Ponder v. State

John Phillip PONDER v. STATE of Arkansas

96-1269                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997


1.   Juveniles -- juvenile transfer -- proof required. --  Pursuant
     to section Ark. Code Ann.  9-27-318(f)(Supp. 1995), the
     determination that a juvenile should be tried as an adult must
     be supported by clear and convincing evidence; clear and
     convincing evidence is defined as that degree of proof that
     will produce in the trier of fact a firm conviction regarding
     the allegation sought to be established; the supreme court
     will not reverse a circuit court's denial of a juvenile
     transfer unless the denial was clearly erroneous.

2.   Juveniles -- juvenile transfer -- factors to be considered --
     need not be given equal weight. -- Arkansas  Code Annotated 
     9-27-318(e) provides in part the factors to be considered in
     a juvenile transfer hearing, they include: (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; a circuit court is
     not required to give equal weight to each of these statutory
     factors; proof need not be introduced against the juvenile on
     each factor.

3.   Juveniles -- juvenile transfer -- trial court did not err in
     concluding appellant was beyond rehabilitation -- denial of
     motion to transfer to juvenile court supported by clear and
     convincing evidence. -- Where the evidence demonstrated that
     appellant was involved in the serious offense of capital
     murder and that he employed a gun in committing the offense,
     the fact that the offense charged was serious in nature and
     was accomplished with the use of violence was enough to
     warrant a denial of transfer of appellant's case to juvenile
     court; no element of violence beyond that required to commit
     the crime is necessary under section 9-27-318(e)(1);
     notwithstanding the violent and serious nature of the offense,
     the trial court's decision was further supported by the fact
     that appellant had committed two prior adjudicated offenses,
     approximately one month before the murder, and had been placed
     on juvenile probation; where there was evidence that the
     current felony charges were part of a repetitive pattern of
     offenses, that past efforts at rehabilitation in the juvenile
     court system have not been successful, and that the pattern of
     offenses has become increasingly more serious, the trial court
     did not err by concluding that appellant was beyond
     rehabilitation; the decision of the trial court denying
     appellant's motion to transfer to juvenile court was supported
     by clear and convincing evidence.


     Appeal from Union Circuit Court, First Division; John Graves,
Judge; affirmed.
     Depper Law Firm, by:  Robert L. Depper, Jr., for appellant.
Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y Gen., for
appellee.

     Donald L. Corbin, Justice.
     Appellant John Phillip Ponder appeals the order of the Union
County Circuit Court denying his motion to transfer the charge
against him to juvenile court.  We have jurisdiction of this
interlocutory appeal.  Ark. Sup. Ct. R. 1-2(a)(11); Ark. Code Ann.
 9-27-318(h) (Supp. 1995).  We cannot say the trial court's
decision to retain jurisdiction of the case was clearly erroneous,
and therefore we affirm. 
     Pursuant to the prosecutor's discretion in section 9-27-
318(b)(1), Appellant was charged in circuit court with one count of
capital murder for the death of seventy-five-year-old Violet
Willett.  The information alleged that Appellant was born
February 6, 1981, and that the crimes occurred on June 21, 1995. 
Appellant was thus fourteen years old when the crime was committed. 
     Appellant filed a motion to transfer the charge to juvenile
court.  During the April 1, 1996 hearing, Deputy Michael Fife, of
the Union County Sheriff's Department, described the crime scene to
the court and testified as to portions of two statements given by
Appellant to police.  Appellant admitted to entering Violet
Willett's home two times on June 21, 1995, with the intention of
taking items.  While he was there the second time, he took a watch,
a necklace, and some guns.  After Appellant had remained at the
home for approximately one hour, Willett returned.  As she entered
her home, Appellant stated that he hid next to a chair.
     As to what happened after Willett returned and the actual
cause of her death, Appellant's two statements differ.  In his
first statement, he stated that he stood up with Willett's .22
caliber rifle in his hands.  He indicated that he had previously
unloaded the gun and then reloaded it with different ammunition. 
He then told Willett to give him her truck keys, when the gun went
off.  In the second statement, however, he contended that the gun
went off when he placed the barrel of the rifle on a wall
partition, striking Willett and causing her death.  Appellant
stated in both interviews that he then threw down the gun and
another shot fired.  He admitted to looking in Willett's pocket for
her keys while she lay bleeding on the floor.  He also took two
guns and seized money from Willett's purse before driving off in
her truck.  After wrecking the vehicle, he was found wearing the
stolen watch and was charged with capital murder.
     The State also provided testimony from Dr. Frank Peretti, an
associate medical examiner who performed the autopsy on Willett. 
Dr. Peretti testified that the trajectory of the bullet went from
the front part of Willett's skull to the back in a downward path. 
He stated that the cause of death was a gunshot wound of the head,
with neck injuries.
     Phillip Taylor, a juvenile probation officer, testified that
Appellant had been involved in the juvenile court system three
times prior to the incident.  On April 26, 1994, he was involved in
the unauthorized use of a vehicle in which he took a truck without
permission.  The victim did not wish to pursue charges, as long as
restitution was paid for the damage done to the truck.  On May 12,
1995, after skipping school, Appellant was charged with arson for
setting fire to a wooden podium in a shower stall of the boy's
locker room at Barton Middle School in El Dorado.  Also in May
1995, he damaged the front and rear windshield of a vehicle owned
by a school teacher at Barton Middle School.  After Appellant
pleaded "true" to the charges of criminal mischief and arson, the
juvenile court judge ordered that Appellant be placed on six
months' probation and sent to South Arkansas Youth Services Center. 
The present incident occurred while Appellant was waiting for an
available space at the youth facility.
     Appellant presented the following testimony.  Joe Ogden, the
director of the Central Arkansas Serious Offender Program for
juveniles, testified regarding the fact that out of the twenty-four
males in the program, five, between the ages of fourteen and one-
half to seventeen years of age, had committed the offense of
capital murder.  Jan Nelson, a clinical social worker from the
South Arkansas Regional Health Center, testified that her initial
diagnosis of Appellant was adjustment disorder with mixed conduct
and emotional features.  She also stated that Appellant was not
mature for his age because of his impulsiveness.  On cross-
examination, she stated that Appellant's age was a factor in
determining that he could be rehabilitated.  She admitted, however,
that she could not be considered an expert in the rehabilitation of
juveniles.  John Huey Ponder, Appellant's father, confirmed the
incidents dealt with in juvenile court and acknowledged that he and
his wife had left Appellant by himself on the day of the shooting.
     After hearing all the testimony, the trial court denied the
motion to transfer the case to juvenile court.  In a written
opinion, the court stated that "the offense charged is a serious
one and was committed in a violent manner while in the process of
a burglary of the victim's home."  The court also noted that
Appellant was on probation for arson and criminal mischief at the
time of the murder, and he was therefore beyond rehabilitation in
existing juvenile programs.  Consequently, the court found clear
and convincing evidence to retain the charge in circuit court. 
     Pursuant to section 9-27-318(f), the determination that a
juvenile should be tried as an adult must be supported by clear and
convincing evidence.  Butler v. State, 324 Ark. 476, 922 S.W.2d 685
(1996).  Clear and convincing evidence is defined as that degree of
proof that will produce in the trier of fact a firm conviction
regarding the allegation sought to be established.  Id.  The
supreme court will not reverse a circuit court's denial of a
juvenile transfer unless the denial was clearly erroneous.  Wilkins
v. State, 324 Ark. 60, 918 S.W.2d 702 (1996). 
     Section 9-27-318(e) provides in part the factors to be
considered in a juvenile transfer hearing as follows:
          (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. 

A circuit court is not required to give equal weight to each of
these statutory factors.  Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996).  Proof need not be introduced against the juvenile on
each factor.  Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). 
     Appellant asserts that the trial court erred in denying the
motion to transfer because of the juvenile's age and his
probability of rehabilitation.  He also argues that the trial court
erred because he contends the crime was accidental and did not
involve the employment of violence.  In support of this argument,
he relies heavily on this court's decision in Green, 323 Ark. 635,
916 S.W.2d 756.  The facts present in this case are distinguishable
from those in Green, where the appellant was charged with
manslaughter.  Here, the evidence demonstrates that Appellant was
involved in the serious offense of capital murder and that he
employed a gun in committing the offense.  The fact that the
offense charged was serious in nature and was accomplished with the
use of violence is enough to warrant a denial of transfer of
Appellant's case to juvenile court.  No element of violence beyond
that required to commit the crime is necessary under section
9-27-318(e)(1).  Lammers, 324 Ark. 222, 920 S.W.2d 7.
     Notwithstanding the violent and serious nature of the offense,
the trial court's decision is further supported by the fact that
Appellant had committed two prior adjudicated offenses,
approximately one month before the murder, and had been placed on
juvenile probation.  Where there is evidence that the current
felony charges were part of a repetitive pattern of offenses, that
past efforts at rehabilitation in the juvenile court system have
not been successful, and that the pattern of offenses has become
increasingly more serious, these factors alone prevent a holding
that the trial court's ruling on the transfer motion was clearly
erroneous.  Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882
(1994).  Thus, the trial court did not err by concluding that
Appellant was beyond rehabilitation.
     Based upon the foregoing reasons, we conclude that the
decision of the trial court denying Appellant's motion to transfer
the charge to juvenile court is supported by clear and convincing
evidence.  
     Glaze and Imber, JJ., concur.


             TOM GLAZE, Associate Justice, concurs.

     I concur.  While I disagree with this court's attempt to
distinguish Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996),
from the present case, that is not the reason I write this
concurring opinion.  Rather, I address appellant's reliance on
Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), and his
request for us to review his case in light of a statement in
Sanders indicating this court's intention to reconsider its past
interpretations of Ark. Code Ann.  9-27-318 (Supp. 1995).  The
court in Sanders did state a concern that, under our current
interpretation of the juvenile code, prosecuting attorneys can file
a serious charge against a juvenile in circuit court and do nothing
more.  The Sanders court further said it did not intend for its
earlier interpretations of the code to do away with the need for a
meaningful hearing.  The Sanders court issued a caveat that, in
juvenile cases tried after Sanders, the court would consider anew
its interpretation of the juvenile code when the issues are fully
developed and briefed.
     The present case is not the type the court had in mind in
Sanders, since here a meaningful hearing was conducted.  The State
offered ample evidence that the crime with which Ponder was charged
was serious and involved the employment of violence.  In addition,
the State offered evidence that the current felony charges
reflected a repetitive pattern of offenses, that past efforts at
rehabilitation have been unavailing, and that the pattern has
become increasingly more serious.
     In contrast to the case at bar, our court, in Walker v. State,
304 Ark. 393, 803 S.W.2d 502 (1991), affirmed the trial court's
denial to transfer Walker's case to juvenile court even though the
State's only argument was that its information, describing the
offense charged as serious and involving violence, outweighed the
lack of repetitive pattern and positive character traits which were
shown by Walker at the transfer hearing.  This court approved the
State's use of its information, only, to affirm the trial court,
and stated the following:
          While it might have been desirable and even
     preferable for the prosecutor to present additional
     evidence at the hearing to support retaining [Walker] in
     circuit court, we hold that the criminal information
     provided a sufficient basis for the trial court's
     decision.
     In conclusion, while this court said in Sanders that it would
reconsider our prior interpretation of the code, its concern
involved prosecuting attorneys filing serious charges against a
juvenile in circuit court and offering no further proof in
transfer-motion hearings.  That situation does not exist here,
since a meaningful hearing was held.  However, when the court is
again confronted with a case such as Walker, where the State offers
nothing but an information at a hearing on a transfer motion, it
will then be appropriate for this court to consider anew its ruling
in Walker and cases like it.
     Imber, J., joins this concurrence.