FILED FOR PUBLICATION Jan 20 2012, 8:34 am
CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER Indiana University – Appellate Clinic Attorney General of Indiana Robert H. McKinney School of Law Indianapolis, Indiana J.T. WHITEHEAD Deputy Attorney General EMILY A. SHROCK Indianapolis, Indiana Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.F., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1103-JV-290 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1012-JD-3624
January 20, 2012
OPINION – FOR PUBLICATION
DARDEN, Judge STATEMENT OF THE CASE
K.F. appeals her adjudication as a delinquent child for having committed acts that,
if committed by an adult, would constitute burglary as a class B felony;1 theft as a class D
felony;2 and carrying a handgun without a license, a class A misdemeanor.3
We affirm in part, reverse in part, and remand.
ISSUES
1. Whether sufficient evidence supports K.F.’s true findings for burglary, theft, and carrying a handgun without a license.
2. Whether the juvenile court abused its discretion by admitting certain testimony into evidence.
FACTS4
K.F. lived in a house in Marion County with her mother, Erica Lewis (“Mother”),
her mother’s fiancé, James Delashmit, and her three siblings, who were ages twelve, nine,
and seven (“Mother’s other children”). On December 1, 2010, thirteen-year-old K.F. ran
away from Mother’s home. Thereafter, Mother changed the locks to the house and the
code for the keypad entry to the garage, and K.F. and Mother’s other children did not
know the new code to the garage keypad. Mother, however, did not change the code for
the alarm system, and K.F. knew the code to the alarm system. Mother also bagged up
some of K.F.’s clothes and shoes and put the bag in the garage.
1 Ind. Code § 35-43-2-1. 2 I.C. § 35-43-4-2. 3 I.C. § 35-47-2-1. 4 We heard oral argument in the Indiana Court of Appeals Courtroom on December 19, 2011. We commend counsel on their oral advocacy. 2 On December 11, 2010, Mother and Delashmit, who both worked a late shift,5 left
the house to go to work and took Mother’s other children to a babysitter. When Mother
and Delashmit returned to the house early the next morning, they saw that the door to the
house had been forced open; the deadbolt was still locked and there was damage to the
door frame and jam. Mother also noticed that the garage keypad cover was open but the
garage door was still closed. Once in the house, Mother and Delashmit saw that the
Christmas tree had been knocked down and the house—with the exception of K.F.’s
bedroom that she shared with her sisters—had been ransacked. As they walked around
the house, they realized that the following items had been stolen: multiple televisions,
including one that had been mounted to the wall; video game systems; computers; DVD
players; jewelry; Christmas gifts; four guns; ammunition; hunting knives; and the bag of
K.F.’s clothes that was in the garage. Mother checked the caller ID function on her
telephone and saw that she had received two phone calls from K.F.’s friend, William,
during the time that she and Delashmit were at work. Mother also pressed the redial
button and saw that someone had called that same friend’s phone number from Mother’s
phone. Later that day, an investigating police officer, Officer Justin Johnson, went to
William’s house and found the bag of K.F.’s clothes, which he returned to Mother. The
other items taken from Mother’s house were never recovered.
On December 27, 2010, the police found K.F. and took her to the police station,
where she met in a room alone with Mother before she spoke to police. While in that
room with Mother, K.F. admitted to Mother that she went to Mother’s house on the day
5 Mother worked from 3:00 p.m. to 3:00 a.m., and Delashmit worked from 6:00 p.m. to 6:00 a.m. 3 of the burglary to get some of her things but stated that when she arrived at the house,
“the door was open” but “nothing [had been] stolen at that time[.]” (Tr. 31).
On December 29, 2010, the State filed a petition alleging that K.F. was a
delinquent child for committing the following offenses that would be crimes if committed
by an adult: Count 1, burglary as class B felony; Count 2, conspiracy to commit burglary
as a class B felony; Count 3, theft as a class D felony; Count 4, carrying a handgun
without a license, a class A misdemeanor; and Count 5, dangerous possession of a
firearm, a class A misdemeanor.
The juvenile court held a denial hearing on January 24, 2011. During Officer
Johnson’s direct examination, he recounted what Mother had told him about the burglary
and the items missing from the house, and K.F.’s counsel objected based on hearsay. The
juvenile court overruled the objection, stating that “it’s not hearsay if the declarant
[Mother] is available to be cross examined or testify.” (Tr. 5).
Thereafter, during Mother’s direct examination, when she started to testify about
what K.F. had told her while they were in the room at the police station, K.F. objected to
the admission of K.F.’s statement to Mother on the basis that the State had failed to prove
that it had met the requirements of Indiana Code section 31-32-5-1, the juvenile waiver
statute. The juvenile court overruled K.F.’s objection.
Following the State’s presentation of evidence, K.F. moved to dismiss all charges
pursuant Indiana Trial Rule 41(B). The State conceded that it “d[id]n’t have a whole lot
of evidence” for Count 2, the conspiracy to commit burglary allegation, and the juvenile
court granted K.F.’s motion to dismiss Count 2. (Tr. 33). The juvenile court then entered
4 true findings on Count 1, 3, and 4, and “[o]n the Court’s own motion,” it “close[d] out”
Count 5. (Tr. 38). At the disposition hearing, the juvenile court placed K.F. on probation
and ordered that she be placed in the care and custody of her grandmother. Additional
facts will be provided as necessary.
DECISION
1. Sufficiency
K.F. argues that the evidence was insufficient to support her true findings for
burglary, theft, and carrying a handgun without a license.
When the State seeks to have a juvenile adjudicated as a delinquent child for committing an act which would be a crime if a committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. In reviewing a juvenile adjudication, this court will consider only the evidence and reasonable inferences supporting the judgment and will neither reweigh evidence nor judge the credibility of the witnesses. 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.
E.D. v. State, 905 N.E.2d 505, 506-07 (Ind. Ct. App. 2009) (internal citations omitted).
“Circumstantial evidence is no different than other evidence for this purpose, and
standing alone may sufficiently support a conviction.” R.L.H. v. State, 738 N.E.2d 312,
315 (Ind. Ct. App. 2000).
a. Burglary
K.F. first challenges the sufficiency of the evidence to support her true finding for
burglary. The burglary statute, Indiana Code section 35-43-2-1, provides that “[a] person
who breaks and enters the building or structure of another person, with intent to commit a
felony in it, commits burglary[.]” The offense is a class B felony if the building or
5 structure is a dwelling. I.C. § 35-43-2-1. Thus, to support a true finding for burglary as
alleged, the State was required to establish that K.F. broke and entered the dwelling of
Mother and Delashmit, with intent to commit the felony of theft therein.
K.F. does not directly contest her involvement in the burglary. Instead, she
challenges the “of another person” element and argues that the evidence was not
sufficient to support her burglary true finding because she cannot burglarize or break and
enter her own home. K.F. suggests that the issue “appears to be an issue of first
impression in Indiana” and cites to numerous out-of-state cases in support of her
argument that the evidence was not sufficient to support a true finding for burglary.
K.F.’s Br. at 5.
The “of another person” element contained in the burglary statute has previously
been discussed and analyzed by our court. We have explained that “the [b]urglary
statute’s requirement that the dwelling be that ‘of another person’ is satisfied if the
evidence demonstrates that the entry was unauthorized.” Jewell v. State, 672 N.E.2d 417,
426 (Ind. Ct. App. 1996) (citing Ellyson v. State, 603 N.E.2d 1369, 1373 (Ind. Ct. App.
1992)), trans. denied. “Property is that ‘of another person’ if the other person has a
possessory or proprietary interest in it, even if an accused person also has an interest in
that property.” Ind. Code § 35-41-1-23. Thus, for purposes of the burglary statute, the
“of another person” element is satisfied “if the evidence demonstrates the entry was
unauthorized, even if the accused may have had a right to possession of the house co-
equal with [another] at the time of the breaking.” Fuller v. State, 875 N.E.2d 326, 332
6 (Ind. Ct. App. 2007) (citing Ellyson, 603 N.E.2d at 1373), trans. denied, superseded by
statute on other grounds.
For example, in Fuller, we upheld a burglary conviction where a husband broke
and entered the house, which he had previously shared with his estranged wife, while she
was in the house. The evidence showed that at the time of the burglary, the husband had
not lived in the house for several weeks, no longer had a key that worked, and smashed
the glass portion of the door to gain entry into the house. We stated that we had “little
hesitation in concluding that [husband’s] entry into the house . . . was unauthorized.”
Fuller, 875 N.E.2d at 333.
Here, the State presented sufficient evidence to show that K.F.’s entry into
Mother’s home was unauthorized. K.F. ran away from Mother’s home on December 1,
2010, and did not keep in contact with Mother. Thereafter, Mother changed the lock on
the door, changed the code to the keypad entry on the garage, and packed up K.F.’s
clothes and put them in a bag in the garage. Thus, at the time of the burglary on
December 11, K.F. had not lived in the house for several weeks, and she no longer had
any means of authorized access into the house. Indeed, the evidence reveals that the
garage keypad cover was open but the garage door still closed and that the door to the
house was forced open with the deadbolt still engaged. Although Mother had not directly
told K.F. that she was no longer permitted to enter the house, she indirectly conveyed that
message by changing the lock and garage keypad code, and K.F. apparently received that
message when she attempted to enter the house but was unable to do so. Because the
evidence presented is sufficient to show that K.F.’s entry into her Mother’s home was
7 unauthorized, we affirm K.F.’s true finding for burglary. See, e.g., Fuller, 875 N.E.2d at
333-34; Jewell, 672 N.E.2d at 426-27 (holding that the evidence supported the conclusion
that husband’s entry into estranged wife’s home was unauthorized where husband had
moved out, wife had changed locks, and husband entered house through window after
removing screen); Ellyson, 603 N.E.2d at 1373 (affirming husband’s burglary conviction
for breaking into house he previously shared with estranged wife even though he may
have held a right to possession co-equal with wife at time of breaking but evidence
showed entry was unauthorized).6
b. Theft
K.F. next challenges the sufficiency of the evidence to support her true finding for
theft.
Indiana Code section 35-43-4-2 provides 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[.]” Thus, to
support a true finding for theft as alleged, the State was required to establish that K.F.
knowingly or intentionally exerted unauthorized control over property of Mother and
Delashmit, including, “firearms, several electronic items, televisions, miscellaneous
jewelry and clothing” with intent to deprive them of its value or use. (App. 13). A theft
6 K.F. argues that these cases do not apply and that she had a right to break into Mother’s house and take items from it because Mother had a duty to provide to provide K.F., who was a minor, with food, shelter, and clothing or otherwise face a CHINS proceeding or charges for neglect of a dependent. See K.F.’s Br. at 7 (citing Ind. Code § 31-34-1-1, the statute pertaining to circumstances under which a child is a CHINS, and Ind. Code § 35-46-1-4(a)(3), the neglect of a dependent statute). While a parent is required to “necessary food, clothing, and shelter, medical care, education, or supervision,” Ind. Code § 31-34-1-1, the record shows that K.F. ran away from home, did not thereafter contact Mother, and took much more from the house than merely the necessary food and clothing. 8 conviction may be sustained by circumstantial evidence. Bennett v. State, 871 N.E.2d
316, 323 (Ind. Ct. App. 2007), opinion adopted by Bennett v. State, 878 N.E.2d 836 (Ind.
2008).
Again, K.F. challenges the “of another person” element and contends that her theft
true finding “cannot stand” because “[t]he State provided no evidence that K.F. took
anything from the home except her own clothes.” K.F.’s Br. at 8. K.F. suggests that the
State failed to prove that she exerted unauthorized control of property of another person
because the State failed to present evidence that Mother’s or Delashmit’s property was
ever recovered or found in K.F.’s possession.
While unexplained possession of recently stolen property is to be considered,
along with other evidence, when determining whether the evidence supports a conviction
for theft, see Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010), the theft statute does
not require the State to prove that a defendant was found in possession of the stolen
property or that the property was later recovered in order to find that a person committed
theft. See I.C. § 35-43-4-2(a). Instead, the theft statute requires that the person “exert[]
unauthorized control over property[.]” See id. To “exert control over property” is “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).
A person’s control over property is “unauthorized” when it is, among other things,
“without the other person’s consent[.]” I.C. § 35-43-4-1(b).
Here, the evidence reveals that when Mother and Delashmit left their locked up
house to work a late shift on December 11, 2010, their property was still at the house.
9 K.F., who had run away approximately two weeks prior to that time, knew the code for
the house alarm system, but she no longer knew the code for the garage keypad entry and
did not have a functioning key to the house because Mother had changed the locks.
When Mother and Delashmit returned home on the morning of December 12, they
discovered that the door of the house had been forced open and that several items—
including televisions, guns, video game systems, jewelry, and clothing—were missing
from the house. Mother also discovered that the cover of the garage keypad had been
opened and that, during the time that she and Delashmit were at work, there had been two
incoming phone calls from K.F.’s friend, William, and one outgoing phone call to that
same friend from Mother’s home phone. Additionally, later on December 12, the
investigating police officer went to William’s house and found the bag of K.F.’s clothes
that had been placed in Mother’s garage. Finally, K.F. admitted to Mother that she had
been at the house on the day of the burglary and theft, although she claimed that nothing
had been stolen when she arrived despite the fact that the door was open upon her
arrival.7
The evidence presented, and the reasonable inferences to be drawn therefrom, are
sufficient to support a conclusion that K.F. was present at Mother’s house and involved in
exerting unauthorized control over Mother’s and Delashmit’s property by taking and
carrying away said property from the house without their consent. See I.C. § 35-43-4-
1(a) (defining “exert control over property” as including taking and carrying). See also
Bennett, 871 N.E.2d at 323 (affirming defendant’s conviction for theft of tools and knife
7 We will discuss the admissibility of K.F.’s statement to Mother in section 2(a). 10 where those items were never recovered or found in defendant’s possession but
circumstantial evidence supported conclusion that defendant had exercised control over
items). The fact that K.F. was not later found in possession of the property merely points
to her intent to deprive Mother and Delashmit of the property’s value or use. Because
there was sufficient evidence of probative value from which the trier of fact could have
concluded that K.F. was guilty beyond a reasonable doubt, we affirm K.F.’s delinquency
adjudication for theft.
c. Carrying a handgun without a license
K.F. also contends that the evidence was not sufficient to support her true finding
for carrying a handgun without a license.
To support a true finding for carrying a handgun without a license as alleged, the
State was required to establish that K.F. carried a handgun on her person without a
license. See Ind. Code § 35-47-2-1(a);8 (App. 14). To satisfy these elements, the State
must prove that the defendant had either actual or constructive possession of the handgun.
Deshazier v. State, 877 N.E.2d 200, 204 (Ind. Ct. App. 2007), trans. denied.
Actual possession is the direct physical control of the gun. Bradshaw v. State, 818
N.E.2d 59, 62 (Ind. Ct. App. 2004). “Constructive possession occurs when somebody
has the intent and capability to maintain dominion and control over the item.” Henderson
v. State, 715 N.E.2d 833, 835 (Ind. 1999). To prove capability, the State must show that
the defendant is able to reduce the contraband to her personal possession. Lampkins v.
8 Indiana Code section 35-47-2-1 was amended after K.F. was alleged to have been a juvenile delinquent for committing carrying a handgun without a license. See P.L. 118-2007 § 35. This amendment, which was effective on July 1, 2011, does not affect the issue on appeal. 11 State, 682 N.E.2d 1268, 1275 (Ind. 1997), modified in part on reh’g, 685 N.E.2d 698
(Ind. 1997). To prove the intent element, the State must demonstrate the defendant’s
knowledge of the presence of the contraband. Henderson, 715 N.E.2d at 835. This
knowledge may be inferred from either the exclusive dominion and control over the
premises containing the contraband or, if the control is non-exclusive, evidence of
additional circumstances that point to the defendant’s knowledge of the presence of the
contraband. Id. These additional circumstances may include incriminating statements by
the defendant; flight or furtive gestures; defendant’s proximity to the contraband; the
contraband being in plain view; or the location of the contraband in close proximity to
items owned by the defendant. Id.
K.F. maintains that “[t]he disappearance of a gun during a burglary, without more,
does not establish actual or constructive possession of the gun by K.F.” K.F.’s Br. at 9.
She contends that there was insufficient evidence to show that she had actual possession
because there was no evidence that a gun was found or seen on her person, and she
argues that that there was insufficient evidence to show that she had constructive
possession of a gun because the State failed to present any evidence that she had the
intent to maintain dominion and control over a gun.9
At the oral argument, the State admitted that there is no evidence to show that K.F.
had actual or constructive possession of a gun, and it suggested that K.F.’s true finding
for carrying a handgun without a license was likely based on a theory of a “now you see
it, now you don’t.” The State, however, contends that because the circumstantial 9 K.F. does not challenge the evidence establishing the capability to maintain dominion and control over a gun. 12 evidence points to the inference that K.F. was in the house at the time of the burglary and
because the evidence reveals that guns were taken from the house, then “it follows,
equally logically, that she had to have possessed a handgun at some point.” State’s Br. at
13.
Here, the evidence presented by the State at trial showed merely there were guns
in the house when Mother and Delashmit left for work and that the guns were missing
when they returned home. The State neither presented evidence that K.F. had actual
possession of the guns nor presented evidence of K.F.’s knowledge of the presence of the
guns in order to satisfy the intent element of constructive possession. Accordingly, the
State did not present sufficient evidence to support a finding that K.F. had possession of a
gun. We, therefore, reverse K.F.’s true finding for carrying a handgun without a license.
2. Admission of Evidence
K.F. argues that the trial court abused its discretion by admitting the following
testimony into evidence: (a) K.F.’s statement to Mother made while they were at the
police station; and (b) Mother’s statements to the police officer who investigated the
burglary.
The admission and exclusion of evidence falls within the sound discretion of the
trial court, and we review the admission of evidence only for abuse of discretion. Wilson
v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs “where the
decision is clearly against the logic and effect of the facts and circumstances.” Smith v.
State, 754 N.E.2d 502, 504 (Ind. 2001).
13 a. K.F.’s statement to Mother
K.F. contends that the juvenile court erred by admitting into evidence the
statement she made to Mother when they were sitting in a room at the police station.10
During Mother’s direct examination, Mother testified that she went to the police
station and spoke with K.F. while they were alone together in a room. When Mother
started to testify about what K.F. had told her while they were at the police station, K.F.
objected to the admission of K.F.’s statement to Mother on the basis that the State had
failed to prove that it had met the requirements of Indiana Code section 31-32-5-1, the
juvenile waiver statute. The juvenile court overruled K.F.’s objection, and Mother
testified as follows:
[Mother:] I just remember her saying that she didn’t have nothing [sic] to do with it. She came to the house and when she got there the door, she noticed the door was open.
[The State:] Okay.
[Mother:] And um, she went to go get her stuff. She said it wasn’t nothing [sic] stolen at that time and she said she just grabbed some of her stuff and then she left. And she said something about, I think her friend Angel and Angel’s sister or somebody, had brought her to get her stuff. She said she never said the lights was [sic] on and I think in the bathroom and another room.
[Mother:] That was about it.
[The State:] Did she give you anymore details about the door was opened?
10 The State did not seek to admit evidence of K.F.’s statements to police. 14 [Mother:] That… I… I… I… I don’t remember if she said it was kicked open or… I don’t remember when she saying [sic] the door was being open, to be honest.
[The State:] Okay. You remember what time… If she told you when she went to the house that day?
[Mother:] No, I really don’t remember what time she said she went.
(Tr. 31).
K.F. argues that her statement to Mother, which placed her at the house on the
night of the burglary, should not have been admitted into evidence because the statement
was obtained without a valid waiver of her rights under the juvenile waiver statute.
Indiana Code section 31-32-5-1, the juvenile waiver statute, provides, in relevant part,
that any of a juvenile’s rights under the federal or state constitutions, or under any other
law, may be waived only:
(2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver[.]
Ind. Code § 31-32-5-1(2). Our Indiana Supreme Court has explained:
In Indiana, there are thus four requirements that must be satisfied before a juvenile’s statements made during a custodial interrogation can be used in the State’s case-in-chief. First, both the juvenile and his or her parent must be adequately advised of the juvenile’s rights. Second, the juvenile must be given an opportunity for meaningful consultation with his or her parent. Third, both the juvenile and his or her parent must knowingly, intelligently,
15 and voluntarily waive the juvenile’s rights. Finally, the juvenile’s statements must be voluntary and not the result of coercive police activity.
D.M. v. State, 949 N.E.2d 327, 333-34 (Ind. 2011) (internal citations and footnotes
omitted).
K.F. contends that her statement to Mother should not have been allowed into
evidence because there was not compliance with the juvenile waiver statute’s
requirements of no adverse interest and meaningful consultation. Specifically, K.F.
argues that Mother had an adverse interest to her because Mother was the victim of
K.F.’s alleged crimes, and K.F. contends that there was no showing that Mother had a
meaningful consultation with her. K.F. suggests that a guardian ad litem or attorney
should have been appointed to advise K.F. of her legal rights under the juvenile waiver
statute.
The State acknowledges that Mother had an adverse interest to K.F. as the victim
of the crimes and that Mother “does not fit neatly the requirements of Indiana Code § 31-
32-5-1[.]” State’s Br. at 17. The State, however, argues that the protections of the
juvenile waiver statute and Miranda were not triggered because K.F. was not subjected to
a custodial interrogation. The State maintains that “even if [K.F.] w[ere] in custody[,]”
she was not subjected to an interrogation because she was not questioned by police.
State’s Br. at 16. The State contends that “a conversation between the perpetrator and the
victim is not contemplated by a statute meant to protect juveniles in conversations with
the police.” State’s Br. at 17. The State maintains that K.F.’s statement to Mother was
16 admissible because it “was nothing more complicated than a statement by a party
opponent.” State’s Br. at 17.
“[A]s a general rule, when a juvenile who is not in custody gives a statement to
police, neither the safeguards of Miranda warnings nor the juvenile waiver statute is
implicated.” S.D. v. State, 937 N.E.2d 425, 430 (Ind. Ct. App. 2010) (emphasis added),
trans. denied; see also S.G. v. State, 956 N.E.2d 668, 675 (Ind. Ct. App. 2011)
(explaining that Miranda warnings and the juvenile waiver statute attach only where a
person is both in custody and subject to interrogation), trans. denied; G.J. v. State, 716
N.E.2d 475, 477 (Ind. Ct. App. 1999). To determine whether a person is in custody, we
look to “whether a reasonable person under the circumstances could consider himself free
to resist the entreaties of police.” P.M. v. State, 861 N.E.2d 710, 713 (Ind. Ct. App.
2007). “‘Interrogation has been defined as a process of questioning by law enforcement
officials which lends itself to obtaining incriminating statements.’” S.G., 956 N.E.2d at
676 (quoting S.D., 937 N.E.2d at 430) (emphasis added). “It is well established in the
caselaw defining ‘interrogation’ and ‘custody’ that the two cannot exist without the
presence of a law enforcement officer.” S.G., 956 N.E.2d at 676 (quoting Elizabeth A.
Brandenburg, School Bullies—They Aren’t Just Students: Examining School
Interrogations and the Miranda Warning, 59 Mercer L.Rev. 731, 734 (2008)).
Here, the juvenile waiver statute was not applicable because K.F. was not
subjected to an interrogation when she spoke with Mother. Although K.F. was at the
police station at the time she spoke to Mother, her statement to Mother was not the result
of an interrogation. The evidence in the record reveals that K.F. was in a room with
17 Mother only when she admitted to Mother that she was at Mother’s house on the night of
the burglary. Also, there is no evidence that Mother was acting as an agent of the police.
Because K.F. was not subjected to an interrogation, the juvenile waiver statute was not
applicable to exclude K.F.’s statement to Mother from evidence. See, e.g., S.G., 956
N.E.2d at 676 (holding that questioning of a juvenile by a principal in presence of a
police officer did not constitute an interrogation because principal was sole questioner
and was not acting as an agent for police); P.M., 861 N.E.2d at 714 (holding that juvenile
waiver statute did not apply because juvenile was not subjected to interrogation).11
b. Mother’s statements to police
K.F. also challenges the juvenile court’s admission, over her continued hearsay
objections, of Mother’s statements to the police officer who investigated the burglary.
During the juvenile hearing, Officer Johnson testified that he was dispatched to
Mother’s house to investigate a burglary, and then the following exchange and objections
occurred:
[THE STATE:] And what happened when you got there?
[OFFICER:] I spoke to the complainant, [Mother], who informed me that her house was burglarized...
11 Because the juvenile waiver statute in this case is not applicable and the State did not seek to admit evidence of K.F.’s statement to police, we need not analyze the juvenile waiver statute’s requirements of no adverse interest or meaningful consultation. That is not to say that we are not troubled by what took place in this case, but we leave for another day the issue of whether the State (and the police) should be encouraged or required to appoint a guardian ad litem or an attorney for a juvenile when that juvenile’s parent is the victim of the juvenile’s crime or has an interest adverse to that of the juvenile. We note that the Indiana State Bar Association’s Civil Rights of Children Committee has recommended that the legislature adopt a proposed rule change that all children alleged to have committed a juvenile offense be provided with consultation with an attorney before waiving his or her right to counsel. See Bill Brooks, Access to Counsel for Kids in Courts, Vol. 55 RES GESTAE No. 5, Dec. 2011, at 15-16. The State Bar Association’s House of Delegates has “strongly endorsed the recommendation” and sent it to the Indiana Supreme Court’s rules committee for consideration. Id. at 15. 18 [K.F.’S COUNSEL]: I’m gonna object as to hearsay.
THE STATE: Judge, Mother is here to testify today…
THE COURT: Okay.
THE STATE: And can be cross examined.
THE COURT: All right. Overruled.
[THE STATE:] What… What did she say?
[OFFICER:] She informed me that her house was broken into.
*****
[THE STATE:] Okay. What all… What all were you aware of that was reported missing?
[OFFICER:] Several t.v.’s, one of the main ones that was brought to my attention was that there was [sic] firearms in the house and those were stolen…
[K.F.’S COUNSEL:] Judge, I’m gonna object as to hearsay.
THE STATE: Same response, Judge.
[K.F.’S COUNSEL]: Judge, there is no exception to just because the person is here to testify, that’s not an exception to the hearsay rule.
THE COURT: Overruled.
[THE STATE:] What else?
[OFFICER:] Okay. Also there was jewelry and other electronic device[s]. And there was also clothes which were taken from the house. Would you like for me to specify on clothes?
[THE STATE:] Yes, please.
19 [OFFICER:] Okay. The clothes that were taken were from the garage which were in bags. I was informed that those clothes belong to [K.F.].
[K.F.’S COUNSEL]: Judge, I just need an ongoing objection as to hearsay.
THE COURT: The declarant is here and available for cross examine? Cross examination?
[K.F.’S COUNSEL]: That’s not… That’s not an exception to the hearsay rule though, Judge.
THE COURT: Right. But it doesn’t make it hearsay. It’s not an exception, it’s not hearsay if the declarant is available to be cross examined or testify. Overruled.
[K.F.’S COUNSEL]: It’s an out… It’s an out of Court statement, offered for the truth of the matter asserted.
(Tr. 3-5).
K.F. contends that the juvenile court abused its discretion by admitting the
officer’s testimony into evidence because it was contrary to Indiana Evidence Rule 801
and asserts that the juvenile court “appears to be laboring under a pre-1991 view of the
admissibility of hearsay, which should be corrected and updated for the benefit of the
litigants and lawyers who appear before him in the high-volume Marion County juvenile
court.” K.F.’s Br. at 12.
Under Evidence Rule 801(d)(1), a prior statement by a witness is “not hearsay” if:
the declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition; or (B) consistent with the declarant’s testimony, offered to rebut an express or implied charge against the declarant of recent fabrication or improper
20 influence or motive, and made before the motive to fabricate arose; or (C) one of identification of a person made shortly after perceiving the person[.]
(Emphasis added).
The State agrees that “K.F. is correct: the statements were in fact hearsay” under
Indiana Evidence Rule 801 and acknowledges that the statements did not qualify as a
statement that is not hearsay under Evidence Rule 801(d). The State also concedes that
the testimony was not “subject to any of the normally recognized exceptions to the
hearsay rule” under Evidence Rule 803. State’s Br. at 19. The State, however, contends
that the admission of the officer’s testimony was harmless error because the testimony
was merely cumulative of Mother’s and Delashmit’s testimony regarding what was taken
from the house during the burglary.
In her reply brief, K.F. “concedes that the error on this issue, standing alone, is not
grounds for reversal” but maintains that “[a]n opinion from this Court that analyzes the
erroneous view of hearsay would be very beneficial to the many lawyers who appear
regularly in the high volume court where such rulings are routine.” K.F.’s Reply Br. at 7.
“[R]egardless of whether the declarant is available at trial for cross-examination, a
hearsay statement is not ordinarily admissible as substantive evidence.” Warren v. State,
725 N.E.2d 828, 835 n.1 (Ind. 2000) (explaining the abrogation of the “Patterson Rule”
that allowed admission of a declarant’s out-of-court statement as substantive evidence so
long as the declarant was available at trial for cross-examination); see also Appleton v.
State, 740 N.E.2d 122, 124 (Ind. 2001) (summarizing the evolution and problems with
the Patterson Rule); Modisett v. State, 578 N.E.2d 649, 652-654 (Ind. 1991) (overruling
21 the Patterson Rule and adopting Federal Rule of Evidence 801(d) that later became
codified as Indiana Rule of Evidence 801(d)).
Here, the officer’s testimony did indeed constitute hearsay and did not qualify
under Evidence Rule 801(d) for exclusion from the definition of hearsay. Accordingly,
the trial court erred by admitting the officer’s testimony as substantive evidence. The
admission of such testimony, however, was harmless error because it was merely
cumulative of Mother’s and Delashmit’s testimony regarding what was taken from the
house during the burglary. See Mathis v. State, 859 N.E.2d 1275, 1280 (Ind. Ct. App.
2007) (explaining that “the admission of hearsay is not grounds for reversal where it is
merely cumulative of other evidence admitted”).
3. Remand to Correct Disposition Order and CCS
Lastly, we address a procedural discrepancy contained in the record. In her brief,
K.F. notes that “The Disposition Order incorrectly states that K.F. was found true on
Count 2, Conspiracy to Commit Burglary and was not found true to Count 3, Theft. App.
7.” K.F.’s Br. at 2 n.1.
As noted in the facts above, the State filed a petition alleging that K.F. was a
delinquent child for committing the following offenses that would be crimes if committed
by an adult: Count 1, burglary as class B felony; Count 2, conspiracy to commit burglary
as a class B felony; Count 3, theft as a class D felony; Count 4, carrying a handgun
without a license, a class A misdemeanor; and Count 5, dangerous possession of a
22 Following the State’s presentation of evidence at the fact finding hearing, and
pursuant to K.F.’s motion to dismiss under Indiana Trial Rule 41(B), the juvenile court
“grant[ed] [her] motion as to count 2” and dismissed the conspiracy to commit burglary
allegation. (Tr. 34). Thereafter, the juvenile court entered true findings “as to count 1,
burglary[,]” “count 3, theft[,]” and “Count 4, carrying a handgun without a license,” and,
on its own motion, “close[d] out” Count 5. (Tr. 38). The juvenile court’s written order
on the fact finding hearing, dated January 24, 2011, also indicates the disposition
verbalized by the judge during the hearing. (See App. 62-63).
However, the juvenile court’s dispositional order, dated February 23, 2011,
indicates that K.F. was adjudicated a delinquent for committing “Count 1 – Burglary[,]”
“Count 2 – Conspiracy to Commit Burglary[,]” and “Count 4 – Handgun Carrying
Without a License[.]” (App. 7). Additionally, the CCS entry dated February 23, 2011
reflects the same error in true findings as the dispositional order and indicates that Count
3 for theft was “Dismissed.” (App. 3).
Because the transcript from the juvenile hearing unambiguously indicates that
Count 2 (conspiracy to commit burglary) was dismissed and that a true finding was
entered on Count 3 (theft), we remand this case to the juvenile court with instructions to
correct the February 23, 2011 disposition order and the February 23, 2011 CCS entry.
CONCLUSION
Sufficient evidence supports the juvenile court’s findings that K.F. committed acts
that would constitute burglary and theft if committed by an adult. However, there is
insufficient evidence to support the juvenile court’s finding that K.F. committed an act
23 that would constitute carrying a handgun without a license. Additionally, the juvenile
court did not abuse its discretion by admitting into evidence K.F.’s statement made to
Mother. The juvenile court did, however, err by allowing a police officer to testify as to
Mother’s hearsay statements, but the admission of such testimony was harmless error.
Finally, we remand with instructions for the juvenile court to correct the February 23,
2011 disposition order and CCS entry to accurately reflect the true findings that were
entered by the court.
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J., and VAIDIK, J., concur.