MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 25 2019, 9:19 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
L.F., April 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-JV-1914 v. Appeal from the Vigo Circuit Court State of Indiana, The Honorable Daniel W. Kelly, Appellee-Plaintiff Magistrate The Honorable Sarah Mullican, Judge Trial Court Cause No. 84C01-1803-JD-360
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 1 of 10 [1] L.F. appeals his adjudication for what would be Level 6 felony intimidation 1 if
committed by an adult. He presents four issues for our review, which we
restate as:
1. Whether the trial court violated L.F.’s due process rights;
2. Whether the State presented sufficient evidence that L.F. voluntarily committed Level 6 felony intimidation; and
3. Whether the trial court abused its discretion when it placed L.F. in the Department of Correction.
We affirm.
Facts and Procedural History [2] On March 22, 2018, L.F.’s mother and grandmother took him to the police
station to seek help because they believed “he was on drugs and he was out of
control.” (Tr. Vol. III at 6.) At the station, L.F. appeared “very, very angry.”
(Id.) Terre Haute Police Officers Vasco Billberry and David Brewer made
initial contact with L.F., determined he needed medical attention, and
transported him to a nearby hospital.
1 Ind. Code § 35-45-2-1(b)(1) (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 2 of 10 [3] On the way to the hospital, L.F. told Officer Billberry that “he was going to
shoot [Officer Billberry] with a shotgun just like Brent Long 2 was killed.” (Id. at
5) (footnote added). L.F. also told Officer Brewer that he would “cut [Officer
Brewer’s] throat and he would cut his mom and grandma’s throat for . . .
getting the police to help him.” (Id. at 8.) Officer Brewer observed L.F. was
“acting strange and need[ed] help.” (Id. at 9.) After L.F. was medically cleared
at the hospital, police took him into custody based on the threats and officers’
concerns that he may engage in activity consistent therewith.
[4] On March 28, 2018, the State filed a delinquency petition in which it alleged
L.F. committed an act that would be Level 6 felony intimidation if committed
by an adult. On April 5, 2018, the trial court held an initial hearing on the
matter. In the notes on the chronological case summary, the trial court stated
that “[d]ue to the minor child’s aggressive behavior while in detention, the
minor remains in cuffs and shackles.” (App. Vol. II at 3.) The trial court set a
fact-finding hearing for April 12, 2018.
[5] On April 12, 2018, the State requested a continuance, to which L.F. did not
object, and the trial court rescheduled the fact-finding hearing for May 10, 2018.
At the fact-finding hearing, L.F. and his mother testified that Officer Billberry
and Officer Brewer were lying, that the officers had been harassing L.F., and
that L.F. was “talking crap” to the officers, but did not threaten them. (Tr. Vol.
2 L.F. notes in his brief, “Brent Long was a Terre Haute police officer who was shot and killed in the line of duty in 2011.” (Br. of Appellant at 8 n.1.)
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 3 of 10 III at 32.) The trial court credited the officers’ testimony over that of L.F. and
his mother, and it entered a true finding. The trial court ordered L.F.
transferred to the Pendleton Juvenile Correctional Facility, which later issued a
letter indicating L.F. had a projected release date of December 21, 2018.
Discussion and Decision Due Process [6] Our Indiana Supreme Court has held, regarding the due process rights of a
juvenile as part of a delinquency proceeding:
A juvenile charged with delinquency is entitled to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. Without question, these include the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront opposing witnesses. . . .“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” . . . Principles of fundamental fairness require that this right [not to be tried unless competent] be afforded in juvenile proceedings.
In re K.G., 808 N.E.2d 631, 635 (Ind. 2004) (internal citations omitted). The
court ultimately concluded: “The due process clause applies in juvenile
proceedings, but a juvenile [court] must respect the informality and flexibility
that characterize juvenile proceedings while insuring that such proceedings
comport with the fundamental fairness demanded by the due process clause.”
Id. at 637 (quoting 47 Am. Jur. 2d Juvenile Courts 6 (1995)). Here, L.F. argues
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 4 of 10 the trial court violated his right to due process in two ways: (1) by requiring he
wear shackles to his initial hearing and (2) by granting the State’s motion to
continue the fact-finding hearing beyond the statutory time frame.
L.F.’s Appearance at Initial Hearing
[7] Regarding the restraint of a juvenile during a court hearing, Indiana Code
section 31-30.5-2-1 directs:
(a) Except as provided in subsection (b), a juvenile shall not be restrained in court unless the court has determined on the record, after considering the recommendation of the sheriff or transport officer, that the juvenile is dangerous or potentially dangerous.
(b) A court may order a juvenile restrained without considering the recommendation of the sheriff or transport officer if the juvenile has caused a physical disruption while in open court.
During his initial hearing, L.F. appeared before the court in handcuffs and
shackles “[d]ue to the minor child’s aggressive behavior while in detention[.]”
(App. Vol. II at 3.) L.F. argues on appeal that his appearance in such a state
violated his due process rights because the trial court did not determine on the
record that L.F. was “dangerous or potentially dangerous.” Ind. Code § 31-
30.5-2-1(a).
[8] L.F. did not object to his appearance in handcuffs and shackles at the initial
hearing, and thus the trial court did not have an opportunity to rule on any
challenge he had to the procedure. As he presents this issue for the first time on
appeal, it is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 25 2019, 9:19 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
L.F., April 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-JV-1914 v. Appeal from the Vigo Circuit Court State of Indiana, The Honorable Daniel W. Kelly, Appellee-Plaintiff Magistrate The Honorable Sarah Mullican, Judge Trial Court Cause No. 84C01-1803-JD-360
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 1 of 10 [1] L.F. appeals his adjudication for what would be Level 6 felony intimidation 1 if
committed by an adult. He presents four issues for our review, which we
restate as:
1. Whether the trial court violated L.F.’s due process rights;
2. Whether the State presented sufficient evidence that L.F. voluntarily committed Level 6 felony intimidation; and
3. Whether the trial court abused its discretion when it placed L.F. in the Department of Correction.
We affirm.
Facts and Procedural History [2] On March 22, 2018, L.F.’s mother and grandmother took him to the police
station to seek help because they believed “he was on drugs and he was out of
control.” (Tr. Vol. III at 6.) At the station, L.F. appeared “very, very angry.”
(Id.) Terre Haute Police Officers Vasco Billberry and David Brewer made
initial contact with L.F., determined he needed medical attention, and
transported him to a nearby hospital.
1 Ind. Code § 35-45-2-1(b)(1) (2017).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 2 of 10 [3] On the way to the hospital, L.F. told Officer Billberry that “he was going to
shoot [Officer Billberry] with a shotgun just like Brent Long 2 was killed.” (Id. at
5) (footnote added). L.F. also told Officer Brewer that he would “cut [Officer
Brewer’s] throat and he would cut his mom and grandma’s throat for . . .
getting the police to help him.” (Id. at 8.) Officer Brewer observed L.F. was
“acting strange and need[ed] help.” (Id. at 9.) After L.F. was medically cleared
at the hospital, police took him into custody based on the threats and officers’
concerns that he may engage in activity consistent therewith.
[4] On March 28, 2018, the State filed a delinquency petition in which it alleged
L.F. committed an act that would be Level 6 felony intimidation if committed
by an adult. On April 5, 2018, the trial court held an initial hearing on the
matter. In the notes on the chronological case summary, the trial court stated
that “[d]ue to the minor child’s aggressive behavior while in detention, the
minor remains in cuffs and shackles.” (App. Vol. II at 3.) The trial court set a
fact-finding hearing for April 12, 2018.
[5] On April 12, 2018, the State requested a continuance, to which L.F. did not
object, and the trial court rescheduled the fact-finding hearing for May 10, 2018.
At the fact-finding hearing, L.F. and his mother testified that Officer Billberry
and Officer Brewer were lying, that the officers had been harassing L.F., and
that L.F. was “talking crap” to the officers, but did not threaten them. (Tr. Vol.
2 L.F. notes in his brief, “Brent Long was a Terre Haute police officer who was shot and killed in the line of duty in 2011.” (Br. of Appellant at 8 n.1.)
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 3 of 10 III at 32.) The trial court credited the officers’ testimony over that of L.F. and
his mother, and it entered a true finding. The trial court ordered L.F.
transferred to the Pendleton Juvenile Correctional Facility, which later issued a
letter indicating L.F. had a projected release date of December 21, 2018.
Discussion and Decision Due Process [6] Our Indiana Supreme Court has held, regarding the due process rights of a
juvenile as part of a delinquency proceeding:
A juvenile charged with delinquency is entitled to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. Without question, these include the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront opposing witnesses. . . .“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” . . . Principles of fundamental fairness require that this right [not to be tried unless competent] be afforded in juvenile proceedings.
In re K.G., 808 N.E.2d 631, 635 (Ind. 2004) (internal citations omitted). The
court ultimately concluded: “The due process clause applies in juvenile
proceedings, but a juvenile [court] must respect the informality and flexibility
that characterize juvenile proceedings while insuring that such proceedings
comport with the fundamental fairness demanded by the due process clause.”
Id. at 637 (quoting 47 Am. Jur. 2d Juvenile Courts 6 (1995)). Here, L.F. argues
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 4 of 10 the trial court violated his right to due process in two ways: (1) by requiring he
wear shackles to his initial hearing and (2) by granting the State’s motion to
continue the fact-finding hearing beyond the statutory time frame.
L.F.’s Appearance at Initial Hearing
[7] Regarding the restraint of a juvenile during a court hearing, Indiana Code
section 31-30.5-2-1 directs:
(a) Except as provided in subsection (b), a juvenile shall not be restrained in court unless the court has determined on the record, after considering the recommendation of the sheriff or transport officer, that the juvenile is dangerous or potentially dangerous.
(b) A court may order a juvenile restrained without considering the recommendation of the sheriff or transport officer if the juvenile has caused a physical disruption while in open court.
During his initial hearing, L.F. appeared before the court in handcuffs and
shackles “[d]ue to the minor child’s aggressive behavior while in detention[.]”
(App. Vol. II at 3.) L.F. argues on appeal that his appearance in such a state
violated his due process rights because the trial court did not determine on the
record that L.F. was “dangerous or potentially dangerous.” Ind. Code § 31-
30.5-2-1(a).
[8] L.F. did not object to his appearance in handcuffs and shackles at the initial
hearing, and thus the trial court did not have an opportunity to rule on any
challenge he had to the procedure. As he presents this issue for the first time on
appeal, it is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 5 of 10 (“a trial court cannot be found to have erred as to an issue or argument that it
never had an opportunity to consider”). To overcome waiver, L.F. must
demonstrate fundamental error. See Tharpe v. State, 955 N.E.2d 836, 839 (Ind.
Ct. App. 2011) (appellant can argue fundamental error to overcome waiver of
issue), trans. denied.
[9] Fundamental error occurs when a decision violates “basic and elementary
principles, and the harm or potential for harm [can] not be denied.” Warriner v.
State, 435 N.E.2d 562, 563 (Ind. 1982). Fundamental error is a “narrow
exception” to the waiver rule. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).
We may review fundamental error even if there was no objection at trial. Id.
L.F. does not argue the error was fundamental, and thus his claim of error is
waived. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (failure to raise
issue of fundamental error in initial brief results in waiver of issue).
State’s Motion to Continue
[10] If a child is in detention and the State has filed a petition of delinquency, “a
fact-finding hearing or a waiver hearing must be commenced not later than
twenty (20) days, excluding Saturdays, Sundays, and legal holidays, after the
petition is filed.” Ind. Code § 31-37-11-2(a). Here, the State filed a petition of
delinquency as to L.F. on March 28, 2018, and L.F. was detained at that time.
The trial court originally scheduled the fact-finding hearing for April 12, 2018.
The State moved to continue the hearing, and L.F. did not object. The trial
court rescheduled the fact-finding for May 10, 2018, which was outside the
twenty-day time frame. Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 6 of 10 [11] L.F. contends the State violated his due process rights when it granted the
State’s motion to continue and rescheduled the fact-finding hearing outside of
the twenty-day statutory time limit. However, as noted above, his argument is
waived for failure to present it before the trial court. See A.K. v. State, 915
N.E.2d 554, 556 (Ind. Ct. App. 2009) (claim of error regarding timing of
juvenile fact-finding hearing waived for failure to present it before the trial
court), trans. denied. To overcome waiver, L.F. must demonstrate fundamental
error. See Tharpe, 955 N.E.2d at 839 (appellant can argue fundamental error to
overcome waiver of issue). L.F. does not argue the error was fundamental, and
thus his claim of error is waived. See Bowman, 51 N.E.3d at 1179 (failure to
raise issue of fundamental error in initial brief results in waiver of issue).
Sufficiency of the Evidence [12] On review of a juvenile adjudication, we apply the same sufficiency standard
used in criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App.
2001). We do not reweigh the evidence or judge the credibility of witnesses.
D.R. v. State, 729 N.E.2d 597, 599 (Ind. Ct. App. 2000). Instead we look only
to the evidence of probative value and the reasonable inferences that support
the determination. Id.
[13] The State alleged L.F. should be adjudicated a delinquent because his actions
towards officers satisfied the elements of Level 6 felony intimidation had the
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 7 of 10 crime been committed by an adult. 3 L.F. does not challenge that the State
proved the elements of the crime. Instead he argues the State did not present
evidence he acted voluntarily, as involuntariness is a complete bar to criminal
liability. See Ind. Code § 35-41-2-1(a) (“A person commits an offense only if he
voluntarily engages in conduct in violation of the statute defining the offense.”).
However, L.F. did not present this defense before the trial court, and it is
therefore waived. See Miller v. Griesel, 261 Ind. 604, 608, 308 N.E.2d 701, 704-5
(1974) (a defense which would serve as a legal bar to a claim cannot be raised
for the first time on appeal).
L.F.’s Placement [14] Trial courts have a number of options available for juvenile placement: “from a
private home in the community, a licensed foster home, a local juvenile
detention center, to State institutions[.]” Jordan v. State, 512 N.E.2d 407, 408
(Ind. 1987). To assist trial courts in selecting amongst available placement
alternatives, the Indiana Legislature has provided guidance regarding the option
to be selected for any particular child:
If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:
3 Specifically, the State alleged L.F. “did verbally threaten to kill Officer Billberry . . . (and other officers) with a shotgun to their heads while Officer Billberry was performing his duties at the Terre Haute Police Department Headquarters.” (App. Vol. II at 5) (errors in original).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 8 of 10 (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.
Ind. Code § 31-37-18-6.
[15] Within those parameters, a juvenile court has discretion in choosing the
disposition appropriate for each juvenile delinquent, D.E. v. State, 962 N.E.2d
94, 96 (Ind. Ct. App. 2011), and we review its disposition for an abuse of that
discretion. Id. at 97. An abuse of discretion occurs if the court’s decision is
“clearly against the logic and effect of the facts and circumstances before it, or
the reasonable, probable, and actual deductions to be drawn therefrom.” Id.
Here, the trial court committed L.F. to the Department of Correction.
[16] The State notes the trial court committed L.F. to the Department of Correction
on July 18, 2018. On November 9, 2018, the Department of Correction Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 9 of 10 notified the trial court pursuant to Indiana Code section 31-30-2-2 4 that L.F.
was scheduled to be released on December 21, 2018. (App. Vol. II at 33.) L.F.
has not indicated he was not released as scheduled. Thus, as he has already
completed the terms of his disposition, we are unable to provide him with relief,
and this portion of his appeal is moot. See Breedlove v. State, 20 N.E.3d 172, 174
(Ind. Ct. App. 2014) (appeal is moot when term of incarceration has passed),
trans. denied.
Conclusion [17] L.F. has waived his challenges to the trial court’s pre-trial decisions regarding
L.F.’s appearance at his initial hearing and the State’s motion to continue, and
he has not demonstrated fundamental error for either issue. Additionally,
L.F.’s argument regarding the voluntariness of his actions is waived for failure
to argue such a defense before the trial court. Finally, L.F.’s argument
regarding his placement is moot because the record indicates he has been
released from the placement of which he complains. Accordingly, we affirm.
[18] Affirmed.
Mathias, J., and Brown, J., concur.
4 This statute requires the Department of Correction to notify the trial court at least ten days prior to releasing a juvenile.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019 Page 10 of 10