J.J.W. v. State , 63 O.B.A.J. 3297 ( 1992 )

ACCELERATED DOCKET ORDER

Appellant was alleged to have committed the act of Murder in the First Degree on or about the sixth day of February, 1992, in Oklahoma County, Oklahoma. The State filed a Motion to Certify Appellant to Stand Trial as an Adult under 10 O.S.1981, § 1112. A hearing was held on April 29, 1992, on both prosecutive merit and certification. The trial court found that based upon the State’s evidence there was prose-cutive merit to the crime alleged and that there was probable cause to believe that the appellant committed the crime. The trial court further sustained the State’s motion to certify appellant as an adult. From this order, appellant appealed to this Court.

The statute governing the certification process, title 10 O.S.1981, § 1112(b) provides the following:

Except as otherwise provided by law, if a child is charged with delinquency as a result of an offense which would be a felony if committed by an adult, the court on its own motion or at the request of the district attorney shall conduct a preliminary hearing to determine whether or not there is prosecutive merit to the complaint. If the court finds that prose-cutive merit exists, it shall continue the hearing for a sufficient period of time to conduct an investigation and further hearing to determine the prospects for reasonable rehabilitation of the child if he should be found to have committed the alleged act or omission.

Consideration shall be given to:

1. The seriousness of the alleged offense to the community, and whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

2. Whether the offense was against persons or property, greater weight being given to offenses against persons especially if personal injury resulted;

3. The sophistication and maturity of the juvenile and his capability of distinguishing right from wrong as determined by consideration of his psychological evaluation, home, environmental situation, emotional attitude and pattern of living;

4. The record and previous history of the juvenile, including previous contacts with community agencies, law enforcement agencies, schools, juvenile courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions;

5. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile if he is found to have committed the alleged offense, by the use of procedures and facilities currently available to the juvenile court; and

6. Whether the offense occurred while the juvenile was escaping or in an escape status from an institution for delinquent children.

The record reveals that the hearing judge in the present case put a great deal of emphasis on the nature of the offense in reaching his decision. However, the statute is unequivocal in its requirement that a child cannot be certified to stand trial as an adult without substantial evidence that the child is not amenable to rehabilitation. The transcript of the hearing in the case at bar reveals that the State wholly failed to present evidence that the appellant was not amenable to rehabilitation. All expert witnesses for the State and all lay testimony presented by the State and the defense indicated the appellant to be amenable to treatment. In fact, an expert witness for the State specifically stated that, in his opinion, J.J.W. could be helped within the juvenile justice system. Further, the record is void of evidence showing any prior contacts by the appellant with the juvenile system, community agencies, law enforcement or having disciplinary problems at school.

In adhering to the plain language of section 1112(b), this Court has found that “[t]he finding that a child is not amenable to rehabilitation within the juvenile system is a discretionary decision to be made by the judge, but the decision must be based on substantial evidence against the child's claim to the benefit of juvenile treatment.” M.L.S. v. State, 805 P.2d 665, 669 (Okl.Cr.1991). This Court in Calhoon v. State, 548 P.2d 1037 (Okl.Cr.1976) reiterated the definition of substantial evidence as set forth in Corbin v. United States, 253 F.2d 646, 649 (10th Cir.1958) as follows:

Substantial evidence is more than a scintilla. It must do more than create a suspicion of the existence of the fact to be established. We must consider the case as a whole and not piecemeal. The lines of proof must be considered together, not separately. Even if each line of proof taken by itself is of insufficient probative force, the conclusion does not necessarily follow that the proof taken as a whole is insufficient. The lines of proof interweave and support each other.

In the present case, the State had the burden of proving that the appellant was not amenable to rehabilitation. The record does not reflect even one scintilla of evidence supporting this requirement. Thus, we find that the evidence was not even sufficient to allow the trial judge to exercise his discretion in rendering this decision. See W.C.P. v. State, 791 P.2d 97, 100 (Okl.Cr.1990).

In light of the above, and being bound by the dictates of 10 O.S.1981, § 1112(b), we hold that the District Court’s decision to certify the appellant as an adult was not supported by the evidence. Therefore, the order of the District Court certifying appellant to stand trial as an adult is accordingly REVERSED and REMANDED to the District Court of Oklahoma County to conduct a delinquency proceeding.

IT IS SO ORDERED.

/s/ James F. Lane JAMES F. LANE, Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge

/s/ Ed Parks ED PARKS, Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge.