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ARKANSAS COURT OF APPEALS DIVISION I No. CR-16-1085

Opinion Delivered October 4, 2017

APPEAL FROM THE SEBASTIAN J.N.A. COUNTY CIRCUIT COURT, FORT APPELLANT SMITH DISTRICT [NO. 66FJV-16-324] V. HONORABLE LEIGH ZUERKER, STATE OF ARKANSAS JUDGE APPELLEE

AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellant J.N.A., a seventeen-year-old male, was accused of breaking or entering into

vehicles, fleeing, aggravated assault, resisting arrest, and theft by receiving. The prosecuting

attorney filed the petition in the juvenile division of circuit court for these criminal behaviors

alleged to have been committed in Fort Smith, Arkansas, in the predawn hours of July 24,

2016. The State filed a motion to have appellant tried as an adult or alternatively be

adjudicated under Extended Juvenile Jurisdiction (EJJ). The Sebastian County Circuit Court

conducted a hearing on this request and entered an order on September 2, 2016, designating

this case as an EJJ matter. Following an October 3, 2016 bench trial, appellant was

adjudicated delinquent on all five offenses and placed on probation for an indeterminate

period of time not to exceed two years, pursuant to an order entered on October 4, 2016. Cite as

Appellant filed a notice of appeal on October 27, 2016, specifying that he was appealing the

October 4 adjudication and disposition order entered subsequent to the October 3 bench trial.

Appellant argues on appeal that the trial court erred in the following ways: (1) by entering a

defective order on its face purporting to designate this as an EJJ matter; (2) by finding that this

case met the criteria for an EJJ matter; and (3) by finding there to be sufficient evidence that

appellant committed aggravated assault. We lack appellate jurisdiction over the EJJ order, and

we affirm the adjudication and disposition order.

First, we discuss appellant’s first two points on appeal. Because appellant was seventeen

years old at the time of the alleged offenses and because one of those offenses was aggravated

assault, the State was permitted to request the juvenile division of circuit court to enter an EJJ

designation in these delinquency proceedings. See

(a)(4) (Repl.

2015). The party requesting the EJJ designation has the burden to prove by a preponderance

of the evidence that such a designation is warranted.

(b). The

circuit court is required to hold an EJJ designation hearing within certain time limits set forth

in Arkansas Code Annotated section 9-27-503(a). The circuit court is required to make

written findings, and it must consider all of the following factors in making its determination

to designate a juvenile as an EJJ offender:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender; (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;

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(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 delinquent and, if so, whether the offenses were against persons or property and any other previous history of antisocial behavior or patterns of physical violence; (6) The sophistication and 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 court that are likely to rehabilitate the juvenile prior to the expiration of the court’s jurisdiction; (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 court.

(c). “For purposes of appeal, a designation order is a final

appealable order and shall be subject to an interlocutory appeal.”

-

503(f). See also D.B. v. State,

.

Appellant contends that the trial court erred by not making findings on all of the

statutory factors and also that the trial court clearly erred in finding that appellant’s case

warranted an EJJ designation. The State contends that we lack appellate jurisdiction over the

EJJ designation order because appellant failed to timely file a notice of appeal from that order,

and furthermore, appellant failed to designate this order in his notice of appeal. We agree

with the State.

While proceedings involving juveniles are considered civil cases, the Rules of Criminal

Procedure apply to delinquency proceedings. D.F. v. State,

,

. Whether an appellant has filed an effective notice of appeal is always an issue before the

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appellate court. Bilyeu v. State,

,

(2000). The filing of a notice

of appeal is jurisdictional. Smith v. State,

; Brady v. Alken,

,

(1981). Absent an effective notice of appeal, this court lacks jurisdiction to

consider the appeal. See Pannell v. State,

,

(1995).

Here, the EJJ designation order was filed on September 2, 2016, but the notice of

appeal was not filed until October 27, 2016. This is too late. Arkansas Rule of Appellate

Procedure–Criminal 2(a) (2016) requires that the time within which to appeal a judgment or

order is within thirty days of the entry of that judgment or order. Compare Ark. R. App.

P.–Civ. 4(a)(2016). The EJJ designation order is a final appealable order pursuant to statute,

(f). Thus, appellant was required to file a timely notice of appeal

from the entry of the EJJ designation order.

We note as well that even if the appeal had been timely, appellant did not designate

the EJJ designation order in his notice of appeal. Arkansas Rule of Appellate

Procedure–Criminal 2(a) requires that a notice of appeal identify “the judgment or order or

both being appealed.” Compare Ark. R. App. P.–Civ. 3(e). Appellant did not mention the

EJJ designation order in any fashion in the notice of appeal. Only the subsequent adjudication

order filed on October 4, 2016, is mentioned with specificity. Substantial compliance is

required, and there was no substantial compliance in this instance. See Edwards v. State,

;Wright v. State,

,

(2004).

Because this was a final order from which appellant had the right to appeal, appellant

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failed to appeal in a timely fashion, and he failed to designate the EJJ designation order in his

notice of appeal, we lack jurisdiction to consider the appellant’s first two arguments

concerning the EJJ designation order.

Appellant’s remaining argument is that the trial court erred by finding in the

adjudication and disposition order that there was sufficient evidence that appellant committed

aggravated assault. We disagree with his argument.

While a delinquency adjudication is not a criminal conviction, it is based on an

allegation by the State that the juvenile has committed a certain crime. A.D. v. State,

,

. Our standard of review is the same as it would be in a

criminal case, that is, whether the adjudication is supported by substantial evidence.

Substantial evidence is evidence, direct or circumstantial, that is of sufficient force and

character to compel a conclusion one way or the other, without speculation or conjecture.

In considering the evidence presented below, we will not weigh the evidence or assess the

credibility of witnesses, as those are questions for the fact-finder.

The evidence is viewed

in the light most favorable to the State. A.W. v. State,

,

.

The State alleged that appellant committed aggravated assault, specifying that appellant,

under circumstances manifesting extreme indifference to the value of human life, purposely

engaged in conduct that created a substantial danger of death or serious physical injury to

another person. See

(a)(1) (Repl. 2013). As a result of the

difficulty in ascertaining the actor’s state of mind, a presumption exists that a person intends

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the natural and probable consequences of his or her acts. Harmon v. State,

,

(2000). The fact-finder may draw upon common knowledge and experience to

infer the defendant’s intent from the circumstances.

Appellant specifically argues that

there was no evidence that the gun he possessed was loaded, he never verbally threatened the

officer who apprehended him, and he never drew the weapon; thus, there was no conduct

creating a substantial danger of death or serious physical injury.

In determining whether there was substantial evidence to support the adjudication, we

examine the evidence presented to the trial court at this bench trial. Fort Smith police

responded to a call that a male (later identified as appellant) was breaking into vehicles.

Officer Hulsey began patrolling the area, and he observed Officer Ohm chasing appellant,

who was running “full speed.” Hulsey repeatedly ordered appellant to stop, but he kept

running, so Hulsey also gave chase. Appellant ran through yards, past obstacles in yards, and

over fences, jumping and then dropping down several feet into a deep concrete drainage

canal. There was standing water in the canal. As explained by Hulsey, when he caught up

to Officer Ohm and appellant, he heard Ohm use his taser on appellant. Once appellant was

finally subdued and in custody, notably soaking wet, Hulsey saw that Ohm was upset about

appellant having a gun. A .25-caliber Taurus handgun, wallets, change, and other belongings

that were not appellant’s were found in the canal. Hulsey heard appellant say with an

aggressive attitude that he did not care, he was a juvenile, and something like, “[Y]’all ain’t

going to do nothing to me.”

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Ohm testified about his experience with appellant that night. He was the officer who

initially found appellant in a vehicle, and when appellant saw Ohm, he “took off running.”

Ohm described the path appellant took trying to get away and how he and appellant ended

up in the drainage canal, which was wet and slippery. As Ohm jumped into the canal, he

swung to kick appellant to apprehend him, and they both fell. Ohm hurt his shoulder and

arm in the fall. Ohm was later diagnosed with a fractured humerus at the shoulder. Appellant

got up again and ran into the drainage tunnel under the street. Ohm ran after appellant, and

they both slipped and fell again. Ohm realized that his left arm was not working properly and

that he was having trouble getting up, so he used the taser twice on appellant. As Ohm

physically held appellant down as best he could without full use of his injured arm, he

observed the butt of a gun coming out of appellant’s pocket. The officer stated that appellant

had a hand on the gun and was pulling it out when he (Ohm) wrestled or broke the gun from

appellant’s hand and tossed it farther down the canal. Ohm stated that he was not going to

give appellant the chance to shoot him and that if he could have reached his own gun, he

would have. Ohm testified that the gun was accessible to appellant, definitely could have

been used, and any discharge absolutely could have hit him, even while it was still in

appellant’s pocket. Ohm believed that appellant could have and intended to shoot him,

although appellant did not verbally threaten Ohm.

After appellant was apprehended, Ohm told appellant, “You almost killed me. I think

you were going to kill me. . . . that’s a good way to get killed, you know, there is a gun.”

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X-rays confirmed Ohm’s broken bone, and he also had bruising and swelling on his arm, ribs,

and shoulder. At the time of the hearing, Ohm was still having arm pain and was unable to

use it fully; he had returned to light-duty work. On this evidence, the trial judge found that

appellant had committed aggravated assault, and this appeal followed.

Appellant asserts that two cases support reversal. Appellant likens this case to the

situations in Wooten v. State,

,

(1990) and Swaim v. State,

,

(2002), where we reversed assault convictions. In Wooten,

an officer pulled into a parking lot and saw Wooten reach into his right pants pocket and start

backing away, hiding behind a parked car. The officer got out of his car with his own pistol

drawn and ordered Wooten several times to stop and get on the ground. Wooten continued

to back away and appeared to Officer Puckett to be trying to pull something out of his pocket

that was stuck. The officer testified that when Wooten had backed up behind a parked car,

he pulled his hand out of his pocket, and the officer saw that he was holding a small handgun.

Puckett testified that Wooten dropped to his knees behind the car and that he could see him

lifting his head up slightly as if to try to locate the officer’s position. In that case, we

recognized that our aggravated-assault statute is not based on the use of a deadly weapon or

the creation of fear, but requires the creation of a substantial danger of death or serious

physical injury to another person. We held in Wooten that, based on the evidence that

appellant did not point the gun at the officer or expressly threaten the officer, the appellant

was not guilty of aggravated assault.

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In Swaim, appellant got into the passenger side of a getaway car and was pursued by

the police. As the vehicle that appellant was in approached the roadblock, the security chief

drew his weapon and ordered the occupants of the vehicle to stop and step out of the vehicle.

The driver continued at a slow pace, and during that episode, appellant displayed a

chrome-plated revolver but did not point it at the security chief or expressly make a threat.

The security officer had his weapon drawn as appellant’s was “coming up,” but appellant

apparently decided to drop down his weapon. The aggravated-assault conviction was

reversed.

In those cases, the officers were already armed and prepared to defend themselves, and

there was physical distance between Wooten and Swaim and the officers. Here, however,

appellant’s flight led them to a wet, slippery concrete drainage canal that was poorly lit.

Appellant had his hand on a gun in his pocket as he was continuing to resist arrest and

physically tussling with the officer trying to subdue him. Appellant persisted in the struggle

against an officer who was already suffering from a significant arm injury. The officer did not

draw his weapon, and his injury made him vulnerable to the potential of being shot in the

process of trying to wrest the gun from appellant’s hand and take him into custody.

The aggravated-assault statute is not based on the use of a deadly weapon or the

creation of fear, but requires the creation of a substantial danger of death or serious physical

injury to another person.

Even so, a gun can inflict harm when used as a

bludgeon. Harris v. State,

,

(2000). The statute does not

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require that a verbal threat be used; instead, it is the appellant’s overall conduct that must be

examined. The fact-finder does not and need not view each fact in isolation, but rather

considers the evidence as a whole. Williams v. State,

,

(2006). Viewing the evidence in the light most favorable to the State, we hold that there was

sufficient evidence from which the trial court could find that appellant’s conduct created a

substantial danger of death or serious physical injury to Ohm.

Affirmed.

GLADWIN and HARRISON , JJ., agree.

Dusti Standridge, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., and Bryan Foster, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen., for appellee.

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