D M v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 26, 2023
• Docket: 23A-JV-00395
• Status: Published

Opinion

FILED Oct 26 2023, 9:02 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Theodore E. Rokita Tippecanoe County Public Defender’s Attorney General of Indiana Office Erica S. Sullivan Lafayette, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.M., October 26, 2023 Appellant-Respondent, Court of Appeals Case No. 23A-JV-395 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Faith A. Graham, Appellee-Petitioner. Judge Trial Court Cause Nos. 79D03-2208-JD-111 79D03-2209-JD-140

Opinion by Judge Tavitas Judge Kenworthy concurs. Judge Bailey concurs in result with a separate opinion.

Tavitas, Judge.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 1 of 14 Case Summary [1] D.M., a minor, was adjudicated a delinquent child for committing possession of

a firearm on school property, dangerous possession of a firearm, and criminal

recklessness. On appeal, D.M. argues that: (1) his adjudications for possession

of a firearm on school property and dangerous possession of a firearm

constitute double jeopardy; and (2) the State presented insufficient evidence to

support his adjudication for criminal recklessness.

[2] We agree that D.M.’s adjudications for possession of a firearm on school

property and dangerous possession of a firearm constitute double jeopardy, and

we, accordingly, reverse and remand with instructions that the trial court vacate

D.M.’s adjudication for dangerous possession of a firearm. We further find that

the State presented sufficient evidence to support D.M.’s adjudication for

criminal recklessness, and we affirm D.M.’s adjudication for that offense.

Issues [3] D.M. raises two issues on appeal, which we restate as:

I. Whether D.M.’s adjudications for possession of a firearm on school property and dangerous possession of a firearm constitute double jeopardy.

II. Whether the State presented sufficient evidence to support D.M.’s adjudication for criminal recklessness.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 2 of 14 Facts [4] In the summer of 2022, D.M. dated A.G. for approximately three months, at

the end of which A.G. ended the relationship and blocked D.M.’s phone

number. A.G. was pregnant with D.M.’s child. A.G. had also, in the past,

dated M.V., who was a childhood friend of D.M.’s but was no longer D.M.’s

friend.

[5] On the evening of August 4, 2022, A.G. was at Nasir Mercado’s apartment

with M.V., H.M., and several other individuals. D.M. had been to Mercado’s

apartment in the past, but he was not there that evening.

[6] D.M. and H.M. were family friends, and H.M. texted D.M. that she was at

Mercado’s home and “[t]hey talking ab u tryina shoot up the crib . . . .” Ex.

Vol. III p. 26. D.M. responded by texting that he was “strapped,” meaning he

“ha[d] a gun with him.” Id.; Tr. Vol. II p. 120. H.M. asked D.M. not to “shoot

up the crib” because H.M. was there with her child. Ex. Vol. III p. 26. D.M.

asked H.M. who was at Mercado’s apartment and specifically asked if M.V.

was there. H.M. told D.M. that M.V. was not there because H.M. did not want

“drama” between D.M. and M.V. Tr. Vol. II p. 118. D.M. later texted H.M.,

“Told yo a** how cold hearted I’m finna get,” and “Just watch nobody gon

know my next move[.]” Ex. Vol. III p. 45.

[7] Messages were also sent to A.G.’s cell phone from D.M.’s Instagram account,

stating, “I’m finna pull up with pipes later tn,” and “this G2 ‘bout to catch three

bodies[.]” Tr. Vol. II pp. 148-49. Detective Paul Huff of the Lafayette Police

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 3 of 14 Department testified that, in his experience, “G2” refers to the model of a gun,

and “catch three bodies” means shoot three people. The messages included a

photograph of a Taurus G2C nine-millimeter handgun.

[8] H.M. believed that A.G. and M.V. needed to leave the apartment to avoid an

altercation with D.M. Mercado asked A.G. and M.V. to leave, but they did not

have a ride. Mercado then asked his friend, Melanie Hernandez, to give A.G.

and M.V. a ride home. In the early morning hours of August 5, Hernandez,

A.G., M.V., and several others got into Hernandez’s car, which was parked in

the apartment lot. As Hernandez backed up her car, gunshots were fired at the

car. Hernandez saw “muzzle flashes” coming from behind her car and felt

something hit the car. Id. at 103. Hernandez quickly drove away, and she later

observed bullet holes in her car that had not previously been there.

[9] Police subsequently investigated the shooting and found six nine-millimeter

cartridge cases on the ground of the parking lot of a Village Pantry that was

located close to Mercado’s apartment. Police viewed the Village Pantry’s

security footage of its parking lot from the early morning hours on August 5

and saw an individual shooting toward Mercado’s apartment complex. The

video quality, however, was too poor to allow identification of the shooter.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 4 of 14 [10] On August 6, Lafayette Police Department Officer James Jarrett received a call

from dispatch advising him to arrest D.M. 1 D.M. was last seen at the football

stadium at Jefferson High School. Officer Jarrett went to the football stadium

and recognized D.M. in line at a concession stand. Officer Jarrett was aware

that D.M. “possibly had a handgun in his possession” and arrested D.M. Id. at

14. Officer Jarrett performed a search incident to arrest and found a loaded

Taurus G2C nine-millimeter handgun in D.M.’s pocket. Forensic testing later

confirmed that the gun found in D.M.’s pocket was the same one that fired the

cartridge cases found in the Village Pantry parking lot the previous day.

[11] On August 9, 2022, the State alleged that D.M. was a delinquent child for

committing possession of a firearm on school property, a Level 6 felony if

committed by an adult, and dangerous possession of a firearm, a Class A

misdemeanor. On September 14, 2022, in a different cause number, the State

alleged that D.M. was a delinquent child for committing attempted aggravated

battery, a Level 3 felony if committed by an adult, and criminal recklessness, a

Level 6 felony if committed by an adult.

[12] All four allegations were heard together, and the juvenile court adjudicated

D.M. delinquent on all allegations except attempted aggravated battery. The

1 It is not clear from the record whether Officer Jarrett was advised to arrest D.M. based on the previous day’s shooting or for separate reasons.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 5 of 14 court granted wardship of D.M. to the Indiana Department of Correction.

D.M. now appeals.

Discussion and Decision I. Double Jeopardy

[13] D.M. first argues that his adjudications for possession of a firearm on school

property and dangerous possession of a firearm constitute double jeopardy. We

agree.

[14] We review double jeopardy violation claims de novo. Gaunt v. State, 209

N.E.3d 463, 465 (Ind. Ct. App. 2023) (citing Wadle v. State, 151 N.E.3d 227,

237 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)), trans. denied.

[15] “[S]ubstantive double jeopardy claims come in two principal varieties: (1) when

a single criminal act or transaction violates a single statute but harms multiple

victims, and (2) when a single criminal act or transaction violates multiple

statutes with common elements and harms one or more victims.” Demby v.

State, 203 N.E.3d 1035, 1041-42 (Ind. Ct. App. 2021) (citing Wadle, 151 N.E.3d

at 247), trans. denied. Our Supreme Court’s decision in Powell v. State, 151

N.E.3d 256, addresses the first variety, and its decision in Wadle v. State, 151

N.E.3d 227, addresses the second. Double jeopardy protections apply as much

in juvenile proceedings as they do in criminal trials. H.M. v. State, 892 N.E.2d

679, 681 (Ind. Ct. App. 2008), trans. denied. Accordingly, because the two

challenged adjudications here implicate two statutes, the Wadle test applies.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 6 of 14 [16] “The first step in the Wadle test is to determine whether ‘either statute clearly

permits multiple punishment, whether expressly or by unmistakable

implication.’” Demby, 203 N.E.3d at 1042 (quoting Wadle, 151 N.E.3d at 253).

If the language of either statute clearly permits multiple punishment, “the

court’s inquiry comes to an end and there is no violation of substantive double

jeopardy.” Wadle, 151 N.E.3d at 248 (footnote omitted). Here, the parties do

not dispute that neither the possession of a firearm on school property statute

nor the dangerous possession of a firearm statute clearly permit multiple

punishment. Accordingly, we turn to Wadle’s second step.

[17] Wadle’s second step asks whether the offenses are included “either inherently or

as charged . . . .” Id. An offense is “inherently included” if it meets the

definition of “included offense” in Indiana Code Section 35-31.5-2-168. 2

Meanwhile, an offense is included as charged (or “factually included”) if “‘the

charging instrument alleges that the means used to commit the crime charged

2 Indiana Code Section 35-31.5-2-168 provides,

“Included offense” means an offense that: (1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged; (2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 7 of 14 include all of the elements of the alleged lesser included offense.’” 3 Id. at 251

n.30 (quoting Young v. State, 30 N.E.3d 719, 724 (Ind. 2015)).

[18] Here, we find that D.M.’s challenged adjudications are included as charged.

The State alleged that D.M. was a “delinquent child” for committing Count I,

possession of a firearm on school property, and Count II, dangerous possession

of a firearm. Appellant’s App. Vol. II p. 18. Possession of a firearm on school

property is governed by Indiana Code Section 35-47-9-2, which provides, in

relevant part:

(a) [A] person who knowingly or intentionally possesses a firearm:

(1) in or on school property; or

(2) on a school bus;

commits a Level 6 felony. . . .

3 We do not consider the facts adduced at trial when determining whether offenses are included as charged; rather, under Wadle, we look solely to the charging information. See Wadle, 151 N.E.3d at 253 (“If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.”) (emphasis added); Mills v. State, 211 N.E.3d 22, 34 (Ind. Ct. App. 2023) (“[O]nce a court has determined an offense is not included inherently or ‘as charged’ in another offense, there is no need to look at the evidence presented at trial.”). To be sure, prior to Wadle, we employed the “actual evidence test” announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), and that test asked “whether two or more offenses are the same based on the evidence actually presented at trial . . . .” Wadle, 151 N.E.3d at 239 (emphasis in original). In Wadle, however, our Supreme Court “expressly overrule[d]” Richardson’s actual evidence test and replaced it with Wadle’s tripartite framework. Id. at 244.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 8 of 14 Dangerous possession of a firearm, meanwhile, is governed by Indiana Code

Section 35-47-10-5, which provides, in relevant part:

(a) A child who knowingly, intentionally, or recklessly possesses a firearm for any purpose other than a purpose described in section 1 of this chapter commits dangerous possession of a firearm, a Class A misdemeanor. . . .

[19] Turning to the facts alleged in the charging information, Count I alleges that,

on August 6, 2022, D.M. “possess[ed] a firearm in or on school property,” and

Count II alleges that D.M. “possess[ed] a firearm” on the same date.

Appellant’s App. Vol. II p. 18. Both charges were based on D.M. being a

minor in possession of a firearm on August 6, 2022. The possession of a

firearm on school property allegation, thus, alleged all of the facts necessary for

the State to prove the dangerous possession of a firearm allegation.

Accordingly, the latter offense was included as charged, and we must analyze

Wadle’s third and final step. 4

[20] Under Wadle’s third step, we “examine the facts underlying th[e] offenses, as

presented in the charging instrument and as adduced at trial” and determine

whether “the defendant’s actions were so compressed in terms of time, place,

singleness of purpose, and continuity of action as to constitute a single

transaction.” Wadle, 151 N.E.3d at 253. “If the facts show two separate and

4 Because we conclude that D.M.’s challenged adjudications are included as charged, we do not decide whether they are inherently included under Indiana Code Section 35-31.5-2-168.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 9 of 14 distinct crimes, there’s no violation of substantive double jeopardy, even if one

offense is, by definition, ‘included’ in the other.” Id. at 249. Here, the facts

underlying both of the charges against D.M. were that he possessed the same

firearm on the same day during the same time period. Thus, the two offenses

were “so compressed in terms of time, place, singleness of purpose, and

continuity of action as to constitute a single transaction.” Id.

[21] D.M.’s adjudications for possession of a firearm on school property and

dangerous possession of a firearm constitute double jeopardy. The delinquency

adjudication for dangerous possession of a firearm—the lesser included

offense—must, therefore, be vacated. See Demby, 203 N.E.3d at 1046.

II. Sufficiency of the Evidence

[22] D.M. next challenges the sufficiency of the evidence to support his adjudication

for criminal recklessness, a Level 6 felony if committed by an adult. We find

the evidence sufficient.

[23] Sufficiency of evidence claims “warrant a deferential standard, in which we

neither reweigh the evidence nor judge witness credibility.” Powell, 151 N.E.3d

at 262 (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). “When there

are conflicts in the evidence, the jury must resolve them.” Young v. State, 198

N.E.3d 1172, 1176 (Ind. 2022). We consider only the evidence supporting the

judgment and any reasonable inferences drawn from that evidence. Powell, 151

N.E.3d at 262 (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). “We

will affirm a conviction if there is substantial evidence of probative value that

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 10 of 14 would lead a reasonable trier of fact to conclude that the defendant was guilty

beyond a reasonable doubt.” Id. at 263. We affirm the conviction “unless no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence. The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict.” Sutton v.

State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867

N.E.2d 144, 146-47 (Ind. 2007)).

[24] Criminal recklessness is defined by Indiana Code Section 35-42-2-2, which

provides, in relevant part:

(a) A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness. Except as provided in subsection (b), criminal recklessness is a Class B misdemeanor.

(b) The offense of criminal recklessness as defined in subsection (a) is:

(1) a Level 6 felony if:

(A) it is committed while armed with a deadly weapon[.]

[25] Here, the State presented evidence that D.M. sent threatening messages to

people at Mercado’s apartment, including his ex-girlfriend, A.G., on the

evening of August 4 and/or the early morning of August 5. Those messages

warned that he had a gun and was about to shoot “three bodies.” Tr. Vol. II p.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 11 of 14 149. D.M. had been to Mercado’s apartment before, so he was aware of its

location. Gun casings were found at the Village Pantry, near where

Hernandez’s car was shot on August 5. And the next day, D.M. was found in

possession of the gun that matched the casings found at the Village Pantry.

[26] We find this evidence sufficient to support D.M.’s adjudication for criminal

recklessness. D.M.’s assertions to the contrary are simply requests that we

reweigh the evidence and judge witness credibility, which we cannot do.

Conclusion [27] D.M.’s adjudications for possession of a firearm on school property and

dangerous possession of a firearm constitute double jeopardy. We, therefore,

reverse and remand with instructions that the juvenile court vacate the

adjudication for dangerous possession of a firearm. The State, however,

presented sufficient evidence to support D.M.’s adjudication for criminal

recklessness, and we affirm that adjudication.

[28] Affirmed in part, reversed in part, and remanded.

Kenworthy, J., concurs.

Bailey, J., concurs in result with separate opinion.

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 12 of 14 Bailey, Judge, concurring in result.

[29] I concur in the result, and I concur in full with the majority’s analysis in Section

II. I also concur with the majority’s conclusion in Section I that D.M.’s

challenged adjudications constitute double jeopardy because they are included

as charged and the facts underlying each offense show only a single continuous

crime. However, I write separately because I cannot concur with footnote 3 of

the majority’s opinion; I do not believe that the decision in Wadle v. State, 151

N.E.3d 227 (Ind. 2020), precludes consideration of the facts adduced at trial

when determining whether one charged offense is included in another charged

offense.

[30] As noted by the majority of the Court of Appeals panels who have addressed

the issue since Wadle, when one offense, as “charged and tried,” is factually

included in the other, it is an included offense under the second step of the

Wadle double jeopardy analysis. Phillips v. State, 174 N.E.3d 635, 647 (Ind. Ct.

App. 2021) (emphasis added); see also Starks v. State, 210 N.E.3d 818, 821-22

(Ind. Ct. App. 2023); Harris v. State, 186 N.E.3d 604, 611-12 (Ind. Ct. App.

2022). Thus, we look not only at the language of the charging information, but

also the facts that must be proven at trial to determine whether one offense is

included in the other, either inherently or as charged. Id.; see also Ind. Code §

35-31.5-2-168 (defining an “included offense,” in relevant part, as an offense

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 13 of 14 that “is established by proof of the same material elements or less than all the

material elements required to establish the commission of the offense charged”).

[31] Here, both the charging information and the facts adduced at trial establish that

the delinquent act of dangerous possession of a firearm is “included” in the

delinquent act of possession of a firearm on school property. The delinquency

petition alleges that the means used to commit both delinquent acts was D.M.’s

“possess[ion of] a firearm” on August 6, 2022. App. v. II at 18. And the facts

that had to be proven at trial for each delinquent act were that D.M. was a

minor in possession of the same firearm on the same date. Therefore, one

offense, as charged and tried, was factually included in the other. See Harris,

186 N.E.3d at 611 (finding a double jeopardy violation where pointing a

firearm was alleged to be the means used to commit both intimidation with a

deadly weapon and pointing a firearm).

Court of Appeals of Indiana | Opinion 23A-JV-395 | October 26, 2023 Page 14 of 14