MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 18 2018, 10:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Deborah Markisohn Attorney General of Indiana Marion County Public Defender Agency Katherine Cooper Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
A.D., June 18, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-6 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Petitioner. Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Trial Court Cause No. 49D09-1709-JD-1222
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 1 of 8 [1] A.D. appeals his adjudication as a delinquent child for resisting law
enforcement,1 which would be a Class A misdemeanor if committed by an
adult. He raises the following issue for our review on appeal: whether the State
presented sufficient evidence sufficient evidence to show that the stop of A.D.
was supported by reasonable suspicion under the Fourth Amendment and was
also reasonable based on the totality of circumstances under the Indiana
Constitution.
[2] We affirm.
Facts and Procedural History [3] Around 8:30 p.m. on September 7, 2017, A.D. and seven or eight other
juveniles entered Rickers BP gas station on Georgetown Road in Indianapolis,
Indiana. Tr. Vol. II at 8, 15, 18. The store clerk observed that three of the
juveniles wore backpacks, and the rest wore hoodies. Id. at 18, 21. Two of the
juveniles proceeded to the counter while the others went to the candy aisle and
filled their bags with candy before walking out of the store. Id. at 18. The store
clerk observed most of the juveniles running while holding items in their hands
such as “[c]andy, juice, chips, things like that.” Id. at 21. The store clerk called
the police to report the theft and described the juveniles, including their attire
and the direction in which they fled. Id. at 22.
1 See Ind. Code § 35-44.1-3-1(a)(3).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 2 of 8 [4] Indianapolis Metropolitan Police Department (“IMPD”) Officer Christian
Burney (“Officer Burney”) was on patrol in his police vehicle when he observed
a group of about six juveniles running northbound from the BP parking lot. Id.
at 29-30. Officer Burney made contact with IMPD Officer Matthew Pankonie
(“Officer Pankonie”) and told Officer Pankonie that he had observed a group of
juveniles run northbound across 56th Street, coming from the BP and going
behind the Marathon gas station. Id. at 36-37. Shortly thereafter, Officer
Burney heard a radio report of a theft in progress at the BP. Id. at 31. While
stopped at a red light, Officer Pankonie heard the radio dispatch of a theft in
progress at the BP by a group of juveniles, who had then fled from the store. Id.
at 37. Officer Pankonie proceeded to drive northbound on 56th Street and then
made a u-turn to travel back southbound, when he saw a group of juveniles
walking through the parking lot of a Boston Market restaurant about 100 yards
from the BP. Id.
[5] Officer Pankonie activated his vehicle’s lights and pulled into a nearby Wendy’s
parking lot when “two juveniles ran southbound away from [him].” Id. at 38.
Officer Pankonie exited his vehicle and “observed two juveniles running
southbound wearing gray hoodies, [and] one with a backpack, [running]
southbound in the Boston Market parking lot.” Id. at 42-43. Officer Pankonie
“yelled in a loud manner, ‘Stop, police.’” Id. at 38, 43. The juveniles did not
stop running, so Officer Pankonie notified his partners and began pursuit of the
juveniles. Id. at 42. Officer Pankonie pursued the juveniles on foot until he lost
sight of them when they entered a tree line behind the strip mall. Id. at 43.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 3 of 8 [6] When Officer Pankonie approached the tree line, he drew his gun and ordered
the juveniles to come out from where they were hiding. Id. The juveniles
emerged, one of whom was later identified as A.D. Id. at 44-45. A.D. had a
candy wrapper in his hand and wore a backpack. Id. at 43. Officer Pankonie
handcuffed A.D. and waited for backup to handcuff the other juvenile. Id. at
44.
[7] Officer Pankonie conducted a search incident to arrest and discovered that the
backpack belonging to the other juvenile contained candy and a drink that
matched the description of items stolen from the BP. Id. at 46-48. The officers
arrested A.D. and the other juvenile for theft2 and resisting law enforcement,
acts which would both be Class A misdemeanors if committed by an adult. Id.
at 46. During the denial hearing, A.D. objected to testimony regarding what
occurred after Officer Pankonie stopped A.D. on the basis that the detention
violated his rights under the United States and Indiana Constitutions because
the stop was not based on reasonable suspicion. Id. at 41. At the conclusion of
the hearing, A.D. was adjudicated a juvenile delinquent for an act which would
be Class A misdemeanor resisting law enforcement if committed by an adult.
Id. at 54. A.D. now appeals, arguing that the evidence was insufficient to
support his adjudication because the stop violated his federal and state
constitutional rights.
2 The trial court found that the State failed to meet its burden as to the theft count and entered a not true finding on that charge. Tr. Vol. II at 54.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 4 of 8 Discussion and Decision [8] When reviewing a claim of sufficiency of the evidence with respect to juvenile
adjudications, we do not reweigh the evidence or judge the credibility of the
witnesses. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.
denied. We look only to probative evidence supporting the adjudication and the
reasonable inferences that may be drawn from the evidence to determine
whether a reasonable trier of fact could conclude the juvenile was guilty beyond
a reasonable doubt. Id. If there is substantial evidence of probative value to
support the adjudication, it will not be set aside. Id. The uncorroborated
testimony of one witness may be sufficient by itself to sustain an adjudication of
delinquency on appeal. J.D.P. v. State, 857 N.E.2d 1000, 1010 (Ind. Ct. App.
2006).
[9] To convict A.D. of resisting law enforcement as charged, the State was required
to prove beyond a reasonable doubt that A.D. fled from the law enforcement
officers after the officers, by visible and audible means, identified themselves
and ordered A.D. to stop. Ind. Code § 35-44.1-3-1(a)(3). Although the resisting
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 18 2018, 10:11 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Deborah Markisohn Attorney General of Indiana Marion County Public Defender Agency Katherine Cooper Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
A.D., June 18, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-6 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Petitioner. Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Trial Court Cause No. 49D09-1709-JD-1222
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 1 of 8 [1] A.D. appeals his adjudication as a delinquent child for resisting law
enforcement,1 which would be a Class A misdemeanor if committed by an
adult. He raises the following issue for our review on appeal: whether the State
presented sufficient evidence sufficient evidence to show that the stop of A.D.
was supported by reasonable suspicion under the Fourth Amendment and was
also reasonable based on the totality of circumstances under the Indiana
Constitution.
[2] We affirm.
Facts and Procedural History [3] Around 8:30 p.m. on September 7, 2017, A.D. and seven or eight other
juveniles entered Rickers BP gas station on Georgetown Road in Indianapolis,
Indiana. Tr. Vol. II at 8, 15, 18. The store clerk observed that three of the
juveniles wore backpacks, and the rest wore hoodies. Id. at 18, 21. Two of the
juveniles proceeded to the counter while the others went to the candy aisle and
filled their bags with candy before walking out of the store. Id. at 18. The store
clerk observed most of the juveniles running while holding items in their hands
such as “[c]andy, juice, chips, things like that.” Id. at 21. The store clerk called
the police to report the theft and described the juveniles, including their attire
and the direction in which they fled. Id. at 22.
1 See Ind. Code § 35-44.1-3-1(a)(3).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 2 of 8 [4] Indianapolis Metropolitan Police Department (“IMPD”) Officer Christian
Burney (“Officer Burney”) was on patrol in his police vehicle when he observed
a group of about six juveniles running northbound from the BP parking lot. Id.
at 29-30. Officer Burney made contact with IMPD Officer Matthew Pankonie
(“Officer Pankonie”) and told Officer Pankonie that he had observed a group of
juveniles run northbound across 56th Street, coming from the BP and going
behind the Marathon gas station. Id. at 36-37. Shortly thereafter, Officer
Burney heard a radio report of a theft in progress at the BP. Id. at 31. While
stopped at a red light, Officer Pankonie heard the radio dispatch of a theft in
progress at the BP by a group of juveniles, who had then fled from the store. Id.
at 37. Officer Pankonie proceeded to drive northbound on 56th Street and then
made a u-turn to travel back southbound, when he saw a group of juveniles
walking through the parking lot of a Boston Market restaurant about 100 yards
from the BP. Id.
[5] Officer Pankonie activated his vehicle’s lights and pulled into a nearby Wendy’s
parking lot when “two juveniles ran southbound away from [him].” Id. at 38.
Officer Pankonie exited his vehicle and “observed two juveniles running
southbound wearing gray hoodies, [and] one with a backpack, [running]
southbound in the Boston Market parking lot.” Id. at 42-43. Officer Pankonie
“yelled in a loud manner, ‘Stop, police.’” Id. at 38, 43. The juveniles did not
stop running, so Officer Pankonie notified his partners and began pursuit of the
juveniles. Id. at 42. Officer Pankonie pursued the juveniles on foot until he lost
sight of them when they entered a tree line behind the strip mall. Id. at 43.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 3 of 8 [6] When Officer Pankonie approached the tree line, he drew his gun and ordered
the juveniles to come out from where they were hiding. Id. The juveniles
emerged, one of whom was later identified as A.D. Id. at 44-45. A.D. had a
candy wrapper in his hand and wore a backpack. Id. at 43. Officer Pankonie
handcuffed A.D. and waited for backup to handcuff the other juvenile. Id. at
44.
[7] Officer Pankonie conducted a search incident to arrest and discovered that the
backpack belonging to the other juvenile contained candy and a drink that
matched the description of items stolen from the BP. Id. at 46-48. The officers
arrested A.D. and the other juvenile for theft2 and resisting law enforcement,
acts which would both be Class A misdemeanors if committed by an adult. Id.
at 46. During the denial hearing, A.D. objected to testimony regarding what
occurred after Officer Pankonie stopped A.D. on the basis that the detention
violated his rights under the United States and Indiana Constitutions because
the stop was not based on reasonable suspicion. Id. at 41. At the conclusion of
the hearing, A.D. was adjudicated a juvenile delinquent for an act which would
be Class A misdemeanor resisting law enforcement if committed by an adult.
Id. at 54. A.D. now appeals, arguing that the evidence was insufficient to
support his adjudication because the stop violated his federal and state
constitutional rights.
2 The trial court found that the State failed to meet its burden as to the theft count and entered a not true finding on that charge. Tr. Vol. II at 54.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 4 of 8 Discussion and Decision [8] When reviewing a claim of sufficiency of the evidence with respect to juvenile
adjudications, we do not reweigh the evidence or judge the credibility of the
witnesses. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.
denied. We look only to probative evidence supporting the adjudication and the
reasonable inferences that may be drawn from the evidence to determine
whether a reasonable trier of fact could conclude the juvenile was guilty beyond
a reasonable doubt. Id. If there is substantial evidence of probative value to
support the adjudication, it will not be set aside. Id. The uncorroborated
testimony of one witness may be sufficient by itself to sustain an adjudication of
delinquency on appeal. J.D.P. v. State, 857 N.E.2d 1000, 1010 (Ind. Ct. App.
2006).
[9] To convict A.D. of resisting law enforcement as charged, the State was required
to prove beyond a reasonable doubt that A.D. fled from the law enforcement
officers after the officers, by visible and audible means, identified themselves
and ordered A.D. to stop. Ind. Code § 35-44.1-3-1(a)(3). Although the resisting
law enforcement statute, on its face, does not expressly require the order to stop
to be lawful, in order to interpret the statute as constitutional, the Indiana
Supreme Court has explained that such an order to stop must be understood to
require probable cause or reasonable suspicion. Gaddie v. State, 10 N.E.3d 1249,
1254-55 (Ind. 2014). Absent proof that an officer’s order to stop rests on
probable cause or on reasonable suspicion, which is defined as specific,
articulable facts that would lead the officer to reasonably suspect that criminal
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 5 of 8 activity is afoot, the evidence will be insufficient to establish the offense of
resisting law enforcement. Id. at 1255.
[10] A.D. first argues that the police lacked reasonable suspicion to detain and seize
him under the Fourth Amendment to the United States Constitution. A.D.
contends that the State failed to prove articulable facts -- other than the fact that
A.D. was a juvenile -- that justified Officer Pankonie’s stop of A.D. However,
we find the evidence was sufficient to support that Officer Pankonie had
reasonable suspicion to detain and seize A.D. Shortly after the theft occurred at
the BP gas station, and just before the call came in to dispatch, Officer Burney
notified Officer Pankonie that he had just seen a group of juveniles running
from the BP gas station and across the street behind the Marathon gas station
and CVS. While waiting for the traffic light to cycle, Officer Pankonie received
a call from dispatch. Dispatch relayed that a gas station clerk from the BP gas
station reported having seen a group of five black males run out of the store
without paying for their candy, chips, and juice. Dispatch also relayed the gas
station clerk’s description of what the males were wearing and in which
direction they had gone. Relying on the information received from both
dispatch and Officer Burney, Officer Pankonie located a group of juveniles
walking across the Boston Market parking lot, which is in close proximity to the
BP gas station. A.D. was found with a group of juveniles matching the
description of the group who had committed a theft at the BP gas station, was
found within close proximity to the gas station shortly after the theft had
occurred, and ran once Officer Pankonie activated the lights on his police
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 6 of 8 vehicle and pulled into the parking lot; accordingly, the evidence was sufficient
to support that Officer Pankonie had reasonable suspicion to detain and seize
A.D. under the Fourth Amendment to the United States Constitution.
[11] A.D. also argues that the police violated his rights under Article 1, Section 11 of
the Indiana Constitution. A.D. contends that Officer Pankonie’s conduct was
unreasonable under the totality of the circumstances. In evaluating the
reasonableness of police conduct under Article 1, Section 11 of the Indiana
Constitution, a reviewing court considers: “1) the degree of concern, suspicion,
or knowledge that a violation has occurred, 2) the degree of intrusion the
method of the search or seizure imposes on the citizen’s ordinary activities, and
3) the extent of law enforcement needs.” Carpenter v. State, 18 N.E. 998, 1002
(Ind. 2014).
[12] In the present case, there was a high degree of concern, suspicion, or knowledge
that a violation had occurred. A theft of candy, chips, and drinks had just
occurred at the BP gas station by a group of juveniles. A.D. was found within a
close proximity to the gas station shortly after the theft with a group of juvenile
males matching the description of the suspects that the gas station clerk
provided to dispatch. A.D. also fled when Officer Pankonie pulled into the
parking lot and initiated the lights on his police car. Additionally, the degree of
intrusion that the method of the search imposed on A.D.’s ordinary activities
was small. Officer Pankonie ordered A.D. and the other juvenile to come out
from the wooded area, and he performed a search incident to arrest. Tr. Vol. II
at 46-48. Finally, the extent of law enforcement needs was high. A theft of
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 7 of 8 several items of the BP gas station’s merchandise had just occurred, and the
police officers were doing their job by conducting an investigation, locating the
individuals that were responsible, and returning the merchandise back to the BP
gas station. Therefore, the evidence was sufficient to support that Officer
Pankonie, under the totality of the circumstances, displayed reasonable conduct
by detaining and seizing A.D. under Article 1, Section 11 of the Indiana
Constitution. Because we have concluded that the stop of A.D. did not violate
either the Fourth Amendment or Article 1, Section 11 of the Indiana
Constitution, the evidence presented was sufficient to sustain A.D.’s
adjudication for an act that would be a Class A misdemeanor resisting law
enforcement if committed by an adult.
Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018 Page 8 of 8