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

• Court: Indiana Court of Appeals
• Decided: July 12, 2017
• Docket: 57A04-1610-JV-2448
• 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 court except for the purpose of establishing Jul 12 2017, 8:07 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.U., July 12, 2017 Appellant-Respondent, Court of Appeals Case No. 57A04-1610-JV-2448 v. Appeal from the Noble Superior Court State of Indiana, The Honorable Robert E. Kirsch, Appellee-Petitioner Judge Trial Court Cause Nos. 57D01-1608-JD-25 57D01-1511-JD-52 57D01-1409-JD-58

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 1 of 12 [1] L.U. was adjudicated delinquent and ordered to serve probation. While he was

on probation, the State filed a new, separate petition alleging that he had

committed a new offense of possession of paraphernalia.1 The State also

alleged that he had violated the terms of his probation by committing the new

offense and by failing to notify his probation officer of a change in his

employment. The juvenile court adjudicated him delinquent on the new cause,

found that he violated his probation, and ordered him to be committed to the

wardship of the Indiana Department of Correction (DOC). On appeal, L.U.

argues that there was insufficient evidence to find that he possessed

paraphernalia or that he had violated the terms of his probation, and that the

juvenile court erred in committing him to the DOC. Finding the evidence

sufficient and that the juvenile court did not err in committing L.U. to the

DOC, we affirm.

Facts [2] On September 10, 2014, the State filed a delinquency petition against fourteen-

year-old L.U. under cause number 57D01-1409-JD-58 (JD-58) alleging that

L.U. committed what would be Class D felony battery resulting in bodily injury

if committed by an adult. On November 19, 2014, L.U. admitted to

committing the lesser adult equivalent of Class B misdemeanor disorderly

1 Ind. Code § 35-48-4-8.3.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 2 of 12 conduct. The juvenile court adjudicated L.U. to be a delinquent and placed

him on probation for six months.

[3] On December 5, 2014, L.U.’s probation officer reported that L.U. had violated

the terms of his probation by committing a new offense of disorderly conduct.

On January 14, 2015, L.U. admitted the probation violation in exchange for the

dismissal of the new offense and a sanction of an additional six months of

probation. The juvenile court extended L.U.’s probation by six months for an

aggregate of one year probation and ordered L.U. to serve thirty hours of

community service.

[4] On November 13, 2015, the State filed a delinquency petition against L.U.

under cause number 57D01-1511-JD-52 (JD-52) alleging that L.U. committed

what would be Class B misdemeanor possession of marijuana if committed by

an adult, Class C misdemeanor possession of paraphernalia if committed by an

adult, and curfew violation. On December 2, 2015, L.U. admitted to

possessing marijuana, a Class B misdemeanor if committed by an adult, and to

violating his probation. The State dismissed the remaining charges.

[5] A dispositional hearing for cause numbers JD-52 and JD-58 took place on

February 3, 2016. The juvenile court ordered L.U. to be detained in the Allen

County Juvenile Center (ACJC) and to undergo a psychological evaluation.

Following the evaluation, the doctor diagnosed L.U. with conduct disorder. A

probation violation dispositional hearing took place on February 17, 2016. The

juvenile court extended L.U.’s probation for a period of up to twelve months

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 3 of 12 with the first six months to be served on home detention, ordered L.U. to

perform fifty hours of community service, and ordered L.U. and his mother to

participate in the Family Centered Treatment Program.

[6] On August 10, 2016, Noble County Probation Officers Samantha Hammond

and Robert Haywood went to L.U.’s residence to do a home contact. No one

inside the home answered their initial knock, nor did anyone answer L.U.’s

home detention cell phone. After Officer Hammond knocked again, L.U.’s

mother answered the door and called for L.U. L.U. came downstairs; Officer

Hammond explained that she wanted to talk to him. They went upstairs,

which was a self-contained apartment with a kitchen, bedroom, bathroom, and

landing area. Officer Hammond followed him, and as they were talking, she

observed cigarette butts in his room and empty alcohol bottles in the kitchen

common area. The probation officers requested assistance from the police to

conduct a probation search. Kendallville Police Officer Nathaniel Stahl arrived

to help search L.U.’s residence. Officer Stahl searched L.U.’s bedroom, where

he found behind L.U.’s futon a glass smoking device that contained burnt

residue that smelled of burnt marijuana. Officer Haywood found multiple

empty packages of tobacco underneath L.U.’s bed and in between the

mattresses, and he found empty beer cans in the bathroom. The officers found

multiple mostly empty containers of alcohol in the upstairs common area.

[7] On August 15, 2016, the probation department filed a probation violation

report in cause numbers JD-52 and JD-58. On August 16, 2016, L.U. was

taken into custody by the Kendallville Police Department. On August 17,

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 4 of 12 2016, the State filed a delinquency petition against L.U. under cause number

57D01-1608-JD-25 (JD-25) alleging that L.U. committed what would be a

Class C misdemeanor possession of paraphernalia if committed by an adult.

Also on August 17, 2016, a detention hearing took place during which the

juvenile court ordered L.U. to continue in detention at the ACJC.

[8] A combined fact finding hearing took place on September 28, 2016, for L.U.’s

probation violation under cause numbers JD-58 and JD-52 and an initial

hearing for cause number JD-25. L.U. testified that he had control over the

room that contained the futon where Officer Stahl found the glass smoking

device. The juvenile court found that L.U. had constructive possession of the

glass smoking device and adjudicated him a delinquent.

[9] Sometime during his probation, L.U. had secured a job at McDonald’s. During

the hearing on L.U.’s probation violation, Noble County Probation Officer Paul

Winebrenner testified that, during a visit with L.U., L.U. had indicated that he

was employed, even though L.U. had quit his job approximately two weeks

prior. L.U. testified that he did not know that his job was terminated; he also

testified that his manager told him that his hours would be reduced from forty

to zero hours, that this reduction constituted a change in his employment, and

that he did not contact the probation department about the change in his

employment. The juvenile court found that L.U. violated the terms of his

probation and committed him to the wardship of the DOC. L.U. now appeals.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 5 of 12 Discussion and Decision I. Sufficiency of the Evidence [10] L.U. argues that the evidence is insufficient to support the juvenile court’s

finding that L.U. possessed paraphernalia as alleged in cause number JD-25 or

to support the finding that L.U. violated the terms of his probation in cause

numbers JD-58 and JD-52 by committing the misconduct alleged in JD-25 and

by lying to his probation officer regarding his employment. He also argues that

any violations were too minor to justify revocation of his probation.

A. Delinquency Adjudication [11] In resolving a claim that the evidence supporting an adjudication of juvenile

delinquency is insufficient, we apply the standard of review that applies to all

sufficiency matters. Johnson v. State, 719 N.E.2d 445, 448 (Ind. Ct. App. 1999).

Accordingly, we consider only the probative evidence and reasonable inferences

supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do

not reweigh the evidence or assess the credibility of witnesses, and we consider

conflicting evidence most favorably to the trial court’s ruling. Id. We will

affirm the conviction unless no reasonable trier of fact could find the elements

of the offense proven beyond a reasonable doubt. Id. It is generally not

necessary that the evidence overcomes “every reasonable hypothesis of

innocence.” Id. at 147. The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict. Id.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 6 of 12 [12] Here, L.U. was accused of “knowingly or intentionally possess[ing] an

instrument, a device, or another object that the person intends to use for: (1)

introducing into the person’s body a controlled substance; (2) testing the

strength, effectiveness, or purity of a controlled substance; or (3) enhancing the

effect of a controlled substance.” I.C. § 35-48-4-8.3(a).

[13] L.U. contends that insufficient evidence supported the juvenile court’s finding

that he constructively possessed paraphernalia in his bedroom because his

possession of his bedroom was not exclusive. “Constructive possession will

support a possession conviction if the State shows that the defendant had both

the capability and the intent to maintain dominion and control over the

contraband.” White v. State, 772 N.E.2d 408, 413 (Ind. 2002). Essentially, in

cases where the accused has exclusive possession of the premises on which the

contraband is found, an inference is permitted that he knew of the presence of

contraband and was capable of controlling it. Atwood v. State, 905 N.E.2d 479,

484 (Ind. Ct. App. 2009). When possession of the premises is non-exclusive,

the inference is not permitted absent some additional circumstances indicating

knowledge of the presence of the contraband and the ability to control it. Id.

Among the circumstances which will support such an inference are: (1)

incriminating statements by the defendant; (2) attempted flight or furtive

gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the

contraband; (5) contraband in plain view; and (6) location of the contraband in

close proximity to items owned by the defendant. Id. at 484-85.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 7 of 12 [14] L.U. testified that his room was located upstairs; that items in his room,

including a television and a gaming device, belonged to him; and that he had

control over the room. Officer Stahl testified that he found a glass smoking

device behind the futon that was located inside L.U.’s bedroom and that the

device contained burnt residue and smelled of burnt marijuana. Even assuming

for argument’s sake that L.U. did not have exclusive possession of his bedroom,

L.U. had close proximity to the glass smoking device, and it was located in

close proximity to items that he owned. The evidence is sufficient to support

the inference that L.U. knew about the presence of the paraphernalia, had the

ability to control it, and constructively possessed it. See, e.g., Allen v. State, 798

N.E.2d 490, 502 (Ind. Ct. App. 2003) (noting that the evidence used to establish

possession was found in close proximity to items owned by the defendant,

giving rise to the inference that the defendant intended to maintain dominion

and control over the evidence).

B. Probation Violation [15] Next, L.U. argues that L.U.’s alleged untruthfulness to his probation officer

was insufficient to support the juvenile court’s finding that he violated the terms

of his probation in cause numbers JD-52 and JD-58. Because a probation

revocation proceeding is in the nature of a civil proceeding, the alleged

violation need be proved only by a preponderance of the evidence. Baxter v.

State, 774 N.E.2d 1037, 1044 (Ind. Ct. App. 2002). Violation of a single

condition of probation is sufficient to revoke probation. Id. As with other

sufficiency issues, we do not reweigh the evidence or judge the credibility of

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 8 of 12 witnesses. Id. We look only to the evidence which supports the judgment and

any reasonable inferences flowing therefrom. Id. If there is substantial evidence

of probative value to support the trial court's decision that the probationer

committed any violation, revocation of probation is appropriate. Id.

[16] Rule nine of L.U.’s probation required L.U. to notify his probation officer

within twenty-four hours of any change in his employment. L.U. admitted that

McDonald’s reduced his working hours from forty to zero, that this reduction

constituted a change in his employment about which he was required to inform

his probation officer within the specified time period, and that he did not notify

his probation officer about it. L.U. therefore violated a term of his probation,

and because a violation of a single condition of probation is sufficient to revoke

probation, the juvenile court did not err in revoking his probation. 2

II. Disposition [17] L.U. argues that the juvenile court erred by ordering him to be committed to the

DOC rather than placed in a less restrictive setting.

[18] Indiana Code section 31-37-18-6 provides that, if consistent with the safety of

the community and the best interest of the child, the juvenile court shall enter a

dispositional decree that:

2 Even if we had found that L.U.’s deception regarding his employment status was insufficient in some way, the fact that he committed a new offense, alone, is a sufficient basis to revoke probation.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 9 of 12 (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.

[19] The choice of a specific disposition for a delinquent child is within the

discretion of the trial court, subject to the statutory considerations of the welfare

of the child, the safety of the community, and a statutory policy of favoring the

least harsh disposition. J.J. v. State, 925 N.E.2d 796, 801 (Ind. Ct. App. 2010).

We may reverse the juvenile court’s disposition order only if the juvenile court’s

decision is clearly against the logic and effect of the facts and circumstances

before the court, or the reasonable, probable, and actual deductions to be drawn

therefrom. Id. The juvenile court serves to rehabilitate, rather than punish. Id.

[20] Here, L.U. argues that his placement with the DOC was erroneous because the

nature of his misconduct was relatively minor, and aside from the finding of his

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 10 of 12 disorderly conduct, his misconduct consisted of non-violent offenses that

caused no appreciable harm to anyone but L.U. He argues that he was only

recently diagnosed with conduct disorder and that additional time for therapy

while on home detention could yield positive results for him.

[21] Although we sympathize with L.U.’s argument, we place great weight on the

juvenile court’s conclusion that alternative means for rehabilitation were

exhausted. The juvenile court found that L.U. “has frankly no or very limited

supervision at home and we have tried every dispositional alternative that is

pretty much available to the juvenile justice system at this point in time. . . . I

think that we have tried to do everything we can for him.” Tr. p. 99. Since first

being placed on probation in November 2014, L.U. repeatedly failed to reform

his behavior through less restrictive placement. He was placed on probation,

but he violated the terms of his probation four times. He received the benefit of

home detention, but he had little to no adult supervision at home, and home

detention did not deter future offenses. In addition, L.U. was twice detained at

the ACJA, ordered to do community service, and ordered to participate in a

treatment program with his mother. Despite having an opportunity to work, he

failed to report a change in his employment status to his probation officer and

he committed a new offense, both violations of the terms of his probation.

Unfortunately, L.U. has made too many bad choices and has left the juvenile

justice system with no alternative but to order that he be committed to the

DOC.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 11 of 12 [22] The judgment of the juvenile court is affirmed.

Mathias, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 57A04-1610-JV-2448 | July 12, 2017 Page 12 of 12