B.K.C. v. State

781 N.E.2d 1157, 2003 Ind. App. LEXIS 1
Indiana Court of Appeals·Decided January 9, 2003·No. No. 49A02-0202-JV-174·Published·Cited by 60 cases

Opinion

OPINION

SHARPNACK, Judge.

B.K.C. appeals the trial court's disposi-tional order finding him to be a delinquent child and ordering wardship of him to the Indiana Department of Correction ("DOC") for a determinate sentence of eighteen months. BK.C. raises five issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by admitting hearsay evidence at the dispositional hearing;
[1161] II. Whether the evidence is sufficient to support the trial court's adjudication of B.K.C. as a delinquent;
Whether a determination that a juvenile delinquent, such as B.K.C., is a sex and violent offender under Ind.Code § 5-2-12-4 is a prerequisite to imposing a determinate wardship under Ind.Code § 31-37-19-9; and TII.
IV. Whether the trial court abused its discretion by ordering wardship of B.K.C. to the DOC for a determinate period of eighteen months because the wardship is punitive and does not further the rehabilitative goals of the juvenile justice system.

We affirm.

The facts most favorable to the disposi-tional order follow. On November 22, 2001, Procelia Edwards was working at a Dairy Queen restaurant in Indianapolis when B.K.C., who was fourteen years old at the time, Terry Williams, and a third young man, entered the restaurant. Williams placed a food order for himself and BK.C. BKC. gave Williams the money to pay for the order. After Williams paid Edwards for the food order, he brandished what appeared to be a handgun and ordered her to put money in a bag. At the same time, two other customers entered the Dairy Queen, which prompted the three young men to run and hide behind a staircase. This diversion gave Edwards an opportunity to activate the restaurant's alarm system. Williams then began asking Edwards about the surveillance tape and the safe located in the back of the restaurant. Edwards accompanied Williams and B.K.C. to the back of Dairy Queen and informed them that she did not have the combination to the restaurant's safe. BK.C. told Edwards to open the back door and he and Williams left the restaurant. Williams left the Dairy Queen with $769.03.

On December 18, 2001, the State filed a delinquency petition alleging that B.K.C. was a delinquent child for committing an act that would be robbery, a class B felony,1 if committed by an adult and an act that would be carrying a handgun without a license, a class A misdemeanor,2 if committed by an adult. At the denial hearing, Edwards identified B.K.C. as one of the men appearing in the surveillance tape of the incident. In addition, Detective Kevin Lauerman testified that B.K.C.'s mother had identified BK.C. in the surveillance tape. Moreover, B.K.C. admitted being in the Dairy Queen with Williams when Williams brandished the weapon. At the conclusion of the denial hearing, the trial court adjudicated BK.C. to be a delinquent for committing an act that would be robbery, a class B felony, if committed by an adult. The trial court ordered wardship of B.K.C. to the DOC for a determinate period of eighteen months. On February 19, 2002, BK.C. filed a notice of appeal alleging that the trial court erred when it adjudicated him a delinquent and when it ordered wardship of him to the DOC for a determinate sentence of eighteen months.

Before we address BK.C.'s claims on appeal, we observe that the choice of a specific disposition for a delinquent child is within the discretion of the trial court, subject to the statutory considerations of the welfare of the child, the safety of the community, and a statutory policy of favoring the least harsh disposition. A.M.R. v. State, 741 N.E.2d 727, 729 (Ind.Ct.App.2000). We may overturn the trial court's disposition order only if we find that the trial court has abused its [1162] discretion. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and cireumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Matter of Adoption of L.C., 650 N.E.2d 726, 733 (Ind.Ct.App.1995), reh'g denied, trans. denied, cert. denied, 517 U.S. 1136, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996). With this law as our guide, we now address BK.C.'s arguments.

I.

The first issue is whether the trial court abused its discretion by admitting hearsay evidence at the dispositional hearing. BK.C. argues that the trial court abused its discretion by permitting the investigating police officer, Detective Lauerman, to testify regarding a statement made to him by BK.C.'s mother, wherein she identified B.K.C. as one of the individuals in the surveillance video. The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and a reviewing court will reverse only upon an abuse of that discretion. Johnson v. State, 671 N.E.2d 1203, 1205 (Ind.Ct.App.1996), trans. denied. When reviewing a trial court's decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the trial court's decision. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). Moreover, a claim of error in the admission of evidence will not prevail on appeal "unless a substantial right of the party is affected." Id. (citing Kellett v. State, 716 N.E.2d 975, 978 (Ind.Ct.App.1999)). In determining whether error in the introduction of evidence affected an appellant's substantial rights, we assess the probable impact of the evidence on the jury or fact finder. McClain v. State, 675 N.E.2d 329, 331 (Ind.1996). However, the admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence admitted. Id. at 831-82.

Here, BK.C. contends that Detective Lavuerman's testimony regarding BK.C.'s mother's identification constituted hearsay. As such, BK.C. argues, the trial court abused its discretion by permitting Detective Lauerman to give hearsay testimony over a timely objection. BK.C. further argues that the trial court's error prejudiced him

because neither the victims of the robbery nor the other persons present could identify BK.C. as one of the perpetrators. Had the trial court correctly excluded the hearsay statement of BK.C.'s mother identifying BK.C. as one of the persons appearing in the robbery photos, there would have been no evidence linking B.K.C. to the robbery.

Appellant's Amended Brief at 9. We disagree.

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B.K.C. v. State, 781 N.E.2d 1157, 2003 Ind. App. LEXIS 1 (Ind. Ct. App. 2003).

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