                                  Cite as 2017 Ark. App. 468


                   ARKANSAS COURT OF APPEALS
                                        DIVISION IV
                                        No. CR-16-1140


                                                    Opinion Delivered   September 20, 2017

BYRON JAMARR FLOWERS                                APPEAL FROM THE MILLER
                    APPELLANT                       COUNTY CIRCUIT COURT
                                                    [NO. 46CR-14-535]
V.
                                                    HONORABLE CARLTON D.
                                                    JONES, JUDGE
STATE OF ARKANSAS
                                 APPELLEE           AFFIRMED


                                LARRY D. VAUGHT, Judge

       Appellant, Byron Jamarr Flowers, appeals the Circuit Court of Miller County’s order

denying his motion to transfer his case to the juvenile division of circuit court. We affirm.

       In 2014, Flowers and a codefendant, Costello Byrd, were charged with raping a child,

R.S., who was under the age of fourteen. The events were alleged to have occurred in 2009

and 2010. While the case was pending in the Miller County Circuit Court, Flowers filed a

motion to transfer it to the juvenile division. On December 10, 2015, the court held a juvenile-

transfer hearing, after which it issued a letter order denying the motion.

       Flowers was twenty years old when the charges were first brought against him in this

case. The acts were alleged to have occurred when the victim was between the ages of three

and six years old, and when Flowers was between the ages of fourteen and sixteen years old.

The victim alleged that Flowers and Byrd repeatedly raped her vaginally and anally, causing

her to bleed. A sexual-assault examination revealed four well-healed injuries to her vaginal area
                                  Cite as 2017 Ark. App. 468

that were consistent with her accounts of the rapes. By the time Flowers filed his first juvenile-

transfer motion, he had already turned twenty-one. His amended motion was filed after his

twenty-second birthday. At the transfer hearing, an employee of the Division of Youth

Services testified that there were no programs or facilities available to individuals who have

reached the age of twenty-one. Scott Tanner, a juvenile ombudsman, testified that the juvenile

court loses jurisdiction when an individual reaches the age of twenty-one. He also agreed that

there are no juvenile programs available to Flowers due to his age. Flowers’s mother testified

that, while he had been an obedient child, he was currently on probation for a misdemeanor

marijuana conviction. He had worked full time since he was fifteen years old, purchased his

own car at sixteen years old, and she now considered him an adult.

       Arkansas Code Annotated section 9-27-318(g) (Repl. 2015) sets forth the factors the

circuit court must consider and make written findings on at a transfer hearing. Those factors

are:

       (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;



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       (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.

R.G.W. v. State, 2014 Ark. App. 545, at 2–3, 444 S.W. 3d 376, 377. Proof need not be

introduced on each factor. Nichols v. State, 2015 Ark. App. 397, at 5, 466 S.W.3d at 433. The

circuit court does not have to give equal weight to each factor. R.G.W., 2014 Ark. App. at 3.

The movant bears the burden of proving the necessity of transfer from the criminal division

to the juvenile division of circuit court. See Nichols, 2015 Ark. App. 397, at 3, 466 S.W.3d 431,

432.

       The court found that almost every statutory factor weighed against granting Flowers’s

motion to transfer. As to the first factor, the seriousness of the offense, the court correctly

found that rape, a Class Y felony, is serious—the only offense in Arkansas that carries a greater

potential sentence is capital murder. Here, the court noted that the alleged rape was of a young

child and involved a continuous course of abuse. As to the second factor, whether the offense

was committed in an aggressive, violent, premeditated, or willful manner, the court found that

rape is a crime of force and violence and that there was evidence that the acts were willful and

premeditated. As to the third factor, the court found that, by its statutory definition, rape is a


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crime committed against a person, not property. Fourth, as to the culpability of each

defendant, the court found that there was evidence that each fully participated in sexually

assaulting the victim rather than acting as a bystander or lookout. The fifth factor, the juvenile’s

previous history, revealed that although neither defendant had significant contacts with the

criminal-justice system in the past, Flowers had been arrested for misdemeanor marijuana

possession. Sixth, regarding the sophistication or maturity of the juvenile, the court found that

there was no evidence of any psychological or behavior disorder, and Flowers had graduated

high school, worked full time since the age of fifteen, and had purchased his own vehicle.

Seventh, the court noted that there are no programs or facilities available to rehabilitate

Flowers due to his age—he turned twenty-one prior to filing his motion to transfer. Eighth,

regarding whether the juvenile acted alone or as part of a group, the court noted that there

was evidence that Flowers sometimes acted alone in sexually assaulting the victim and

sometimes acted together with Byrd. As to the ninth consideration, any written reports or

other materials relating to the juvenile’s mental, physical, educational, and social history, no

such reports were introduced. Finally, as to the tenth factor, in which the court may consider

any other evidence deemed relevant by the judge, the court stated that it did not make any

inquiry beyond the evidence presented by the parties. After considering all ten factors, the

court found that the following weighed against transfer: the seriousness of the offense, the age

of the defendants, the lack of any programs or facilities available to rehabilitate them, and the

level of maturity shown by the defendants. The court accordingly denied the motion to

transfer.




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       The State later filed a second amended information, adding a second count of rape.

Flowers filed an amended motion to transfer, in which he also sought extended juvenile

jurisdiction, arguing that the State’s subsequent amendment of the charges to include an

additional count of rape meant that he had been denied a fair juvenile-transfer hearing in the

first instance. He claimed that the findings from the original transfer hearing were no longer

applicable to the amended charges. He asked the court to transfer the case to the juvenile

division and grant extended juvenile jurisdiction or dismiss the case.

       The circuit court took judicial notice of all pleadings, testimony, and arguments that

had been presented in relation to Flowers’s original motion to transfer. The court then denied

the amended motion to transfer for the same reasons stated in its previous order. Flowers filed

a timely notice of appeal.

       Flowers challenges the court’s findings as to the statutory factors and its conclusion

that the factors weighed against transferring the case to the juvenile division. On appeal, we

will not reverse a circuit court’s decision denying a motion to transfer unless it is clearly

erroneous. Nichols, 2015 Ark. App. 397, at 4, 466 S.W.3d at 432. A finding is clearly erroneous

when, after reviewing the evidence, the appellate court is left with a firm and definite

conviction that a mistake was made. Id., 466 S.W.3d at 432 After reviewing the record and the

court’s findings, we affirm because the court’s decision regarding transfer was not clearly

erroneous. As required, the court considered each factor, made findings on each, and its

findings were supported by the evidence. As we have held many times, appellate courts will

not reweigh the evidence presented to the circuit court. See Clem v. State, 351 Ark. 112, 116, 90

S.W.3d 428, 429–30 (2002).


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       Flowers also argues that the denial of his motion to transfer is against public policy

because it punishes him for the victim’s delay in reporting the alleged crime. Flowers cites no

legal authority that reversal on this basis would be permissible or warranted. As an initial

matter, we note that Flowers’s argument that the circuit court refused to transfer the case

based solely on his age is incorrect. Even absent the court’s findings regarding Flowers’s age

and the lack of rehabilitative services available to him, transfer would not have been warranted

under the remaining factors, given the serious nature of the offense, Flowers’s active role in

the crime, his previous criminal history, and his maturity level.

       Moreover, the juvenile code has several stated purposes, one of which is

       [t]o protect society more effectively by substituting for retributive punishment,
       whenever possible, methods of offender rehabilitation and rehabilitative restitution,
       recognizing that the application of sanctions that are consistent with the seriousness of
       the offense is appropriate in all cases.

Ark. Code Ann. § 9-27-302(3). In keeping with this purpose, the legislature has designated

specific factors to be considered in determining whether transfer is appropriate. Here, the

court clearly considered the statutory factors. To the extent that it also considered Flowers’s

age and the availability of rehabilitative services, we disagree that such considerations are

contrary to the public policy of the state, as defined by the juvenile code.

       Affirmed.

       ABRAMSON and HIXSON, JJ., agree.

       The Burns Law Firm, PLLC, by: Jack D. Burn, for appellant.

       Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.




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