J.K. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2020
• Docket: 19A-JV-1739
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2020, 7:58 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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Christopher Taylor-Price Attorney General of Indiana Marion County Public Defender Agency Josiah J. Swinney – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.K., January 31, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1739 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Ryan K. Gardner, Appellee-Petitioner. Judge Pro Tempore Trial Court Cause No. 49D15-1902-JD-145

Mathias, Judge.

[1] J.K. appeals from the juvenile court’s dispositional order adjudicating him to be

a delinquent child for committing conversion, a Class A misdemeanor if

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 1 of 8 committed by an adult. The sole issue for review is whether sufficient evidence

supports the juvenile court’s true finding for conversion.

[2] We affirm.

Facts and Procedural History [3] On December 3, 2018, J.F.V., a minor, was attending school at The Excel

Center in Indianapolis. He had driven his brother’s car to school. J.F.V. briefly

left his classroom for the restroom and returned to discover that his brother’s

car keys were missing from his backpack. The vehicle, a black Honda Accord,

was missing from the lot outside the school where it had been parked. J.F.V.

reported it stolen that night.

[4] Around 7:00 p.m. on December 16, 2018, Indianapolis Metropolitan Police

Department (“IMPD”) Officer David Waterman (“Officer Waterman”)

responded to a report of a shooting near the 5600 block of Georgetown Road.

He encountered a disabled black Honda Accord in the roadway and found J.K.

suffering from two gunshot wounds to the thigh and foot in a nearby Family

Dollar store. Emergency personnel transported J.K. from the scene to the

hospital.

[5] IMPD Detective Keith Cutcliff (“Detective Cutcliff”) responded to the hospital

that evening to investigate the incident. He interviewed J.K., who explained

that he had been walking south on Georgetown Road when he heard shots

from approximately fifteen to twenty feet away. J.K. said he had not seen who

fired the shots and that he ran southbound to the Family Dollar, where he Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 2 of 8 sought help. J.K. said he lost his iPhone somewhere along the way and

provided Detective Cutcliff with his phone number.

[6] Detective Cutcliff proceeded to the scene of the shooting. He observed a black

Honda Accord, unoccupied and blocking traffic in the intersection of West 57th

Street and Georgetown Road. The vehicle was riddled with several bullet holes,

the driver’s side window was shattered, and a small amount of blood was

visible on the driver’s seat. Officer Waterman discovered and collected as

evidence an iPhone on the driver’s seat of the vehicle. Law enforcement

procured a search warrant for the phone and determined it belonged to J.K.

based on its user data and because its number matched the one J.K. had

provided to Detective Cutcliff.

[7] On February 8, 2019, the State filed a delinquency petition alleging that J.K.

committed the delinquent act of auto theft, which if committed by an adult

would be a Level 6 felony. The juvenile court held fact-finding hearings on

March 25 and April 15. At the first hearing, the State called minor J.F.V., who

identified the vehicle in photos of the crime scene as his brother’s vehicle that

he had reported stolen on December 3, 2019. J.F.V. testified that J.K. was not

in the classroom when the keys went missing, does not attend The Excel

Center, and was not known to J.F.V. at the time of these events. J.F.V. did not

positively identify J.K. in the courtroom during his testimony.

[8] At the second fact-finding hearing, Officer Waterman and Detective Cutcliff

testified. Detective Cutcliff explained that the search warrant for the iPhone

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 3 of 8 recovered from the vehicle revealed two email addresses associated with J.K.’s

name. At the end of witness testimony, J.K. moved to dismiss the petition

pursuant to Indiana Trial Rule 41(B), contending that the State did not meet its

burden of proof in its case against J.K. The juvenile court denied the motion

and issued a true finding that J.K. committed the delinquent act of auto theft, a

Level 6 felony if committed by an adult.

[9] On May 5, 2019, J.K. filed a motion to reconsider, which the trial court granted

on June 3, rescinding its prior ruling and issuing a true finding that J.K.

committed conversion, a Class A misdemeanor if committed by an adult.1 A

disposition hearing was held on July 1, 2019, at which time the juvenile court

ordered J.K. discharged to his mother’s custody and the case closed. J.K. filed

his notice of appeal on July 29.

Discussion and Decision [10] When the State seeks to have a juvenile adjudicated to be 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. Ind. Code §

31-37-14-1. When we review a claim of insufficient evidence in a juvenile case,

we apply the same firmly established standard of review as if it were an appeal

1 Conversion as a Class A misdemeanor may be established by proof of less than all the material elements of auto theft as a Level 6 felony and thus is an inherently lesser included offense of auto theft. See Wright v. State, 658 N.E.2d 563 (Ind. 1995); Ind. Code § 35-43-4-2(a)(1).

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 4 of 8 from a criminal conviction. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App.

2001).

We neither reweigh the evidence nor judge the credibility of witnesses. . . . We examine only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. We will affirm if there exists substantive evidence of probative value to establish every material element of the offense.

K.D. v. State, 754 N.E.2d 36, 38 (Ind. Ct. App. 2001) (citations omitted).

[11] Furthermore, circumstantial evidence is no different than other evidence for the

purpose of determining whether guilt beyond a reasonable doubt can be proved

or inferred. K.F. v. State, 961 N.E.2d 501, 506 (Ind. Ct. App. 2012), trans. denied.

And, the uncorroborated testimony of one witness may be sufficient by itself to

sustain a conviction on appeal. Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999).

[12] J.K. argues that the State failed to present sufficient evidence to prove beyond a

reasonable doubt that he committed the act of conversion. Appellant’s Br. at 7.

Conversion is defined as: “A person who knowingly or intentionally exerts

unauthorized control over property of another commits criminal conversion, a

class A misdemeanor.” I.C. § 35-43-4-3(a). Specifically, J.K. claims that the

circumstantial evidence presented was insufficient to prove that: (1) J.K.

exercised control over the Honda Accord; (2) the control was unauthorized;

and (3) J.K. knowingly or intentionally exercised such control. Id. We address

each contention in turn.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 5 of 8 [13] To “exert control over property” means to “obtain, take, carry, drive, lead

away, conceal, abandon, sell, convey, encumber, or possess property, or to

secure, transfer, or extend a right to property.” I.C. § 35-43-4-1(a). J.K. was not

seen driving the Honda Accord, nor was he seen exiting the vehicle or fleeing

from emergency responders. J.K. was, however, found in close proximity to the

vehicle, which had been abandoned by its driver, apparently in haste, in the

middle of an intersection. J.K. needed immediate treatment for two gunshot

wounds, and the vehicle was “shot up” with visible bullet holes. Tr. p. 22.

Furthermore, J.K. was found without his cell phone, and his phone was found

inside the vehicle. And finally, although the blood in the vehicle was not tested

for DNA and thus could not conclusively link J.K. to the vehicle, J.K. was

actively bleeding from gunshot wounds at the time he was found. The

reasonable inferences to be drawn from this circumstantial evidence allowed the

juvenile court to determine that J.K. drove or otherwise possessed the Honda

Accord. The evidence was sufficient to prove beyond a reasonable doubt that

J.K. exerted control over the vehicle.

[14] J.K. argues that because J.F.V.’s uncorroborated testimony was that J.F.V.’s

brother owned the Honda Accord, and not J.F.V himself, the evidence was

insufficient to prove J.K. exerted unauthorized control over the vehicle.

Appellant’s Br. at 10. A person’s control over the property of another person is

“unauthorized” if it is exerted without the other person’s consent. I.C. § 35-43-

4-1(b)(1). J.F.V. testified that he reported the vehicle stolen to the police and

that the vehicle is his brother’s. He also testified that no other person had

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 6 of 8 permission to drive the vehicle or take its keys. Though uncorroborated, this

testimony is sufficient to sustain on appeal the juvenile court’s determination

that when J.K. exerted control over the vehicle, he was unauthorized by its

owner to do so.

[15] And finally, J.K. argues that he did not exert unauthorized control knowingly.

Appellant’s Br. at 15. “Knowingly” means the person was aware of the high

probability he was doing the alleged act. I.C. § 35-41-2-2(a). J.K. rightly points

out that mere possession of stolen property is insufficient to prove the defendant

knew the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1143 (Ind.

2010) (emphasis added). Rather, possession is one fact to be considered along

with “all the surrounding evidence about the possession.” Id. Here, the vehicle

was discovered in an intersection, having been abandoned or disabled as a

result of being fired upon. J.K., injured with gunshot wounds, was found

nearby. When Detective Cutcliff questioned J.K., J.K. did not mention the

Honda Accord. Instead, J.K. described being on foot when he was shot and

when he lost his cell phone. The court did not find J.K.’s testimony to be

credible. For all the reasons described above, the evidence sufficiently indicated

that J.K. was injured while he exerted control over the stolen vehicle; therefore,

it was not unreasonable for the juvenile court to determine that his untruthful

responses to Detective Cutcliff’s questions proved J.K. acted knowingly.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 7 of 8 Conclusion [16] The juvenile court was presented with evidence that sufficiently established J.K.

committed the offense of conversion, a Class A misdemeanor if committed by

an adult. Accordingly, we affirm the juvenile court’s true finding.

[17] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1739 | January 31, 2020 Page 8 of 8