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                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-14-821

B.D.                                              Opinion Delivered:   March 4, 2015
                              APPELLANT
                                                  APPEAL FROM THE PULASKI COUNTY
V.                                                CIRCUIT COURT, FOURTH
                                                  DIVISION
STATE OF ARKANSAS                                 [NOS.CR2013-1184, CR2013-780,
                                APPELLEE          CR2-13-1799]

                                                  HONORABLE HERBERT THOMAS
                                                  WRIGHT, JUDGE

                                                  AFFIRMED


                           WAYMOND M. BROWN, Judge

       This is appellant’s interlocutory appeal from the circuit court’s denial of his separate

motions to transfer case numbers 60CR-13-780, 60CR-13-1184, and 60CR-13-1799 to

the juvenile division of circuit court. On appeal, appellant argues that the circuit court

erred in denying his motions where it (1) failed to make findings required by Arkansas

Code Annotated section 9-27-318(h)(1); (2) made a clearly erroneous finding regarding

Arkansas Code Annotated section 9-27-318(g)(4); and (3) made a clearly erroneous

finding regarding Arkansas Code Annotated section 9-27-318(g)(7). We affirm.

       Appellant has charges under three different case numbers: aggravated robbery and

theft of property in case number 60CR-13-1184 arising from events occurring on January

12, 2013; murder in the first degree, two counts of battery in the first degree, and

aggravated assault in case number 60CR-13-780 arising from events occurring on January
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30, 2013; and domestic battery in the first degree in case number 60CR-13-1799 arising

from events occurring on May 12, 2013. In each case, appellant filed a motion to transfer

the case to juvenile court. 1

       A juvenile transfer hearing on all three of appellant’s transfer motions was held on

September 3, 2014. Dr. Bob Gale testified to his opinion that appellant suffered from

numerous mental defects including attention deficit hyperactivity disorder (ADHD),

conduct disorder, borderline intellectual functioning, intellectual developmental disorder,

and dependent personality disorder. 2 He asserted that all of appellant’s diagnoses were

“amenable to re-training if done properly,” but also asserted that it would require “[a]t

least -- four or five years” though “not necessarily in the same type of facility.” He

testified to there being a “50/50 chance of [appellant] being helped through the juvenile

system” via use of programs available to appellant there. However, he acknowledged that

he was unaware of whether the types of programs he spoke of appellant needing actually


1
  Appellant was seventeen years old at the time of each of the indictments. In each
motion, appellant asserted that the offense was not “a part of a repetitive pattern of
adjudicated offenses that would lead to the determination that the juvenile is beyond
rehabilitation” and that the “prior history, character traits and mental maturity all indicate
that the juvenile’s prospects for rehabilitation are extremely good.” The motion in case
number 60CR-13-780 was filed on May 12, 2013; the motion in case number 60CR-13-
1184, was filed on May 13, 2013. The motion in case number 60CR-13-1799 was filed
on June 11, 2013.
2
  He also opined that appellant had elements of autism spectrum disorder, but he did not
make a firm diagnosis due to the need for more testing. There was a forensic report from
Dr. Lacey C. Willett opining that appellant “did not meet criteria for any [Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition] diagnosis.” Dr. Willett asserted in
her report that appellant stated that he was diagnosed with ADHD and denied any other
history of mental health treatment aside from his hospitalization at Rivendell “due to
behavioral problems.”


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existed in the juvenile system. In the case that they did not, Dr. Gale stated that the

juvenile system would guarantee that appellant was “associated with less savory or

unsavory people” than if he went to adult prison and “it’s more of who he would be

around rather than what kind of treatment he would be receiving.”

         Pertinent witnesses included Felicia Finch, a witness to the events giving rise to

case number 60CR-13-1799, who testified to seeing appellant shoot Henderson Sessions,

her boyfriend and appellant’s uncle. 3 She further testified to the severity of Sessions’s

injuries, which had necessitated numerous surgeries. Shanna Henderson, victim of the

events giving rise to case number 60CR-13-1184, testified to being accosted by appellant

with a gun, and immediately thereafter, having her car stolen by appellant. One crime

scene investigator testified to taking latent prints from the recovered vehicle. Appellant

stipulated to testimony from another worker in the crime scene unit that those prints were

found both inside and outside of Henderson’s vehicle and that two latent prints, one in

the interior and one on the exterior of the vehicle, were identified as belonging to

appellant.

         Detective Jordan Neufer testified to investigating the incidents giving rise to case

number 60CR-13-780. Detective Neufer testified that one victim died from gunshots

sustained, another victim received nonfatal gunshot wounds, and a third victim was not




3
    Sessions did not testify.


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injured. He stated that appellant gave a statement in which he denied possessing a firearm

and stated that he was only driving the car. 4

       Appellant’s mother, Angela Davis, testified that appellant had problems in school

and was on “like ten different medicines.” She testified regarding appellant’s hard life with

Davis being addicted to cocaine and appellant’s father being in and out of his life, leaving

appellant to be raised either by his sister or his aunt. Appellant’s sister testified that

appellant did not have problems in school, asserted that appellant had and followed rules,

and stated that she never saw appellant leave her home with anyone other than his father.

       Following the transfer hearing, the circuit court entered an order on September 4,

2014, denying appellant’s motions to transfer his cases to juvenile court. This timely appeal

followed.

       Appellant’s first argument is that the circuit court erred in denying his motions to

transfer his cases to the juvenile division of circuit court when it failed to make findings

required by Arkansas Code Annotated section 9-27-318(h)(1). Appellant specifically

argues that the circuit court failed to make written findings regarding whether the

protection of society requires appellant’s prosecution in the criminal division of the circuit

court. This argument was not presented to the circuit court. A timely request or objection

would have enabled the trial court to rule on the issue of whether the amendment applied

and to correct whatever deficiency there may have been in the order. 5 A statutory


4
 At the hearing, Detective Neufer pointed out appellant on video running from the scene
with a firearm in his hand.
5
 Box v. State, 71 Ark. App. 403, 406, 30 S.W.3d 754, 756 (2000) (citing Hawkins v. State,
270 Ark. 1016, 607 S.W.2d 400 (1980)).
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requirement for written findings can be waived. 6 Our rules provide that we will not

review an alleged erroneous ruling unless the party makes known to the circuit court the

action which he desires the court to take and his grounds therefor. 7 Arguments not raised

below, even constitutional ones, are waived on appeal. 8

         Appellant’s second and third arguments are that the trial court made clearly

erroneous findings with regard to Arkansas Code Annotated sections 9-27-318(g)(4) and

(7). Arkansas Code Annotated sections 9-27-318(g)(4) and (7) state that the circuit court

shall consider the following factors, among others:

         (4) The culpability of the juvenile, including the level of planning and participation
         in the alleged offense;

          ...

         (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[.]

We cannot hold that the circuit court clearly erred.




6
  Id. (citing Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Lockett v. State, 271
Ark. 860, 611 S.W.2d 500 (1981); Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark.
App.1980)) (the requirement in Ark. Code Ann. § 9-27-318(g)(Supp. 1999) that the court
“shall make written findings” can be likened to Ark. Code Ann. § 5-4-310(b)(5)
(Repl.1997), which requires that a court “shall furnish a written statement of the evidence
relied upon and the reasons for revoking suspension or probation,” the right to which can
be waived).
7
 Lucas v. Jones, 2012 Ark. 365 at 9, 423 S.W.3d 580, 585 (citing Riley v. State Farm Mut.
Auto. Ins. Co., 2011 Ark. 256, 381 S.W.3d 840; Turkey Express, Inc. v. Skelton Motor Co.,
246 Ark. 739, 439 S.W.2d 923 (1969); Ark. R. Civ. P. 46 (2012)).
8
    Id. (citing Tracy v. Dennie, 2012 Ark. 281, 411 S.W.3d 702).


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           A prosecuting attorney has the discretion to charge a juvenile sixteen years of age

or older in the juvenile or criminal division of circuit court if the juvenile has allegedly

engaged in conduct that, if committed by an adult, would be a felony. 9 On the 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. 10 The court shall order the case transferred to another division of

circuit court only upon a finding by clear and convincing evidence that the case should be

transferred. 11 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. 12 We will

not reverse a circuit court’s determination of whether to transfer a case unless that decision

is clearly erroneous. 13 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. 14

           In the transfer hearing, the court must consider all of the following factors set forth

in Arkansas Code Annotated section 9-27-318(g):
9
 R.W.G. v. State, 2014 Ark. App. 545, at 1, 444 S.W.3d 376, 377 (citing Ark. Code
Ann. § 9–27–318(c)(1) (Repl. 2009)).
10
     Id. (citing Ark. Code Ann. § 9-27-318(e)).
11
     Id. (citing Ark. Code Ann. § 9-27-318(h)(2)).
12
  Id., 2014 Ark. App. at 1-2, 444 S.W.3d at 377 (citing Lewis v. State, 2011 Ark. App.
691, at 2).
13
     Id., 2014 Ark. App. at 2, 444 S.W.3d at 377.
14
     Id.


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         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;

         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. 15

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. 16 The defendant, as the moving party,


15
     (Repl. 2009).
16
     Id. (citing D.D.R. v. State, 2012 Ark. App. 329, at 3, 420 S.W.3d 494, 496).
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bears the burden of proving by clear and convincing evidence that his or her case should

be transferred to the juvenile division of circuit court. 17

           Regarding appellant’s culpability, factor number four, there was testimony that

appellant acted alone in two of the cases appellant sought to have transferred and in

concert with others in the third case. 18 Guns were used in all three cases. While appellant

did present expert testimony that appellant had a mental defect, there was also a report

before the court, in which another expert found that appellant had no mental defect. This

court does not make findings of fact. 19 We do not determine the credibility of witnesses. 20

           Even if we found merit in appellant’s argument that appellant had a mental defect,

and we do not, we would still affirm. The circuit court is not required to weigh all factors

equally. With regard to the factors the court was required to consider, the evidence was as

follows:

           1. Appellant was charged with murder in the first degree, two counts of battery in
              the first degree, aggravated assault, aggravated robbery, theft of property, and
              domestic battery in the first degree, all of which were committed with use of a
              firearm and all of which are serious in nature;

           2. Appellant acted in two of the cases by himself, and in concert with the others in
              the third case, in which, even if one believes appellant’s assertion that he did
              not have a gun, appellant drove the vehicle, thereby making his actions in all
              three cases willful and violent;


17
     Id. (citing Magana-Galdamez v. State, 104 Ark. App. 280, 291 S.W.3d 203 (2009)).
18
  Appellant acted alone in the events giving rise to case numbers 60CR-13-1184 and
60CR-13-1799, and with others in case number 60CR-13-780.
19
     Harrison v. Harrison, 102 Ark. App. 131, 139, 287 S.W.3d 601, 608 (2008).
20
     Id.


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      3. The offenses were against both persons and property where one victim was
         killed; one victim received critical injuries; one victim received non-critical
         injuries; and a fourth victim was physically unharmed, though her car was
         stolen;

      4. Again, appellant acted alone in two cases and in concert with others as the
         driver in the third making him solely culpable in the former two cases and
         equally culpable in the latter case, all of which exhibited little to no planning;

      5. There was no previous criminal history presented;

      6. Appellant failed to display a high level of sophistication or maturity as testified
         to by Dr. Gale and opined by Dr. Willett in her court-ordered forensic report;
         furthermore, appellant’s home life was “abysmal,” as stated by the court in its
         order, where his mother was addicted to crack cocaine and appellant’s father
         was in and out of his life;

      7. We accept that there were resources available to appellant in the juvenile system
         as stated by the court, 21 but appellant would not likely be rehabilitated by his
         twenty-first birthday as testified to by Dr. Gale who stated that appellant would
         require at least four to five years to be rehabilitated 22 and that after appellant
         aged out of the juvenile system, he would hopefully “have made enough gains
         that he would then be eligible either for specialized programs in the adult
         prison, or in some kind of secure half-way house or rehabilitation facility;”

      8. Appellant acted alone in some offenses and in concert with others in the rest;

      9. The court reviewed a mental evaluation of appellant; 23 and


21
   No resources were listed and Dr. Gale could not name any specific programs.
Furthermore, Dr. Gale was unsure if the types of programs he spoke of generally as
possibly benefitting appellant actually existed in the juvenile system.
22
  Appellant was eighteen years old and less that one month shy of his nineteenth birthday
on the date of the hearing.
23
  We are not clear if the circuit court is referring to Dr. Gale’s report or Dr. Willett’s
report. However, both Dr. Gale’s report and Dr. Willet’s report were submitted as
exhibits; therefore, without evidence to the contrary, we find that the court considered
both reports. See Dunaway v. Ragsdale, 177 Ark. 718, 9 S.W.2d 6 (1928) (we must assume
that in a trial without a jury, the circuit court considered only competent and relevant
evidence).
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         10. The court specifically found that the accusations in all three cases, if proven,
             showed appellant to be engaged in “systematic and violent criminal actions.”

In light of all the factors the court had to weigh, we are not left with a firm conviction

that a mistake has been committed. Because the circuit court was not required to weigh

the factors equally, a finding that appellant had a mental defect would not necessitate

reversal. The circuit court committed no error.

         Regarding the availability of programs in the juvenile system that could rehabilitate

appellant by his twenty-first birthday, factor number seven, appellant makes the argument

that the correct inquiry is whether facilities or programs are available to the judge of the

juvenile division and not whether there are programs and facilities available to the juvenile

division of the circuit court, as found by the circuit court below. This argument is as

appellant’s first argument in which he questions the accuracy of the circuit court’s written

findings as compared to the requirements of the statute. This argument was not presented

to the circuit court. As stated above, a timely request or objection would have enabled the

trial court to rule on the issue of whether the amendment applied and to correct whatever

deficiency there may have been in the order, and the failure to make a timely request or

objection can cause a statutory requirement for written findings to be waived. This

argument was not preserved. 24

         Affirmed.

         GLADWIN, C.J., and KINARD, J., agree.

         Willard Proctor , Jr., P.A., by: Willard Proctor, Jr., for appellant.

         Dustin McDaniel, Att’y Gen., by: Rebecca B. Kane, Ass’t Att’y Gen., for appellee.
24
     See R.F.R. v. State, 2009 Ark. App. 583, 337 S.W.3d 547.
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