ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL LEE BROWN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-1094

September 8, 2004

APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY

[NO. CR 03-90; CR 03-94; CR 03-95]

HONORABLE JERRY WAYNE LOONEY,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Michael Lee Brown brings this interlocutory appeal from an order denying his motion to transfer the criminal charges brought against him to the juvenile division of circuit court. For reversal, appellant contends that the trial court's decision is clearly erroneous. We disagree and affirm.

By separate informations filed in late May and early June 2003, appellant was charged with commercial burglary and misdemeanor theft of property1 involving Martin's Grocery in Mena, Arkansas, which occurred on May 20, 2003; the May 21, 2003, commercial burglary of Rich Mountain Community College in Mena; and commercial burglary and felony theft of property involving the Shady Rest Store in Mena, which took place on May 22, 2003. Appellant promptly filed motions to transfer these charges to juvenile court.

At the hearing held on July 14, 2003, it was disclosed that appellant had confessed his involvement in the various crimes, also indicating that others participated as well. It was said that groceries, later found at a campsite, had been taken from the Shady Rest Store that amounted to about seventy-five percent of the small stores merchandise. There was testimony that a considerable amount of force had been used to gain entry into the store through the back door, which had been secured by a bar. Small items, such as chips, soft drinks, cigarettes and change, had been stolen from Martin's Grocery Store. Access to this store was achieved by breaking a window. Blood was found throughout the store, indicating that the perpetrator had cut himself. During questioning, it was noticed that appellant had a large gash on his right wrist that had become infected. Nothing had been taken from the community college, where an alarm had sounded after the perpetrators entered the building through the air-duct system. Appellant told officers that he and a friend had become bored after playing basketball and that they decided to break into the college to steal a television.

It was also revealed at the hearing that appellant had come to the attention of the juvenile authorities on four previous occasions. Beginning in May 1999, appellant was ordered to attend counseling for six months for theft of property. In August 2001, appellant was the subject of a diversion agreement for possession of alcohol by a minor. In May of 2002, also as a result of a diversion agreement for theft by receiving and possession of drug paraphernalia, appellant was sent to C-Step, a nine-week residential program which was described as a boot camp sponsored by the Arkansas National Guard. And finally, just one month prior to the commission of the current offenses, appellant was adjudicated as a delinquent for criminal trespass and was placed on probation. There was testimony that this adjudication concerned an incident where appellant attempted to collect money owed for a bag of marijuana.

Anne Smart, the juvenile intake officer for Polk and Montgomery Counties, testified that appellant violated the conditions of his probation each time there was a diversion agreement and that he did not follow through on court-ordered conditions of his probation. Specifically, she said that, with regard to the April 2003 adjudication, appellant had not complied with the condition that he immediately enter and complete a drug-abuse treatment program. It was her opinion that, given his history of offenses, his attendance at boot camp, and his non-compliance with court-ordered conditions, there was nothing further that could be done for appellant in the juvenile system.

Appellant's father, Wayne Charles Clement, testified that appellant was taking Wellbutrin and two other medications for ADD and depression. He said that he had been unable to get appellant into a treatment program.

William Joseph Head, a licensed psychological examiner, testified that he began working with appellant in June 2002. He said that appellant's IQ was 89, which was in the low-average to average range, and that his age equivalence was that of a nine year old. Head said that he did not have any evidence that appellant was beyond rehabilitation. He expressed concerns about appellant's ability to control his impulses and said that he preferred to see appellant in juvenile court where he could receive treatment.

A prosecutor has the discretion to file charges against a juvenile in the criminal division of circuit court when a juvenile is at least sixteen years of age and when the juvenile is alleged to have committed a felony. Ark. Code Ann. § 9-27-318 (c)(1) (Repl. 2002).2 A trial court's finding that a juvenile should be tried as an adult must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(h) (Repl. 2002). 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. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). The circuit court's decision on whether to transfer the case to juvenile court will not be reversed unless the decision is clearly erroneous. Witherspoon v. State, 74 Ark. App. 151, 46 S.W.3d 549 (2001).

In making the decision to retain jurisdiction or to transfer the case, the judge is required to consider the factors set out in Ark. Code Ann. § 9-27-318(g), which are:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or 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 which are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of circuit court's jurisdiction;

(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;

(9) Written reports or other materials relating to the juvenile's mental, physical, educational and social history; and

(10) Any other factors deemed relevant by the judge.

The circuit court is not required to enumerate all ten factors in its written findings. Witherspoon v. State, supra. See also Beulah v. State, 344 Ark. 528, 42 S.W.3d 461 (2001). In addition, proof need not be introduced against the juvenile on each statutory factor, and the trial court is not required to give the factors equal weight. See Otis v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 22, 2004).

In his argument on appeal, appellant complains that there was no evidence presented with regard to each of the statutory factors and that the trial court did not make findings with respect to all of the factors, or all parts of the enumerated factors. It will suffice to say there is no requirement that evidence be introduced as to each of the factors, and the trial court is not required to set out findings with regard to each and every factor. Id.

Appellant further contends that consideration of the factors favor his being tried in juvenile court. We disagree. Appellant was charged with four class C felonies, which are considered serious offenses. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). There was also evidence that the offenses were committed in an aggressive, premeditated, and willful manner. Appellant was seventeen at the time of the hearing, just six months short of his eighteenth birthday, which adversely reflects upon his prospects for rehabilitation. See Heagerty v. State, supra. In addition, his past history in juvenile court, his repeated failure to comply with the terms of his probation, the increased seriousness of the present offenses, and his previous attendance at boot camp demonstrate the unlikelihood of rehabilitation through treatment of appellant as a juvenile. See e.g., Witherspoon v. State, supra. We cannot say that the trial judge's decision is clearly erroneous. We note that in its order the trial court misstated the number of charges appellant was currently facing. However, we are not persuaded that this misstatement renders the court's ultimate conclusion clearly erroneous.

Affirmed.

Stroud, C.J., and Neal, J., agree.

1 We note that the juvenile division of circuit court has exclusive jurisdiction when a delinquency case involves a juvenile, less than eighteen years old, who is accused of engaging in conduct that, if committed by an adult, would be any misdemeanor offense. Ark. Code Ann. § 9-27-318(a)(2) (Repl. 2002).

2 This statute was amended in 2003, but the amendment took affect after the proceedings in this case, and thus does not apply here. See Jongewaard v. State, 71 Ark. App. 269, 29 S.W.3d 758 (2000).