# Walker v. State > Supreme Court of Arkansas · January 28, 1991 · 304 Ark. 393 URL: https://www.frixlaw.com/law-library/cases/9672512 ## Case - **Full name:** Robert Christian WALKER v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** January 28, 1991 - **Citations:** 304 Ark. 393; 803 S.W.2d 502; 1991 Ark. LEXIS 32 - **Precedential status:** Published - **Opinion:** Dissent by Newbern - **Judges:** Brown, Corbin, Dudley, Newbern - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672512 ## How later opinions describe it (automated extraction) - holding that a criminal information is only evidence that the defendant was charged with a violent crime - stating that abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but establishes that the trial decision was arbitrary and groundless ## Opinion text David Newbern, Justice, dissenting. The petition for rehearing in this case makes it clear that the Court’s original opinion unduly emphasized the “moving party” rationale. The statute requires a hearing to determine whether there is “clear and convincing evidence that a juvenile should be tried as an adult” even if there is no “moving party.” Again the Court ignores the import of the words “should be tried as an adult” which explains the issue to be decided. Again I contend those words show the General Assembly’s intent that the State have the burden. That becomes even clearer in light of a point made in Walker’s petition for rehearing that henceforth a juvenile will simply make no motion for transfer and await a hearing instigated by the State or a judge. How will this Court then handle its decision that the “moving party” has the burden of proof on the issue? Assuming the matter is disputed, surely the State will take the affirmative on the statutory proposition that the juvenile “should be tried as an adult.” Additionally, if we are to use a “moving party” rationale, we should recognize that the State, by filing the case in the Circuit Court is the party “moving” that the juvenile be tried as an adult. Now that we have recognized that the standard of review is not whether the trial judge abused his discretion, it should be clearer that some facts other than the charge are to be presented in support of a ruling that a juvenile “should be tried as an adult.” The cases cited in the Court’s original opinion in support of the “abuse of discretion” standard of review were ones decided before the adoption of Act 273 of 1989 containing the language setting the issue to be decided as whether there is “clear and convincing evidence that a juvenile should be tried as an adult.” In Midgett v. Arkansas Dept. of Human Services, 301 Ark. 491 , 785 S.W.2d 21 (1990), we pointed out that where an issue was one a trial court could decide in its discretion, a “clear and convincing evidence” standard would be “inappropriate.” When a chancellor or a judge sitting without a jury is to determine facts by clear and convincing evidence, the standard of review is whether the trial court’s decision was clearly erroneous. Gibson v. Boling, 274 Ark. 53 , 622 S.W.2d 180 (1981); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471 , 604 S.W.2d 950 (1980). The issue whether a juvenile “should be tried as an adult” is not “factual” in isolation, and yet by setting forth the factual criteria for making that determination and by adding the “clear and convincing evidence” standard, the General Assembly has made the ultimate decision one which is to be based on facts rather than judicial discretion. The majority opinion on denial of rehearing acknowledges the standard of review to be whether the judge’s decision was clearly erroneous or clearly against the preponderance of the evidence, citing Ark. R. Civ. P. 52(a). Rule 52(a) provides, in pertinent part, “Findings of fact. . . shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . .” Where are the facts bearing on the statutory criteria for finding by “clear and convincing evidence that [the] juvenile should be tried as an adult?” Here are the criteria stated in Ark. Code Ann. § 9-27-318 (e) (Repl. 1991): In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors: (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. Nothing, other than the charge, was presented by the State. As was pointed out in our earlier opinions, there was considerable testimony presented by the juvenile on various aspects of factors (2) and (3), .all of it favorable to the juvenile. In First National Bank v. Rush, 30 Ark. App. 272 , 785 S.W.2d 474 (1990), our Court of Appeals recited this definition: Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testified is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the factfinder to come to a clear conviction, without hesitance, of the truth of the facts related. It is simply that degree of proof that will produce in the trier of fact a firm conviction of the allegations sought to be established. While our job is not to determine on appeal whether there was clear and convincing evidence or whether the trial court abused its discretion we must decide whether the trial court clearly erred in making the determination. If the determination was not clearly erroneous when all the evidence but for the charge was on the side of trying the juvenile as a juvenile, then how could we ever hold a decision that a juvenile, charged in Circuit Court, should be tried as such is clearly erroneous? If we can never make such a decision, then why did the General Assembly not simply require that any juvenile charged with a serious offense be tried as an adult? It was clearly erroneous for the trial court to determine that Walker should be tried as an adult based solely on the charge. But for the charge filed by the State, all evidence was contrary to the trial court’s holding. This decision means that any time a serious charge is filed against a juvenile, the court may, without more, and in spite of the statutory criteria for making the decision, decide to try the juvenile as an adult. The General Assembly has recognized that juveniles are to be treated differently unless they fit certain criteria. All we know about the juvenile in question here is that there was strong evidence that nearly all of the statutory criteria were met by him, and yet we affirm the trial court’s decision to try him as an adult solely because he is alleged to have committed a serious offense. We allow the State to shirk its responsibility to present evidence because of a “moving party” rationale which counsel for juveniles will be able to manipulate by simply making no motion to transfer. In the next case that comes to us on this issue, the State or the judge will have called for the hearing, and the juvenile will be able to sit tight until the State has presented “clear and convincing evidence that the juvenile should be tried as an adult.” It is unfair to treat the juvenile in this case differently. This case should be remanded and the State given an opportunity to present “clear and convincing evidence that the juvenile should be tried as an adult.” I respectfully dissent. Dudley and Corbin, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672512. Public record. Not legal advice.