D.H. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 12, 2012
• Docket: 49A04-1110-JV-533
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED Apr 12 2012, 8:47 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ELIZABETH A. GABIG GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.H., ) ) Appellant-Respondent, ) ) vs. ) No. 49A04-1110-JV-533 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Gary K. Chavers, Judge Pro Tempore The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1104-JD-989

April 12, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

D.H. appeals his adjudication as a juvenile delinquent, for committing an act that

would have been Intimidation, as a Class C felony,1 and two acts that would have been

Possession of a Knife on School Property, as Class B misdemeanors,2 if committed by an

adult. We affirm.

Issues

D.H. presents two issues for review:

I. Whether there is sufficient evidence to establish that he committed an act that would be Intimidation, if committed by an adult; and

II. Whether the juvenile court erroneously ordered payment of an administrative fee without inquiry into the parents’ ability to pay the fee.

Facts and Procedural History

On January 3, 2011, twelve-year-old D.H. was a student at Brook Park Elementary

School in Marion County, Indiana. When the teacher left the room, D.H. jumped onto the

chair of another student, G.J. D.H. held a knife to G.J.’s neck and told G.J. to “suck his

dick.” (Tr. 4.) G.J. said “no.” (Tr. 4.) The teacher returned, and D.H. jumped down off the

chair and sat next to G.J. The following day, D.H. pointed a knife at G.J. and asked “are you

scared yet?” (Tr. 6.) G.J. reported the events to her teacher.

On April 26, 2011, the State alleged that D.H. is a juvenile delinquent because he had

1 Ind. Code § 35-45-2-1. 2 Ind. Code § 35-47-5-2.5. 2 committed three acts that would be Intimidation, if committed by an adult, and two acts that

would be Possession of a Knife on School Property, if committed by an adult. Two

allegations of Intimidation (those allegedly involving children other than G.J.) were later

dismissed. On August 8, 2011, the juvenile court held a denial hearing and entered true

findings as to the remaining allegations.

A dispositional hearing was conducted on September 12, 2011. The juvenile court

ordered that D.H. be placed on probation. D.H. was ordered to participate in school-based

counseling, refrain from contact with G.J., and write a letter of apology to G.J. After finding

D.H.’s parents to be partially indigent, the juvenile court required the parents’ payment of a

$100 administrative fee. This appeal ensued.

Discussion and Decision

I. Sufficiency of the Evidence

When the State seeks to have a juvenile adjudicated to be a delinquent for committing

an act that would be a crime if committed by an adult, the State must prove each element of

the crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App.

2006), trans. denied. When reviewing a juvenile adjudication, this Court will consider only

the evidence and reasonable inferences supporting the judgment, and will neither reweigh the

evidence nor judge witness credibility. Id. If there is substantial evidence of probative value

from which a reasonable trier of fact could conclude beyond a reasonable doubt that the

juvenile committed the delinquent act, we will affirm the adjudication. Id.

To support a true finding for Intimidation, as alleged, the State was required to

3 establish that D.H., while armed with a deadly weapon, communicated a threat to G.J., with

the intent that G.J. engage in conduct against her will. Ind. Code § 35-45-2-1(b)(2). A

“threat” is defined as “an expression by words or action, of an intention to … unlawfully

injure the person threatened[.]” Ind. Code § 35-45-2-1(c)(1).

D.H. does not deny that he held a knife to G.J.’s throat and told her to “suck his dick.”

(Tr. 4.) However, he denies that he actually intended that G.J. perform fellatio. He points to

evidence that there were other students present in the classroom and their teacher was nearby.

He also asserts a lack of evidence that he unzipped his pants or exposed his penis.

Whether a person operated with the requisite intent to force another person to engage

in conduct against her will depends upon the facts and circumstances of the case. Owens v.

State, 659 N.E.2d 466, 474 (Ind. 1995). The Indiana Supreme Court has “adopted an

objective view of whether a communication is a threat.” Id. Whether the speaker intends

that the recipient of communication engage in conduct against her will and whether the

communication, objectively viewed, constitutes a threat are questions for the finder of fact.

Id.

G.J. testified as follows. While the classroom teacher was in the hallway, D.H.

jumped onto G.J.’s chair, held a knife to her throat, and demanded that she “suck his dick.”

(Tr. 4.) This is sufficient evidence to permit the fact-finder to conclude beyond a reasonable

doubt that D.H., while armed with a deadly weapon, communicated a threat to G.J. with

intent that she engage in conduct against her will. D.H.’s suggestion that G.J.’s compliance

was unlikely given the surroundings and D.H.’s lack of exposure merely presents a request to

4 reweigh the evidence.

Additionally, we observe that D.H. does not challenge the true findings for possession

of a knife. As such, the State presented sufficient evidence to support the juvenile court’s

adjudication that D.H. is a delinquent child.

II. Administrative Fee

Pursuant to Indiana Code Section 31-40-2-1(a), a juvenile court may order a

delinquent child or the child’s parent to pay probation fees and an administrative fee, subject

to Indiana Code Section 31-40-1-3. Indiana Code Section 31-40-1-3(a) provides that a parent

of a delinquent child will be ordered to pay for services to the child or parents “unless the

court makes a specific finding that the parent or guardian is unable to pay or that justice

would not be served by ordering payment[.]” The juvenile court must inquire into the ability

of the parents of a juvenile delinquent to pay. M.Q.M. v. State, 840 N.E.2d 441, 449 (Ind.

Ct. App. 2006).

D.H. contends that the juvenile court failed to inquire into his parents’ ability to pay

before assessing the $100 administrative fee. We disagree. At the dispositional hearing, the

juvenile court asked each of D.H.’s parents about employment. D.H.’s father responded that

he was unemployed. D.H.’s mother responded that she was employed at a hospital. The

parents advised that they lived in the same home, and had four children. The pre-

dispositional report submitted to the juvenile court indicated that D.H.’s mother earned

income of $1,450 monthly. The family also received $700 per month in food stamps. The

juvenile court obtained adequate information upon which to make its finding of partial

5 indigency and assess a $100 fee.

Affirmed.

ROBB, C.J., and MATHIAS, J., concur.