The opinion
Robert L. Brown, Justice, dissenting. This case involves the arrest of a sixteen-year-old youth, who had fifteen rocks of what appeared to be crack cocaine in his possession. 1 The trial judge found that the appellant was engaged in a “very serious offense” which he considered to be a “very weighted factor against transfer.” The majority now reverses that decision, apparently on the basis that the seriousness of the offense, standing alone, is not sufficient to warrant trying a youth as an adult. I disagree.
The Juvenile Transfer Act provides that the trial judge only consider certain factors and then make a decision:
(e) 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.
(4) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.
Ark. Code Ann. § 9-27-318 (Supp. 1991). (Emphasis added.)
In past decisions, we have not divested the trial judge of the decision-making function simply because the judge emphasized one factor over the other factors listed in the statute. On the contrary, we have held that the judge need not give equal weight to each factor and that proof of each factor was not required. Smith v. State, 307 Ark. 223 , 818 S.W.2d 945 (1991); Pennington v. State, 305 Ark. 312 , 807 S.W.2d 660 (1991); Walker v. State, 304 Ark. 393 , 803 S.W.2d 502 (1991); reh. denied, 304 Ark. 402A , 805 S.W.2d 80 (1991). By its decision today, the majority alters this precedent and diminishes a trial judge’s authority to retain jurisdiction due to the seriousness of the offense.
The majority states that part of its reasoning for reversal is that violence was not employed in the crime charged. Violence is only one of the factors to be considered, and it is safe to assume that the violence contemplated in Ark. Code Ann. § 9-27-318 (e) (1) (Supp. 1991) is violence against a person. Nowhere is it stated in the statute that a serious crime must entail an act of violence for the trial judge to retain jurisdiction. In fact, the statute clearly enumerates “seriousness” and “violence” as separate factors to be considered.
We have not required that violence be an absolute condition for denial of juvenile transfers denied in previous cases. See, e.g., Bright v. State, 307 Ark. 250 , 819 S.W.2d 7 (1991) burglary and felony theft of property. In Bright, we said, “The crimes charged in this case, burglary and felony theft of property, are not in the most serious category of crimes and did not involve violence against a person, although they did involve violence against property.” 307 Ark. 251 , 819 S. W.2d at 8 . We further considered a case without violence where the crime involved was criminal mischief in the first degree and the damage to property was the knocking over of approximately 30 tombstones. See Pennington v. State, 305 Ark. 312 , 807 S.W.2d 660 (1991). We reversed for reasons other than the absence of violent behavior.
For the first time, the majority questions a trial judge’s denial of transfer because of the seriousness of the crime. This decision changes the juvenile transfer language considerably. Henceforth, trial judges may not retain jurisdiction unless violence is involved, even though the judge may well have considered all statutory factors and found that the high degree of seriousness — here, significant drug dealing — controlled the decision. Such an interpretation goes well beyond the statutory terms in § 9-27-318(e).
In my opinion, juvenile transfer matters are best left to the trial judges to determine in light of the statutory criteria, and we should only reverse when the findings are clearly erroneous. There is nothing in the record to suggest that the trial judge did not consider all of the statutory factors in this case. The only testimony offsetting the seriousness factor came from the appellant himself and his mother, where the obvious lack of objectivity warrants no further comment.
The majority states that there is a danger that the trial judges will simply look to seriousness, disregard the other factors, and retain jurisdiction. That did not occur in this case and this particular fear, in my judgment, is ill-founded. By holding as the majority does, it has substituted its preference for one statutory factor — violence — over the others. This is contrary to what the statute requires. The trial judges are in an eminently better position to weigh the statutory factors and make an accurate determination than the appellate courts. I would affirm.
The appellant now Is seventeen and the juvenile court typically has jurisdiction of a juvenile until age eighteen. Ark. Code Ann. § 9-27-303 (1) (1987).