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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-1140
Opinion Delivered September 20, 2017
BYRON JAMARR FLOWERS APPEAL FROM THE MILLER
APPELLANT COUNTY CIRCUIT COURT
[NO. 46CR-14-535]
V.
HONORABLE CARLTON D.
JONES, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant, Byron Jamarr Flowers, appeals the Circuit Court of Miller County’s order
denying his motion to transfer his case to the juvenile division of circuit court. We affirm.
In 2014, Flowers and a codefendant, Costello Byrd, were charged with raping a child,
R.S., who was under the age of fourteen. The events were alleged to have occurred in 2009
and 2010. While the case was pending in the Miller County Circuit Court, Flowers filed a
motion to transfer it to the juvenile division. On December 10, 2015, the court held a juvenile-
transfer hearing, after which it issued a letter order denying the motion.
Flowers was twenty years old when the charges were first brought against him in this
case. The acts were alleged to have occurred when the victim was between the ages of three
and six years old, and when Flowers was between the ages of fourteen and sixteen years old.
The victim alleged that Flowers and Byrd repeatedly raped her vaginally and anally, causing
her to bleed. A sexual-assault examination revealed four well-healed injuries to her vaginal area
Cite as 2017 Ark. App. 468
that were consistent with her accounts of the rapes. By the time Flowers filed his first juvenile-
transfer motion, he had already turned twenty-one. His amended motion was filed after his
twenty-second birthday. At the transfer hearing, an employee of the Division of Youth
Services testified that there were no programs or facilities available to individuals who have
reached the age of twenty-one. Scott Tanner, a juvenile ombudsman, testified that the juvenile
court loses jurisdiction when an individual reaches the age of twenty-one. He also agreed that
there are no juvenile programs available to Flowers due to his age. Flowers’s mother testified
that, while he had been an obedient child, he was currently on probation for a misdemeanor
marijuana conviction. He had worked full time since he was fifteen years old, purchased his
own car at sixteen years old, and she now considered him an adult.
Arkansas Code Annotated section 9-27-318(g) (Repl. 2015) sets forth the factors the
circuit court must consider and make written findings on at a transfer hearing. Those factors
are:
(1) the seriousness of the alleged offense and whether the protection of society requires
prosecution 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;
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(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 that are likely to rehabilitate the juvenile before the expiration of the
juvenile’s twenty-first birthday;
(8) whether the juvenile acted alone or was part of a group in the commission of the
alleged offense;
(9) written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and
(10) any other factors deemed relevant by the judge.
R.G.W. v. State, 2014 Ark. App. 545, at 2–3, 444 S.W. 3d 376, 377. Proof need not be
introduced on each factor. Nichols v. State, 2015 Ark. App. 397, at 5, 466 S.W.3d at 433. The
circuit court does not have to give equal weight to each factor. R.G.W., 2014 Ark. App. at 3.
The movant bears the burden of proving the necessity of transfer from the criminal division
to the juvenile division of circuit court. See Nichols, 2015 Ark. App. 397, at 3, 466 S.W.3d 431,
432.
The court found that almost every statutory factor weighed against granting Flowers’s
motion to transfer. As to the first factor, the seriousness of the offense, the court correctly
found that rape, a Class Y felony, is serious—the only offense in Arkansas that carries a greater
potential sentence is capital murder. Here, the court noted that the alleged rape was of a young
child and involved a continuous course of abuse. As to the second factor, whether the offense
was committed in an aggressive, violent, premeditated, or willful manner, the court found that
rape is a crime of force and violence and that there was evidence that the acts were willful and
premeditated. As to the third factor, the court found that, by its statutory definition, rape is a
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crime committed against a person, not property. Fourth, as to the culpability of each
defendant, the court found that there was evidence that each fully participated in sexually
assaulting the victim rather than acting as a bystander or lookout. The fifth factor, the juvenile’s
previous history, revealed that although neither defendant had significant contacts with the
criminal-justice system in the past, Flowers had been arrested for misdemeanor marijuana
possession. Sixth, regarding the sophistication or maturity of the juvenile, the court found that
there was no evidence of any psychological or behavior disorder, and Flowers had graduated
high school, worked full time since the age of fifteen, and had purchased his own vehicle.
Seventh, the court noted that there are no programs or facilities available to rehabilitate
Flowers due to his age—he turned twenty-one prior to filing his motion to transfer. Eighth,
regarding whether the juvenile acted alone or as part of a group, the court noted that there
was evidence that Flowers sometimes acted alone in sexually assaulting the victim and
sometimes acted together with Byrd. As to the ninth consideration, any written reports or
other materials relating to the juvenile’s mental, physical, educational, and social history, no
such reports were introduced. Finally, as to the tenth factor, in which the court may consider
any other evidence deemed relevant by the judge, the court stated that it did not make any
inquiry beyond the evidence presented by the parties. After considering all ten factors, the
court found that the following weighed against transfer: the seriousness of the offense, the age
of the defendants, the lack of any programs or facilities available to rehabilitate them, and the
level of maturity shown by the defendants. The court accordingly denied the motion to
transfer.
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The State later filed a second amended information, adding a second count of rape.
Flowers filed an amended motion to transfer, in which he also sought extended juvenile
jurisdiction, arguing that the State’s subsequent amendment of the charges to include an
additional count of rape meant that he had been denied a fair juvenile-transfer hearing in the
first instance. He claimed that the findings from the original transfer hearing were no longer
applicable to the amended charges. He asked the court to transfer the case to the juvenile
division and grant extended juvenile jurisdiction or dismiss the case.
The circuit court took judicial notice of all pleadings, testimony, and arguments that
had been presented in relation to Flowers’s original motion to transfer. The court then denied
the amended motion to transfer for the same reasons stated in its previous order. Flowers filed
a timely notice of appeal.
Flowers challenges the court’s findings as to the statutory factors and its conclusion
that the factors weighed against transferring the case to the juvenile division. On appeal, we
will not reverse a circuit court’s decision denying a motion to transfer unless it is clearly
erroneous. Nichols, 2015 Ark. App. 397, at 4, 466 S.W.3d at 432. A finding is clearly erroneous
when, after reviewing the evidence, the appellate court is left with a firm and definite
conviction that a mistake was made. Id., 466 S.W.3d at 432 After reviewing the record and the
court’s findings, we affirm because the court’s decision regarding transfer was not clearly
erroneous. As required, the court considered each factor, made findings on each, and its
findings were supported by the evidence. As we have held many times, appellate courts will
not reweigh the evidence presented to the circuit court. See Clem v. State, 351 Ark. 112, 116, 90
S.W.3d 428, 429–30 (2002).
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Flowers also argues that the denial of his motion to transfer is against public policy
because it punishes him for the victim’s delay in reporting the alleged crime. Flowers cites no
legal authority that reversal on this basis would be permissible or warranted. As an initial
matter, we note that Flowers’s argument that the circuit court refused to transfer the case
based solely on his age is incorrect. Even absent the court’s findings regarding Flowers’s age
and the lack of rehabilitative services available to him, transfer would not have been warranted
under the remaining factors, given the serious nature of the offense, Flowers’s active role in
the crime, his previous criminal history, and his maturity level.
Moreover, the juvenile code has several stated purposes, one of which is
[t]o protect society more effectively by substituting for retributive punishment,
whenever possible, methods of offender rehabilitation and rehabilitative restitution,
recognizing that the application of sanctions that are consistent with the seriousness of
the offense is appropriate in all cases.
Ark. Code Ann. § 9-27-302(3). In keeping with this purpose, the legislature has designated
specific factors to be considered in determining whether transfer is appropriate. Here, the
court clearly considered the statutory factors. To the extent that it also considered Flowers’s
age and the availability of rehabilitative services, we disagree that such considerations are
contrary to the public policy of the state, as defined by the juvenile code.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
The Burns Law Firm, PLLC, by: Jack D. Burn, for appellant.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.
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