M.M. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 27, 2014
• Docket: 49A05-1307-JV-367
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose Feb 27 2014, 10:14 am

of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.M., ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1307-JV-367 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable, Marilyn A. Moores, Judge The Honorable Scott Stowers, Magistrate Cause No. 49D09-1303-JD-688

February 27, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

M.M. appeals his adjudication as a delinquent child for an act that, if committed

by an adult, would constitute Class A misdemeanor criminal mischief. We affirm.

Issue

M.M. raises one issue, which we restate as whether the evidence is sufficient to

sustain his adjudication.

Facts

Sergeant Donald Asbury worked as a police officer for the Southport Police

Department and a “courtesy officer” for Berkley Commons Apartments. Tr. p. 10. As a

courtesy officer, Sergeant Asbury handled tenant disputes, trespassing issues, warrant

sweeps, noise complaints, and similar problems at the apartment complex. Sergeant

Asbury is compensated with a free townhouse.

On March 8, 2013, Sergeant Asbury was at home on his patio when he saw M.M.

and another juvenile walking on the sidewalk. M.M. and the other juvenile stopped and

spray painted the sidewalk. The boys then tossed the cans aside and continued walking.

Sergeant Asbury went inside, got his badge, radio, and gun, and started driving around

the complex. He found M.M. and the other juvenile nearby. Berkley Commons

Apartments does not allow spray paint markings to be made on its property.

The State alleged that M.M. committed an act that would be Class A misdemeanor

criminal mischief if committed by an adult. At the hearing, M.M. filed a motion for

involuntary dismissal under Indiana Trial Rule 41(B), arguing that Sergeant Asbury was

not an agent of the apartment complex and that the State failed to prove the consent

2 requirement under the criminal mischief statute. The juvenile court denied M.M.’s

motion and entered a true finding. M.M. now appeals.

Analysis

M.M. argues that the evidence is insufficient to sustain his adjudication. When the

State seeks to have a juvenile adjudicated to be a delinquent for committing an act that

would be a crime if committed by an adult, the State must prove every element of the

crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App.

2006), trans. denied. Upon review of a juvenile adjudication, this court will consider

only the evidence and reasonable inferences supporting the judgment. Id. We will

neither reweigh the evidence nor judge witness credibility. Id. If there is substantial

evidence of probative value from which a reasonable trier of fact could conclude that the

defendant was guilty beyond a reasonable doubt, we will affirm the adjudication. Id.

Indiana Code Section 35-43-1-2 governs the offense of criminal mischief and

provides: “A person who . . . recklessly, knowingly, or intentionally damages or defaces

property of another person without the other person’s consent . . . commits criminal

mischief . . . .” The offense is a Class A misdemeanor if “the property damage or

defacement was caused by paint or other markings.” Ind. Code § 35-43-1-2(a)(A)(vii).

M.M. argues that the State failed to prove the element of consent because, according to

M.M., the State failed to prove that Sergeant Asbury was an agent of the apartment

complex.

In support of this argument, M.M. relies on Glispie v. State, 955 N.E.2d 819 (Ind.

Ct. App. 2011). However, Glispie is distinguishable. In Glispie, the defendant was

3 found guilty of Class A misdemeanor criminal trespass, which required proof that the

defendant, without having a contractual interest in the property, knowingly or

intentionally entered real property belonging to the business after having been denied

entry by the business or its agent. The State argued that the police officer had previously

denied the defendant entry to the business and that the police officer was acting as the

business’s agent. On appeal, we concluded that the State failed to prove the agency

relationship between the officer and the business. Consequently, the evidence was

insufficient to sustain the conviction.

Here, however, an agency relationship is not an element of the offense. M.M.

seeks to equate “consent” with an agency relationship, but that argument is unpersuasive.

The State properly notes that it “was not required to show an agency relationship to prove

that Berkley Commons did not consent to M.M. spray painting its sidewalk.” Appellee’s

Br. p. 4. The State demonstrated that Sergeant Asbury, who was a courtesy officer for

the apartment complex, saw M.M. and another juvenile spray paint the apartment

complex’s sidewalk. Sergeant Asbury, who had worked as a courtesy officer for two

years, testified that the apartment complex did not allow the spray painting of its

property. This evidence is sufficient to sustain M.M.’s adjudication for an act that would

be Class A misdemeanor criminal mischief if committed by an adult.

Conclusion

The evidence is sufficient to sustain the adjudication. We affirm.

Affirmed.

ROBB, J., and BROWN, J., concur