In the Matter of S.L., a Child Alleged to be a Delinquent Child v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 05 2018, 8:49 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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of S.L., September 5, 2018
a Child Alleged to be a Court of Appeals Case No.
Delinquent Child, 18A-JV-1017
Appellant-Respondent, Appeal from the Lawrence Circuit
Court
v. The Honorable Andrea K.
McCord, Judge
State of Indiana, Trial Court Cause No.
Appellee-Petitioner 47C01-1710-JD-463
Baker, Judge.
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[1] S.L. appeals the juvenile court’s order adjudicating her a delinquent child for
committing an act that would have been Level 6 Felony Intimidation 1 had it
been committed by an adult. She argues that the evidence is insufficient to
support the adjudication. S.L. also challenges the juvenile court’s decision to
place her in the Department of Correction (DOC), contending that it was not
the least harsh disposition available. Finding sufficient evidence and no
dispositional error, we affirm.
Facts
[2] On August 24, 2017, sixteen-year-old S.L. and sixteen-year-old J.M. were
students attending the same high school. That afternoon, J.M. and S.L. rode
the bus home together. S.L. confronted J.M. and told her to stop sending text
messages to S.L.’s boyfriend. S.L. told J.M. that she would “cut [her] double
chin off,” that she would “murder” her, and that she would meet J.M. at her
first period class. Tr. Vol. II p. 27-29. S.L. was “very stern” and was not
laughing. Id.
[3] J.M. later called her mother and was so hysterical that her mother could not
understand her. She was very upset, afraid, and angry, and threatened to kill
herself. As a result of the incident, J.M. developed anxiety, high blood
pressure, and depression. She was afraid to ride the bus after S.L. threatened
her, went to the office every day at school to avoid being in class with S.L., and
1
Ind. Code § 35-45-2-1.
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frequently vomited and was unable to remain in class. J.M. withdrew from
school a few weeks later.
[4] On October 5, 2017, the State filed a petition alleging that S.L. was a delinquent
child for committing an act that would have been Level 6 felony intimidation
had it been committed by an adult. An evidentiary hearing took place on
February 12, 2018; at the close of the hearing, the juvenile court adjudicated
S.L. delinquent. On March 29, 2018, the juvenile court conducted a
dispositional hearing and committed S.L. to the DOC. S.L. now appeals.
Discussion and Decision
I. Sufficiency
[5] S.L. first argues that the evidence is insufficient to support the delinquency
adjudication. When the State petitions for a juvenile to be adjudicated
delinquent for committing an act that would be a crime if committed by an
adult, the State must prove every element of that offense beyond a reasonable
doubt. E.B. v. State, 89 N.E.3d 1087, 1090 (Ind. Ct. App. 2017). On review of a
delinquency adjudication, we neither reweigh the evidence nor assess witness
credibility; instead, we will consider only the evidence most favorable to the
judgment and the reasonable inferences that may be drawn therefrom. Id. We
will affirm unless no reasonable factfinder could have found the elements of the
offense proved beyond a reasonable doubt. D.P. v. State, 80 N.E.3d 913, 915
(Ind. Ct. App. 2017).
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[6] To support its delinquency petition in this case, the State was required to prove
beyond a reasonable doubt that S.L. communicated a threat to J.M. with the
intent to place J.M. in fear of retaliation for a prior lawful act and that the threat
was to commit a forcible felony. I.C. § 35-45-2-1.
[7] A “threat” is, among other things, “[a]n expression, by words or action, of an
intention to . . . unlawfully injure the person threatened or another person, or
damage property.” Id. Whether a statement is a threat is an objective question
for the factfinder. E.B., 89 N.E.3d at 1091. A defendant’s intent may be proved
by circumstantial evidence alone, and knowledge and intent may be inferred
from the facts and circumstances of each case. Id. Our Supreme Court has held
that whether a statement constitutes a “true threat” depends on two necessary
elements: that the speaker intended her communication to place her target in
fear for her safety, and that the communication was likely to actually cause
such fear in a reasonable person similarly situated to the target. Brewington v.
State, 7 N.E.3d 946, 963-64 (Ind. 2014) (also explaining that assessing true
threats is a highly fact-sensitive inquiry).
[8] Here, S.L. confronted J.M. in an angry, stern manner and told her to stop
sending text messages to S.L.’s boyfriend. S.L. threatened to “cut [J.M.’s]
double chin off” and said she would “murder” her. Tr. Vol. II p. 27-29. S.L.
also told J.M. that she would meet her at her first period class, which J.M.
understood to mean that S.L. was going to try to “beat [her] up or something.”
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[9] We find that a reasonable factfinder could conclude that S.L.’s statements to
J.M. amounted to a true threat. S.L. described with specificity what she would
do to J.M. and when she was going to do it. Taken in context, the evidence
established beyond a reasonable doubt that S.L. intended her comments to
place J.M. in fear for her safety. We also find that a reasonable factfinder could
conclude that a reasonable person similarly situated to J.M. would actually be
placed in fear by the comments. We easily accept that an average sixteen-year-
old would be frightened by the specific threats made by S.L., particularly when
the threats included an explanation of when they would be carried out.
[10] We likewise find that a reasonable factfinder could conclude that S.L.’s threats
were made in retaliation for a prior lawful act—the act of J.M. texting with
S.L.’s boyfriend. S.L. argues that the threat was intended to stop J.M. from
texting him again rather than to retaliate for the prior texts. We find Roar v.
State, 54 N.E.3d 1001 (Ind. 2016), to be instructive. In that case, our Supreme
Court adopted the relevant portion of this Court’s opinion. Roar v. State, 52
N.E.3d 940 (Ind. Ct. App. 2016), trans. granted, vacated, aff’d and adopted in
relevant part by id. In Roar, the defendant’s sister rented an apartment that was
managed by Tracey Olive. One day, Roar saw Olive place an eviction notice
on his sister’s apartment door. He removed the notice and began yelling at
Olive, calling her “a bitch and then told [her] that if [she] came back on the
property [] he’d kill [her].” Id. at 942. Roar argued that his threat was made
with the intent to prevent Olive from returning to the property in the future
rather than to place her in fear of retaliation for her prior lawful act of placing
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the eviction notice on the apartment door. This Court disagreed, holding as
follows:
Mere use of conditional language in the course of
communicating a threat does not vitiate the statute’s application
when the factual predicate for the threat was a prior lawful act of
the victim. Stated another way, the language a defendant uses in
communicating a threat may be relevant to the fact-finder’s
assessment of the defendant’s intent, but the language used is not
the only relevant consideration.
Id. at 943.
[11] Here, S.L. knew who J.M. was and knew that she had been texting S.L.’s
boyfriend. The factfinder was free to conclude, considering this evidence, that
S.L.’s threats were in direct response to J.M.’s lawful behavior of texting with
S.L.’s boyfriend. As in Roar, S.L. asks us to reweigh the evidence on appeal by
giving exclusive weight to the precise language she used when threatening J.M.
while simultaneously discrediting all other evidence. We will not reweigh the
evidence on appeal. We echo the Roar Court’s conclusion that the juvenile
court “was capable of discerning whether intimidation occurred where, as here,
there is a clear nexus between the prior lawful act and the threat.” Id. at 944.
The evidence plainly demonstrated, first, that S.L. communicated a threat to
J.M., and, second, that she did so with the intent to place her in fear of
retaliation for a prior lawful act. Accordingly, we affirm the delinquency
adjudication.
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II. Dispositional Order
[12] S.L. next argues that the trial court erred by ordering that she be committed to
the DOC. Our Supreme Court has explained that
[t]he specific disposition of a delinquent is within the juvenile
court’s discretion, to be guided by the following considerations:
the safety of the community, the best interests of the child, the
least restrictive alternative, family autonomy and life, freedom of
the child, and the freedom and participation of the parent,
guardian, or custodian.
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006); see also Ind. Code § 31-37-18-6.
We will reverse only if the juvenile court’s order is against the logic and effect of
the facts and circumstances before it, or the reasonable, probable, and actual
deductions that may be drawn therefrom. K.S., 849 N.E.2d at 544. Juvenile
courts are accorded wide latitude and great flexibility in their dealings with
juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008).
[13] S.L. correctly notes that Indiana Code section 31-37-18-6 requires the juvenile
court to place the child in the least restrictive setting, but only if that placement
is “consistent with the safety of the community and the best interest of the
child.” In other words, the statute recognizes that in certain situations, the
child’s best interest—as well as the community’s—is better served by a more
restrictive placement. K.A. v. State, 775 N.E.2d 382, 386-87 (Ind. Ct. App.
2002); see also D.P. v. State, 783 N.E.2d 767, 770 (Ind. 2003) (acknowledging
that placement with the DOC may still be appropriate even if less restrictive
alternatives are available).
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[14] In this case, S.L. has had many chances to reform her behavior with less
restrictive alternatives than placement with the DOC.
• In July 2016, S.L. began receiving home-based services after she was
reported for habitual disobedience of her parent. Charges were refiled in
September 2016 with a preliminary report of being a runaway. She was
adjudicated a delinquent in December 2016, ordered to be on supervised
probation, and ordered to participate in the juvenile problem-solving
court.
• S.L. began participating with the problem-solving court in March 2017.
On March 21, 2017, she was sanctioned for violating the participation
agreement by associating with a negative peer group, violating curfew,
failing to attend school, and failing to attend required treatment and
programming.
• In April 2017, S.L. was again sanctioned for failing to complete an
assignment for her case plan objectives.
• In May 2017, she was sanctioned for tardiness at school.
• In June 2017, S.L. was again sanctioned for associating with a negative
peer group.
• In August 2017, S.L. was arrested for the instant intimidation offense.
• In September 2017, she was sanctioned for failing to report for a drug
screen and was moved back to the first phase of the program.
• In October, November, and December 2017, S.L. was repeatedly
sanctioned for failure to attend school, poor academic performance,
inappropriate behavior, failure to attend required treatment, submitting a
positive drug screen, and lying about her substance use.
• Shortly thereafter, S.L. was terminated from the problem-solving court
program and from probation.
The problem-solving court is the most intensive program in Lawrence County
short of incarceration. As S.L.’s current probation officer and case manager
testified, “[t]here is nothing else we have that’s more than what we already did
with her.” Tr. Vol. II p. 73. S.L.’s current and previous probation officers
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recommended placement with the DOC because there were no other services
available that she had not already tried and failed. 2
[15] S.L. notes that there was evidence tending to show that she had made positive
strides in the weeks leading up to the dispositional hearing. Indeed, there was
testimony that she was working toward her GED, was more helpful at home,
and was behaving in a more controlled and mature manner. This amounts,
however, to a request that we reweigh the evidence, which we may not do. The
evidence establishes that S.L. has been afforded many opportunities to reform
her behavior and that she has failed to take advantage of those opportunities.
Indeed, she even committed the instant offense while still participating with the
problem-solving court for her previous one. There were simply no viable
options left aside from commitment to the DOC. Therefore, we find that the
juvenile court did not err by ordering that S.L. be committed to the DOC.
[16] The judgment of the juvenile court is affirmed.
May, J., and Robb, J., concur.
2
There was also evidence that S.L. was part of a Child in Need of Services case and that her mother was also
repeatedly sanctioned for failing to abide by the problem-solving court agreement for failing to properly
supervise S.L. Based on these facts, S.L.’s probation officer concluded that S.L. was at a high risk to reoffend
if left in the care of her mother.
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