MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 13 2017, 9:36 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 Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
X.T., January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1605-JV-1126 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Scott Stowers, Appellee-Plaintiff Magistrate Trial Court Cause No. 49D09-1503-JD-409
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 1 of 7 [1] X.T. appeals the juvenile court’s finding that he violated a condition of
probation, arguing that there is insufficient evidence supporting the finding. He
also argues that the juvenile court erred by ordering him to be removed from his
home and placed in a secure residential facility following the probation
violation. Finding sufficient evidence and no error, we affirm.
Facts [2] On April 19, 2015, X.T. admitted to committing an act that would have been
class A misdemeanor trespass had it been committed by an adult. The juvenile
court placed him on probation. One of his conditions of probation was that
X.T. must “not possess or be around or in the presence of anyone possessing
any gun, rifle, or shotgun[.]” Appellant’s App. Vol. II p. 88.
[3] While on probation, X.T. tested positive for drug screens on July 16, August 20,
and September 10, 2015. As a result, on October 28, 2015, the juvenile court
ordered X.T. to be placed on electronic monitoring until he was able to provide
two clean drug screens. X.T. failed to comply with electronic monitoring by
leaving his residence on October 27, October 29, October 31, and November 5,
2015. X.T. again failed to comply with probation when he was suspended from
school on February 12 and February 16-19, 2016; when he tested positive for
drugs on February 5, 9, and 11, 2016; and when he allegedly committed a new
offense of criminal mischief. At one point when he was detained in March
2016, X.T. was elevated to Level 1 at the Juvenile Detention Center after it
received two reports of X.T. being aggressive and threatening his peers.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 2 of 7 [4] On March 18, 2016, X.T. was released from electronic monitoring. Four days
later, on March 22, 2016, the State filed a petition to modify X.T.’s probation
based on an allegation that he had been in the presence of a firearm within
hours of his release from electronic monitoring on March 18. Probation Officer
Cory Brattain had viewed a Facebook Live video that showed X.T. in a garage
with several of his peers. X.T. appears in the garage at 41 seconds into the
video and again at 2:08-2:15. At the 3:11 mark, another individual brandished
a handgun on camera; the person filming the video can be heard saying, “watch
out bitch, you’ll go to jail.” State’s Ex. 2. X.T. was standing to the right of the
camera when the handgun was shown and can be seen just outside the garage at
3:29, 3:43, 4:12, and 6:03. At another point during the video, comments are
made indicating that one or more members of the group were smoking
marijuana. On April 8, 2016, a contested hearing was held regarding the
allegation that X.T. had violated probation by being in the presence of a gun.
The juvenile court found that X.T. had, in fact, violated probation.
[5] A dispositional hearing was held on April 29, 2016. The predispositional report
recommended that X.T. be placed in a secure residential facility based on his
many probation violations, high risk to reoffend, and association with peers in
high risk situations involving guns and drugs. Eleven different facilities rejected
X.T. because of aggressiveness, high risk, and the scope of treatment they were
able to offer. One facility—Transitions Academy—accepted X.T. and had an
immediate opening. At the conclusion of the hearing, the juvenile court found
that remaining in the home would be contrary to X.T.’s welfare. The reasons
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 3 of 7 underlying this finding are as follows: the nature of the most recent violation;
the nature of the probable cause affidavit; X.T.’s lengthy juvenile history
including prior true findings for burglary, escape, and criminal mischief; and the
fact that, within hours of being released from electronic monitoring, X.T.
appeared in a video with peers who were smoking marijuana, brandishing a
gun, and making threats on social media. Therefore, the juvenile court placed
X.T. on a suspended commitment to the Department of Correction and ordered
that he be placed in Transitions Academy. X.T. now appeals.
Discussion and Decision I. Sufficiency [6] First, X.T. argues that there is insufficient evidence supporting the juvenile
court’s finding that he had violated the condition of his probation requiring him
to refrain from being in the presence of firearms. A probation hearing is civil in
nature. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). To support an
allegation of a probation violation, the State is required to prove that the
violation occurred by a preponderance of the evidence. C.S. v. State, 817
N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In considering the sufficiency of the
evidence, we will neither reweigh the evidence nor assess witness credibility,
and will affirm if there is substantial evidence of probative value supporting the
juvenile court’s decision. Id.
[7] As part of his probation, X.T. was explicitly told that “you shall not possess or
be around or in the presence of anyone possessing any gun, rifle, or shotgun[.]”
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 4 of 7 Appellant’s App. Vol. II p. 88. The State offered evidence that, in March 2016,
X.T. was in a garage with several of his peers during the filming of a Facebook
Live video. X.T. is seen many times during the video both in and immediately
outside of the garage. When the handgun was brandished, X.T. was to the
right of the person filming the video such that X.T. would have been able to see
the firearm. The probation officer testified that based on his experience and the
comments of the individuals present, he believed the handgun to be real. We
find that the juvenile court reasonably inferred from this evidence that X.T. was
aware of the firearm. It was discussed in his presence and, based on his various
locations in the video, he was able to see the firearm and hear it being referred
to by the other people present. Therefore, we find the evidence sufficient to
support the juvenile court’s finding that X.T. violated his probation.1
II. Disposition [8] X.T. also argues that the juvenile court erred by ordering him placed in a
residential facility. The disposition of a juvenile adjudicated a delinquent child
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 13 2017, 9:36 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 Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
X.T., January 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1605-JV-1126 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Scott Stowers, Appellee-Plaintiff Magistrate Trial Court Cause No. 49D09-1503-JD-409
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 1 of 7 [1] X.T. appeals the juvenile court’s finding that he violated a condition of
probation, arguing that there is insufficient evidence supporting the finding. He
also argues that the juvenile court erred by ordering him to be removed from his
home and placed in a secure residential facility following the probation
violation. Finding sufficient evidence and no error, we affirm.
Facts [2] On April 19, 2015, X.T. admitted to committing an act that would have been
class A misdemeanor trespass had it been committed by an adult. The juvenile
court placed him on probation. One of his conditions of probation was that
X.T. must “not possess or be around or in the presence of anyone possessing
any gun, rifle, or shotgun[.]” Appellant’s App. Vol. II p. 88.
[3] While on probation, X.T. tested positive for drug screens on July 16, August 20,
and September 10, 2015. As a result, on October 28, 2015, the juvenile court
ordered X.T. to be placed on electronic monitoring until he was able to provide
two clean drug screens. X.T. failed to comply with electronic monitoring by
leaving his residence on October 27, October 29, October 31, and November 5,
2015. X.T. again failed to comply with probation when he was suspended from
school on February 12 and February 16-19, 2016; when he tested positive for
drugs on February 5, 9, and 11, 2016; and when he allegedly committed a new
offense of criminal mischief. At one point when he was detained in March
2016, X.T. was elevated to Level 1 at the Juvenile Detention Center after it
received two reports of X.T. being aggressive and threatening his peers.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 2 of 7 [4] On March 18, 2016, X.T. was released from electronic monitoring. Four days
later, on March 22, 2016, the State filed a petition to modify X.T.’s probation
based on an allegation that he had been in the presence of a firearm within
hours of his release from electronic monitoring on March 18. Probation Officer
Cory Brattain had viewed a Facebook Live video that showed X.T. in a garage
with several of his peers. X.T. appears in the garage at 41 seconds into the
video and again at 2:08-2:15. At the 3:11 mark, another individual brandished
a handgun on camera; the person filming the video can be heard saying, “watch
out bitch, you’ll go to jail.” State’s Ex. 2. X.T. was standing to the right of the
camera when the handgun was shown and can be seen just outside the garage at
3:29, 3:43, 4:12, and 6:03. At another point during the video, comments are
made indicating that one or more members of the group were smoking
marijuana. On April 8, 2016, a contested hearing was held regarding the
allegation that X.T. had violated probation by being in the presence of a gun.
The juvenile court found that X.T. had, in fact, violated probation.
[5] A dispositional hearing was held on April 29, 2016. The predispositional report
recommended that X.T. be placed in a secure residential facility based on his
many probation violations, high risk to reoffend, and association with peers in
high risk situations involving guns and drugs. Eleven different facilities rejected
X.T. because of aggressiveness, high risk, and the scope of treatment they were
able to offer. One facility—Transitions Academy—accepted X.T. and had an
immediate opening. At the conclusion of the hearing, the juvenile court found
that remaining in the home would be contrary to X.T.’s welfare. The reasons
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 3 of 7 underlying this finding are as follows: the nature of the most recent violation;
the nature of the probable cause affidavit; X.T.’s lengthy juvenile history
including prior true findings for burglary, escape, and criminal mischief; and the
fact that, within hours of being released from electronic monitoring, X.T.
appeared in a video with peers who were smoking marijuana, brandishing a
gun, and making threats on social media. Therefore, the juvenile court placed
X.T. on a suspended commitment to the Department of Correction and ordered
that he be placed in Transitions Academy. X.T. now appeals.
Discussion and Decision I. Sufficiency [6] First, X.T. argues that there is insufficient evidence supporting the juvenile
court’s finding that he had violated the condition of his probation requiring him
to refrain from being in the presence of firearms. A probation hearing is civil in
nature. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). To support an
allegation of a probation violation, the State is required to prove that the
violation occurred by a preponderance of the evidence. C.S. v. State, 817
N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In considering the sufficiency of the
evidence, we will neither reweigh the evidence nor assess witness credibility,
and will affirm if there is substantial evidence of probative value supporting the
juvenile court’s decision. Id.
[7] As part of his probation, X.T. was explicitly told that “you shall not possess or
be around or in the presence of anyone possessing any gun, rifle, or shotgun[.]”
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 4 of 7 Appellant’s App. Vol. II p. 88. The State offered evidence that, in March 2016,
X.T. was in a garage with several of his peers during the filming of a Facebook
Live video. X.T. is seen many times during the video both in and immediately
outside of the garage. When the handgun was brandished, X.T. was to the
right of the person filming the video such that X.T. would have been able to see
the firearm. The probation officer testified that based on his experience and the
comments of the individuals present, he believed the handgun to be real. We
find that the juvenile court reasonably inferred from this evidence that X.T. was
aware of the firearm. It was discussed in his presence and, based on his various
locations in the video, he was able to see the firearm and hear it being referred
to by the other people present. Therefore, we find the evidence sufficient to
support the juvenile court’s finding that X.T. violated his probation.1
II. Disposition [8] X.T. also argues that the juvenile court erred by ordering him placed in a
residential facility. The disposition of a juvenile adjudicated a delinquent child
is a matter within the sound discretion of the juvenile court. J.S. v. State, 881
N.E.2d 26, 28 (Ind. Ct. App. 2008). The juvenile court’s discretion is subject to
the statutory considerations of “the child’s welfare, the community’s safety, and
the policy of favoring the least-harsh disposition.” J.B. v. State, 849 N.E.2d 714,
1 X.T. argues that the probation condition was impermissibly vague because it could arguably encompass an individual who was unknowingly in the presence of a firearm. We need not address this argument, however, as we find the evidence sufficient to establish that X.T. was knowingly in the presence of the handgun.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 5 of 7 717 (Ind. Ct. App. 2006); see also Ind. Code § 31-37-18-6. We will reverse only
if the juvenile court’s decision is clearly erroneous and against the logic and
effect of the facts and circumstances before it or the reasonable, probable, and
actual inferences that can be drawn therefrom. J.S., 881 N.E.2d at 28.
[9] In this case, X.T.’s lengthy history includes the following incidents:
Prior true findings for burglary, escape, and criminal mischief. Formal probation following the burglary and escape true findings. While on probation for the instant adjudication, true findings that X.T. had tested positive for drug screens on three occasions and failed to comply with electronic monitoring by leaving his residence on four occasions. While on probation for the instant adjudication, allegations that X.T. had violated probation in other ways by being suspended from school for five days, testing positive for drugs on three occasions, and committing a new offense of criminal mischief.
At various points during X.T.’s juvenile history, he has received the following
services: supervised release, electronic monitoring (three times), drug testing,
substance abuse treatment, cross systems of care coordination services,
mentoring, case management, therapy/behavioral services, formal probation,
psychological evaluation, parent-monitored curfew, evening reporting center at
a boys and girls club, and functional family therapy. The first action X.T. took
after being removed from electronic monitoring was to hang out with his peers,
who were smoking marijuana, brandishing a handgun, and making threats on
live social media.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 6 of 7 [10] It is evident that despite the many services and second, third, and fourth
chances offered to X.T., he has been unable or unwilling to modify his
behavior. The juvenile court drew a reasonable conclusion that to rehabilitate
X.T., as well as keep X.T. and the community safe, the best and least restrictive
option was to place him in a secure residential treatment facility. We find no
error in the juvenile court’s dispositional order.
[11] The order of the juvenile court is affirmed.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017 Page 7 of 7