T.W. v. State of Indiana (mem. dec.) ( 2020 )

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
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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.
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[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
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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).
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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
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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
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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.
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§ 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,
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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,
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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
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(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
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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
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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
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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.
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