Box v. State , 71 Ark. App. 403 ( 2000 )

OHN E. JENNINGS, Judge.

The appellant, Rufus Antonio Box, was charged by information in circuit court with the offenses of residential burglary, rape, and terroristic threatening in the first degree. He was sixteen years old at the time the offenses were allegedly committed and when the information was filed. This is an interlocutory appeal from an order denying appellant’s motion to transfer these charges to juvenile court.

Appellant urges two points for reversal. He argues: (1) that the trial court erred in denying the motion due to the State’s failure to offer any evidence concerning the seriousness of the offenses with which he was charged; and (2) that the trial court erred by failing to make written findings to support its decision. We find no error and affirm.

The trial court held a hearing on appellant’s motion to transfer. It was brief, consisting primarily of argument of counsel, although the State did introduce into evidence exhibits showing appellant’s past criminal record both in juvenile and circuit court. In its order denying the motion, the court stated its reasons as “the seriousness of the offense, that this offense is a repetitive pattern of violence towards persons, the prior history, mental maturity and character traits” of the appellant.

Appellant first argues that the trial court erred in retaining jurisdiction because the State failed to present any evidence concerning the seriousness of the offenses as required by the decision in Thompson v. State, 330 Ark. 746, 957 S.W.2d 1 (1997). We find no error.

To determine whether a case should be transferred to juvenile court, the following factors are to be considered:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;

(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and

(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Repl. 1998). In reviewing a transfer-denial decision, we do not overturn the circuit court unless the decision is clearly erroneous. Brown v. State, 330 Ark. 603, 954 S.W.2d 273 (1997).

In Thompson v. State, supra, the supreme court held that the State could no longer rely upon the allegations contained in the information alone to establish the seriousness of the offenses. The court said that a “meaningful hearing” was required in which some evidence was to be presented to substantiate the serious and violent nature of the charges. Even so, a circuit court does not have to give equal weight to each of the three statutory factors; nor does evidence have to be presented regarding each factor. Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998).

Here, in addition to the seriousness and violent nature of the charges, the trial court also found the current charges to be part of a repetitive pattern of adjudicated offenses of increasing violence towards persons. The record shows that appellant was adjudicated a delinquent juvenile in 1995. A docket entry from that case dated November 6, 1997, reflects that appellant had “been in and out of detention in Hot Springs.” Another entry, dated August 17, 1998, states that he was “in adult criminal detention in Hot Springs.” In February of 1999, just four months prior to the filing of the present charges, appellant was found guilty as an adult on multiple charges of second-degree battery, arson, criminal mischief in the second degree, and aggravated assault on an employee of a correctional facility. Thus, there is evidence in the record to show that the charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation had proved unsuccessful, and that the pattern of offenses had become increasingly more serious. We cannot say that the trial court’s decision is clearly erroneous. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Brown v. State, supra; Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).

Appellant’s next argument is based on the provision in Act 1192 of 1999, which amended Ark. Code Ann. § 9-27-318(g) (Supp. 1999) to require that the court “shall make written findings” in making the decision either to retain or transfer the case to juvenile court. Appellant argues that the amendment was in effect at the time of the hearing and that the trial court erred by failing to make written findings. Appellant, however, did not raise this issue in the trial court.

In our view, this provision 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.” It has been held that this right, like any other procedural right, can be waived by the failure to object. 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). We see no reason to apply a different rule here. 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. See Hawkins v. State, supra. Additionally, in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996), the appellant argued that the trial court was required to make written findings of fact to support its decision to deny a transfer to juvenile court as a matter of due process, based on the decision in Kent v. United States, 383 U.S. 541 (1966). The supreme court declined to address the issue because there had been no objection made below, noting that even constitutional issues will not be heard for the first time on appeal. Thus, we conclude that appellant’s failure to object precludes consideration of this point on appeal.

Affirmed.

Robbins, C.J., Hart, Crabtree, and Meads, JJ., agree. Griffen, J., dissents.