MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 20 2016, 10:59 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.L., January 20, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-JV-834 v. Appeal from the Marion Superior Court, Juvenile Division State of Indiana, The Honorable Marilyn A. Appellee-Plaintiff. Moores, Judge. The Honorable Geoffrey A. Gaither, Magistrate. Trial Court Cause No. 49D09-1503-JD-512
Mathias, Judge.
[1] D.L. appeals the order of the Marion Superior Court finding him to be a
delinquent child for committing what would be Class B misdemeanor criminal
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 1 of 7 mischief if committed by an adult. On appeal, D.L. claims the evidence was
insufficient to support the trial court’s finding.
[2] We affirm.
Facts and Procedural History
[3] At approximately one o’clock in the morning on March 29, 2015, Robert
Lipinski and his wife were watching television in their bed when they heard a
noise coming from the area of their driveway. When they looked out their
window, they saw five youths yelling and making a lot of noise. Mr. Lipinski
telephoned the police, who arrived at the scene only a few minutes later. By the
time the police arrived, however, the youths had moved to a less well-lighted
area next to a nearby creek. The responding officer said something to the
youths, who then moved away.
[4] At approximately 1:34 a.m., Mr. Lipinski again heard noise, this time coming
from the darker area near the creek. He again called the police. Shortly
thereafter, Mr. Lipinski saw one of the youths, later identified as then thirteen-
year-old D.L., jump over the Lipinskis’ chain-link fence and come into his yard.
D.L. appeared to be picking something up off the ground. Mr. Lipinski and his
wife yelled at D.L. through their window. D.L. then jumped back over the
fence, and the youths began to walk away.
[5] The police arrived and ordered the youths to stop and sit near the Lipinskis’
fence. Mr. Lipinski identified D.L. as the one who had jumped his fence and
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 2 of 7 entered his yard. After an initial denial, D.L. eventually admitted to jumping
over the Lipinskis’ fence.
[6] Because Mr. Lipinski had heard a “cracking” sound earlier, he and the
responding officer looked for damage to his fence. Tr. p. 13. They discovered
damage to the top of one section of the fence which had not been present
earlier. Mr. Lipinski later presented evidence that it would cost $560 to repair
the damage to that part of the fence.
[7] On March 30, 2015, the State filed a petition alleging that D.L. was a
delinquent child for committing what would be Class A misdemeanor trespass
and Class B misdemeanor criminal mischief if committed by an adult. The trial
court held an evidentiary hearing on the matter on June 2, 2015. At the
conclusion of the State’s case-in-chief, the trial court granted D.L.’s motion to
dismiss the charge of criminal trespass. The court found that D.L. did commit
what would have been Class B misdemeanor criminal mischief if committed by
an adult. At the dispositional hearing held on June 30, 2015, the court ordered
D.L. to be placed on probation, write a letter of apology to the Lipinskis, abide
by curfew, and participate in services. D.L. now appeals.
Discussion and Decision
[8] D.L. challenges the sufficiency of the evidence supporting the trial court’s
delinquency finding. In reviewing the sufficiency of the evidence in a juvenile
adjudication, we neither reweigh the evidence nor judge the credibility of the
witnesses. K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006). Instead, we consider
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 3 of 7 only the evidence most favorable to the trial court’s judgment and the
reasonable inferences to be drawn from that evidence. Id. We affirm if
substantial probative evidence supports the conclusion. Id. Although the State
must prove every element of the alleged offense beyond a reasonable doubt, it is
not necessary that the evidence overcome every reasonable hypothesis of
innocence. A.M. v. State, 981 N.E.2d 91, 94 (Ind. Ct. App. 2012) (citing A.B. v.
State, 885 N.E.2d 1223, 1226 (Ind. 2008)).
[9] To prove that D.L. committed what would be Class B misdemeanor criminal
mischief if committed by an adult, the State was required to prove that D.L.
recklessly, knowingly, or intentionally damaged the property of another person
without the other person’s consent. See Ind. Code § 35-43-1-2(a).
[10] D.L. acknowledges that evidence exists that he jumped over the Lipinskis’ fence
and that some damage was done to the fence. He claims, however, that the
State failed to prove precisely where D.L. jumped over the fence and that this is
where the damage was located. D.L. notes that the Lipinskis’ yard was quite
large and that the area where he could have jumped was not necessarily where
the damage occurred. This is little more than an argument that we reweigh the
evidence, which we will not do.
[11] The evidence favorable to the trial court’s judgment reveals the following. The
Lipinskis’ fence had no damage earlier that evening. Mr. Lipinski saw D.L.
jump over his fence, appear to pick something up from the Lipinskis’ yard, and
then jump back over the fence. Mr. Lipinski also heard a cracking sound. After
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 4 of 7 this, Mr. Lipinski discovered damage done to his fence that had not been
present before. From this, the trial court could reasonably infer that the damage
to the fence was caused by D.L.’s actions of jumping over the fence.
[12] D.L. draws our attention to Zinn v. State, 424 N.E.2d 1058 (Ind. Ct. App. 1981).
In that case, the evidence established only that a series of harassing telephone
calls were placed from the telephone associated with the defendant’s home. Id.
at 1060. No evidence in the record indicated who had actually placed the calls
or that the defendant was the only one with access to her telephone. Id.
Accordingly, the Zinn court held that the evidence was insufficient to establish
the defendant’s guilt beyond a reasonable doubt. Id.
[13] The present case is readily distinguishable from Zinn. Here, Mr. Lipinski
identified D.L. as the one he saw jump over his fence twice. Mr. Lipinski heard
a cracking sound, and later discovered damage to his fence that had not been
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Jan 20 2016, 10:59 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.L., January 20, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-JV-834 v. Appeal from the Marion Superior Court, Juvenile Division State of Indiana, The Honorable Marilyn A. Appellee-Plaintiff. Moores, Judge. The Honorable Geoffrey A. Gaither, Magistrate. Trial Court Cause No. 49D09-1503-JD-512
Mathias, Judge.
[1] D.L. appeals the order of the Marion Superior Court finding him to be a
delinquent child for committing what would be Class B misdemeanor criminal
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 1 of 7 mischief if committed by an adult. On appeal, D.L. claims the evidence was
insufficient to support the trial court’s finding.
[2] We affirm.
Facts and Procedural History
[3] At approximately one o’clock in the morning on March 29, 2015, Robert
Lipinski and his wife were watching television in their bed when they heard a
noise coming from the area of their driveway. When they looked out their
window, they saw five youths yelling and making a lot of noise. Mr. Lipinski
telephoned the police, who arrived at the scene only a few minutes later. By the
time the police arrived, however, the youths had moved to a less well-lighted
area next to a nearby creek. The responding officer said something to the
youths, who then moved away.
[4] At approximately 1:34 a.m., Mr. Lipinski again heard noise, this time coming
from the darker area near the creek. He again called the police. Shortly
thereafter, Mr. Lipinski saw one of the youths, later identified as then thirteen-
year-old D.L., jump over the Lipinskis’ chain-link fence and come into his yard.
D.L. appeared to be picking something up off the ground. Mr. Lipinski and his
wife yelled at D.L. through their window. D.L. then jumped back over the
fence, and the youths began to walk away.
[5] The police arrived and ordered the youths to stop and sit near the Lipinskis’
fence. Mr. Lipinski identified D.L. as the one who had jumped his fence and
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 2 of 7 entered his yard. After an initial denial, D.L. eventually admitted to jumping
over the Lipinskis’ fence.
[6] Because Mr. Lipinski had heard a “cracking” sound earlier, he and the
responding officer looked for damage to his fence. Tr. p. 13. They discovered
damage to the top of one section of the fence which had not been present
earlier. Mr. Lipinski later presented evidence that it would cost $560 to repair
the damage to that part of the fence.
[7] On March 30, 2015, the State filed a petition alleging that D.L. was a
delinquent child for committing what would be Class A misdemeanor trespass
and Class B misdemeanor criminal mischief if committed by an adult. The trial
court held an evidentiary hearing on the matter on June 2, 2015. At the
conclusion of the State’s case-in-chief, the trial court granted D.L.’s motion to
dismiss the charge of criminal trespass. The court found that D.L. did commit
what would have been Class B misdemeanor criminal mischief if committed by
an adult. At the dispositional hearing held on June 30, 2015, the court ordered
D.L. to be placed on probation, write a letter of apology to the Lipinskis, abide
by curfew, and participate in services. D.L. now appeals.
Discussion and Decision
[8] D.L. challenges the sufficiency of the evidence supporting the trial court’s
delinquency finding. In reviewing the sufficiency of the evidence in a juvenile
adjudication, we neither reweigh the evidence nor judge the credibility of the
witnesses. K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006). Instead, we consider
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 3 of 7 only the evidence most favorable to the trial court’s judgment and the
reasonable inferences to be drawn from that evidence. Id. We affirm if
substantial probative evidence supports the conclusion. Id. Although the State
must prove every element of the alleged offense beyond a reasonable doubt, it is
not necessary that the evidence overcome every reasonable hypothesis of
innocence. A.M. v. State, 981 N.E.2d 91, 94 (Ind. Ct. App. 2012) (citing A.B. v.
State, 885 N.E.2d 1223, 1226 (Ind. 2008)).
[9] To prove that D.L. committed what would be Class B misdemeanor criminal
mischief if committed by an adult, the State was required to prove that D.L.
recklessly, knowingly, or intentionally damaged the property of another person
without the other person’s consent. See Ind. Code § 35-43-1-2(a).
[10] D.L. acknowledges that evidence exists that he jumped over the Lipinskis’ fence
and that some damage was done to the fence. He claims, however, that the
State failed to prove precisely where D.L. jumped over the fence and that this is
where the damage was located. D.L. notes that the Lipinskis’ yard was quite
large and that the area where he could have jumped was not necessarily where
the damage occurred. This is little more than an argument that we reweigh the
evidence, which we will not do.
[11] The evidence favorable to the trial court’s judgment reveals the following. The
Lipinskis’ fence had no damage earlier that evening. Mr. Lipinski saw D.L.
jump over his fence, appear to pick something up from the Lipinskis’ yard, and
then jump back over the fence. Mr. Lipinski also heard a cracking sound. After
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 4 of 7 this, Mr. Lipinski discovered damage done to his fence that had not been
present before. From this, the trial court could reasonably infer that the damage
to the fence was caused by D.L.’s actions of jumping over the fence.
[12] D.L. draws our attention to Zinn v. State, 424 N.E.2d 1058 (Ind. Ct. App. 1981).
In that case, the evidence established only that a series of harassing telephone
calls were placed from the telephone associated with the defendant’s home. Id.
at 1060. No evidence in the record indicated who had actually placed the calls
or that the defendant was the only one with access to her telephone. Id.
Accordingly, the Zinn court held that the evidence was insufficient to establish
the defendant’s guilt beyond a reasonable doubt. Id.
[13] The present case is readily distinguishable from Zinn. Here, Mr. Lipinski
identified D.L. as the one he saw jump over his fence twice. Mr. Lipinski heard
a cracking sound, and later discovered damage to his fence that had not been
there earlier that evening. This is unlike the case in Zinn where the identity of
the caller was unknown.
[14] We find this case more similar to Jennings v. State, 956 N.E.2d 203 (Ind. Ct.
App. 2011), summarily aff’d in relevant part, 982 N.E.2d 1003 (Ind. 2013), also
cited by D.L. In Jennings, the defendant went to the home where the victim,
Pope, was visiting friends with the defendant’s girlfriend, Terrell. When Terrell
prepared to leave, Jennings pulled up in his vehicle and approached Terrell.
Pope stayed inside his friends’ home because Jennings had previously
threatened his life for “messing with” Terrell. Id. at 204. Shortly thereafter,
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 5 of 7 Pope and his friends heard a loud noise, which they described as a “a pssshh
sound” akin to the sound made by an airbrake. Id. They then heard Jennings’
car quickly drive away. When Pope went to his truck, he discovered that it had
been scratched and that one of the tires had been slashed. Jennings was charged
with criminal mischief for damaging Pope’s vehicle.
[15] On appeal, we held that the evidence, though circumstantial, was sufficient to
support Jennings’ conviction:
It was reasonable for the jury to infer that the noise Pope and Ms. Martin heard was the sound of air escaping from Pope’s slashed tire, especially in light of the testimony that Jennings immediately sped away with “screeching tires.” Further, the testimony concerning Jennings’s animosity toward Pope, combined with the lack of any evidence supporting a conclusion that Terrell bore any ill will toward Pope, supports an inference that Jennings, not Terrell, was the perpetrator.
Id. at 205 (record citation omitted).
[16] If anything, the evidence in the present case is stronger than that in Jennings. In
Jennings, no one saw the defendant damage the truck. Here, although no
evidence of any animosity between D.L. and the Lipinskis exists, Mr. Lipinski
actually saw D.L. jump the fence twice and heard a cracking sound before he
discovered the damage to his fence.
[17] We therefore conclude that the State presented evidence sufficient to establish
that D.L. committed what would be Class B criminal mischief if committed by
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 6 of 7 an adult. Accordingly, the trial court did not err in finding D.L. to be a
delinquent child.
[18] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016 Page 7 of 7