N.B. v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 23 2015, 9:16 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bernice A. N. Corley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.B., April 23, 2015

Appellant-Defendant, Court of Appeals Case No. 49A04- 1410-JV-457 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn A. Moores, Judge Appellee-Plaintiff. The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1407-JD-1785

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 1 of 10 [1] N.B. appeals the juvenile court’s true finding that she committed a delinquent

act which, if committed by an adult, would constitute auto theft as a level 6

felony. N.B. raises one issue, which we revise and restate as whether the

evidence is sufficient to sustain her adjudication as a delinquent. We affirm.

Facts and Procedural History

[2] On the morning of July 19, 2014, Harrison Sibert and a friend traveled to a

restaurant in Sibert’s vehicle for breakfast and then traveled back to the home of

Sibert’s friend. Sibert and his friend began to walk inside but then walked back

to Sibert’s vehicle, a white 2004 Pontiac Grand Am, because Sibert’s friend had

forgotten something in the vehicle, and “that was the last time [Sibert]

remember[ed] seeing [his] keys.” Transcript at 5. A few hours later, Sibert

could not find his car keys, and he and his friends looked “everywhere all across

the apartment, outside by the car, [and] the dumpster in case [he] threw it away

on accident.” Id. at 6. Sibert thought he may have locked the keys inside his

car and could not see them from the window, and he planned to attempt to use

a wire hanger to enter the vehicle. However, when Sibert went outside, his

vehicle was gone, and he called the police and his insurance provider.

[3] The following day, July 20, 2014, Indianapolis Police Officer Larry Crowe and

Detective Jeff Thomas heard by radio of a hit and run incident. Officer Crowe

drove to the location of the individuals who had called the police about the hit

and run, and as he was speaking to them about the incident, they suddenly

pointed out a white Pontiac which was about two hundred yards away. Officer

Crowe entered his marked police vehicle, activated the emergency lights, and Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 2 of 10 pursued the Pontiac, and Detective Thomas heard over the radio that other

officers had also observed the Pontiac.

[4] Officer Crowe pulled his vehicle behind the Pontiac with his emergency lights

activated and initiated a traffic stop. Detective Thomas arrived in his police

vehicle, which also had its emergency lights activated, and noticed that the

Pontiac was still “very, very slow rolling” and that the driver, N.B., was looking

around. Id. at 15. Detective Thomas yelled at N.B. to stop and pulled his

police vehicle in front of the Pontiac so that the Pontiac was blocked in and

could not move, and N.B. then stopped the vehicle. Officer Crowe read the

license plate number of the Pontiac to the control operator, exited his vehicle,

and approached the driver’s side of the Pontiac. Detective Thomas exited his

vehicle and approached the passenger side of the Pontiac. Officer Crowe

observed N.B. in the driver’s seat and another female in the car, and he asked

N.B. to exit the vehicle. N.B. exited the Pontiac, and Detective Thomas had

the passenger also exit the vehicle.

[5] Officer Crowe noticed N.B. did not look very old and asked for her name and

date of birth. N.B. initially was not cooperative, but relatively soon afterwards

police learned her name and age and that the Pontiac had been reported as

stolen. Police “learned that it was called a fresh deal, meaning it was done

within the last day.” Id. at 29. After police established “the newness of the

steal and that they were obviously in the vehicle, they were both placed under

arrest for auto theft.” Id. at 30. N.B. “was using a lot of foul language” and

yelling obscenities at people who were driving by. Id. at 31. N.B., speaking at a

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 3 of 10 very high volume, said “I don’t give a f---what happens,” “f--- all this,” “this is

bulls---,” and “I’ll be out of f---ing jail in no time and I’m going to run away

again.” Id. at 20. At one point, N.B. asked Detective Thomas “what am I

being arrested for,” Detective Thomas responded she was being arrested for

auto theft, and N.B. said “I don’t give a f---.” Id. Detective Thomas said

“[w]ell, you shouldn’t be driving around stolen cars,” and N.B. said “I’ll drive

around whatever the f--- I want.” Id.

[6] On July 21, 2014, the State alleged N.B. was a delinquent child for an act of

auto theft, which would be a level 6 felony if committed by an adult, and

operating a motor vehicle without ever receiving a license, which would be a

class C misdemeanor if committed by an adult. On August 12, 2014, the

juvenile court held a hearing at which evidence consistent with the foregoing

was presented and N.B. stipulated that she was fifteen years old. Detective

Thomas indicated on cross-examination that there was no cracked steering

column or broken windows, the car was not operated with a screwdriver, and

the car was being driven with a set of keys. The court entered true findings as

to both counts. Following a dispositional hearing, the court entered an order

stating that N.B. had a prior history of delinquent adjudications including theft

as a class D felony if committed by an adult, and battery and conversion as

misdemeanors if committed by an adult, and ordering that N.B. be placed on

probation with a suspended commitment to the Department of Correction with

special conditions.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 4 of 10 Discussion

[7] The issue is whether the evidence is sufficient to sustain the juvenile court’s true

finding that N.B. committed a delinquent act which, if committed by an adult,

would constitute auto theft as a level 6 felony.1 When the State seeks to have a

juvenile adjudicated as 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. 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. Id.

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.

[8] The offense of auto theft as a level 6 felony is governed by Ind. Code § 35-43-4-

2.5(b), which provides that “[a] person who knowingly or intentionally exerts

unauthorized control over the motor vehicle of another person, with intent to

deprive the owner of . . . the vehicle’s value or use . . . commits auto theft, a

Level 6 felony.” Thus, to adjudicate N.B. to be a delinquent for committing an

act that would constitute auto theft as a level 6 felony if committed by an adult,

the State was required to prove that N.B. knowingly or intentionally exerted

1 N.B. does not challenge the true finding that she operated a motor vehicle without ever receiving a license.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 5 of 10 unauthorized control over Sibert’s vehicle with intent to deprive the owner of its

value or use.

[9] N.B. contends the State successfully proved she was in possession of a vehicle

that had been previously stolen but failed to prove that she knowingly or

intentionally exerted unauthorized control over the vehicle. She argues that

whether property was recently stolen is determined by examination of the

length of time between the theft and the possession, and also circumstances

such as the defendant’s familiarity or proximity to the property at the time of

the theft, and the character of the good. N.B. notes that more than twenty-four

hours passed between the theft and the Pontiac being found in N.B.’s

possession, that “[s]o, the theft was not recent,” and that, accordingly, N.B.’s

unexplained possession of stolen property in this case is not sufficient evidence

from which the trier of fact may infer she actually committed the theft.

Appellant’s Brief at 9. N.B. also argues that there were no broken steering

columns or screwdrivers, that she provided no statement about how the car

came to be in her possession, and that the State did not provide evidence of the

proximity between where N.B. lived and where the vehicle was recovered.

[10] The State maintains that the evidence presented established that N.B. fled the

scene of an accident in the stolen car shortly after the car was stolen, that N.B.’s

“evasive behavior supports the natural and reasonable inference that N.B.

committed theft,” that N.B.’s “statements to police after being stopped further

support the inference that N.B. knew the vehicle was stolen and that such was

why she did not stop at the scene of the accident,” and that “the circumstances

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 6 of 10 under which N.B. was stopped, with police taking the measure of blocking her

escape path with their vehicle, also indicated N.B.’s efforts to elude police.”

Appellee’s Brief at 6. The State also argues that N.B.’s assertion that the theft

was not recent is contrary to the record, that Officer Crowe testified that police

learned that it was “a fresh deal, meaning it was done within the last day,” and

that “[a] reasonable inference from the testimony is that the theft occurred

within twenty-four hours of when N.B. was apprehended driving the vehicle.”

Id. at 7.

[11] “While the mere unexplained possession of recently stolen property standing

alone does not automatically support a conviction for theft, such possession is

to be considered along with the other evidence in a case, such as how recent or

distant in time was the possession from the moment the item was stolen, and

what are the circumstances of the possession (say, possessing right next door as

opposed to many miles away).” Holloway v. State, 983 N.E.2d 1175, 1179 (Ind.

Ct. App. 2013) (internal quotation marks omitted) (citing Donovan v. State, 937

N.E.2d 1223, 1226 (Ind. Ct. App. 2010) (citing Fortson v. State, 919 N.E.2d

1136, 1143 (Ind. 2010)), trans. denied). The fact of possession and all the

surrounding evidence about the possession must be assessed to determine

whether any rational trier of fact could find the defendant guilty beyond a

reasonable doubt. Id.; see also Girdler v. State, 932 N.E.2d 769, 773 (Ind. Ct.

App. 2010) (noting that possession of recently stolen property is to be

considered along with the other evidence in a case and the circumstances of the

possession). The trier of fact must assess all of the evidence instead of focusing

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 7 of 10 upon one piece of evidence, such as possession of recently stolen property. Id.

(citing Donovan, 937 N.E.2d at 1226).

[12] Further, it is well settled that a defendant may be charged with and convicted of

auto theft, even if the person was not the original thief, so long as the elements

of auto theft are met—the knowing or intentional exercise of control over

another’s vehicle, with intent to deprive the owner of the vehicle’s value or use.

Girdler, 932 N.E.2d at 771; see also Donovan, 937 N.E.2d at 1226 (concluding the

State was not required to show that the defendant had exclusive possession of

the vehicle from the time of the theft to the time of his arrest but rather the trier

of fact should look at all of the evidence to determine if the defendant is guilty

of the offense beyond a reasonable doubt).

[13] The evidence most favorable to the challenged true finding reveals that N.B.,

who was fifteen years old, was detained on July 20, 2014, driving the Pontiac

that Sibert had reported as stolen on July 19, 2014. The court entered a true

finding that N.B. operated a motor vehicle without ever receiving a license, and

N.B. does not challenge the finding or argue that she had a valid driver’s

license. We note that, in stopping the Pontiac, both Officer Crowe and

Detective Thomas had their emergency lights activated, that N.B. was still

“very, very slow rolling,” that she was looking around, and that she stopped the

Pontiac only after Detective Thomas yelled at her to stop and placed his police

vehicle in front of the Pontiac so that she was blocked in by the police vehicles.

Transcript at 15. We further observe that N.B. was not initially cooperative in

providing her name and date of birth to police. Soon afterwards, police learned

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 8 of 10 that the Pontiac had been reported as stolen and it was “a fresh deal, meaning it

was done within the last day.” Id. at 29. In addition, N.B. yelled obscenities at

people who were driving by and said “I don’t give a f---what happens,” “f--- all

this,” “this is bulls---,” and “I’ll be out of f---ing jail in no time and I’m going to

run away again.” Id. at 20. When Detective Thomas told N.B. she was being

arrested for auto theft, N.B. said “I don’t give a f---,” and when Detective

Thomas said “[w]ell, you shouldn’t be driving around stolen cars,” N.B. said

“I’ll drive around whatever the f--- I want.” Id.

[14] The evidence of the discovery of the Pontiac in N.B.’s possession, the proximity

in time between the theft and the vehicle recovery, and N.B.’s actions and

statements, taken together, is evidence from which the juvenile court as fact-

finder reasonably could have concluded that N.B. exerted control over the

Pontiac with intent to deprive its owner of the vehicle’s value or use. See Bond

v. State, 925 N.E.2d 773, 782 (Ind. Ct. App. 2010) (holding, where the owner’s

vehicle went missing sometime between January 11 and January 14 and police

discovered the vehicle on January 16, that the discovery of the car at the

defendant’s house, the proximity in time between the theft and the vehicle

recovery, and the defendant’s prints together sustained an inference that the

defendant exerted unauthorized control over a car with the intent to deprive the

car’s owner of the value and use of the car), reh’g denied, trans. denied; Gonzalez v.

State, 908 N.E.2d 338, 341-342 (Ind. Ct. App. 2009) (noting that the defendant

displayed a nervous demeanor and did not respond to questions regarding the

ownership of the vehicle which had been reported stolen nearly a month before,

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 9 of 10 supporting the conclusion the defendant must have known the vehicle had been

stolen).

[15] Based upon the record, we conclude that the State presented evidence of a

probative nature from which a reasonable trier of fact could find that N.B.

committed an act that would constitute auto theft as a level 6 felony if

committed by an adult.

Conclusion

[16] For the foregoing reasons, we affirm the juvenile court’s true finding that N.B.

committed a delinquent act, which, if committed by an adult, would constitute

auto theft as a level 6 felony.

[17] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1410-JV-457 | April 23, 2015 Page 10 of 10