FILED Nov 19 2018, 10:14 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Evan Matthew Comer Indianapolis, Indiana Caroline G. Templeton Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.S., November 19, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-826 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Gary K. Chavers, Appellee-Petitioner. Judge Pro Tempore Trial Court Cause No. 49D09-1710-JD-1490
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 1 of 10 Case Summary [1] J.S. was adjudicated a delinquent child with true findings for: (1) Dangerous
Possession of a Firearm, a Class A misdemeanor;1 and (2) Resisting Law
Enforcement, an act that would be a Class A misdemeanor if committed by an
adult.2 J.S. now challenges the sufficiency of the evidence supporting his true
finding for Dangerous Possession of a Firearm. We affirm.
Facts and Procedural History 3
[2] On October 18, 2017, the Indianapolis Metropolitan Police Department learned
that a juvenile—other than J.S.—had stolen a vehicle and a firearm from his
parents. That evening, Officer Nicholas Snow (“Officer Snow”) encountered a
vehicle matching the description of the stolen vehicle, with three occupants
inside. Officer Snow began following the vehicle and contacted additional
officers. The plan was to conduct a tactical stop for officer safety, ordering the
occupants out of the vehicle one at a time. Among the responding officers was
Officer William Hornaday (“Officer Hornaday”), who assisted with the stop.
[3] The officers first ordered the driver out of the vehicle. Thereafter, the front
passenger ran from the vehicle. Officer Hornaday ran after the individual.
1 Ind. Code § 35-47-10-5(a). 2 I.C. § 35-44.1-3-1(a)(3). 3 On October 25, 2018, we held oral argument at Princeton Community High School in Gibson County. We thank the staff and students for their hospitality, and thank counsel for their skilled advocacy.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 2 of 10 Meanwhile, Officer Snow took note of the individual’s appearance, observing
that the individual was a Hispanic male wearing white shoes, dark pants, and a
white shirt under a sweatshirt. The individual was holding a black object.
Although Officer Snow could not readily identify the object, whether it was
through his training—or “the way [the individual] was holding whatever it
was”—Officer Snow “believed it to be a gun so much so that [he] got on the
radio and . . . said that [the individual] was armed.” Tr. Vol. II at 16-17.
[4] Officer Hornaday pursued the individual through a residential area, into a dark
area between houses. Officer Hornaday lost sight of the individual, but then
found a black gun on the ground nearby. A few blocks away, Officer Ryan
Deakin (“Officer Deakin”) saw a Hispanic male running toward him wearing
white shoes, dark pants, and a white t-shirt. Officer Deakin arrested the
person—later identified as J.S.—who complained that he was cold. When
Officer Deakin said that J.S. should not have taken off his sweatshirt, J.S.
laughed. At this time, J.S. did not have a firearm but did have a cell phone that
kept ringing. J.S. was transported to the area of the vehicle stop, where Officer
Snow identified J.S. as the passenger who fled. J.S. was sweating and was
uncooperative with the officers. Around that time, J.S. was near the two other
individuals who had been in the vehicle. J.S. tried to make eye contact with
them. Eventually, the three of them were placed together inside a transport
vehicle, and a conversation ensued in Spanish. One individual called J.S. a
dumbass, and J.S. said “I can’t believe they got me” or “I thought that I was
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 3 of 10 going to get away and not get caught.”4 Id. at 81. At some point, law
enforcement recovered contraband from the center console of the stolen vehicle.
[5] The State filed a petition alleging that J.S. was a delinquent child for conduct
related to the firearm, the contraband in the console, and the flight from law
enforcement. After a denial hearing, the juvenile court entered true findings for
Dangerous Possession of a Firearm and Resisting Law Enforcement. The
juvenile court adjudicated J.S. a delinquent child and placed him on probation
with a suspended commitment to the Indiana Department of Correction.
[6] J.S. now appeals.
Discussion and Decision [7] A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §
31-37-14-1. When reviewing a challenge to the sufficiency of evidence
supporting a true finding, “we do not reweigh the evidence or judge witness
credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e
consider only the evidence favorable to the judgment and the reasonable
inferences supporting it.” Id. We will affirm the judgment so long as there is
“substantial evidence of probative value . . . from which a reasonable fact finder
4 An officer who overheard this conversation offered both statements as possible translations.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 4 of 10 could conclude beyond a reasonable doubt” that the juvenile engaged in the
unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).
[8] J.S. challenges only his true finding for Dangerous Possession of a Firearm.
Indiana Code Section 35-47-10-5(a) provides, in pertinent part, that “[a] child
who knowingly, intentionally, or recklessly possesses a firearm . . . commits
dangerous possession of a firearm, a Class A misdemeanor.” Moreover, “[a]
person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is
aware of a high probability that he is doing so.” I.C. § 35-41-2-2.
[9] At the denial hearing, J.S. pursued a defense of mistaken identity—but the State
presented ample evidence that J.S. was the person who fled. Indeed, among the
evidence was testimony from Officer Snow, who identified J.S. as the person he
saw running from the vehicle. There was also evidence of the incriminating
conversation between J.S. and the others from the vehicle. In now pursuing his
appeal, J.S. does not focus on evidence of his identity. Rather, he challenges
whether the State presented sufficient evidence that he possessed a firearm.
[10] It is well-settled that possession can be actual or constructive, with “[a]ctual
possession occur[ing] when a person has direct physical control over the item.”
Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). According to J.S., a theory
of actual possession cannot support his true finding because he “was not found
in direct physical control of the gun.” Br. of Appellant at 13. Yet, the evidence
favorable to the adjudication indicates that law enforcement found a black
firearm along the route J.S.
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FILED Nov 19 2018, 10:14 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Evan Matthew Comer Indianapolis, Indiana Caroline G. Templeton Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.S., November 19, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-826 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Gary K. Chavers, Appellee-Petitioner. Judge Pro Tempore Trial Court Cause No. 49D09-1710-JD-1490
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 1 of 10 Case Summary [1] J.S. was adjudicated a delinquent child with true findings for: (1) Dangerous
Possession of a Firearm, a Class A misdemeanor;1 and (2) Resisting Law
Enforcement, an act that would be a Class A misdemeanor if committed by an
adult.2 J.S. now challenges the sufficiency of the evidence supporting his true
finding for Dangerous Possession of a Firearm. We affirm.
Facts and Procedural History 3
[2] On October 18, 2017, the Indianapolis Metropolitan Police Department learned
that a juvenile—other than J.S.—had stolen a vehicle and a firearm from his
parents. That evening, Officer Nicholas Snow (“Officer Snow”) encountered a
vehicle matching the description of the stolen vehicle, with three occupants
inside. Officer Snow began following the vehicle and contacted additional
officers. The plan was to conduct a tactical stop for officer safety, ordering the
occupants out of the vehicle one at a time. Among the responding officers was
Officer William Hornaday (“Officer Hornaday”), who assisted with the stop.
[3] The officers first ordered the driver out of the vehicle. Thereafter, the front
passenger ran from the vehicle. Officer Hornaday ran after the individual.
1 Ind. Code § 35-47-10-5(a). 2 I.C. § 35-44.1-3-1(a)(3). 3 On October 25, 2018, we held oral argument at Princeton Community High School in Gibson County. We thank the staff and students for their hospitality, and thank counsel for their skilled advocacy.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 2 of 10 Meanwhile, Officer Snow took note of the individual’s appearance, observing
that the individual was a Hispanic male wearing white shoes, dark pants, and a
white shirt under a sweatshirt. The individual was holding a black object.
Although Officer Snow could not readily identify the object, whether it was
through his training—or “the way [the individual] was holding whatever it
was”—Officer Snow “believed it to be a gun so much so that [he] got on the
radio and . . . said that [the individual] was armed.” Tr. Vol. II at 16-17.
[4] Officer Hornaday pursued the individual through a residential area, into a dark
area between houses. Officer Hornaday lost sight of the individual, but then
found a black gun on the ground nearby. A few blocks away, Officer Ryan
Deakin (“Officer Deakin”) saw a Hispanic male running toward him wearing
white shoes, dark pants, and a white t-shirt. Officer Deakin arrested the
person—later identified as J.S.—who complained that he was cold. When
Officer Deakin said that J.S. should not have taken off his sweatshirt, J.S.
laughed. At this time, J.S. did not have a firearm but did have a cell phone that
kept ringing. J.S. was transported to the area of the vehicle stop, where Officer
Snow identified J.S. as the passenger who fled. J.S. was sweating and was
uncooperative with the officers. Around that time, J.S. was near the two other
individuals who had been in the vehicle. J.S. tried to make eye contact with
them. Eventually, the three of them were placed together inside a transport
vehicle, and a conversation ensued in Spanish. One individual called J.S. a
dumbass, and J.S. said “I can’t believe they got me” or “I thought that I was
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 3 of 10 going to get away and not get caught.”4 Id. at 81. At some point, law
enforcement recovered contraband from the center console of the stolen vehicle.
[5] The State filed a petition alleging that J.S. was a delinquent child for conduct
related to the firearm, the contraband in the console, and the flight from law
enforcement. After a denial hearing, the juvenile court entered true findings for
Dangerous Possession of a Firearm and Resisting Law Enforcement. The
juvenile court adjudicated J.S. a delinquent child and placed him on probation
with a suspended commitment to the Indiana Department of Correction.
[6] J.S. now appeals.
Discussion and Decision [7] A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §
31-37-14-1. When reviewing a challenge to the sufficiency of evidence
supporting a true finding, “we do not reweigh the evidence or judge witness
credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e
consider only the evidence favorable to the judgment and the reasonable
inferences supporting it.” Id. We will affirm the judgment so long as there is
“substantial evidence of probative value . . . from which a reasonable fact finder
4 An officer who overheard this conversation offered both statements as possible translations.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 4 of 10 could conclude beyond a reasonable doubt” that the juvenile engaged in the
unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).
[8] J.S. challenges only his true finding for Dangerous Possession of a Firearm.
Indiana Code Section 35-47-10-5(a) provides, in pertinent part, that “[a] child
who knowingly, intentionally, or recklessly possesses a firearm . . . commits
dangerous possession of a firearm, a Class A misdemeanor.” Moreover, “[a]
person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is
aware of a high probability that he is doing so.” I.C. § 35-41-2-2.
[9] At the denial hearing, J.S. pursued a defense of mistaken identity—but the State
presented ample evidence that J.S. was the person who fled. Indeed, among the
evidence was testimony from Officer Snow, who identified J.S. as the person he
saw running from the vehicle. There was also evidence of the incriminating
conversation between J.S. and the others from the vehicle. In now pursuing his
appeal, J.S. does not focus on evidence of his identity. Rather, he challenges
whether the State presented sufficient evidence that he possessed a firearm.
[10] It is well-settled that possession can be actual or constructive, with “[a]ctual
possession occur[ing] when a person has direct physical control over the item.”
Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). According to J.S., a theory
of actual possession cannot support his true finding because he “was not found
in direct physical control of the gun.” Br. of Appellant at 13. Yet, the evidence
favorable to the adjudication indicates that law enforcement found a black
firearm along the route J.S. took when he fled—shortly after Officer Snow saw
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 5 of 10 J.S. clutching a black object, and suspected the object was a firearm. A fact-
finder may consider flight to be “circumstantial evidence of consciousness of
guilt.” Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (quoting Brown v. State,
563 N.E.2d 103, 107 (Ind. 1990)). Furthermore, there was no explanation for
the firearm on the ground, other than pure coincidence.
[11] J.S. minimizes the evidence against him, arguing that it “establishes a
possibility J.S. may have possessed a firearm but it falls far short of proof
beyond a reasonable doubt.” Br. of Appellant at 13. As to any inference to be
drawn from his flight, J.S. argues that he could have fled for other reasons—
“because he knew drugs and paraphernalia would be found in the vehicle”—
and that, “[w]hatever his motive, at best it has a tenuous connection to
possession of a firearm.” Id. at 15. J.S. also speculates that the object might
have been a cell phone, “which could readily have been mistaken for a weapon
during the heightened tensions present in a ‘high risk’ traffic stop.” Id. at 14.
J.S. also focuses on other exculpatory evidence, including evidence that he was
“excluded . . . as the source” of fingerprints found on the firearm. Id. at 15.
[12] Yet, we cannot reweigh the evidence, from which a reasonable fact-finder could
conclude—beyond a reasonable doubt—that when J.S. fled from the vehicle, he
knowingly and actually possessed the black firearm recovered along his route.
Thus, we conclude that there is sufficient evidence to support the true finding.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 6 of 10 [13] Affirmed.
Najam, J., concurs. May, J., concurs in result with opinion.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 7 of 10 IN THE COURT OF APPEALS OF INDIANA
J.S., Court of Appeals Case No. 18A-JV-826 Appellant-Respondent,
v.
State of Indiana, Appellee-Petitioner.
May, Judge, concurring in result.
[1] I write separately to note the discrepancy between Officer Snow’s testimony at
trial and his Probable Cause Affidavit. In the Probable Cause Affidavit, Officer
Snow reported:
[T]he passenger of the vehicle the front seat passenger fled on foot. The male was described as a Hispanic male approximately 5-09 wearing a blue sweatshirt with a white undershirt and black jeans. Officer Snow observed this male to be gripping his waist band as he ran east bound from the location of the traffic stop. Officer Hornaday gave chase on foot and began yelling loud verbal commands to the male, identifying himself as the police and commanding the male to stop running. While Officer Hornaday was giving chase, Officer Hornaday located a black semi-automatic Springfield 9mm XD-9 handgun with serial number MG727669 and a magazine loaded with 6 live 9mm rounds, in front of 6038 Allendale Dr, in the direct path of where the male was running.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 8 of 10 (App. Vol. II at 18) (errors in original).
[2] However, at trial Officer Snow testified, regarding the same series of events:
[Prosecutor]: And when the suspect who was in the vehicle ran, did you get a look at him?
[Officer Snow]: I did sir. He was wearing a blue hooded sweatshirt, a white shirt. I remember it being out from underneath the blue hooded sweatshirt. Dark blue jeans and white tennis shoes and he was clutching a black object in his hand. And when he ran he turned and looked at me to the point where I could see from this side of his nose to his ear as he turned. I couldn’t readily identify exactly what was in his hand. I was, through my training experience the way he was holding whatever it was, I believed it be to a gun so much so that I got on the radio and I said that he was armed.
[Prosecutor]: After the suspect ran, what did you do?
[Officer Snow]: There was another officer to my right, Officer Hornaday, he gave chase. . . .
(Tr. Vol. II at 16-7.) On cross-examination, J.S.’s counsel questioned Officer
Snow about the details of the encounter, but counsel did not attempt to
impeach Officer Snow with the discrepancies in his iterations of the events,
specifically, the lack of information regarding something he believed to be a gun
in J.S.’s hand when he fled from the passenger side of the vehicle.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 9 of 10 [3] As a result of the failure to point out the difference between Officer Snow’s
account of the incident in the Probable Cause Affidavit and his testimony at
trial, the only evidence heard by the trial court judge was that Officer Snow
observed a black object, which he believed to be a gun, in J.S.’s hand. Because
of our standard of review, I concur in result.
Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018 Page 10 of 10