D.J. v. State of Indiana ( 2013 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jan 25 2013, 9:39 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW J. BORLAND GREGORY F. ZOELLER
Borland & Gaerte Attorney General of Indiana
Indianapolis, Indiana
RICHARD C. WEBSTER
RUTH JOHNSON Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.J., )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1206-JV-490
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Geoffrey A. Gaither, Magistrate
Cause No. 49D09-1204-JD-948
January 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
D.J. appeals his adjudication as a delinquent1 for what would be, if committed by an
adult, Class A misdemeanor dangerous possession of a firearm2 and Class D felony theft.3
We affirm.
FACTS AND PROCEDURAL HISTORY
On April 12, 2012, D.J. and his mother (“Mother”) visited Mother’s friend, Tommy
Dorsey, at Dorsey’s residence. Dorsey and Mother left the residence for approximately an
hour to retrieve Mother’s car, and D.J. stayed behind at Dorsey’s residence. When Dorsey
and Mother returned, Dorsey noticed D.J. exiting the rear area of the residence. Dorsey
asked D.J. why he was in that area of the house, and D.J. responded he was getting a drink of
water from the kitchen. However, D.J. was not carrying a glass and no used glass was sitting
out in the kitchen. Dorsey asked D.J. where his glass was and D.J. did not respond.
After D.J. and Mother left, Dorsey noticed a chair had been moved from the kitchen to
his bedroom, where he kept his handgun in a closet. When Dorsey looked in the place where
he normally kept the handgun, he found only the holster. That evening, he searched the
entire residence for the handgun and was unable to find it.
The next day, Dorsey contacted Mother and asked her to bring D.J. to Dorsey’s
residence. She did so. Dorsey explained what he found in his residence and that his handgun
was missing. D.J. denied taking the handgun. Dorsey and Mother searched D.J.’s vehicle
and discovered the handgun in a rear compartment of the vehicle. In addition, Mother found
1
Ind. Code § 31-37-1-2.
2
Ind. Code § 35-47-10-5.
3
Ind. Code § 35-43-4-2(a).
2
pictures of the gun on D.J.’s phone.
The State alleged D.J. was a delinquent for committing acts that, if committed by an
adult, would be Class A misdemeanor dangerous possession of a handgun, Class D felony
theft, and Class A misdemeanor possession of a handgun without a license.4 The juvenile
court entered true findings on all counts, but “close[d] out” (Tr. at 63) the true finding for
Class A misdemeanor carrying a handgun without a license. The juvenile court placed D.J.
on probation based on the other two counts.
DISCUSSION AND DECISION
On review of a juvenile adjudication, we apply the same sufficiency standard used in
criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001). We do not
reweigh evidence or judge credibility of witnesses. D.R. v. State, 729 N.E.2d 597, 599 (Ind.
Ct. App. 2000). Instead we look only to the evidence and reasonable inferences therefrom
that support the determination. Id.
1. Theft
Indiana Code § 35-43-4-2(a) provides “[a] person who knowingly or intentionally
exerts unauthorized control over property of another person, with the intent to deprive the
other person of any part of its value or use, commits theft.” D.J. argues the evidence
presented by the State was purely circumstantial and, therefore, insufficient. We disagree.
A theft conviction may be sustained by circumstantial evidence alone if that
circumstantial evidence supports a reasonable inference of guilt. Mork v. State, 912 N.E.2d
4
Ind. Code § 35-43-4-2(a).
3
408, 411 (Ind. Ct. App. 2009). At D.J.’s adjudication hearing, the State presented evidence
D.J. was alone in Dorsey’s residence for an hour. When Dorsey and Mother returned to the
residence, D.J. was exiting the kitchen at the back of the house. When asked why he was in
that area of the house, D.J. indicated he was getting a glass of water; however, D.J. was not
carrying a glass nor did Dorsey find an empty glass in the kitchen. After D.J. left Dorsey’s
residence, Dorsey noticed a chair normally in the kitchen had been moved to the bedroom
and his gun was missing. The next day, Dorsey contacted Mother about the missing gun, and
D.J. and Mother returned to Dorsey’s residence. Mother and Dorsey found the handgun in a
rear compartment of Mother’s vehicle and found pictures of the gun on D.J.’s phone. That
evidence was sufficient to adjudicate D.J. a delinquent for what would be Class D felony
theft if committed by an adult. See Mork, 912 N.E.2d at 411 (circumstantial evidence
sufficient to convict Mork of theft).
2. Dangerous Possession of a Firearm
D.J. also argues the State did not present sufficient evidence he possessed Dorsey’s
firearm. We disagree.
Indiana Code § 35-47-10-5 provides “[a] child who knowingly, intentionally, or
recklessly: possesses a firearm for any purpose other than a purpose described in section 15 of
this chapter . . . commits dangerous possession of a firearm.” (Footnote added.) Possession
can be actual or constructive. Lampkins v. State, 682 N.E.2d 1268, 1275 (Ind. 1997),
5
D.J. does not argue the facts of his case fall under any of the exemptions described in Ind. Code § 35-47-10-1,
which include exemptions for hunting, firearms target shooting, and permissive use of a firearm by a child.
4
modified on reh’g on other grounds, 685 N.E.2d 698 (Ind. 1997). As D.J. did not have actual
possession of Dorsey’s firearm at the time it was discovered, the State must prove D.J. had
constructive possession, defined as the intent and capability to maintain dominion and control
over the item. See id. To prove intent to maintain dominion and control, there must be
additional circumstances supporting the inference of intent. Id. Constructive possession may
also be proven by a defendant’s incriminating statements, attempted flight or furtive gestures,
or the comingling of contraband with other items the defendant owns. Henderson v. State,
715 N.E.2d 833, 835-36 (Ind. 1999).
D.J. had ample opportunity to take the handgun from Dorsey’s residence. Dorsey’s
firearm was later discovered in Mother’s vehicle. D.J. denied knowing where the handgun
was, but there were pictures of the handgun on D.J.’s phone. That was sufficient evidence to
prove D.J. constructively possessed Dorsey’s handgun. See Conrad v. State, 747 N.E.2d 575,
583 (Ind. Ct. App. 2001) (holding evidence sufficient to prove constructive possession of a
firearm despite non-exclusive control over area where firearm was found), trans. denied.
CONCLUSION
The State presented sufficient evidence to support D.J.’s adjudication for offenses
that, if committed by an adult, would be Class A misdemeanor dangerous possession of a
handgun and Class D felony theft. Accordingly, we affirm.
Affirmed.
ROBB, C.J., and PYLE, J., concur.
5