MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 10 2020, 10:58 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffery Haupt Tina L. Mann Law Office of Jeffery Haupt Deputy Attorney General South Bend, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.H., June 10, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-2916 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason A. Appellee-Petitioner. Cichowicz, Judge The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1901-JD-34 71J01-1903-JD-93 71J01-1903-JD-95 71J01-1903-JD-96 71J01-1908-JD-288
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 1 of 6 Case Summary [1] In 2019, C.H. was adjudicated delinquent for what would be two counts of
Level 6 felony fraud, two counts of Class A misdemeanor theft, and Class A
misdemeanor resisting law enforcement if committed by an adult in five
different causes. The juvenile court ultimately ordered that C.H. be placed in
the Indiana Department of Correction (“DOC”). C.H. contends that the
juvenile court abused its discretion in this regard. We affirm.
Facts and Procedural History [2] On January 16, 2019, while on the campus of the University of Notre Dame,
C.H. stole credit/debit cards, a university identification card, and Apple
AirPods belonging to associate professor Michael Niemier. C.H. also stole
credit cards belonging to James Fraleigh. Once in possession of the credit cards,
C.H. purchased items totaling $963.98 using Niemier’s credit cards and
$1479.68 using Fraleigh’s credit cards. On January 21, 2019, C.H. attempted to
purchase a watch from a bookstore using a credit card. Because C.H. matched
the description of the person who had fraudulently purchased items on January
16, 2019, the manager asked to see C.H.’s identification, which caused C.H. to
leave the store. After police were notified, officers apprehended C.H. and
discovered credit cards and identification inside C.H.’s pocket belonging to
Niemier, Fraleigh, Luis Ruuska, and Kevin Casault. That same day, Ruuska
and Casault had had their property stolen from their offices. As a result of
C.H.’s actions, in January of 2019 and March of 2019, the State filed a total of
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 2 of 6 six delinquency petitions. In January of 2019, C.H. admitted to what would be
Class A misdemeanor theft if committed by an adult in Cause Number 71J01-
1901-JD-34 (“Cause No. JD-34”). On March 27, 2019, pursuant to an
agreement, C.H. agreed to admit to what would be Level 6 felony fraud in
Cause Number 71J01-1903-JD-93 (“Cause No. JD-93”), Class A misdemeanor
theft in Cause Number 71J01-1903-JD-95 (“Cause No. JD-95”), and Level 6
felony fraud in Cause Number 71J01-1903-JD-96 (“Cause No. JD-96”) if
committed by an adult, and the State agreed to dismiss the remaining
delinquency petitions and charges. On April 16, 2019, the juvenile court
ordered, inter alia, that C.H. be placed on strict and indefinite probation;
subjected to random home visits; obey all city, state, and federal laws;
participate and successfully complete a day reporting program; participate in
the home-detention program not to exceed ninety days; attend school; and
obtain and maintain a part-time job.
[3] On August 9, 2019, South Bend Police Officer Andrew Hines was surveilling a
residence that he had reason to believe was frequented by two juveniles wanted
on felony-arrest warrants. While surveilling the residence, Officer Hines also
discovered two stolen vehicles parked at the residence. After confirming that the
vehicles were stolen, Officer Hines observed five juveniles attempting to enter
one of the vehicles. Officer Hines activated his emergency lights in an attempt
to detain the juveniles, but they fled back inside the residence. Officer Hines
observed C.H. standing on the rooftop porch of the residence and ordered him
to stay where he was, but C.H. fled back inside the residence. At some point, a
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 3 of 6 SWAT team arrived and formed a perimeter around the residence. After two
hours, the SWAT team gassed the residence, and C.H. exited.
[4] On August 19, 2019, the State filed a delinquency petition in Cause Number
71D01-1908-JD-288 (“Cause No. JD-288”) alleging that C.H. committed what
would be Class A misdemeanor conversion and Class A misdemeanor resisting
law enforcement if committed by an adult. Following a September 30, 2019,
factfinding hearing, C.H. was found to be delinquent for what would be
resisting law enforcement if committed by an adult. On November 12, 2019, a
hearing was held regarding the disposition of Cause No. JD-288 and the
modification of Cause Nos. JD-34, JD-93, JD-95, and JD-96. At the conclusion
of the hearing, the juvenile court ordered C.H. to be placed in the DOC.
Discussion and Decision [5] C.H. contends that the juvenile court abused its discretion by ordering
placement in the DOC.
The specific disposition of a delinquent is within the juvenile court’s discretion, to be guided by the following considerations: the safety of the community, the best interests of the child, the least restrictive alternative, family autonomy and life, freedom of the child, and the freedom and participation of the parent, guardian, or custodian. We reverse only for an abuse of discretion, namely a decision that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 4 of 6 K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (cleaned up).
[6] Specifically, C.H. asserts that the juvenile court abused its discretion in failing
to order a more rehabilitative placement for him before ordering DOC
placement. We conclude, however, that the juvenile court’s decision was
reasonable given the facts and circumstances before it. First, the juvenile court
had already attempted to provide C.H. with less-severe alternatives through
strict and formal probation, a day-reporting program, and home detention. Not
only had C.H. had myriad unexcused absences while in the day-reporting
program, but he had also been disrespectful to staff, disruptive to the class, and
behaved inappropriately when he attended. While on home detention, C.H.
had had multiple location violations. Put another way, C.H. had been given
ample opportunities to prove that he could follow the rules of society under
less-restrictive placements but had failed. Moreover, the circumstances of C.H’s
delinquent behavior became more egregious over time. While C.H.’s theft of
multiple credit cards and subsequent purchases of nearly $2500.00 worth of
items are by no means trivial, the circumstances pale in comparison to the
circumstances of his most recent act. In Cause No. JD-288, C.H. defied the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 10 2020, 10:58 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffery Haupt Tina L. Mann Law Office of Jeffery Haupt Deputy Attorney General South Bend, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.H., June 10, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-2916 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason A. Appellee-Petitioner. Cichowicz, Judge The Honorable Graham C. Polando, Magistrate Trial Court Cause Nos. 71J01-1901-JD-34 71J01-1903-JD-93 71J01-1903-JD-95 71J01-1903-JD-96 71J01-1908-JD-288
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 1 of 6 Case Summary [1] In 2019, C.H. was adjudicated delinquent for what would be two counts of
Level 6 felony fraud, two counts of Class A misdemeanor theft, and Class A
misdemeanor resisting law enforcement if committed by an adult in five
different causes. The juvenile court ultimately ordered that C.H. be placed in
the Indiana Department of Correction (“DOC”). C.H. contends that the
juvenile court abused its discretion in this regard. We affirm.
Facts and Procedural History [2] On January 16, 2019, while on the campus of the University of Notre Dame,
C.H. stole credit/debit cards, a university identification card, and Apple
AirPods belonging to associate professor Michael Niemier. C.H. also stole
credit cards belonging to James Fraleigh. Once in possession of the credit cards,
C.H. purchased items totaling $963.98 using Niemier’s credit cards and
$1479.68 using Fraleigh’s credit cards. On January 21, 2019, C.H. attempted to
purchase a watch from a bookstore using a credit card. Because C.H. matched
the description of the person who had fraudulently purchased items on January
16, 2019, the manager asked to see C.H.’s identification, which caused C.H. to
leave the store. After police were notified, officers apprehended C.H. and
discovered credit cards and identification inside C.H.’s pocket belonging to
Niemier, Fraleigh, Luis Ruuska, and Kevin Casault. That same day, Ruuska
and Casault had had their property stolen from their offices. As a result of
C.H.’s actions, in January of 2019 and March of 2019, the State filed a total of
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 2 of 6 six delinquency petitions. In January of 2019, C.H. admitted to what would be
Class A misdemeanor theft if committed by an adult in Cause Number 71J01-
1901-JD-34 (“Cause No. JD-34”). On March 27, 2019, pursuant to an
agreement, C.H. agreed to admit to what would be Level 6 felony fraud in
Cause Number 71J01-1903-JD-93 (“Cause No. JD-93”), Class A misdemeanor
theft in Cause Number 71J01-1903-JD-95 (“Cause No. JD-95”), and Level 6
felony fraud in Cause Number 71J01-1903-JD-96 (“Cause No. JD-96”) if
committed by an adult, and the State agreed to dismiss the remaining
delinquency petitions and charges. On April 16, 2019, the juvenile court
ordered, inter alia, that C.H. be placed on strict and indefinite probation;
subjected to random home visits; obey all city, state, and federal laws;
participate and successfully complete a day reporting program; participate in
the home-detention program not to exceed ninety days; attend school; and
obtain and maintain a part-time job.
[3] On August 9, 2019, South Bend Police Officer Andrew Hines was surveilling a
residence that he had reason to believe was frequented by two juveniles wanted
on felony-arrest warrants. While surveilling the residence, Officer Hines also
discovered two stolen vehicles parked at the residence. After confirming that the
vehicles were stolen, Officer Hines observed five juveniles attempting to enter
one of the vehicles. Officer Hines activated his emergency lights in an attempt
to detain the juveniles, but they fled back inside the residence. Officer Hines
observed C.H. standing on the rooftop porch of the residence and ordered him
to stay where he was, but C.H. fled back inside the residence. At some point, a
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 3 of 6 SWAT team arrived and formed a perimeter around the residence. After two
hours, the SWAT team gassed the residence, and C.H. exited.
[4] On August 19, 2019, the State filed a delinquency petition in Cause Number
71D01-1908-JD-288 (“Cause No. JD-288”) alleging that C.H. committed what
would be Class A misdemeanor conversion and Class A misdemeanor resisting
law enforcement if committed by an adult. Following a September 30, 2019,
factfinding hearing, C.H. was found to be delinquent for what would be
resisting law enforcement if committed by an adult. On November 12, 2019, a
hearing was held regarding the disposition of Cause No. JD-288 and the
modification of Cause Nos. JD-34, JD-93, JD-95, and JD-96. At the conclusion
of the hearing, the juvenile court ordered C.H. to be placed in the DOC.
Discussion and Decision [5] C.H. contends that the juvenile court abused its discretion by ordering
placement in the DOC.
The specific disposition of a delinquent is within the juvenile court’s discretion, to be guided by the following considerations: the safety of the community, the best interests of the child, the least restrictive alternative, family autonomy and life, freedom of the child, and the freedom and participation of the parent, guardian, or custodian. We reverse only for an abuse of discretion, namely a decision that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 4 of 6 K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (cleaned up).
[6] Specifically, C.H. asserts that the juvenile court abused its discretion in failing
to order a more rehabilitative placement for him before ordering DOC
placement. We conclude, however, that the juvenile court’s decision was
reasonable given the facts and circumstances before it. First, the juvenile court
had already attempted to provide C.H. with less-severe alternatives through
strict and formal probation, a day-reporting program, and home detention. Not
only had C.H. had myriad unexcused absences while in the day-reporting
program, but he had also been disrespectful to staff, disruptive to the class, and
behaved inappropriately when he attended. While on home detention, C.H.
had had multiple location violations. Put another way, C.H. had been given
ample opportunities to prove that he could follow the rules of society under
less-restrictive placements but had failed. Moreover, the circumstances of C.H’s
delinquent behavior became more egregious over time. While C.H.’s theft of
multiple credit cards and subsequent purchases of nearly $2500.00 worth of
items are by no means trivial, the circumstances pale in comparison to the
circumstances of his most recent act. In Cause No. JD-288, C.H. defied the
orders of law enforcement to the point that a SWAT team had to gas the
residence in order to apprehend him. We are also concerned that C.H. was
found at a residence known by law enforcement to be frequented by juveniles
wanted on felony-arrest warrants for armed robbery and attempted murder, one
of whom was also present at the residence the same day as C.H. Finally, the
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 5 of 6 juvenile court considered less-restrictive placements but believed they would not
be effective, stating,
What is more important to me is that we now have five delinquency cases in the span of about eight months. This last offense would only have been a misdemeanor if committed by an adult. But I do find that it is by misdemeanor standards extraordinarily aggravated. It demonstrates a profound disrespect for authority and a complete failure to be restrained by anyone from what [C.H.] feels like doing at the moment. And that would give me pause about less restrictive options if this were his first offense and it isn’t. This most recent case is his ninth delinquency referral. And as I say, five delinquency cases in about eight months. So certainly, I recognize the obligation to impose the least restrictive option. But it is clear that those less restrictive options require a little bit of cooperation from [C.H.] which is not going to be present and therefore is going to be a waste and more importantly a danger to the community.
Tr. Vol. II pp. 59–60. Given the record, we agree with the juvenile court and
therefore C.H. has failed to establish that the juvenile court abused its discretion
by ordering that he be placed in the DOC.
[7] The judgment of the juvenile court is affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2916| June 10, 2020 Page 6 of 6