MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 25 2017, 5:37 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy Karozos Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
H.J., July 25, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-JV-2034 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn Moores, Appellee-Plaintiff. Judge The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1602-JD-182
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 1 of 15 [1] H.J. appeals his adjudication as a delinquent for committing acts that would
constitute theft and auto theft as level 6 felonies if committed by an adult. H.J.
raises two issues which we consolidate and restate as whether the evidence is
sufficient to sustain his adjudication as a delinquent. We affirm.
Facts and Procedural History
[2] On December 6, 2015, LaShawn Rogers parked in a gas station parking lot on
38th Street in Marion County and exited her Hyundai Santa Fe. Rogers
observed two teenagers, a “guy and girl,” the male juvenile of whom was H.J.
born in September 2001, standing immediately in front of her vehicle as she
pulled up and it looked to her like they were going to ask her for money.
Transcript Volume II at 14. Rogers said “No, I don’t have any money,” and as
she made the statement she stepped over the parking brick, fell, and “dropped
everything” in her hand which included “the little punch thing that you lock the
. . . car with.” Id. at 13-14. Rogers started to pick everything up, “the
gentlemen started to pick it up, too,” and she thanked him, felt bad for having
said that she did not have any cash, and went into the store. Id. at 14.
[3] When Rogers exited the station, she observed H.J. and the other juvenile in her
vehicle, “they were backing out as [Rogers] was coming out of . . . the
building,” and H.J. was driving and the female juvenile was on the passenger
side. Id. Rogers started yelling, said “[b]ring my truck back,” ran to the corner,
asked a person in another vehicle for help, and eventually went back to the gas
station and called 911. Id. at 16. Rogers had left her laptop, purse, and a cell
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 2 of 15 phone in the vehicle. Rogers did not realize it at the time, but her “clicker”
which unlocked the vehicle was missing. Id. The police took Rogers’s
statement and took her home. Days later, Rogers had her cell phone shut off
and obtained a replacement phone. When she received the replacement she
“uploaded . . . pictures and stuff from the cloud . . . to get what [she] had on the
phone from the last time,” and saw pictures of the individuals who had taken
her vehicle. Id. at 17. Indianapolis Police Detective Kevin Kern investigated
the case.
[4] On February 3, 2016, the State filed a petition alleging that H.J. had committed
acts that, if committed by an adult, would constitute theft and auto theft as level
6 felonies. On May 4, 2016, H.J. filed a notice of alibi stating that he was at
Incrediplex in Indianapolis at the time of the alleged event and that his cousin
Dejuan Anderson dropped him “off at Incrediplex where he was at the time of
the incident and then picked him up from Incrediplex.” Appellant’s Appendix
Volume II at 67.
[5] On May 23, 2016, the court held a denial hearing at which it admitted into
evidence the photographs which had been taken using Rogers’s phone.1 Rogers
testified that, when she exited her vehicle at the gas station, “there were two
teenagers standing, like, right in front of my car as I pulled up.” Transcript
Volume II at 13. She testified that, when she was picking up the items she
1 The court held a joint denial hearing for H.J. and the female juvenile.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 3 of 15 dropped when she fell, “the gentlemen started to pick it up, too, and I was like,
‘Oh, thank you.’” Id. at 14. She further indicated that, when she exited the
store, she “saw . . . the guy and the girl in [the] car, and they drove off. They
were backing out as I was coming out of the . . . building.” Id. Rogers then
made an in-court identification of H.J. and the female juvenile and testified that
H.J. was driving and the female was on the passenger side. When asked “how
close were you to the car when it was leaving,” Rogers testified “I’ll say they
were almost out of the parking lot, but not too far that I couldn’t see their face,”
and when asked what time of day this occurred, she indicated “[i]t was
probably about 4:45.” Id. at 15. When asked “how good a look did you get of
[H.J.] and [the other juvenile] when you fell,” Rogers replied “I didn’t look at
‘em too much when I fell, but I saw ‘em when I got out of the truck,” and when
asked “how far were you at that time,” she answered “they were right in front
of my truck.” Id. at 15-16.
[6] When asked “what happened days later,” Rogers testified:
Oh, um, days later, um, I shut my cell phone off, my personal cell phone off, and, um, when I got the replacement, um, I, you know, uploaded the cloud, um, pictures and stuff from the cloud, because you have to upload ‘em to get what you had on the phone from last time, and I uploaded ‘em and then I saw the pictures that the, uh, the two people on there, and I was like, “Oh my goodness, these are the guys that stole my truck.” And there was more than, you know, two kids on there, but, um, I actually, um, asked friends and family if they knew who these kids were because I have [] nieces and nephews that are school-aged, and, and they actually told me who they were.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 4 of 15 Id. at 17. Rogers indicated there were ten or twelve photos downloaded, and
when asked how many kids were on those, she answered six or seven. The
prosecutor showed her the State’s exhibits containing photographs, and she
indicated that she uploaded and printed the photographs and took them to a
detective. When asked “why did you mark them,” she answered “[b]ecause
those are the two . . . defendants that took my vehicle,” and when asked how
she knew that, she answered “[b]ecause I saw ‘em.” Id. at 19. She also
indicated there were not any other children at the gas station.
[7] On cross-examination, Rogers indicated her vehicle and phone were never
found, she did not pick the juveniles out of a lineup or give a sketch to the
detective, she had to obtain assistance from friends and family to identify them,
and that her Kroger card had been used by another individual, whose photo
had been taken by a security camera, and she had never seen that individual
before. She stated she showed her family members two pictures that were on
the cloud, defense counsel for the female juvenile asked “[w]hy did you not
show them the rest of the pictures,” and Rogers replied “[b]ecause those . . .
kids weren’t involved.” Id. at 26. When asked how her family members knew
H.J. and the other juvenile, she stated they went to school with them.
[8] When asked if he obtained video from the gas station, Detective Kern testified
“the problem I always have with [the] gas station at 38th and Oxford is . . . that
they maintain three days’ worth of video, and they tape over it. . . . and I didn’t
get the case for several days.” Id. at 43. H.J.’s defense counsel asked Detective
Kern on cross-examination if he went to H.J.’s house and set up a recorder to
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 5 of 15 record H.J.’s statement, and he responded affirmatively. He indicated that he
provided the recording to the prosecutor’s office, and H.J.’s defense counsel
asked for a recess and said that she had not been provided a copy of the
recording. After a recess, H.J.’s defense counsel indicated that alibi witnesses
were present and asked that the proceedings be bifurcated so that the witnesses
could testify and then proceed after the recordings were received. The
prosecutor stated that Detective Kern had the recordings and the State was not
opposed to bifurcation to allow the defense to hear the recordings and ask
Detective Kern any questions. The court indicated it would bifurcate the
proceedings, permit defense counsel to present the testimony of the alibi
witnesses, and then reschedule the matter to provide an opportunity to receive
and review the recordings.
[9] H.J.’s defense counsel resumed her cross-examination of Detective Kern and
asked him if he had received information that H.J. was at Incrediplex on the
day of the incident, and Detective Kern replied “[n]ot from him. Correct.” Id.
at 52. When asked if he went to Incrediplex to follow up on H.J.’s alibi, he
responded “I did not.” Id. Detective Kern indicated that H.J.’s mother called
him after the initial interview and gave him more information and suggested
there would be video at Incrediplex, and when asked “did you go seek that
out,” he replied “I did not.” Id. He agreed that the only documentation he had
been able to verify was H.J.’s picture downloaded by Rogers. He testified that
the use of the Kroger card which had been attached to Rogers’s keys occurred
four months after the vehicle was stolen. When asked if he agreed that the
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 6 of 15 pictures were taken at the school, he answered that it appeared so. When asked
if, in his training and experience, a business might keep video for ten or thirty
days, Detective Kern replied “[i]t varies . . . correct.” Id. at 69.
[10] H.J.’s defense counsel called DeJuan Anderson, H.J.’s cousin, as an alibi
witness, and Anderson testified that he and H.J. attended church on the
morning of December 6, 2016, after church they returned to H.J.’s house, at
“like four, four forty-five” he left his house to drop off H.J. and three others at
Incrediplex to play basketball, and it took “maybe twenty minutes” to travel
from the house to Incrediplex. Id. at 91. Anderson testified that he traveled to
a banquet at Lawrence North High School and then returned to Incrediplex to
pick up H.J. and the others, that it would take at least twenty to thirty minutes
to drive from Incrediplex to the gas station on 38th Street, and that to his
knowledge H.J. does not know how to drive.
[11] Counsel for H.J. and the other juvenile moved to dismiss the case because the
taped statements should have been given to them. The prosecutor noted that
the State agreed to a bifurcation to give defense counsel the recorded statements
and argued that the bifurcation and not a dismissal was the appropriate remedy.
The court denied the request for dismissal and scheduled continued proceedings
for June 28th.
[12] On June 28, 2016, the court held the scheduled hearing. Kathryn Box testified
she was previously the lead deputy prosecutor on the cases, she had not
received any audio records in this case, and she did not withhold them from the
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 7 of 15 defense. Amy McGrath testified she was an investigative paralegal with the
Marion County Public Defender Agency, she went to Incrediplex on March
2nd to inquire about video and sign-in sheets, Incrediplex has video cameras,
and that Incrediplex did not have any time sheets and was not able to provide
any video, which she believed was because too much time had passed.
[13] H.J.’s counsel then continued her cross-examination of Detective Kern who
indicated that he had previously stated he had provided audio records to the
prosecutor’s office, that he had not done so, and that there were nine recordings
that he did not turn over. Detective Kern stated that he visited H.J.’s home, he
wished to speak with H.J.’s mother, and that another man was present and
attempted to discuss an alibi for H.J. When asked if the man and H.J.’s mother
insisted H.J. was at Incrediplex, Detective Kern replied “I missed that when
they initially said it.” Id. at 122. After playing a portion of a recording,
Detective Kern acknowledged that Anderson and H.J.’s mother each
mentioned Incrediplex and that he did not conduct further interviews with
Anderson. When asked if H.J.’s mother urged him to go to Incrediplex during
a subsequent phone call, Detective Kern answered affirmatively and testified
“[a]t that point, that was months after, or that was like a full month after the
charges were already filed” and “I figured the defense would explore that.” Id.
at 124.
[14] In closing, the prosecutor argued that photographs taken using Rogers’s stolen
phone depicted H.J., that Rogers identified H.J. in the photographs as the
person she observed drive away with her vehicle, and that the case was about
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 8 of 15 whether the court believed Rogers’s testimony. H.J.’s defense counsel argued
that H.J. “didn’t get a fair shake with the detective,” Rogers was shaken up on
the day of the thefts, H.J. was not at the scene of the crime and provided an
alibi, and the State could have preserved important video evidence. Id. at 143.
The court took the case under consideration.
[15] On June 30, 2016, the court entered an order finding the allegations in the
delinquency petition to be true. On August 15, 2016, it held a dispositional
hearing and entered a dispositional order on delinquency which discharged H.J.
to the custody of his father, placed him on standard conditions of probation,
and scheduled a probation review hearing.
Discussion
[16] The issue is whether the evidence is sufficient to sustain H.J.’s adjudication as a
delinquent for committing acts that would constitute theft and auto theft as
level 6 felonies if committed by an adult. When the State seeks to have a
juvenile adjudicated as a delinquent for committing an act that would be a
crime if committed by an adult, the State must prove every element of the crime
beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App.
2006), trans. denied. In reviewing a juvenile adjudication, we will consider only
the evidence and reasonable inferences supporting the judgment and will
neither reweigh evidence nor judge the credibility of the witnesses. Id. If there
is substantial evidence of probative value from which a reasonable trier of fact
could conclude that the juvenile was guilty beyond a reasonable doubt, we will
affirm the adjudication. Id. It is well established that circumstantial evidence Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 9 of 15 will be deemed sufficient if inferences may reasonably be drawn that enable the
trier of fact to find the defendant guilty beyond a reasonable doubt. Pratt v.
State, 744 N.E.2d 434, 437 (Ind. 2001).
[17] Ind. Code § 35-43-4-2 provided at the time of the offenses that “[a] person who
knowingly or intentionally exerts unauthorized control over property of another
person, with intent to deprive the other person of any part of its value or use,
commits theft, a Class A misdemeanor” and that the offense is a level 6 felony
if the value of the property is at least $750 and less than $50,000. (Subsequently
amended by Pub. L. No. 166-2017 § 2 (eff. July 1, 2017)). The State alleged
H.J. knowingly or intentionally exerted unauthorized control over Rogers’s
property, namely, a laptop computer, a cell phone, and a purse and its contents
including a wallet, prescription medication, and currency, with the intent to
deprive Rogers of its value or use, in an amount greater than $750 and less than
$50,000. Ind. Code § 35-43-4-2.5 provided at the time of the offenses that “[a]
person who knowingly or intentionally exerts unauthorized control over the
motor vehicle of another person, with intent to deprive the owner of . . . the
vehicle’s value or use . . . commits auto theft, a Level 6 felony.” (Subsequently
amended by Pub. L. No. 252-2017 § 14 (eff. July 1, 2017)). The State alleged
H.J. knowingly or intentionally exerted unauthorized control over Rogers’s
vehicle with the intent to deprive her of its value or use.
[18] H.J. argues that the trial court abused its discretion in denying his motion to
dismiss, that the taped statements withheld by Detective Kern were shown to
contain evidence affecting his credibility and the alibi witnesses, that the State
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 10 of 15 had a duty to disclose the recorded statements under Brady v. Maryland, 373
U.S. 83 (1963), and that the bifurcation or continuance was not an adequate
remedy for the Brady violation. H.J. further contends that the State failed to
rebut his alibi defense beyond a reasonable doubt because it failed to investigate
or preserve evidence that would have exonerated him and that, contrary to his
testimony on the first day of the denial hearing, Detective Kern was aware of
both co-defendants’ alibi defenses when he first spoke with them.
[19] The State maintains the court properly denied H.J.’s motion to dismiss, the
court granted H.J.’s request to continue the proceedings so that the recordings
could be reviewed, and that, because the recordings were revealed to H.J.
during the proceedings, H.J. cannot establish a Brady violation. The State
further maintains the evidence was sufficient to sustain H.J.’s adjudication and
that Detective Kern’s failure to attempt to review surveillance footage from
Incrediplex does not render the factfinder’s rejection of H.J.’s alibi defense
invalid. It states that no evidence was offered showing surveillance footage
from Incrediplex would have been available by the time H.J.’s mother and
cousin first claimed that H.J. had been at Incrediplex, and that the factfinder
had the opportunity to take the fact that Detective Kern had not sought
surveillance footage from Incrediplex into account in considering the evidence.
[20] “While the mere unexplained possession of recently stolen property standing
alone does not automatically support a conviction for theft, such possession is
to be considered along with the other evidence in a case, such as how recent or
distant in time was the possession from the moment the item was stolen, and
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 11 of 15 what are the circumstances of the possession (say, possessing right next door as
opposed to many miles away).” Holloway v. State, 983 N.E.2d 1175, 1179 (Ind.
Ct. App. 2013) (citations and internal quotation marks omitted). The fact of
possession and all the surrounding evidence about the possession must be
assessed to determine whether any rational trier of fact could find the defendant
guilty beyond a reasonable doubt. Id. (citing Girdler v. State, 932 N.E.2d 769,
773 (Ind. Ct. App. 2010) (noting that possession of recently stolen property is to
be considered along with the other evidence in a case and the circumstances of
the possession)). The trier of fact must assess all of the evidence instead of
focusing upon one piece of evidence, such as possession of recently stolen
property. Id. Further, it is well-settled that a defendant may be charged with
and convicted of theft or auto theft, even if the person was not the original thief,
so long as the elements of the offense are met. See Girdler, 932 N.E.2d at 771;
see also Donovan v. State, 937 N.E.2d 1223, 1226 (Ind. Ct. App. 2010)
(concluding the State was not required to show that the defendant had exclusive
possession of the vehicle from the time of the theft to the time of his arrest but
rather the trier of fact should look at all of the evidence to determine if the
defendant is guilty of the offense beyond a reasonable doubt), trans. denied.
[21] In addition, the State is not required to rebut directly a defendant’s alibi but
may disprove the alibi by proving its own case-in-chief beyond a reasonable
doubt. Carr v. State, 728 N.E.2d 125, 130 (Ind. 2000). A factfinder may
disbelieve alibi witnesses if the State’s evidence makes such disbelief reasonable.
Id. (citing Lambert v. State, 516 N.E.2d 16, 19 (Ind. 1987) (“We cannot
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 12 of 15 substitute our appellate impressions for such jury credibility determinations. It
was the jury’s role to evaluate the evidence and the testimony of witnesses, and
the jury was entitled to find against the defendant despite his alibi evidence.”).
[22] The record reveals Rogers’s in-court identification of H.J. as the male juvenile
she observed driving her vehicle out of the gas station parking lot. Rogers
indicated that, when she observed the vehicle leaving the parking lot, she was
“not too far that I couldn’t see their face.” Transcript Volume II at 15. She also
testified that she observed the juveniles when she exited her vehicle because
“they were right in front of my truck.” Id. at 16. Further Rogers testified that
“days later” she obtained a replacement phone at which time she discovered
that photographs had been taken using her stolen phone and that two of the
photographs depicted the individuals, including H.J., who had taken her
vehicle. Id. at 17. Rogers observed that a number of persons were shown in the
photographs taken using her stolen phone, she specifically recognized the two
individuals she saw at the gas station, and there were not any other children at
the gas station. The prosecutor and defense counsel thoroughly examined and
cross-examined Rogers and the other witnesses. The court was able to assess
the testimony of Rogers, Anderson, and Detective Kern and their credibility.
The evidence of the discovery of the photographs of H.J. which had been taken
using Rogers’s phone, the proximity in time between the thefts and the
discovery of the photographs, and the unequivocal in-court identification
testimony of Rogers at the denial hearing, together, is evidence from which the
court as factfinder reasonably could have concluded that H.J. exerted
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 13 of 15 unauthorized control over Rogers’s vehicle and property with intent to deprive
her of their value or use. Based upon our review of the facts most favorable to
the adjudication, we conclude that evidence of probative value exists from
which a reasonable factfinder could find beyond a reasonable doubt that H.J.
committed delinquent acts constituting theft and auto theft if committed by an
adult.
[23] Further, to the extent H.J. argues that the trial court abused its discretion in
denying his motion to dismiss on the basis that the State or Detective Kern
failed to disclose recorded statements, we observe that under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963), the State has an affirmative duty to disclose
material evidence favorable to the defendant. State v. Hollin, 970 N.E.2d 147,
153 (Ind. 2012). To establish a Brady violation, a defendant must show (1) that
the prosecution suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at trial. Stephenson v.
State, 864 N.E.2d 1022, 1056-1057 (Ind. 2007), reh’g denied, cert. denied, 522 U.S.
1314 (2008). The Indiana Supreme Court has observed that, “[i]f the favorable
evidence becomes known to the defendant before or during the course of a trial,
Brady is not implicated.” Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999)
(citing Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990) (“[I]n the instant
case, the discovery of the recorded statement occurred before the trial
concluded. Thus appellant’s reliance on Brady is misplaced.”)), cert. denied, 528
U.S. 1170 (2000). Here, H.J. requested a bifurcation or continuance so that the
recorded conversations between Detective Kern and those he interviewed could
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 14 of 15 be obtained and reviewed, the court granted his request and scheduled a hearing
for June 28, 2016, and his counsel thoroughly cross-examined Detective Kern
at the June 28, 2016 hearing regarding his investigation and the contents of the
recorded statements. H.J. had an opportunity to review the recordings prior to
the June 28, 2016 hearing, Brady was not implicated, and the trial court did not
abuse its discretion in denying H.J.’s request to dismiss.
Conclusion
[24] For the foregoing reasons, we affirm H.J.’s adjudication as delinquent for
committing acts that would constitute auto theft and theft as level 6 felonies if
committed by an adult.
[25] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JV-2034 | July 25, 2017 Page 15 of 15