D.W. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 18, 2018
• Docket: 49A02-1712-JV-2849
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 18 2018, 9:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Elizabeth A. Houdek Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.W., July 18, 2018 Appellant-Respondent, Court of Appeals Case No. 49A02-1712-JV-2849 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Petitioner. Marilyn A. Moores, Judge The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1706-JD-796

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 1 of 14 [1] D.W. appeals his adjudication as a delinquent child for committing offenses

that would be Level 6 felony receiving stolen auto parts,1 Level 6 felony theft,2

and Class A misdemeanor criminal trespass,3 if committed by an adult. He

raises three issues, of which we find the following to be dispositive: whether the

State presented sufficient evidence to support each of the true findings.

[2] We reverse and remand with instructions.

Facts and Procedural History [3] At around 9:00 p.m. on June 7, 2017, Indianapolis Metropolitan Police

Department (“IMPD”) Officer Jordan Huffman (“Officer Huffman”) was

dispatched to the Skateland roller skating rink on the report of a stolen vehicle,

namely a 2012 Ford E-350 twelve-passenger van owned by John Schott

(“Schott”). When he arrived, Officer Huffman met with Schott’s wife, Anne

Schott (“Anne”), who several hours earlier had driven seven children in the van

to Skateland, and when they came out around 8:30 p.m., the van was gone.

Schott arrived on the scene and verified that he had not moved the vehicle.

Anne still had the keys with her, and she told Officer Huffman that she thought

she had locked it. There was no broken glass on the ground in the parking lot

where the van had been parked. Anne told Officer Huffman that, when she

1 See Ind. Code § 35-43-4-2.5(c). 2 See Ind. Code § 35-43-4-2. 3 See Ind. Code § 35-43-2-2(b)(4).

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 2 of 14 parked the vehicle and went inside the rink, there had been two booster seats

and two child car seats, along with two infant seat bases (together, “the child

safety seats”), in the van.

[4] At around 5:00 a.m. the next day, officers were dispatched to an apartment

complex in Marion County regarding a suspicious vehicle, specifically a white

passenger van parked and occupied by individuals. IMPD Officer Anthony

Carter (“Officer Carter”) responded and observed three juvenile males, later

identified as G.K., D.W., and N.M., asleep in the van. G.K. was in the driver’s

seat, D.W. was in the middle row of seats, and N.M. was in the back row.

Officer Carter checked the license plate in his computer and determined it had

been reported as stolen. Other officers arrived at the scene, and the three

occupants were awakened, removed, and transported to the juvenile processing

center. Anne was contacted and came to the scene to take possession of the

van. Upon arrival, she observed that the van’s interior was damaged, the child

safety seats were missing, and there were various personal items in the van that

did not belong to the Schotts. Those items were removed and transported to

IMPD’s property room.

[5] On June 8, 2017, the State filed, and the trial court subsequently approved, a

delinquency petition, alleging that D.W. committed acts that would constitute

the following offenses if committed by an adult: Count 1, Level 6 felony

receiving stolen auto parts by knowingly or intentionally receiving, retaining, or

disposing of Schott’s motor vehicle, which had been the subject of theft; Count

2, Level 6 felony theft by knowingly or intentionally exerting unauthorized

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 3 of 14 control over Schott’s child safety seats; and Count 3, Class A misdemeanor

criminal trespass by knowingly or intentionally interfering with the possession

or use of “the property of [] Schott” without his consent. Appellant’s App. Vol. II

at 22.4

[6] On August 27, 2017, the juvenile court conducted a combined denial hearing

for D.W., G.K. and N.M., who each faced the same delinquency allegations.

Schott testified that he owned the van, that that he did not know D.W. or the

other two juveniles who were found asleep in his van, and none had his

permission to use it. He said when it was found the next morning, it was

“trashed” and had “lots of . . . I guess stolen items in it[.]” Tr. Vol. II at 10.

Anne testified that on June 7 she drove the van to Skateland around 6:00 p.m.,

taking a group of children to skate. She described that the van “was in good

condition since it was fairly new” and that it had six child safety seats in it

when she parked and went inside Skateland. Id. at 13. When she came out

around 9:00 p.m., the van was gone, so she called 911. She stated that when

she saw the van the next morning, “[I]t reeked of marijuana, it was trashed,

there was food, there was a variety of electronics, sunglasses, shoes, cologne,

candy, drug paraphernalia, um, it was just covered in trash.” Id. at 14. She

testified that none of those items belonged to the Schotts. Anne stated that the

4 On appeal, one of D.W.’s three claims of error is that the delinquency petition’s charging information for criminal trespass was defective because it did not identify what property of Schott’s was used or interfered with, and because D.W. did not object to the allegation, he acknowledges that he needed to show fundamental error. Because we resolve D.W.’s appeal on other grounds, we do not reach this issue.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 4 of 14 child safety seats were gone and also testified, “[A]ll of my personal items were

no longer in there[,]” except for a “a few small items.” Id. Receipts were

admitted into evidence showing the cost to replace what was stolen, as well as

what she paid to repair damage to the seat belts, air vents, the overhead DVD

player, and burns to the upholstery. Anne stated that she did not know D.W.

or the other juveniles and that they did not have permission to be in the Schotts’

van.

[7] Officer Carter testified that when he arrived at the apartment parking lot at

around 5:20 a.m., in response to the dispatch regarding a suspicious vehicle, he

saw the van with three sleeping occupants, he determined that the “large 12-

passenger van” was stolen, and he called for assistance. Id. at 20. He said

when other officers arrived, they banged on the windows and woke the driver

and then the others. Officer Carter testified that D.W. was in the middle row of

seats. He stated that the location where the van was found was “within six

blocks” of Skateland. Id. at 19. Officer Joshua Treft (“Officer Treft”) testified

that he arrived at the scene, parked his vehicle in front of the van, and waited

for other officers to arrive. He described that the occupants were “compliant”

once the officers woke them. Id. at 25. He estimated that where the van was

found was “maybe a mile” from Skateland. Id. at 24.

[8] At the conclusion of the hearing, the juvenile court entered a true finding as to

the three allegations: receiving stolen auto parts, theft, and criminal trespass.

Id. at 33. That same date the juvenile court issued a written Order on Fact

Finding hearing that ordered D.W. to continue on previously-imposed release

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 5 of 14 conditions and set the matter for dispositional hearing. Appellant’s App. Vol. II

at 84-86. The November 9, 2017 Dispositional Order suspended commitment

to the Indiana Department of Correction and placed D.W. on probation, which

included terms of day reporting and GPS electronic monitoring. Id. at 14-16.

D.W. now appeals.

Discussion and Decision [9] D.W. argues that the evidence was not sufficient to support the three true

findings. A finding by a juvenile court adjudicating a child to be a delinquent

must be based upon proof beyond a reasonable doubt. Ind. Code § 31-37-14-1.

Our review for the sufficiency of the evidence with respect to juvenile

adjudications is the same as for criminal convictions. A.J.R. v. State, 3 N.E.3d

1000, 1004 (Ind. Ct. App. 2014). We neither reweigh the evidence nor judge

the credibility of the witnesses. D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App.

2017). We consider only the evidence most favorable to the judgment and the

reasonable inferences drawn therefrom and will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the

judgment. C.L. v. State, 2 N.E.3d 798, 799 (Ind. Ct. App. 2014). We will

reverse if there is no evidence or reasonable inference to support any one of the

necessary elements of the offense. K.W. v. State, 984 N.E.2d 610, 612 (Ind.

2013).

[10] D.W. argues that the State did not present substantial evidence of probative

value from which a reasonable factfinder could conclude beyond a reasonable

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 6 of 14 doubt that his conduct, if committed by an adult, would constitute Level 6

felony receiving stolen auto parts, Level 6 felony theft, and Class A

misdemeanor criminal trespass. We agree.5

Receiving Stolen Property [11] In order to make a true finding of delinquency for Level 6 felony receiving

stolen auto parts, the State was required to prove beyond a reasonable doubt

that D.W. knowingly or intentionally received, retained, or disposed of a motor

vehicle or any part of a motor vehicle of another person, here, Schott, that had

been the subject of theft. Ind. Code § 35-43-4-2.5(c); Appellant’s App. Vol. II at

22. The State must also prove beyond a reasonable doubt that the person knew

the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1143-44 (Ind. 2010).

D.W. argues that “[t]here was simply no evidence at all that D.W. knew the

van was stolen.” Appellant’s Br. at 8-9. We agree.

[12] Knowledge that property is stolen may be established by circumstantial

evidence. Fortson, 919 N.E.2d. at 1143. However, knowledge of the stolen

character of the property may not be inferred solely from the unexplained

possession of recently stolen property. Id. “Possession of recently stolen

property when joined with attempts at concealment, evasive or false statements,

5 We note that the juvenile court entered the same three true findings for N.M., who was in the back row of seats, as it did for D.W., and N.M. filed a direct appeal. By memorandum decision, a panel of this court reversed, determining that the evidence was not sufficient to support any of the three true findings. N.M. v. State, No. 49A05-1711-JV-2539, 2018 WL 2124676 (Ind. Ct. App. May 9, 2018). We agree with our colleagues’ decision and reasoning.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 7 of 14 or an unusual manner of acquisition may be sufficient evidence of knowledge

that the property was stolen.” Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct.

App. 2005); see also Driver v. State, 725 N.E.2d 465, 470-71 (Ind. Ct. App. 2000)

(trier of fact may infer that a defendant had knowledge that property was stolen

based on defendant having possession of it along with lying about how he

acquired it).

[13] Here, at the denial hearing, the State presented evidence that Anne drove the

van to Skateland, and it was stolen sometime between about 6:00 p.m. and 9:00

p.m. on June 7, 2017. No surveillance or other evidence was presented as to

when or how it was stolen. When Anne parked and left the van, it was in

“good” condition. Tr. Vol. II at 13. It was found at around 5:00 a.m. the next

day, parked in an apartment complex about six blocks away, and three juveniles

were sleeping in it. The van was “trashed,” and D.W. was in the middle row of

seats. Id. at 10. The Schotts testified that they did not know the three juveniles

and did not give any of them permission to use or be in their van. When the

police woke the juveniles, they exited the van one by one and were described as

“compliant.” Id. at 25.

[14] While the State’s evidence proved that D.W. was found asleep in the recently-

stolen van, there was no evidence that D.W. gave evasive or false answers to

officers or attempted to resist or flee. There also was no evidence that anyone

attempted to conceal the van or alter its plates, and no evidence that windows

or locks were broken. Based on the record before us, the State failed to present

sufficient evidence from which the juvenile court could infer that D.W. knew

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 8 of 14 that the van was stolen. See Fortson, 919 N.E.2d at 1143-44 (reversing

conviction for receiving stolen property where defendant was found driving

stolen vehicle within hours after it was stolen, but there was no evidence that

defendant provided evasive answers, attempted to flee or resist officers, or

attempted to conceal the truck, and thus State failed to provide other facts to

support an inference of knowledge). Accordingly, the evidence to support

D.W.’s true finding for receiving stolen auto parts was insufficient.

Theft [15] To prove that D.W. committed what would be Level 6 felony theft if

committed by an adult, as charged, the State was required to prove that he

knowingly or intentionally exerted unauthorized control over Schott’s child

safety seats with the intent to deprive Schott of any part of the property’s value

or use, in an amount greater than seven hundred fifty dollars and less than fifty

thousand dollars. Ind. Code § 35-43-4-2; Appellant’s App. Vol. II at 22. D.W.

argues that the evidence was insufficient to prove theft as charged, arguing,

“The State offered no evidence at all to support its charge of theft other than

D.W.’s mere presence inside the stolen van that had contained the missing car

seats twelve hours previously.” Appellant’s Br. at 9.

[16] Here, the State presented no evidence of what occurred in the less-than-twelve

hours between the time that the van was taken from Skateland and when it was

found with the three juveniles sleeping in it and no evidence that D.W.

removed the child safety seats or even was present when the seats were

removed from the van. The State failed to prove beyond a reasonable doubt Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 9 of 14 that he knowingly or intentionally exerted unauthorized control over the child

safety seats with the intent to deprive Schott of any part of their use or value.

Accordingly, the State failed to present sufficient evidence to support a true

finding of what would be Level 6 felony theft if committed by an adult.

Criminal Trespass [17] To support D.W.’s true finding for criminal trespass, the State had to prove that

D.W. knowingly or intentionally interfered with the possession or use of the

property of Schott without his consent. Ind. Code § 35-43-2-2(b)(4); Appellant’s

App. Vol. II at 22. D.W. argues, “Without knowledge the van was stolen, D.W.

could not knowingly or intentionally interfere with the actual owner’s interest

in the van[.]” Appellant’s Br. at 10. We disagree with that reasoning because the

offense of criminal trespass did not require the State to prove that D.W. knew

the van was stolen; it required the State to show that he knowingly or

intentionally used it without the owner’s consent. Nevertheless, we must agree

with D.W. that the evidence was insufficient to support a true finding for

criminal trespass.

[18] Here, the State’s evidence was that Anne drove the van to Skateland on the

evening of June 7, and it was stolen sometime before 9:00 p.m. Early the next

morning, officers found the van about half a mile away, and D.W. was asleep

in it without the Schotts’ permission. Tr. Vol. II at 9, 19-20, 24. The evidence

thus established that (1) D.W. interfered with the Schotts’ use or possession of

the van (2) without the owner’s consent. What remains is whether the evidence

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 10 of 14 was sufficient to prove that D.W. knowingly or intentionally did so, as required

by Indiana Code section 35-43-2-2(b)(4).

[19] We recognize that “the mens rea element for a criminal offense is almost

inevitably, absent a defendant’s confession or admission, a matter of

circumstantial proof.” Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012).

Here, the State failed to present any evidence to prove that D.W. knowingly or

intentionally used or possessed the van without Schott’s consent. D.W. was

found asleep in the middle row of seats of Schott’s trashed van less than twelve

hours after it was stolen. We do not know how the van was stolen, who stole it,

when or under what circumstances D.W. entered the van, whether he knew it

did not belong to any of the other two occupants, or whether he believed he or

the others had obtained consent from someone for its use. Based on the limited

evidence presented and our standard of review, and like our colleagues in N.M.

v. State, No. 49A05-1711-JV-2539, 2018 WL 2124676, at *3 (Ind. Ct. App. May

9, 2018), we conclude that the State failed to present sufficient evidence that

D.W. knowingly or intentionally interfered with the possession or use of

Schott’s van without Schott’s consent. We reverse and remand with

instructions to vacate the true findings.6

[20] Reversed and remanded with instructions.

6 Because D.W.’s sufficiency claims are dispositive, we need not reach his claim that the true findings violate Indiana’s prohibition against double jeopardy.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 11 of 14 Bradford, J., concurs.

Baker, J., concurs in part and dissents in part with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 12 of 14 IN THE COURT OF APPEALS OF INDIANA

D.W., Appellant-Respondent, Court of Appeals Case No. v. 49A02-1712-JV-2849

State of Indiana, Appellee-Petitioner.

Baker, Judge, dissenting in part.

[21] I respectfully dissent from the majority’s conclusion regarding D.W.’s

delinquency adjudication for criminal trespass.7 As the majority notes, to

establish that D.W. committed an act that would have been criminal trespass

had it been committed by an adult, the State needed to prove that D.W.

knowingly or intentionally interfered with the possession or use of the property

of Schott—the van—without his consent. I.C. § 35-43-2-2(b)(4).

7 I likewise respectfully disagree with the resolution of this issue by a different panel in the companion case of N.M. v. State, No. 49A05-1711-JV-2539 (Ind. Ct. App. May 9, 2018).

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 13 of 14 [22] Schott testified that he owned the van, that he did not know D.W. or the other

two juveniles who were found asleep in his van, and that none had his

permission to use it. A reasonable factfinder could infer from this testimony

that as D.W. did not know Schott and did not have his permission to use the

van, D.W. acted knowingly or intentionally. As such, I believe the evidence is

sufficient to support this adjudication and would affirm on this issue. In all

other respects, I agree with the majority.

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018 Page 14 of 14