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

• Court: Indiana Court of Appeals
• Decided: October 30, 2019
• Docket: 19A-JV-1254
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 30 2019, 9:27 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick M. Schrems Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

G.W., October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-JV-1254 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Stephen R. Galvin, Appellee-Plaintiff. Judge Trial Court Cause No. 53C07-1810-JD-793

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 1 of 8 STATEMENT OF THE CASE

[1] Appellant-Respondent, G.W. (G.W.), appeals his adjudication that would

constitute public nudity, a Class C misdemeanor, Ind. Code § 35-45-4-1.5(b), if

committed by an adult.

[2] We affirm.

ISSUES [3] G.W. presents two issues on appeal, which we restate as follows:

(1) Whether the State presented sufficient evidence beyond a reasonable

doubt to sustain his adjudication as a delinquent child; and

(2) Whether the juvenile court abused its discretion by ordering G.W. to

serve nine months of probation.

FACTS AND PROCEDURAL HISTORY [4] On September 7, 2018, fifteen-year-old G.W. was in in his art class with several

other students, at Bloomington High School South in Bloomington, Indiana.

P.H., a female student, was seated next to G.W. G.W. began flirting with P.H.

and he asked P.H. what perfume she was wearing. After asking the question,

and while sitting down in his chair, G.W. “pulled his pants down” and exposed

“the shaft of his penis.” (Transcript pp. 12-13). G.W. apologized to P.H. for

his “pubes being unshaven.” (Tr. p. 13). Upset by G.W.’s behavior, P.H. got

up from her seat, exited the class, and reported the incident to the social worker

at her school. The social worker thereafter contacted the police.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 2 of 8 [5] On October 26, 2018, the State filed a Petition Alleging Delinquency, claiming

that G.W. had committed Class C misdemeanor public nudity, if committed by

an adult. The juvenile court conducted a fact-finding hearing on February 20,

2019. At the close of the evidence, the juvenile court adjudicated G.W. as a

delinquent child. At a dispositional hearing on May 2, 2019, the juvenile court

ordered G.W. to be placed on nine months of probation and to participate in

various court-ordered services.

[6] G.W. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence [7] When the State seeks to have a juvenile adjudicated a delinquent for

committing an act that would be a crime if committed by an adult, the State

must prove every element of the offense beyond a reasonable doubt. C.L. v.

State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing the sufficiency

of the evidence supporting a juvenile adjudication on appeal, we neither

reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13

N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most

favorable to the judgment and the reasonable inferences therefrom, and we will

affirm if the evidence and those inferences constitute substantial evidence of

probative value to support the judgment. C.L., 2 N.E.3d at 800.

[8] To make a true finding of delinquency against G.W. for Class C misdemeanor

public nudity, the State was required to prove beyond a reasonable doubt that

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 3 of 8 G.W. knowingly or intentionally appeared in a public place in a state of nudity.

Nudity is statutorily interpreted as “the showing of the human male . . .genital,

pubic area, or buttocks with less than a fully opaque covering, . . . or the

showing of covered male genitals in a discernibly turgid state.” I.C. § 35-45-4-

1(d).

[9] On appeal, G.W. casts doubt as to whether P.H. saw his penis. At the fact-

finding hearing, P.H. testified that G.W. pulled down his sweatpants and

exposed the “shaft of his penis.” (Tr. p. 13). G.W. then apologized to P.H. for

his “pubes being unshaven.” (Tr. p. 13). G.W.’s request for us to disregard

P.H.’s testimony is nothing more than a request for this court to reweigh the

evidence which we shall not do. Therefore, we conclude that the State

presented sufficient evidence beyond a reasonable doubt to support G.W.’s

adjudication.

II. Disposition [10] G.W. contends that the juvenile court abused its discretion when it ordered him

to serve nine months of probation.

[11] “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings

with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)

(citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)). The choice of a

specific disposition of a juvenile adjudicated a delinquent child is a matter

within the sound discretion of the juvenile court and will only be reversed if

there has been an abuse of that discretion. Id. “The juvenile court’s discretion

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 4 of 8 in determining a disposition is subject to the statutory considerations of the

welfare of the child, the safety of the community, and the policy of favoring the

least-harsh disposition.” Id. An abuse of discretion occurs when the juvenile

court’s action is clearly erroneous and against the logic and effect of the facts

and circumstances before it. Id.

[12] At the disposition hearing, Mary Ellis (Ellis), the probation officer assigned to

G.W., recommended that G.W. should be placed on nine months of probation

and compete the following services: mental health evaluation and follow any

recommendations; participate in therapy at Centerstone; “[c]ontinue

homebound schooling” and engage in “pro-social activity.” (Tr. p. 48). When

asked what pro-social activity entailed, Ellis stated that G.W. would be required

to either “obtain a job or join a club or a team.” (Tr. p. 49). G.W. agreed with

the recommendations offered by Ellis but requested a shorter probation of six

months considering he was already participating in some of the services

recommended by Ellis. (Tr. p. 59).

[13] On appeal, G.W. argues that he “had already engaged in several of the services

required before the dispositional hearing occurred.” (Appellant’s Br. p. 10).

Without further detailed explanations, G.W. additionally states that the

“curfew restrictions on fulfilling some of the pro-social” activity “could be a

hinderance.” (Appellant’s Br. p. 10). G.W. also argues that he “did not pose a

threat to the community, and the conditions placed on [him] could potentially

disrupt his family life and autonomy. . .” (Appellant’s Br. p. 10). Therefore,

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 5 of 8 G.W. posits that the “nine months of probation versus six months of probation

seem excessive and unreasonable.” (Appellant’s Br. p. 10).

[14] The dispositional order shows that the juvenile court considered the

“Preliminary Inquiry/Predisposition Report” and the “the Risk Assessment”

report (collectively, Reports) prepared by the probation department.

(Appellant’s App. Vol. II, p. 22). The Reports showed that G.W. has a history

of juvenile delinquency preceding his public nudity charge. Specifically,

G.W.’s history of juvenile delinquency includes public intoxication, driving

while suspended (multiple), disorderly conduct and public intoxication, failure

to have proper registration, conversion, battery, battery resulting in bodily

injury, and operating while intoxicated. The Reports indicated that G.W. was

unemployed, and his social activities included playing “video games, bike-

riding with friends, and meeting his friends at Laser Tag.” (Appellant’s App.

Vol. II, p. 88). While G.W. admitted to drinking alcohol once, he indicated

that he smokes “marijuana” once “every other week” since the “pot makes”

him feel “productive and happy.” (Appellant’s App. Vol. II, p. 13). G.W.

additionally reported that he has “overdosed on Xanax twice” and “huffed

butane once.” (Appellant’s App. Vol. II, p. 13). G.W.’s “overall risk

assessment score” put him in the “MODERATE/HIGH risk category to

reoffend.” (Appellant’s App. Vol. II, p. 13) (bold in original).

[15] In the dispositional order, the juvenile court stated that it considered the

Reports, the recommendations from the probation department, and the

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 6 of 8 testimony offered at the dispositional hearing. The juvenile court consequently

entered the following findings:

2. [G.W.] requires appropriate services to address his delinquent behavior. These services are set forth in the order, below. The services are designed to meet [G.W.] specific needs.

3. The following disposition is consistent with the safety and the best interest of the child. It places [G.W.] in the least restrictive setting, least interferes with family’s autonomy, is least disruptive of family life, imposes the least restraint on the freedom of the [G.W.] and [G.W.’s] parent, guardian, or custodian; and provides a reasonable opportunity for participation by [G.W.’s] parent, guardian, or custodian.

(Appellant’s App. Vol. II, p. 22). Ordering G.W. to complete nine months of

probation, the juvenile court also ordered G.W. to: complete a mental health

evaluation; continue ongoing therapy at Centerstone; continue ongoing

schooling through Homebound; and engage in a “pro social activity.”

(Appellant’s App. Vol. II, p. 23).

[16] Based on the foregoing, the juvenile court considered all the evidence presented

and rejected G.W.’s request for a short probation of six months, finding that the

nine months of probation and the additional court-ordered services will enable

G.W. to get therapy, treatment, and education he needs to rehabilitate himself.

The juvenile court’s findings and disposition were not unreasonable in light of

the evidence presented and we affirm its decision to sentence G.W. to serve

nine months of probation and participate in various services.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 7 of 8 CONCLUSION

[17] Based on the foregoing, we conclude that the State presented sufficient evidence

beyond a reasonable doubt to support G.W.’s adjudication. Also, we conclude

that the juvenile court did not abuse its discretion in ordering G.W. to serve

nine months of probation and participate in various services.

[18] Affirmed.

[19] Vaidik, C. J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1254 | October 30, 2019 Page 8 of 8