T.W. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 14, 2020
• Docket: 19A-JV-3028
• 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 Jul 14 2020, 9:03 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 Donald J. Frew Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General

Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

T.W., July 14, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JV-3028 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Andrea R. Trevino, Appellee-Petitioner Judge

The Honorable Carolyn S. Foley, Magistrate

The Honorable Daniel G. Pappas, Magistrate

Trial Court Cause No. 02D07-1908-JD-703

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 1 of 14 Crone, Judge.

Case Summary [1] T.W. was adjudicated delinquent for conduct amounting to level 5 felony

robbery and class A misdemeanor dangerous possession of a firearm. He

appeals, challenging the sufficiency of the evidence to support his delinquency

adjudication for dangerous possession of a firearm and claiming that his

adjudications for that offense and robbery violate double jeopardy principles.

He also challenges his placement in the Indiana Department of Correction

(DOC). We affirm.

Facts and Procedural History [2] On May 21, 2003, T.W. was born with a heart condition that required two

surgeries during his first year. On May 19, 2019, he underwent aortic valve

surgery at Riley Hospital in Indianapolis. He was scheduled for several

postoperative appointments and attended the first but left the hospital before

tests could be performed. He did not attend the remaining appointments

scheduled for May and June 2019. T.W. also suffers from a nerve and tendon

condition that has resulted in his wearing casts on his legs and likely will

require surgery. He has been diagnosed with oppositional defiant disorder and

attention deficit hyperactivity disorder (ADHD). Although he was a high

school junior by age, he had accumulated only eight credits as of the fall of

2019.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 2 of 14 [3] At age eleven, T.W. began using marijuana regularly. Prior to the current case,

he accumulated fourteen criminal delinquency referrals, which included true

findings for conduct amounting to disorderly conduct, possession of

paraphernalia, domestic battery, and dangerous possession of a firearm.

[4] On June 18, 2019, T.W. arranged to purchase a vape pen from seventeen-year-

old K.P. K.P. had not previously met T.W., who identified himself as

“Fesmob,” but they conversed on Snapchat and arranged a meeting place.

Around dinnertime, T.W. contacted K.P. and told her to be at the rendezvous

spot in about twenty minutes. K.P. drove her vehicle to the Fort Wayne street

address that T.W. had provided. She was accompanied by her boyfriend, A.R.,

who sat in the front passenger seat, and her brother, J.P., who sat in the back

passenger seat. She parked her vehicle along the side of the street, and T.W.

exited a vehicle parked across the street facing hers. Three or four other persons

were in T.W.’s vehicle. K.P. recognized T.W. by his neck tattoos, one of which

said, “R.I.P.” followed by a person’s name. Tr. Vol. 2 at 11. She and her

passengers noticed that T.W. walked with an unusual gait and appeared to have

leg braces under his slacks. As T.W. got closer to the vehicle, A.R. recognized

him as someone that he was familiar with and knew to be involved in bad

activities. He urged K.P. to drive away, but just then, T.W. opened the back

driver’s-side door and cocked the handgun he was carrying. He said, “Run me

your pockets and hurry up before I blow this bitch up.” Id. at 11-12, 27, 48-49.

He demanded that K.P., A.R., and J.P. (collectively the Victims) hand him

their cell phones. They complied, and then he ordered them to unlock/reset the

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 3 of 14 phones, which they did. He took K.P.’s and A.R.’s phones but left J.P.’s older-

model phone and the vape pen behind. He also took ten dollars in cash that

K.P. had with her phone and said, “Nice doing business with you.” Id. at 13,

50. He returned to his vehicle, which his companions had pulled up near K.P.’s

vehicle, and then left the area.

[5] That evening, the Victims reported the robbery to their parents and to police.

Each separately identified T.W. from a photo array. The firearm was never

recovered. Ten days after the robbery, T.W., who had failed to attend follow-

up appointments with his cardiac surgeon, became septic. He underwent

emergency surgery and was hospitalized until the end of August 2019.

[6] On September 25, 2019, the State filed a juvenile delinquency petition alleging

that T.W. committed acts amounting to level 5 felony robbery if committed by

an adult and class A misdemeanor dangerous possession of a firearm. 1 During

September, T.W. failed three drug screens, each time testing positive for THC.

During his factfinding hearing, T.W. denied that he committed the robbery,

claiming that he was too ill to have done so. The Victims testified concerning

T.W.’s distinct neck tattoos and gait and stated that they were 100% certain that

T.W. was the person who robbed them. T.W. acknowledged having a neck

1 Dangerous possession of a firearm, by definition, is committed by a child and thus not properly stated as conduct amounting to dangerous possession of a firearm if committed by an adult. J.R. v. State, 100 N.E.3d 256, 257 n.1 (Ind. 2018).

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 4 of 14 tattoo that says, “R.I.P. Darius.” Id. at 109-10. The trial court entered true

findings on both allegations.

[7] During the dispositional hearing, T.W. and his mother asked that he be placed

at home on electronic monitoring. Finding that T.W. posed a danger to the

community, the trial court ordered that he be placed in the DOC. At the close

of the hearing, the court indicated that it would make a specific

recommendation that T.W. be placed in the Pendleton facility, where medical

personnel could best attend to his special needs. T.W. now appeals.

Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – Sufficient evidence supports T.W.’s true finding for dangerous possession of a firearm. [8] T.W. challenges the sufficiency of the evidence to support his true finding for

dangerous possession of a firearm. Juvenile court proceedings are civil, not

criminal, in nature. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018),

trans. denied (2019). Nevertheless, in a juvenile delinquency adjudication, the

State must prove beyond a reasonable doubt that the juvenile committed acts

amounting to the charged offense if committed by an adult. T.G. v. State, 3

N.E.3d 19, 23 (Ind. Ct. App. 2014), trans. denied. When reviewing claims of

insufficient evidence with respect to delinquency adjudications, we neither

reweigh evidence nor reassess witness credibility. Id. Rather, we examine the

evidence and reasonable inferences most favorable to the judgment and will

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 5 of 14 affirm if substantive evidence of probative value establishes every material

element of the offense. Id.

[9] Indiana Code Section 35-47-10-5(a) reads, in relevant part, “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.” The exceptions outlined in

Indiana Code Section 35-47-10-1 include a child’s possession of a firearm while

attending a hunters or firearm safety course, attending a target shooting activity

or organized and supervised competition at an established range, engaging in

licensed hunting/trapping, transporting an unloaded firearm to or from one of

the aforementioned activities, or while at home or on his property under a

parent’s or guardian’s supervision. To satisfy its burden of proof, the State must

establish that the juvenile actually or constructively possessed the firearm. K.F.

v. State, 961 N.E.2d 501, 509 (Ind. Ct. App 2012), trans. denied.

[10] T.W. maintains that the State failed to prove each element of the dangerous

possession of a firearm offense beyond a reasonable doubt. He briefly renews

his mistaken identity claim from below, stating simply that no firearm was ever

recovered and that the State’s case relied largely on the Victims’ testimony

concerning his identity as the perpetrator. Appellant’s Br. at 15. He has failed

to develop a cogent argument as required by Indiana Appellate Rule 46(A)(8),

and we therefore decline to address it. D.E. v. State, 962 N.E.2d 94, 96 n.6 (Ind.

Ct. App. 2011). Notwithstanding, we note that addressing the argument would

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 6 of 14 require us to reweigh evidence and reassess credibility, which we may not do.

T.G., 3 N.E.3d at 23.

[11] T.W. also suggests that the evidence is insufficient because the State failed to

prove that he did not fall within one of the exceptions found in Indiana Code

Section 35-47-10-1. In making this argument, he does not allege that he, in fact,

fell within one of the exceptions but simply that the State failed to disprove that

he did. He cites no authority to support the proposition that the State had this

burden, and we do not find any cases supporting it. The State analogizes the

circumstances to those in which an adult is charged with carrying a handgun

without a license: “Once the State demonstrates that [an adult] defendant had

possession of a handgun on his body or in a vehicle, it then becomes the

defendant’s burden to demonstrate [as an affirmative defense] that he had a

valid license to carry the handgun.” Wilson v. State, 39 N.E.3d 705, 717 (Ind.

Ct. App. 2015). We see no reason why this rationale should not be applied to

juveniles facing allegations of dangerous possession of a firearm, once the State

has presented probative evidence that the child knowingly, intentionally, or

recklessly possessed the firearm. 2

[12] Even so, T.W. concedes “that a fair appraisal of the testimony presented at trial

would support the conclusions that the relevant exceptions provided under I.C.

2 The application of the Wilson rationale to juveniles is particularly compelling in cases such as this, where T.W.’s sole defense below was mistaken identity, which is incongruous with a claim of carrying the firearm for some ostensibly legitimate reason and therefore would not naturally lead the State to question him regarding his purpose for possessing the firearm.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 7 of 14 § 35-47-10-1 were, in all likelihood, not present and the testimony of the acts

presented at factfinding.” Appellant’s Br. at 15. The foregoing evidence

supports that appraisal.

Section 2 – T.W.’s delinquency adjudications do not violate double jeopardy principles. [13] T.W. also contends that the trial court violated double jeopardy principles in

adjudicating him delinquent for acts amounting to robbery and dangerous

possession of a firearm. Double jeopardy principles apply in juvenile

delinquency adjudications. H.M. v. State, 892 N.E.2d 679, 681-82 (Ind. Ct.

App. 2008), trans. denied. In his concurring opinion in Richardson v. State, 717

N.E.2d 32, 55-56 (Ind. 1999), Justice Sullivan articulated circumstances in

common law often described as double jeopardy but not governed by the

constitutional tests set forth by the majority in Richardson. Among those is

“[c]onviction and punishment for a crime which consists of the very same act as

an element of another crime for which the defendant has been convicted and

punished.” Id. at 55 (Sullivan, J., concurring).

[14] Here, the State alleged in the delinquency petition that T.W. committed

delinquent acts amounting to level 5 felony robbery if committed by an adult by

“knowingly or intentionally tak[ing] property to wit: one or more cellular

telephone(s) and/or a vape pen and/or U.S. currency, from the person or

presence of [the Victims] by using or threatening the use of force.” Appellant’s

App. Vol. 2 at 36 (citing Ind. Code § 35-42-5-1(a)(1)). With respect to

dangerous possession of a firearm, the State alleged that T.W. “knowingly,

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 8 of 14 intentionally or recklessly possess[ed] a firearm for any purpose other than a

purpose described in Indiana Code Section 35-47-10-1.” Id. (citing Ind. Code §

31-37-1-2).

[15] T.W. asserts that the instrument of “force” for purposes of the robbery

allegation was the same firearm that he was accused of dangerously possessing.

Even if the firearm was the source of the force used to commit the robbery,

double jeopardy principles are not implicated here for two reasons. First, the

delinquency order indicates that T.W. was charged and found true as to robbery

as a level 5 felony, not as a level 3 felony for circumstances involving the use of

a firearm. Appealed Order on Factfinding at 1; Ind. Code § 35-42-5-1(a)(1).

Thus, T.W.’s robbery adjudication did not require proof of possession of a

firearm, and the record shows that he verbally threatened the Victims during the

robbery. Second, T.W.’s possession of the firearm involves not only the

moment of the robbery but also before he entered the Victims’ vehicle and after

he left it. In other words, “[c]arrying the gun along the street was one crime

and using it was another.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)

(quoting Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001)). T.W.’s

adjudications do not violate double jeopardy principles.

Section 3 – The trial court acted within its discretion in placing T.W. in the DOC. [16] Finally, T.W. challenges his placement in the DOC. The disposition of a

juvenile adjudicated a delinquent is a matter committed to the trial court’s

discretion, subject to the statutory considerations of the child’s welfare,

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 9 of 14 community safety, and the policy favoring the least harsh disposition. R.H. v.

State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We review the trial court’s

disposition for an abuse of discretion, which occurs if its decision is clearly

against the logic and effect of the facts and circumstances before it or the

reasonable inferences that may be drawn therefrom. Id.

[17] “[T]he goal of the juvenile process is rehabilitation so that the youth will not

become a criminal as an adult.” J.S., 110 N.E.3d at 1175-76 (quoting R.H., 937

N.E.2d at 388). Thus, juvenile courts have a variety of placement choices. Id.

at 1176. Indiana Code Section 31-37-18-6 reads,

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

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 10 of 14 (5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

Indiana Code Section 31-37-18-9(a)(5) requires the trial court to state its reasons

for the disposition chosen. This involves the trial court’s issuance of written

findings and conclusions concerning the child’s care, treatment, rehabilitation,

or placement; parental participation in the plan; efforts made to prevent the

child’s removal from the parent; family services offered; and the court’s reasons

for its disposition.

[18] Below, T.W. and his mother asked that he be put on home placement with

electronic monitoring. In ordering placement in the DOC, the trial court

specifically found that T.W. posed “a danger to the community.” Appealed

Dispositional Order at 2. The court incorporated into its order the

predispositional order, as well as the reports and recommendations from the

county juvenile center, the placement board, and the psychological evaluation.

The probation department, placement board, and psychological evaluation all

recommended that T.W. be placed in the DOC. The defense stipulated to the

reasonable efforts made to prevent T.W.’s removal from his mother, including

the use of an electronic monitoring device, drug and alcohol groups, a thinking

errors program, and a psychological evaluation.

[19] In the dispositional order, the trial court articulated the following reasons for

placement in the DOC: T.W.’s extensive history of delinquent behavior, with

fifteen juvenile referrals in six years and conduct that is “chronic and

escalating,” e.g., recent delinquency findings for domestic battery and another Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 11 of 14 firearms possession offense; the serious nature of his current true finding for

conduct amounting to felony robbery and involving his use of a firearm; his

attitude in minimizing his delinquent behavior and his corresponding need to

learn the logical and natural consequences of such behavior; his ample

opportunities to alter his behavior; his need for a highly structured

environment; his negative peer relationships in the local community; the lack of

parental control over his behavior; his educational deficiencies and the need for

a structured educational environment offered in the DOC so he can earn

enough credits to graduate from high school; and, most importantly, the overall

need to protect T.W. and the community and to advance his best interests. Id.

at 1-2; see K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App. 2002) (“[I]n certain

situations the best interest of the child is better served by a more restrictive

placement.”), trans. denied.

[20] T.W. asserts that the trial court failed to consider his serious medical conditions

before placing him in the DOC, the most restrictive placement. We

acknowledge that the dispositional order does not specifically mention his

medical issues, but the trial court specifically addressed T.W.’s special medical

circumstances in its comments at the close of the dispositional hearing. The

court described T.W.’s case as involving some of the most difficult choices it

had ever had to make in six years on the bench. The court considered the

facilities and nursing care at the Pendleton juvenile facility as well as its

proximity to hospitals and made an unprecedented request that T.W. be placed

in that facility. The court emphasized its duty to resolve T.W.’s case pursuant

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 12 of 14 to the statutory considerations, and at the same time assured T.W.’s mother as

follows:

I want you to know that he’ll be taken care of, well taken care of. They’ll tend to the medical needs of him. I am not finding that his, the ease to which he can get to Riley Hospital, or Anderson, or wherever, that’s not a factor in my decision here today. My, my job is to protect the community and, and to try to assist him in getting services. To the extent that it’s easier to get to Riley, that’s not something that I would be comfortable making a finding of, and that’s the reason I’m committing him to the Department of Corrections. I’m not committing him to the Department of Corrections because it’s going to get him medical services more easily. I want to be clear on that. I’m committing him there because he should be there, based upon my review of the record in this case. They will make a determination as to when he gets released. That’s not up to me, okay, just so you know. And I don’t commit him for a determinate period of time. In other words, I don’t say you’re going there for a year, you’re going there for two years or three years. I’m not doing that. I’m sending him to them. They will review his, his, his physical situation, his history, they’ll review all those things. And they’ll make a determination as to what’s best for him.

….

I’ve never recommended a placement in an order before, but I will, I will in this instance recommend, for a number of reasons, much more modern facility [in Pendleton], probably better able to accommodate him in a wheelchair.

Tr. Vol. 4 at 25, 27.

[21] In sum, the dispositional order and transcript reveal that the trial court made a

well-considered, if not agonizing, decision in placing T.W. in the DOC with a Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 13 of 14 special request for placement in Pendleton’s juvenile facility. Based on the

foregoing, we find no abuse of discretion in its decision to do so. Accordingly,

we affirm.

[22] Affirmed.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020 Page 14 of 14