § 9-27-318(g)(10). Here, the court considered Leach’s age, the effect

of time served in an adult facility on a person of his age, the fact that Leach had admitted to

numerous sexual assaults, and the fact that Leach had committed at least two very serious

sexual assaults against children of both genders.

       We turn now to the court’s analysis of the sixth and seventh factors, which gives us

some pause. The sixth statutory factor is 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. Ark. Code Ann. § 9-27-318(g)(6). On

this factor, the circuit court found that Leach “appears from the testimony to possess the


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sophistication and maturity expected from a person of his age.” Dr. Grundy did offer

testimony that Leach’s sophistication and maturity were “consistent with a fifteen-year-old

adolescent.” We note, however, that Dr. Grundy also qualified that statement with the

additional comment that the adolescent brain is “prone to impulsivity and poorly-planned

behaviors and brain development.”3 While perhaps not factually clearly erroneous, this

evidence seems inconsistent with the court’s conclusions that “[t]here are essentially no

factors, other than the court’s reluctance, which argue for transfer.”

       The seventh factor requires the court to consider whether there are facilities or

programs available to the judge of the juvenile division of the circuit court that are likely to

rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday. Ark.

Code Ann. § 9-27-318(g)(7). Here, the court heard undisputed evidence that there are

facilities or programs available to the judge of the juvenile court. Each of Leach’s witnesses

opined that Leach was a good candidate for an EJJ designation because Leach could be placed

in a sex-offender treatment program that was appropriate to his needs and because Leach

would not be afforded the treatment that he needed if he were sentenced as an adult. The

court found that “the likelihood of the defendant’s rehabilitation in the juvenile system is at

best suspect, given the failure of past efforts to rehabilitate him by the juvenile system. In fact,

his own expert witnesses characterized his prognosis as ‘poor,’ especially in light of his re-

offense so soon after the previous attempt at treatment.”


       3
         The court made no specific findings regarding the brain development of a fifteen-
year-old child’s brain. The evidence before the court, however, was undisputed that a person
of that age is not fully neurologically developed and is prone to making impulsive decisions.

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       On appeal, Leach argues that the circuit court should have given more weight and

consideration to this factor, asserting that “there is no good reason not to try” for

rehabilitation and that “[s]peculating about [his] prognosis in the future, without attempting

further intervention, does not make [sense] from a legal, psychological, or economic

perspective.”

       Despite the sympathetic appeal of this argument, our standard of review forces us to

reach a different conclusion. Our caselaw provides that the court was not required to assign

equal weight to this factor and was entitled to use its discretion in deciding the weight to be

afforded each factor. Kiser v. State, 2015 Ark. App. 198, at 10, 487 S.W.3d 374, 380. As

noted above, the court did acknowledge that there was evidence of the likelihood of

rehabilitation, but it was also concerned that such likelihood was poor given past failures at

rehabilitation. As this court recently stated, “[t]hat the court did not weigh one factor the

way [the appellant] wanted it weighed does not make the court’s decision clearly erroneous.”

Lindsey v. State, 2016 Ark. App. 355, at 9, ___ S.W.3d ___, ___; see also V.S. v. State, 2015

Ark. App. 433, 468 S.W.3d 311 (affirming denial of transfer to juvenile court where the

circuit court found that appellant failed to take advantage of rehabilitative opportunities in

the past and would be unlikely to do so if placed in DYS custody).

       Based on its consideration of the statutory factors, the court denied Leach’s transfer

motion. On the whole, we cannot find that this was clearly erroneous. See Harris v. State,

2016 Ark. App. 293, 493 S.W.3d 808 (We will not reverse a circuit court’s determination

of whether to transfer a case unless that decision is clearly erroneous.). Leach began to engage


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in a pattern of sexually aggressive behavior at an early age; had been placed on probation; was

given a safety plan, with which he failed to comply; had been in residential sex-offender

treatment for nearly a year, but still reoffended within months; and was described by his own

experts as being at a high risk for reoffending. As in V.S., supra, the facts tended to show that,

while there were treatment plans that would be available to Leach in the juvenile system, he

“did not demonstrate an ability or willingness to take advantage of them such that

prosecution as a juvenile would be appropriate.” V.S., 2015 Ark. App. 433, at 6, 468 S.W.3d

at 315.

          Affirmed.

          GLADWIN , C.J., and ABRAMSON , J., agree.

          Timothy C. Sharum, for appellant.

          Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.




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