D.J. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 30, 2017
• Docket: 49A05-1704-JV-673
• Status: Published

Opinion

FILED Nov 30 2017, 8:02 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.J., November 30, 2017 Appellant-Respondent, Court of Appeals Case No. 49A05-1704-JV-673 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn Moores, Appellee-Petitioner. Judge The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1701-JD-6

Robb, Judge.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 1 of 11 Case Summary and Issues [1] The juvenile court adjudicated D.J. a delinquent child for committing two

counts of armed robbery and two counts of criminal confinement, all Level 3

felonies if committed by an adult. D.J. appeals his adjudication, raising two

issues for our review: 1) whether his convictions for armed robbery and

criminal confinement violate Indiana’s constitutional prohibition against double

jeopardy; and 2) whether the State presented sufficient evidence to support

D.J.’s adjudication as a delinquent child. We conclude there is sufficient

evidence to support the juvenile court’s true findings D.J. committed armed

robbery. We further conclude the juvenile court’s true findings of criminal

confinement violate the Double Jeopardy Clause of the Indiana Constitution.

Accordingly, we affirm D.J.’s adjudication as a delinquent for armed robbery

but reverse D.J.’s criminal confinement adjudications and remand to the

juvenile court with instructions to vacate the true findings of criminal

confinement.

Facts and Procedural History [2] On January 1, 2017, twelve-year-old R.R. and his family visited his

grandmother at her apartment in Speedway, Indiana. Instead of playing cards

with the adults, R.R., his twelve-year-old cousin D.M., and two friends

(“Children”) played outside for a while. Eventually, the Children resorted to

loitering in the stairwell of the apartment building playing games on their cell

phones.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 2 of 11 [3] As the Children played on their phones in the stairwell, two juveniles, one of

whom was later identified as D.J., entered through the front door of the

apartment building. A few seconds later, two other juveniles entered through

the back door of the apartment building. One of the juveniles who entered

through the back door instructed D.J. to check upstairs to see if anyone was

around. D.J. followed his orders and informed him there was no one upstairs.

That juvenile then told the Children, “I need your money [and] your phones

. . . .” Transcript, Volume II at 14. R.R. responded he could not give him the

phone because it belonged to his father, at which point the juvenile pulled out a

gun and placed it on R.R.’s chest. R.R. complied and gave him the cell phone.

He also pointed the gun at D.M.’s head and chest and took his phone. The four

juveniles then fled from the apartment building.

[4] The Children immediately ran upstairs to tell their parents what had happened.

R.R.’s father went to search for the juveniles and encountered D.J. and the

three other juveniles at a gas station a short distance away. When the police

arrived, they detained D.J., determined he was unarmed, and released him.

Shortly thereafter, R.R. and D.M. arrived and identified D.J., who was then

placed under arrest.

[5] The State filed a delinquency petition alleging D.J. committed two counts of

armed robbery and two counts of criminal confinement, all Level 3 felonies if

committed by an adult. At the fact-finding hearing, D.J. testified and

acknowledged he was present during the robbery but denied taking part in it.

He testified he was visiting his female cousin who lived in the apartment

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 3 of 11 complex and had been walking to McDonald’s when his cousin’s boyfriend

asked him to come with him into the stairwell. He further testified he did not

know the two juveniles who committed the robbery. The juvenile court found

the allegations to be true and adjudicated D.J. a delinquent child. D.J. now

appeals.

Discussion and Decision I. Double Jeopardy [6] D.J. first argues the juvenile court’s true findings of armed robbery and criminal

confinement violate Indiana’s constitutional prohibition against double

jeopardy. The State responds alleging double jeopardy does not apply to

multiple true findings in delinquency proceedings because there is only a single

delinquency adjudication.1

[7] The argument offered by the State has been previously addressed by this court

in D.B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006) and H.M. v. State, 892

N.E.2d 679, 680 (Ind. Ct. App. 2008), trans. denied. In D.B., a juvenile was

charged with rape and child molesting for a single act of nonconsensual

intercourse and the juvenile court made true findings on both charges. On

appeal, this court vacated the juvenile court’s true finding of child molesting,

1 The State otherwise concedes that, if double jeopardy applies to delinquency adjudications, the juvenile court’s multiple true findings constitute double jeopardy.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 4 of 11 holding true findings for both rape and child molesting from a single act of

nonconsensual intercourse violated the prohibition against double jeopardy.

D.B., 842 N.E.2d at 404.

[8] In H.M., this court again addressed the question posed by the State: whether

double jeopardy principles apply to juvenile delinquency proceedings where

multiple true findings result in a single delinquency adjudication. H.M., 892

N.E.2d at 680. There, H.M. committed battery upon the victim and attempted

to steal her necklace. The juvenile court entered true findings for both battery

and attempted theft. H.M. appealed, arguing the multiple true findings violated

Indiana’s prohibition against double jeopardy.

[9] On appeal, the State argued “there [could] be no double jeopardy violation . . .

because ‘the double jeopardy prohibition against multiple punishments in the

same case do[es] not apply to juvenile delinquency proceedings in which there

is only one finding of delinquency and one disposition.’” Id. at 681. We

disagreed with the State’s position and noted that multiple true findings may be

used by a trial court to enhance penal consequences in subsequent criminal

proceedings. Given the significance of a defendant’s criminal history, we held

“double jeopardy principles attach where a juvenile faces multiple charges

under a single adjudication.” Id. at 682. Therefore, double jeopardy principles

apply to this proceeding and we decline the State’s invitation to revisit D.B. and

H.M.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 5 of 11 [10] As to D.J.’s argument concerning the juvenile court’s true findings for criminal

confinement and armed robbery, the State concedes, and we agree, the true

findings are in violation of Indiana’s constitutional prohibition against double

jeopardy. The analysis of double jeopardy claims under the Indiana

Constitution is governed by Richardson v. State, 717 N.E.2d 32 (Ind. 1999), in

which our supreme court described two tests, the statutory elements test and the

actual evidence test. Wieland v. State, 736 N.E.2d 1198, 1204 (Ind. 2000). Two

offenses are the “same offense” in violation of Article 1, Section 14 of our

constitution if, “with respect to either the statutory elements of the challenged

crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged

offense.” Id. (quoting Richardson, 717 N.E.2d 32) (emphasis omitted). D.J.

confines his argument to the actual evidence test.

[11] Under the actual evidence test, the evidence presented at trial is examined to

determine whether each challenged offense was established by separate and

distinct facts. Vanzandt v. State, 731 N.E.2d 450, 455 (Ind. Ct. App. 2002), trans.

denied. To show that two challenged offenses constitute the same offense under

the actual evidence test, a defendant must show a reasonable possibility that the

evidentiary facts used by the fact finder to establish the essential elements of one

offense may also have been used to establish the essential elements of a second

challenged offense. Wieland, 736 N.E.2d at 1204. In determining the facts used

by the fact-finder to establish the elements of each offense, it is appropriate to

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 6 of 11 consider the charging information, jury instructions, and arguments of counsel.

Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008).

[12] In Vanzandt v. State, we determined that the defendant’s robbery and criminal

confinement convictions violated the prohibition against double jeopardy. The

evidence in Vanzandt revealed that the defendant, while armed with a gun,

ordered the victims to lie on the floor while the defendant took money from a

cash register and then fled in one victim’s car. 731 N.E.2d at 455. We

concluded that compelling the victims to lie on the floor was not separate and

apart from the force used to effectuate the robbery. Id. Because the defendant

demonstrated there was a reasonable possibility that the jury used the same

evidentiary facts to establish criminal confinement of the victim as it did the

robbery of that same victim, we held that conviction for both violated the

Indiana Double Jeopardy Clause and, therefore, vacated the conviction for

criminal confinement. Id. at 456.

[13] Here, the evidence reveals the Children were playing games on their cell phones

in the stairwell. While they were playing, four juveniles, including D.J.,

entered the apartment building from both entrances. D.J. checked upstairs to

see if anyone was around. One of the four juveniles then pulled out a gun and

robbed both R.R. and D.M. Following the robbery, the juveniles fled the

apartment building. Based on this evidence, we conclude there is a reasonable

possibility the juvenile court used the same evidentiary facts to convict D.J. of

armed robbery and criminal confinement. See Polk v. State, 783 N.E.2d 1253,

1259 (Ind. Ct. App. 2003) (finding that the defendant’s robbery and criminal

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 7 of 11 confinement convictions violated the prohibition against double jeopardy

because only one confrontation occurred which resulted in the taking of the

victim’s property, and the confinement was not greater than that necessary to

accomplish the robbery), trans. denied.2

[14] A reviewing court may remedy a double jeopardy violation “by reducing either

conviction to a less serious form of the same offense if doing so will eliminate

the violation. If it will not, one of the convictions must be vacated.”

Richardson, 717 N.E.2d at 54 (citation omitted). The reviewing court will make

this determination itself, “being mindful of the penal consequences that the trial

court found appropriate.” Id. Because the confinement here was not greater

than necessary to effectuate the armed robbery, there is no less serious form to

reduce the offenses to. As to which finding should be vacated to remedy the

violation, we note the juvenile court committed D.J. to the Indiana Department

of Correction. Indiana Code section 31-37-19-9(b) permits the juvenile court to

order wardship of a delinquent who has committed armed robbery to the

Department of Correction. Therefore, we permit the juvenile court’s

disposition to stand and reverse D.J.’s two adjudications for criminal

2 We note R.R. and D.M. both testified there were two other friends with them in the stairwell. The confinement of the other two children could have supported the two true findings of criminal confinement. However, the charging information specifically lists R.R. and D.M. as the victims of both the armed robbery and criminal confinement charges, and R.R. and D.M. were the only victims to testify at the bench trial. See Appellant’s Appendix at 20-21. Consequently, we accept the State’s concession the true findings violate the prohibition against double jeopardy.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 8 of 11 II. Sufficiency of the Evidence [15] D.J. also argues the State failed to present sufficient evidence that he acted as

an accomplice. Our standard of review for sufficiency of the evidence claims is

well settled:

When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court’s ruling.

Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005) (internal citations and

quotation omitted).

[16] D.J. was convicted of armed robbery and criminal confinement pursuant to a

theory of accomplice liability. Indiana’s accomplice liability statute provides

that a “person who knowingly or intentionally aids, induces, or causes another

person to commit an offense commits that offense . . . .” Ind. Code § 35-41-2-4.

Moreover, in determining whether a person aided another in the commission of

a crime, our supreme court has considered the following four factors: (1)

presence at the scene of the crime; (2) companionship with another engaged in

criminal activity; (3) failure to oppose the crime; and (4) a defendant’s conduct

before, during, and after the occurrence of the crime. Garland v. State, 788

N.E.2d 425, 431 (Ind. 2003).

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 9 of 11 [17] Here, the State presented evidence D.J. was present during the commission of

the crime with the three other juveniles and that D.J. did not oppose the crime,

but willingly participated in it. When ordered to do so, D.J. acted as a scout to

check if anyone was around. The other juvenile then pointed a weapon at R.R.

and D.M. and stole their phones. The juveniles fled together. The police

officer who later detained D.J. found him walking with the three other juveniles

a short distance from the scene of the crime. This is sufficient evidence to find

D.J. acted as an accomplice. D.J.’s argument that we now credit his testimony

that he was apparently deceived into walking with the juveniles or that he was

in the wrong place at the wrong time is a request to reassess witness credibility,

which we cannot do. Wright, 828 N.E.2d at 905-06.

Conclusion [18] The State presented sufficient evidence to support the juvenile court’s

adjudication of D.J. as a delinquent child for committing armed robbery.

However, D.J.’s adjudication as a delinquent child for committing criminal

confinement violates the state constitutional prohibition against double

jeopardy. Accordingly, we affirm the juvenile court’s true findings for armed

robbery, reverse the juvenile court’s true findings for criminal confinement, and

remand to the juvenile court to vacate the true findings of criminal

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

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 10 of 11 Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017 Page 11 of 11