L.D. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 12, 2019
• Docket: 18A-JV-2391
• 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 Mar 12 2019, 10:37 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 Ana M. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.D., March 12, 2019 Appellant-Respondent, Court of Appeals Case No. 18A-JV-2391 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Kimberly S. Appellee-Petitioner. Dowling, Judge The Honorable Amanda Yonally, Magistrate Trial Court Cause Nos. 18C02-1804-JD-45 18C02-1807-JD-73

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 1 of 12 [1] L.D. appeals his adjudication as a delinquent for committing acts that

constitute dangerous possession of a firearm and the juvenile court’s

dispositional order awarding wardship of him to the Department of Correction

(the “DOC”) for housing in any correctional facility for children. L.D. raises

two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his adjudication as a delinquent; and

II. Whether the juvenile court abused its discretion when it awarded wardship to the DOC.

We affirm.

Facts and Procedural History

[2] On April 18, 2018, the State filed a delinquency petition under cause number

18C02-1804-JD-45 (“Cause No. 45”), alleging L.D. to be a delinquent child for

committing: Count 1, battery, a class B misdemeanor if committed by an adult;

and Count 2, resisting law enforcement, a level 6 felony if committed by an

adult. When L.D. appeared for an initial hearing in Cause No. 45, he admitted

to Count 2, the State dismissed Count 1, and the court adjudicated him a

delinquent for resisting law enforcement, a level 6 felony if committed by an

adult, and set a dispositional hearing for June 26, 2018. On June 27, 2018, the

court issued an order for warrant, which indicates that L.D. failed to appear for

the June 26, 2018 hearing.

[3] On July 1, 2018, “just a little bit before 6:26 a.m. that morning,” at the

intersection of Eighth Street and Port Avenue in Muncie, Indiana, Officer

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 2 of 12 Melissa Pease was in a marked, black-and-white police vehicle and observed a

“purpleish-blue colored Hyundai Sonata” coming from the north on Port

Avenue that did not stop at the four-way intersection. Transcript Volume II at

6-7. Officer Pease, who “immediately . . . could tell that [the vehicle] was

picking up speed, accelerating,” entered the intersection, turned on the police

vehicle’s lights and sirens, and observed the vehicle turn east on Ninth Street,

run through the stop sign at the intersection of Ninth Street and Perkins, and

turn north on Sampson. Id. at 7. As she was “coming around on to Sampson,”

she saw the vehicle “kind of rolling toward the west side of Sampson” where

there was a parking lot and “where there used to be a business and some

cement that’s kind of up higher,” and saw four occupants exit the vehicle and

“take off running as the vehicle was still in gear and hit the cement.” Id. at 8.

Deciding to follow the individuals running west down the alley in her police

vehicle, she focused on “the larger individual, [who was L.D.], wearing a white

tee shirt and black basketball shirts.” 1 Id. At about two car lengths behind

L.D., Officer Pease watched him grab in his waistband and throw items down

in the alley.

1 At the August 14, 2018 fact-finding hearing in cause number 18C02-1807-JD-73, the prosecutor stated, “[y]ou uh, identified the juvenile in this case,” and asked whether that was the same person she saw running down the alleyway, and Officer Pease answered affirmatively. Transcript Volume II at 8. When asked what was distinguishable about L.D. that morning, Officer Pease stated that L.D. was “a larger individual of the ones running, taller, his hair – um, longer hair on top, um, and I observed the – the white tee shirt and black shorts,” and testified later that “I have them in sight and as I’m watching – like I said I was – I think because he was the larger individual I was more focused on him.” Id. at 8-9.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 3 of 12 [4] After losing sight of the individuals, Officer Pease returned to the running

vehicle that the individuals had fled and gave the vehicle’s plate number and

VIN number to dispatch. At some point, she then “continued back – or came

back to the area and set up the alley on the west end at Ninth and Perkins”

facing east, and saw L.D., who wore the same clothing, “pop out” from the

houses on the north side of the alley. Id. at 12. She attempted to marshall units

into the area because she “felt like he was going to take off again,” L.D. looked

in her direction, she started driving to the east, and he took off running south in

between a house just to the west of Sampson. Id. He was ultimately found

hiding in “like a cellar” on the west side of the house at 1521 South Sampson.

Id. at 13. When Officers Dustin Lee and Tyronna Benning returned to the

location where Officer Pease had witnessed L.D. grab in his waistband, they

“secured the items that were thrown down” and Officer Pease “met them and

uh, located a money bag with change in it and a black, semi-automatic

handgun.” Id. at 9.

[5] On July 6, 2018, the State filed a delinquency petition under cause number

18C02-1807-JD-73 (“Cause No. 73”), alleging L.D. to be a delinquent child for

committing acts that would be a crime if committed by an adult, to-wit: “Count

I, Criminal Trespass, I.C. 35-43-2-2(b)(3), a Class A Misdemeanor . . . . Count

II, Resisting Law Enforcement, I.C. 35-44.1-3-1(a)(3), a Class A Misdemeanor .

. . Count III, Dangerous Possession of a Firearm, I.C. 35-47-10-5(a), a Class A

Misdemeanor.” Appellant’s Appendix Volume II at 150.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 4 of 12 [6] On August 14, 2018, the court held a fact-finding hearing under Cause No. 73,

at which Officer Pease and L.D. testified. After mentioning the money bag and

handgun, Officer Pease testified that the handgun was a “three eighty caliber

revol – or I’m sorry, Ruger” which had “four in the magazine but it was not

chambered.” Transcript Volume II at 9. She answered affirmatively when

asked if “those items were the items that she saw L.D. throw from his

waistband.” Id. She was later shown a photograph that she had taken of the

“money bag and the gun that [were] located on the south side of the alley where

[she] saw the items dropped,” and she answered affirmatively when asked if the

photograph truly and accurately depicted what she saw the juvenile drop and if

the gun was in the lower center of the picture. Id. at 14. The State moved to

admit the photograph as State’s Exhibit 4, which the court admitted without

objection. L.D. testified that “[w]e all ran” and answered, “[b]ecause I had a

warrant,” when asked why he ran. Id. at 21-22. He answered in the negative

when asked if he had a gun in his possession at the time he ran down the alley;

if he knew from where the gun came; and, if he reached into his waistband and

threw anything. When his counsel asked if he had a money bag, L.D.

responded, “Nah. No, I know the money bag,” it “came from Mike,” 2 and “[i]t

2 L.D. previously answered that “the Mike dude, he – me and him tryin’ (sic) to put some change together and he was about to take me back to my crib” when asked why he had been in the vehicle during the morning of July 1, and stated “[y]eah” when asked whether the individual that “you guys call Money Mike” was also in the vehicle. Transcript Volume II at 19-20. L.D. also testified that Money Mike was driving the vehicle. Id. at 21.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 5 of 12 had to because me and (indiscernible) (indiscernible) change together for them

to take us home.” Id. at 22.

[7] On August 19, 2018, the court issued its order on the fact-finding hearing in

Cause No. 73, which found that the evidence did not prove beyond a

reasonable doubt that L.D. committed the act of criminal trespass and that the

evidence presented at the hearing was sufficient for the court to conclude

beyond a reasonable doubt that L.D. did resist law enforcement and knowingly,

intentionally or recklessly possessed a firearm for a purpose other than a

purpose described in Ind. Code § 35-47-10-1. The order also adjudicated L.D.

delinquent as to Counts II and III and ordered the juvenile probation

department to prepare a pre-dispositional report.

[8] On September 19, 2018, the court held a dispositional hearing in Cause Nos. 45

and 73, at which it noted having pre-dispositional reports filed by juvenile

probation in both causes. Probation Officer Hollie Partin asked that L.D. be

given, under Cause No. 45, a “sixty day commitment to the Delaware County

Juvenile Detention Center and . . . credit for time served and that that matter be

closed out” and that, under Cause No. 73, L.D. in part be placed on formal

probation for up to one year, receive a suspended commitment to the DOC,

and be released from the Delaware County Juvenile Detention Center to the

custody of the Youth Opportunity Center and “placed in cottage seven, INTAC

progam.” Id. at 31. She indicated that in January 2016, L.D. was arrested and

adjudicated of burglary, in December of 2016 at his disposition for the offense

he received a DOC suspended commitment and formal probation under cause

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 6 of 12 number 18C02-1601-JD-14, and testified that “it appears that [L.D.] was still

on” formal probation for the offense “for probation fees um, because it was not

an official release and he was re-arrested then in March, which was a year and

four months after that.” Id. at 33. She further testified that L.D. had never

successfully completed probation before a re-arrest. After questioning L.D, the

court found him to be “beyond the rehabilitative efforts of Delaware County.”

Id. at 39.

[9] On September 19, 2018, the court issued dispositional orders in Cause Nos. 45

and 73, which found it was in L.D.’s best interest to be removed from his home

environment and that remaining in the home would be contrary to his welfare

because he presented as a danger to himself and others. It also issued its Order

on DOC Commitment under Cause No. 73, which noted L.D.’s delinquent

adjudication for resisting law enforcement in Cause No. 45 and awarded

wardship of L.D. to the DOC for housing in any correctional facility for children.

Discussion

I.

[10] The first issue is whether the evidence is sufficient to sustain L.D.’s

adjudication as a delinquent for committing dangerous possession of a firearm. 3

When the State seeks to have a juvenile adjudicated a delinquent, it must prove

3 L.D. does not challenge his adjudications as a delinquent for having committed acts that would constitute resisting law enforcement if committed by an adult under Cause Nos. 73 and 45.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 7 of 12 every element of the offense beyond a reasonable doubt. D.B. v. State, 842

N.E.2d 399, 401 (Ind. Ct. App. 2006) (citing C.T.S. v. State, 781 N.E.2d 1193,

1200-1201 (Ind. Ct. App. 2003), trans. denied). 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. J.L. v. State, 5 N.E.3d 431, 442 (Ind. Ct. App.

2014). 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.

[11] L.D. argues that the State did not present evidence that he was in possession of

the firearm, contends that he did not have exclusive possession of the premises

in which the firearm was found, and asserts that the located firearm could have

been dropped, thrown, or abandoned by other persons as he “was not the only

person who passed through the alley.” Appellant’s Brief at 13. The State

underscores L.D.’s claims at the fact-finding hearing that “he recognized the

money bag as his friend Mike’s, but he did not recognize the gun and had not

discarded either of them”; points to Officer Pease’s testimony, recognition of

distinct characteristics about the specific individual who discarded the items,

and observation that multiple items were discarded at the same time at the

location where the money bag and gun were found; and contends that the

evidence, including the recovery of only two items in that location, viewed in

the light most favorable to the adjudication support the finding that L.D. had

possessed the gun before discarding it in the alley. Appellee’s Brief at 8.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 8 of 12 [12] Ind. Code § 35-47-10-5(a) provides in part that a “child who knowingly,

intentionally, or recklessly possesses a firearm for any purpose other than a

purpose described in section 1 of this chapter commits dangerous possession of

a firearm, a Class A misdemeanor.” 4 The record reveals that the State

presented the testimony of Officer Pease, who witnessed four occupants exit a

vehicle which she had pursued and followed the individuals running west down

the alley. She testified that she focused on the larger individual and identified

him as L.D. She further testified that she watched L.D. grab in his waistband

and throw items into the alley; indicated that Officers Lee and Benning

returned to the location and “secured the items that were thrown down” and

that she returned and located a money bag and a black, semi-automatic

handgun; and answered affirmatively when asked if “those items” were the

items she saw L.D. throw from his waistband. Transcript Volume II at 9. To

the extent that L.D. requests that we judge the credibility of the witnesses and

reweigh evidence, we will not do so. See J.R.T. v. State, 783 N.E.2d 300, 302

(Ind. Ct. App. 2003), trans. denied. Based upon our review of the evidence and

in light of the reasonable inferences which support the judgment, we conclude

the State presented evidence of probative value from which a reasonable

factfinder could find beyond a reasonable doubt that L.D. was delinquent on

this basis.

4 On appeal, L.D. challenges the adjudication only on the element of possession and does not suggest that any other elements of Ind. Code § 35-47-10-5(a) were not satisfied.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 9 of 12 II.

[13] The second issue is whether the juvenile court abused its discretion in awarding

wardship of L.D. to the DOC for housing in any correctional facility for

children. The juvenile court is given “wide latitude and great flexibility” in

determining the specific disposition for a child adjudicated a delinquent. D.A. v.

State, 967 N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is

circumscribed by Ind. Code § 31-37-18-6, which provides:

If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:

(1) is:

(A) in the least restrictive (most family like) and most appropriate setting available; and

(B) close to the parents’ home, consistent with the best interest and special needs of the child;

(2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and

(5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

[14] “Under the statute, placement in ‘the least restrictive (most family like) and

most appropriate setting available’ applies only ‘[i]f consistent with the safety of

the community and the best interest of the child.’” J.D. v. State, 859 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 10 of 12 341, 346 (Ind. 2007) (quoting Ind. Code § 31-37-18-6). A disposition will not be

reversed absent a showing of an abuse of the juvenile court’s discretion, which

occurs when the juvenile court’s order is clearly against the logic and effect of

the facts and circumstances before the court or the reasonable inferences that

can be drawn therefrom. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App.

2010).

[15] L.D. argues that the completion of a residential program, like that which was

recommended by probation, would have been in his best interests, contends that

the court has never attempted any type of rehabilitative treatment or offered

counseling to him, and asserts that, prior to the incident “under [Cause No. 45],

[he] has not been in trouble since January 2016.” Appellant’s Brief at 15. The

State argues in response that L.D. has a history of delinquent conduct going

back to the age of twelve that consists of true findings for carrying a handgun

without a license and burglary, that there is no requirement for a juvenile court

to offer rehabilitative treatment prior to commitment to the DOC, and that the

court could reasonably conclude that it was both in the best interest of L.D. and

the safety of the community to commit him to the custody of the DOC.

[16] The September 17, 2018 pre-dispositional report indicates that L.D. first

became involved with the Delaware County Probation Department in June

2014 for theft, at which time he was warned and released, and that, in April

2015, he was placed on informal adjustment for being incorrigible. Appellant’s

Appendix Volume II at 182. The report further indicates that his legal history

includes carrying a handgun without a license in 2015 while he “was on

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 11 of 12 Informal Adjustment for Incorrigibility from March 2015,” for which he was

placed on formal probation, and burglary of a dwelling in 2016. Id. The report

also states that “Informal Adjustment; OP counseling; Day Reporting; Informal

house arrest; Formal probation” services were provided. Id. at 187.

[17] L.D. admitted in Cause No. 45 that he resisted law enforcement. He failed to

appear for the June 26, 2018 dispositional hearing in Cause No. 45, and a

warrant was issued for his arrest. On July 1, 2018, Officer Pease encountered

L.D., who ran because he had an outstanding warrant. The court adjudicated

L.D. delinquent for resisting law enforcement and dangerous possession of a

firearm in Cause No. 73. Under these circumstances we conclude that the

placement ordered by the juvenile court is consistent with his best interest and

the safety of the community and find no abuse of discretion.

[18] For the foregoing reasons, we affirm the juvenile court’s adjudication of L.D. as

a delinquent and its order awarding wardship to the DOC.

[19] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019 Page 12 of 12