A.Y. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 23 2019, 11:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Heard Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.Y., April 23, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-JV-2668
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Renee A. Cain,
Appellee-Plaintiff, Magistrate
Trial Court Cause No.
82D04-1808-JD-1596
Tavitas, Judge.
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Case Summary
[1] A.Y. appeals his adjudication as a delinquent for an act that would be
considered attempted armed robbery if committed by an adult, a Level 3 felony.
We affirm.
Issues
[2] A.Y. raises two issues, which we restate as:
I. Whether the evidence is sufficient to sustain A.Y.’s
adjudication as a delinquent for an act that would be
considered attempted armed robbery if committed by an
adult, a Level 3 felony.
II. Whether the juvenile court erred by committing A.Y. to the
Department of Correction.
Facts
[3] On August 10, 2018, A.Y.’s friend sent a message to Giles Thomas on
Facebook asking if he had marijuana for sale. Thomas’ Facebook name is
“Mob Jay.” Tr. Vol. II p. 47. Thomas responded that he did have some
marijuana for sale and asked who wanted to buy it. A.Y.’s friend said, “He’s
gonna inbox you.” Id. at 42. Fourteen-year-old A.Y. then sent Thomas a
message asking to buy a “zip” of marijuana, which is half an ounce. Id. They
later arranged to meet at a church near “Boeke and Riverside.” Id. at 43. The
church was also near a Circle K gas station.
[4] That evening, A.Y. arrived at the residence of Chloe Redfield and asked for a
ride “down the road” to pick up clothes from “Mob.” Id. at 12. Redfield was
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giving her daughter a bath and told A.Y. that, if he could walk there, she could
pick him up. A.Y. said he was walking toward the gas station at the “corner of
Riverside and Boeke,” which was four or five blocks from Redfield’s residence.
Id. at 13.
[5] Thomas took his loaded handgun with him. Thomas met with A.Y. and
another person unknown to Thomas at the church’s parking lot. Thomas
showed A.Y. the marijuana and asked to see the money. Instead of money,
A.Y. pulled out what Thomas thought was a handgun and said, “Give me
everything.” Id. at 44. Thomas acted like he was reaching for the marijuana
and, instead, pulled out his handgun. Thomas then shot A.Y. in the stomach.
A.Y.’s friend ran away, and Thomas drove off.
[6] Redfield went to the gas station to pick up A.Y. When she arrived, she heard a
gunshot and saw A.Y. running, holding his stomach, and yelling for help.
Redfield went to help A.Y. and called 911. Officers later discovered a realistic-
looking BB gun and a shell casing behind the church. Thomas was arrested that
evening, and a police detective read the Facebook messages between Thomas
and A.Y.
[7] The State filed a petition alleging that A.Y. was a delinquent child for
committing acts that would be considered: (1) armed robbery if committed by
an adult, a Level 3 felony; and (2) robbery if committed by an adult, a Level 5
felony. On October 1, 2018, the State filed an amended petition to allege A.Y.
committed acts that would be considered: (1) attempted armed robbery if
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committed by an adult, a Level 3 felony; and (2) attempted robbery if
committed by an adult, a Level 5 felony.
[8] After a hearing, the juvenile court found that A.Y. committed acts that would
be attempted armed robbery if committed by an adult, a Level 3 felony. The
State moved to dismiss the Level 5 felony allegation, which the juvenile court
granted. The juvenile court then committed A.Y. to the Department of
Correction (“DOC”). A.Y. now appeals.
Analysis
I. Sufficiency of the Evidence
[9] A.Y. challenges the sufficiency of the evidence to support his adjudication as a
delinquent for an act that would be considered attempted armed robbery if
committed by an adult, a Level 3 felony. “When reviewing the sufficiency of
the evidence in a juvenile adjudication, we do not reweigh the evidence or
judge witness credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018).
“We consider only the evidence favorable to the judgment and the reasonable
inferences supporting it.” Id. “We will affirm a juvenile-delinquency
adjudication if a reasonable trier of fact could conclude the defendant was guilty
beyond a reasonable doubt.” Id.
[10] The offense of attempted armed robbery, a Level 3 felony, is governed by
Indiana Code Section 35-42-5-1 and Indiana Code Section 35-41-5-1. The State
was required to prove that A.Y. knowingly or intentionally engaged in conduct
constituting a substantial step toward taking “property from another person or
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from the presence of another person . . . by using or threatening the use of force
on any person . . . while armed with a deadly weapon.” Ind. Code § 35-42-5-
1(a); Ind. Code § 35-41-5-1(a).
[11] According to A.Y., no evidence was presented that he threatened to rob
Thomas except for Thomas’ testimony. A.Y. argues no video of the meeting
exists, and there were no witnesses to the meeting. A.Y. also contends that no
physical evidence linked the BB gun to A.Y. Finally, A.Y. points out that the
Facebook messages could not be retrieved.
[12] A.Y.’s argument is merely a request that we reweigh the evidence and judge the
credibility of the witnesses, which we cannot do. Thomas’s credibility was
within the province of the juvenile court to decide. The State points out that
A.Y. does not argue Thomas’ testimony was incredibly dubious. Although
Thomas may not have been a “model witness” due to his history of dealing
drugs, we cannot reassess his credibility. Reed v. State, 748 N.E.2d 381, 395
(Ind. 2001). “[T]he uncorroborated testimony of one witness is sufficient to
sustain a conviction on appeal . . . .” Id. at 396. Similarly, the lack of physical
evidence tying A.Y. to the offense was a matter for the juvenile court to weigh.
[13] The State presented sufficient evidence that A.Y. arranged a drug transaction
with Thomas in the church parking lot and that A.Y. pointed a realistic-looking
BB gun at Thomas while demanding the marijuana. We have held that “BB
guns can be considered deadly weapons within the statute.” Merriweather v.
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State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002). The State presented sufficient
evidence to sustain A.Y.’s adjudication.
II. Disposition
[14] A.Y. also argues that the juvenile court erred by committing A.Y. to the DOC.
“The juvenile court has discretion in choosing the disposition for a juvenile
adjudicated delinquent.” D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct. App. 2011)
(citing L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002), trans. denied).
“The discretion is subject to the statutory considerations of the welfare of the
child, the safety of the community, and the policy of favoring the least harsh
disposition.” Id. “We may overturn [A.Y.’s] disposition order only if the court
abused its discretion.” Id. “An abuse of discretion occurs when the juvenile
court’s judgment is clearly against the logic and effect of the facts and
circumstances before it, or the reasonable, probable, and actual deductions to be
drawn therefrom.” Id.
[15] Indiana Code Section 31-37-18-6 states:
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
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(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
(5) provides a reasonable opportunity for participation by
the child’s parent, guardian, or custodian.
“[T]he statute requires placement in the least restrictive setting only ‘[i]f
consistent with the safety of the community and the best interest of the child.’”
J.S. v. State, 881 N.E.2d 26, 29 (Ind. Ct. App. 2008) (quoting I.C. § 31-37-18-6).
“Thus, the statute recognizes that in certain situations the best interest of the
child is better served by a more restrictive placement.” Id.
[16] According to A.Y., the juvenile court should have committed A.Y. to a less
restrictive setting. A.Y. argues that: (1) his adjudication history is limited; (2)
he has been placed in special education services at school; (3) he has been
diagnosed with ADHD; (4) he suffered severe injuries as a result of the gunshot
wound; and (5) the juvenile court did not consider other placement alternatives.
[17] A.Y.’s juvenile criminal history, although limited, has escalated. A.Y. was
referred to the juvenile court in September 2015 and October 2017 for
disorderly conduct. In both cases, A.Y. was lectured and released. A.Y. was
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then adjudicated in February 2018 for two counts of criminal mischief. He was
placed on probation, and a motion to modify was filed in March 2018 because
A.Y. left home. A.Y. was placed at Hillcrest and released to his mother in
April 2018. His mother reported that A.Y. was missing in May 2018. A.Y.
then committed this offense of attempted armed robbery in August 2018. After
A.Y. was released from the hospital due to his gunshot wound, he was placed
at Southwest Indiana Regional Youth Village (“SIRYV”). There, he was
verbally aggressive to staff, participated in the assault of another youth while
the youth was sleeping, and was caught making gang signs.
[18] The probation department recommended that A.Y. be committed to the DOC
“due to the seriousness of the offense and the juvenile being a risk to the
community.” Tr. Vol. II p. 71. The juvenile court noted A.Y.’s “slight juvenile
history” but focused on A.Y.’s severe, armed offense and continued violent and
aggressive behavior at SIRYV. The juvenile court concluded that A.Y.
“presents as a danger to others [and] himself.” Id. at 76. As a result, the
juvenile court determined that the “only place” appropriate for A.Y. was the
DOC. Id.
[19] Although A.Y. requests that we conclude that the juvenile court abused its
discretion by placing him in the DOC because a less restrictive option was
available, there are times when commitment to the DOC is in the best interest
of the juvenile and society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App.
2005). Given A.Y.’s escalating criminal offenses, the seriousness of his current
offense, and his continued aggressive behavior at SIRYV, this is one of those
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times. We cannot say that the juvenile court abused its discretion in
committing A.Y. to the DOC.
Conclusion
[20] The evidence is sufficient to sustain A.Y.’s adjudication, and the juvenile court
did not abuse its discretion by committing A.Y. to the DOC. We affirm.
[21] Affirmed.
Crone, J., and Bradford, J., concur.
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