D.J. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 25, 2013
• Docket: 49A02-1206-JV-490
• Status: Unpublished

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 25 2013, 9:39 am any court except for the purpose of 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

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ANDREW J. BORLAND GREGORY F. ZOELLER Borland & Gaerte Attorney General of Indiana Indianapolis, Indiana RICHARD C. WEBSTER RUTH JOHNSON Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.J., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1206-JV-490 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1204-JD-948

January 25, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge D.J. appeals his adjudication as a delinquent1 for what would be, if committed by an

adult, Class A misdemeanor dangerous possession of a firearm2 and Class D felony theft.3

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 12, 2012, D.J. and his mother (“Mother”) visited Mother’s friend, Tommy

Dorsey, at Dorsey’s residence. Dorsey and Mother left the residence for approximately an

hour to retrieve Mother’s car, and D.J. stayed behind at Dorsey’s residence. When Dorsey

and Mother returned, Dorsey noticed D.J. exiting the rear area of the residence. Dorsey

asked D.J. why he was in that area of the house, and D.J. responded he was getting a drink of

water from the kitchen. However, D.J. was not carrying a glass and no used glass was sitting

out in the kitchen. Dorsey asked D.J. where his glass was and D.J. did not respond.

After D.J. and Mother left, Dorsey noticed a chair had been moved from the kitchen to

his bedroom, where he kept his handgun in a closet. When Dorsey looked in the place where

he normally kept the handgun, he found only the holster. That evening, he searched the

entire residence for the handgun and was unable to find it.

The next day, Dorsey contacted Mother and asked her to bring D.J. to Dorsey’s

residence. She did so. Dorsey explained what he found in his residence and that his handgun

was missing. D.J. denied taking the handgun. Dorsey and Mother searched D.J.’s vehicle

and discovered the handgun in a rear compartment of the vehicle. In addition, Mother found

1 Ind. Code § 31-37-1-2. 2 Ind. Code § 35-47-10-5. 3 Ind. Code § 35-43-4-2(a). 2 pictures of the gun on D.J.’s phone.

The State alleged D.J. was a delinquent for committing acts that, if committed by an

adult, would be Class A misdemeanor dangerous possession of a handgun, Class D felony

theft, and Class A misdemeanor possession of a handgun without a license.4 The juvenile

court entered true findings on all counts, but “close[d] out” (Tr. at 63) the true finding for

Class A misdemeanor carrying a handgun without a license. The juvenile court placed D.J.

on probation based on the other two counts.

DISCUSSION AND DECISION

On review of a juvenile adjudication, we apply the same sufficiency standard used in

criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001). We do not

reweigh evidence or judge credibility of witnesses. D.R. v. State, 729 N.E.2d 597, 599 (Ind.

Ct. App. 2000). Instead we look only to the evidence and reasonable inferences therefrom

that support the determination. Id.

1. Theft

Indiana Code § 35-43-4-2(a) provides “[a] person who knowingly or intentionally

exerts unauthorized control over property of another person, with the intent to deprive the

other person of any part of its value or use, commits theft.” D.J. argues the evidence

presented by the State was purely circumstantial and, therefore, insufficient. We disagree.

A theft conviction may be sustained by circumstantial evidence alone if that

circumstantial evidence supports a reasonable inference of guilt. Mork v. State, 912 N.E.2d

4 Ind. Code § 35-43-4-2(a). 3 408, 411 (Ind. Ct. App. 2009). At D.J.’s adjudication hearing, the State presented evidence

D.J. was alone in Dorsey’s residence for an hour. When Dorsey and Mother returned to the

residence, D.J. was exiting the kitchen at the back of the house. When asked why he was in

that area of the house, D.J. indicated he was getting a glass of water; however, D.J. was not

carrying a glass nor did Dorsey find an empty glass in the kitchen. After D.J. left Dorsey’s

residence, Dorsey noticed a chair normally in the kitchen had been moved to the bedroom

and his gun was missing. The next day, Dorsey contacted Mother about the missing gun, and

D.J. and Mother returned to Dorsey’s residence. Mother and Dorsey found the handgun in a

rear compartment of Mother’s vehicle and found pictures of the gun on D.J.’s phone. That

evidence was sufficient to adjudicate D.J. a delinquent for what would be Class D felony

theft if committed by an adult. See Mork, 912 N.E.2d at 411 (circumstantial evidence

sufficient to convict Mork of theft).

2. Dangerous Possession of a Firearm

D.J. also argues the State did not present sufficient evidence he possessed Dorsey’s

firearm. We disagree.

Indiana Code § 35-47-10-5 provides “[a] child who knowingly, intentionally, or

recklessly: possesses a firearm for any purpose other than a purpose described in section 15 of

this chapter . . . commits dangerous possession of a firearm.” (Footnote added.) Possession

can be actual or constructive. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997),

5 D.J. does not argue the facts of his case fall under any of the exemptions described in Ind. Code § 35-47-10-1, which include exemptions for hunting, firearms target shooting, and permissive use of a firearm by a child.

4 modified on reh’g on other grounds, 685 N.E.2d 698 (Ind. 1997). As D.J. did not have actual

possession of Dorsey’s firearm at the time it was discovered, the State must prove D.J. had

constructive possession, defined as the intent and capability to maintain dominion and control

over the item. See id. To prove intent to maintain dominion and control, there must be

additional circumstances supporting the inference of intent. Id. Constructive possession may

also be proven by a defendant’s incriminating statements, attempted flight or furtive gestures,

or the comingling of contraband with other items the defendant owns. Henderson v. State,

715 N.E.2d 833, 835-36 (Ind. 1999).

D.J. had ample opportunity to take the handgun from Dorsey’s residence. Dorsey’s

firearm was later discovered in Mother’s vehicle. D.J. denied knowing where the handgun

was, but there were pictures of the handgun on D.J.’s phone. That was sufficient evidence to

prove D.J. constructively possessed Dorsey’s handgun. See Conrad v. State, 747 N.E.2d 575,

583 (Ind. Ct. App. 2001) (holding evidence sufficient to prove constructive possession of a

firearm despite non-exclusive control over area where firearm was found), trans. denied.

CONCLUSION

The State presented sufficient evidence to support D.J.’s adjudication for offenses

that, if committed by an adult, would be Class A misdemeanor dangerous possession of a

handgun and Class D felony theft. Accordingly, we affirm.

Affirmed.

ROBB, C.J., and PYLE, J., concur.