J.P., Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 24, 2017
• Docket: 79A02-1607-JV-1745
• 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 Feb 24 2017, 10:38 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 Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General Lafayette, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.P., Jr., February 24, 2017 Appellant-Respondent, Court of Appeals Case No. 79A02-1607-JV-1745 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Faith A. Graham, Appellee-Petitioner Judge Trial Court Cause No. 79D03-1602-JD-25

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 1 of 8 Case Summary [1] J.P., Jr. (“J.P.”), challenges the sufficiency of the evidence to support his

juvenile delinquency adjudications for attempted robbery, a level 3 felony if

committed by an adult; conspiracy to commit robbery, a level 3 felony if

committed by an adult; and battery with bodily injury, a class A misdemeanor

if committed by an adult. Finding that his arguments essentially amount to

requests to reweigh evidence and reassess credibility, we affirm.

Facts and Procedural History [2] The facts most favorable to the delinquency adjudications are as follows.

Around 5:15 p.m. on December 3, 2015, sixteen-year-old J.P. was walking with

friends B.R.T. and J.D. along the road near a Tippecanoe County high school.

On the other side of the road, fifteen-year-old S.D. (“Victim”) was walking

home from wrestling practice, carrying his trumpet case, gym bag, and

backpack. When B.R.T. saw Victim, he suggested to J.P. and J.D. that they

steal Victim’s cell phone. The three agreed, crossed the road, and approached

Victim. B.R.T. twice asked Victim to give him his cell phone so that he could

make a call. When Victim refused, J.P. and J.D. closed in behind Victim,

leaving him surrounded. B.R.T. demanded the phone, and Victim again

refused. B.R.T. lifted Victim by his backpack straps, attempting to jostle him,

and Victim used a wrestling move to take B.R.T. to the ground. At that point,

J.P. and J.D. joined the fight and struck Victim repeatedly with his own

trumpet case. As B.R.T. and Victim continued to wrestle, the other assailants

rifled through Victim’s gym bag and trumpet case, with B.R.T. yelling, “Get his Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 2 of 8 phone, get his phone.” Tr. at 58. After about a minute, the three assailants fled

without having acquired Victim’s phone. In addition to having a damaged

trumpet, Victim suffered injuries to his lower back, which required visits to the

doctor and chiropractor. His injuries caused him to miss a portion of his

wrestling season.

[3] The State filed a juvenile delinquency petition, alleging that J.P. committed

conduct which, if committed by an adult, amounts to level 3 felony attempted

robbery with bodily injury; level 3 felony conspiracy to commit robbery; and

class A misdemeanor battery with bodily injury. At the factfinding hearing, the

State introduced testimony from B.R.T. and Victim as well as photographic

exhibits depicting bruising to Victim’s lower back. The trial court entered true

findings against J.P. on each of the three allegations and sentenced him to

probation, to be served at the Transitions Academy and reevaluated in ninety

days.

[4] J.P. now appeals. Additional facts will be provided as necessary.

Discussion and Decision [5] J.P. challenges the sufficiency of the evidence to support his true findings.

When reviewing a claim of insufficient evidence to support juvenile

delinquency adjudications, we neither reweigh evidence nor reassess witness

credibility. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.

denied. Rather, we look only to the probative evidence and reasonable

inferences supporting the adjudication to determine whether a reasonable trier

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 3 of 8 of fact could conclude that the juvenile was guilty beyond a reasonable doubt.

Id. The uncorroborated testimony of one witness may be sufficient by itself to

sustain an adjudication of delinquency. Id.

[6] The trial court entered a true finding against J.P. for conduct amounting to level

3 felony attempted robbery if committed by an adult. “A person attempts to

commit a crime when, acting with the culpability required for commission of

the crime, the person engages in conduct that constitutes a substantial step

toward commission of the crime.” Ind. Code § 35-41-5-1(a). A person who

knowingly or intentionally takes property from another person by using or

threatening to use force or putting any person in fear commits robbery, a level 3

felony if it results in bodily injury to any person other than the defendant. Ind.

Code § 35-42-5-1. Bodily injury is defined as “any impairment of physical

condition, including physical pain.” Ind. Code § 35-31.5-2-29.

[7] Here, the evidence most favorable to the delinquency adjudication shows that

B.R.T., J.P., and J.D. saw Victim on the other side of the street and decided to

execute B.R.T.’s plan to steal Victim’s cell phone. See Tr. at 34 (B.R.T.’s

testimony that J.P. and J.D. helped him try to steal a cell phone from Victim).

J.P., along with his cohorts, took substantial steps by crossing the street and

approaching Victim. While B.R.T. took the lead in requesting and then

demanding Victim’s phone, J.P. and J.D. took another substantial step toward

robbing Victim by moving in behind him and essentially boxing him in. This is

probative of J.P.’s intent to convey a threat to use force. Then, when B.R.T.

instigated a physical fight by picking up Victim, and the two began to wrestle,

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 4 of 8 the other assailants beat Victim with his trumpet case and rifled through

Victim’s belongings. The photographic exhibits depict numerous bruises on

Victim’s lower back, and Victim testified that he experienced pain that required

doctor visits and chiropractic services and caused him to miss a portion of his

wrestling season. He also specified that his bruises resulted from the assault,

not from his regular wrestling team activities. The three assailants eventually

fled after their attempt to secure the phone proved unsuccessful, which may be

considered as circumstantial evidence of consciousness of guilt. Clark v. State, 6

N.E.3d 992, 999 (Ind. Ct. App. 2014). The evidence is sufficient to support

J.P.’s true finding for conduct amounting to attempted robbery resulting in

bodily injury.

[8] J.P. also challenges the sufficiency of the evidence to support his true finding

for conduct amounting to conspiracy to commit robbery. “A person conspires

to commit a felony when, with intent to commit the felony, the person agrees

with another person to commit the felony.” Ind. Code § 35-41-5-2(a). To prove

conspiracy, the State “must allege and prove that either the person or the person

with whom he or she agreed performed an overt act in furtherance of the

agreement.” Ind. Code § 35-41-5-2(b).

[9] At J.P.’s factfinding hearing, B.R.T. testified in pertinent part as follows: 1

1 The transcript includes actual names of those involved in the incident, which we have replaced with initials and designations consistent with the remainder of this decision.

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 5 of 8 Q: Prior to approaching Victim, did you talk to either J.P. and/or J.D. about your plans to confront Victim and demand the phone?

A: Yes.

Q: What did you say to them?

A: I told them that I saw him walking by himself and I thought that we should go and take his phone from him.

Q: Did they say anything in response?

A: They said that they would want to go do that.

….

Q: Were you on the same side of the street as Victim or the opposite side?

A: We were across the street.

Q: So you and other two individuals that you were with crossed the street to confront Victim?

Tr. at 38-39.

[10] B.R.T.’s testimony supports the existence of an agreement with J.P. and J.D. to

steal Victim’s phone. The trio’s conduct in crossing the street, surrounding

Victim, and demanding his phone amounts to overt acts in furtherance of the

agreement. J.P.’s assertion that he never agreed to rob Victim amounts to an

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 6 of 8 invitation to reweigh evidence and reassess credibility, which we may not and

will not do. D.W., 903 N.E.2d at 968. The evidence is sufficient to support

J.P.’s true finding for conspiracy to commit robbery.

[11] Finally, J.P. challenges the sufficiency of the evidence to support his true

finding for conduct amounting to battery with bodily injury. For this offense,

the State was required to prove that J.P. knowingly or intentionally touched

Victim in a rude, insolent, or angry manner, resulting in bodily injury to Victim.

Ind. Code § 35-42-2-1(b)(1) (2015).

[12] As discussed, the photographic evidence and Victim’s testimony are sufficient

to support the element of bodily injury. Notwithstanding, J.P. contends that

the evidence failed to establish that he ever struck Victim. In this vein, he

points to Victim’s testimony that, in the midst of the fray, he did not recall

whether it was J.P. or J.D. who had struck him repeatedly with his trumpet

case. At the factfinding hearing, B.R.T. summed up the physical altercation as

follows:

Q: Can you tell me exactly what happened that day with regards to Victim?

A: We saw him walking home and we approached him and I asked him for his phone. And he wouldn’t give it up, so I started a fight. And when I was thrown on the ground, the other two people that were there with me started into the fight.

Q: Ok. And by other two people, you are referring to J.D. and J.P.?

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 7 of 8 A: Yes.

Tr. at 38.

[13] The evidence most favorable to the true finding shows that B.R.T. instigated the

physical altercation by picking up Victim, and when Victim, a wrestler,

outmanned him and took him to the ground, J.P. and J.D. joined the fight. We

decline J.P.’s invitation to give credence to Victim’s lack of recollection instead

of B.R.T.’s direct testimony and remind him that we are prohibited from doing

so. D.W., 903 N.E.2d at 968. The evidence is sufficient to support J.P.’s true

finding for conduct amounting to battery with bodily injury. Accordingly, we

affirm.

[14] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1607-JV-1745 | February 24, 2017 Page 8 of 8