N.G. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 03 2019, 8:08 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N.G. July 3, 2019
Court of Appeals Case No.
Appellant-Respondent, 19A-JV-18
v. Appeal from the Vigo Circuit
Court
State of Indiana, The Honorable Sarah K. Mullican,
Judge
Appellee-Petitioner.
Trial Court Cause Nos. 84C01-
1701-JD-60, 84C01-1711-JD-1482,
& 84C01-1810-JD-1235
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, N.G., appeals his adjudication for an offense that would
constitute theft, a Class A misdemeanor, Ind. Code § 35-43-4-2, if committed by
an adult.
[2] We affirm.
ISSUE
[3] N.G. presents one issue on appeal, which we restate as follows: Whether the
State presented sufficient evidence beyond a reasonable doubt to sustain his
adjudication as a delinquent.
FACTS AND PROCEDURAL HISTORY
[4] In 2018, N.G. was on probation for two acts that would be offenses committed
by an adult, namely Level 6 felony intimidation (under Cause No. 84C01-1701-
JD-60), and Level 6 felony resisting law enforcement (under Cause No. 84C0l-
l7ll-JD-l482). On September 20, 2018, N.G., A.C., A.M., J.E., and E.R., all
rode together in one vehicle to the Jiffy Mart convenience store in Terra Haute,
Indiana. The store’s surveillance video showed the juveniles scatter to various
locations inside the store to either serve as a distraction or a look for A.M.
N.G. walked to the middle of the store, stood in front of the cashier for a
moment, and then retrieved his cellphone from his pocket and began looking at
the screen. A surveillance video from another angle showed A.M. walking to
the counter near the bathrooms and reach for a packet of cigars worth “99
cent[s].” (Transcript Vol. X, p 30). After putting the cigars in his pocket, A.M.
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made a hand gesture to the other juveniles, including N.G., to leave the store.
A.M. successfully left the store, but when the other juveniles attempted to leave,
one of the store clerks, Robert Bailey (Bailey), stopped them.
[5] When Bailey asked N.G. what he was doing inside the store, N.G. stated that
he was waiting on A.M., who was using the bathroom. Bailey asked the boys
to empty their pockets and, after determining that they did not have any stolen
merchandise, he ordered them to leave. Bailey then followed them outside.
The surveillance camera outside the store showed the teenage boys, excluding
N.G., confront Bailey and hit him several times before running away. N.G.
was not involved in the battery.
[6] On October 25, 2018, the State filed a Petition Alleging Delinquency, claiming
that N.G. had committed acts that would be offenses if committed by an adult,
namely, Level 3 felony aggravated battery, Class A misdemeanor theft, Class A
misdemeanor criminal trespass, and Level 3 felony robbery. On November 14,
2018, the juvenile court conducted a fact-finding hearing. The store’s
surveillance videos were introduced as evidence. N.G. testified that he was
unaware that A.M. intended to steal the cigars, and the videos showed that he
was not present with the other juveniles when they battered Bailey outside the
store. On November 16, 2018, the juvenile court entered the following order:
There was no evidence tendered by the State that [N.G.] was
involved in an aggravated battery (Count 1), criminal mischief
(Count 3), or robbery (Count 5). While others in his group
appeared to commit criminal trespass (Count 4), the evidence
indicated that [N.G.] left the premises when asked to do so.
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However, the court does find that the State carried its burden
with regard to Count 2, [t]heft. The evidence indicated that the
same group of boys had come into the convenience store earlier
that day and shoplifted. When they returned for the incident in
question, [A.M.] was clearly shown on the surveillance video
stealing a package of cigars and then signaling to the rest of the
group. Presumably, [A.M.] had reason to believe the group was
waiting for his signal. While [N.G.] testified that the purpose of
the stop at the Store was for [A.M.] to use the restroom, neither
[A.M.] nor anyone else was shown to have used the restroom or
have made any purchases.
Accordingly, the court finds that [N.G.] did commit the
delinquent act of theft (I.C. [§] 35-43-4-2). This matter is set for
disposition on this cause and for modification in Cause No.
84C01-1711-JD-1482 on November 29, 2018 at 9:30 a.m.
[7] N.G. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] N.G. argues that the State failed to present sufficient evidence beyond a
reasonable doubt that he acted as an accomplice to what would be a Class A
misdemeanor theft, if committed by an adult.
[9] When the State seeks to have a juvenile adjudicated a delinquent for
committing an act that would be a crime if committed by an adult, the State
must prove every element of the offense beyond a reasonable doubt. C.L. v.
State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing on appeal the
sufficiency of the evidence supporting a juvenile adjudication, we neither
reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13
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N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most
favorable to the judgment and the reasonable inferences therefrom, and we will
affirm if the evidence and those inferences constitute substantial evidence of
probative value to support the judgment. C.L., 2 N.E.3d at 800.
[10] In order to make a true finding of delinquency for theft against N.G., the State
was required to prove beyond a reasonable doubt that N.G. knowingly or
intentionally exerted unauthorized control over the property of another person
with the intent to deprive that person of any part of the property’s value or use.
I.C. § 35-43-4-2. While it is undisputed that A.M. stole the cigars, N.G. argues
that his adjudication can only stand if he was an “accomplice to A.M.’s theft of
the cigars.” (Appellant’s Br. p. 11). It is well-established in Indiana that there
is no distinction between criminal responsibility of a principal and that of an
accomplice. McQueen v. State, 711 N.E.2d 503, 504 (Ind. 1999). Thus, one may
be charged as a principal yet convicted as an accomplice. Id. Under
accomplice liability, the State was required to prove beyond a reasonable doubt
that N.G. knowingly or intentionally aided, induced, or caused A.M. to
commit theft. I.C. § 35-41-2-4. Factors to consider in deciding accomplice
liability include: (1) presence at the scene of the crime; (2) companionship with
another engaged in a crime; (3) failure to oppose the commission of the crime;
and (4) the course of conduct before, during, and after the occurrence of the
crime. Whedon v. State, 765 N.E.2d 1276, 1277 (Ind. 2002). While mere
presence at the scene or acquiescence in the crime is not sufficient to establish
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accomplice liability, they may be considered along with these factors to
determine participation. Id.
[11] The facts and circumstances presented here establish that N.G., A.M., and the
other boys, acted together in depriving Jiffy Mart of the value and use of the
cigars. After entering the convenience store together, each of the juveniles,
including N.G., scattered throughout the store to either watch the store
employees or to serve as distractions. After A.M. stole a package of cigars, he
signaled with his hands to the rest of the group including N.G. Upon A.M.’s
signal, the entire group of juveniles, including N.G., attempted to leave the
store with A.M., but the store clerk confronted them and forced them to turn
their pockets inside out. While N.G. asserts that it was only A.M. who exerted
unauthorized control over the cigars and that he was unaware that A.M. and
the other boys intended to steal the cigars, N.G. merely invites us to reweigh
the evidence and reassess witness credibility, an invitation that we must decline.
The record supports the trial court’s true finding that N.G. committed theft
pursuant to the theory of accomplice liability. As such, we hold that the State
presented sufficient evidence beyond a reasonable doubt to support the juvenile
court’s true finding of delinquency.
CONCLUSION
[12] The State established that N.G. assisted A.M. in the commission of the theft.
As a result, the evidence supports N.G.’s adjudication as a juvenile delinquent
for committing what would constitute Class A misdemeanor theft if committed
by an adult.
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[13] Affirmed.
[14] Bailey, J. and Pyle, J. concur
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