D.W. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 18 2018, 9:26 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Elizabeth A. Houdek Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.W., July 18, 2018
Appellant-Respondent, Court of Appeals Case No.
49A02-1712-JV-2849
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Petitioner. Marilyn A. Moores, Judge
The Honorable
Geoffrey Gaither, Magistrate
Trial Court Cause No.
49D09-1706-JD-796
Kirsch, Judge.
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[1] D.W. appeals his adjudication as a delinquent child for committing offenses
that would be Level 6 felony receiving stolen auto parts,1 Level 6 felony theft,2
and Class A misdemeanor criminal trespass,3 if committed by an adult. He
raises three issues, of which we find the following to be dispositive: whether the
State presented sufficient evidence to support each of the true findings.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] At around 9:00 p.m. on June 7, 2017, Indianapolis Metropolitan Police
Department (“IMPD”) Officer Jordan Huffman (“Officer Huffman”) was
dispatched to the Skateland roller skating rink on the report of a stolen vehicle,
namely a 2012 Ford E-350 twelve-passenger van owned by John Schott
(“Schott”). When he arrived, Officer Huffman met with Schott’s wife, Anne
Schott (“Anne”), who several hours earlier had driven seven children in the van
to Skateland, and when they came out around 8:30 p.m., the van was gone.
Schott arrived on the scene and verified that he had not moved the vehicle.
Anne still had the keys with her, and she told Officer Huffman that she thought
she had locked it. There was no broken glass on the ground in the parking lot
where the van had been parked. Anne told Officer Huffman that, when she
1
See Ind. Code § 35-43-4-2.5(c).
2
See Ind. Code § 35-43-4-2.
3
See Ind. Code § 35-43-2-2(b)(4).
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parked the vehicle and went inside the rink, there had been two booster seats
and two child car seats, along with two infant seat bases (together, “the child
safety seats”), in the van.
[4] At around 5:00 a.m. the next day, officers were dispatched to an apartment
complex in Marion County regarding a suspicious vehicle, specifically a white
passenger van parked and occupied by individuals. IMPD Officer Anthony
Carter (“Officer Carter”) responded and observed three juvenile males, later
identified as G.K., D.W., and N.M., asleep in the van. G.K. was in the driver’s
seat, D.W. was in the middle row of seats, and N.M. was in the back row.
Officer Carter checked the license plate in his computer and determined it had
been reported as stolen. Other officers arrived at the scene, and the three
occupants were awakened, removed, and transported to the juvenile processing
center. Anne was contacted and came to the scene to take possession of the
van. Upon arrival, she observed that the van’s interior was damaged, the child
safety seats were missing, and there were various personal items in the van that
did not belong to the Schotts. Those items were removed and transported to
IMPD’s property room.
[5] On June 8, 2017, the State filed, and the trial court subsequently approved, a
delinquency petition, alleging that D.W. committed acts that would constitute
the following offenses if committed by an adult: Count 1, Level 6 felony
receiving stolen auto parts by knowingly or intentionally receiving, retaining, or
disposing of Schott’s motor vehicle, which had been the subject of theft; Count
2, Level 6 felony theft by knowingly or intentionally exerting unauthorized
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control over Schott’s child safety seats; and Count 3, Class A misdemeanor
criminal trespass by knowingly or intentionally interfering with the possession
or use of “the property of [] Schott” without his consent. Appellant’s App. Vol. II
at 22.4
[6] On August 27, 2017, the juvenile court conducted a combined denial hearing
for D.W., G.K. and N.M., who each faced the same delinquency allegations.
Schott testified that he owned the van, that that he did not know D.W. or the
other two juveniles who were found asleep in his van, and none had his
permission to use it. He said when it was found the next morning, it was
“trashed” and had “lots of . . . I guess stolen items in it[.]” Tr. Vol. II at 10.
Anne testified that on June 7 she drove the van to Skateland around 6:00 p.m.,
taking a group of children to skate. She described that the van “was in good
condition since it was fairly new” and that it had six child safety seats in it
when she parked and went inside Skateland. Id. at 13. When she came out
around 9:00 p.m., the van was gone, so she called 911. She stated that when
she saw the van the next morning, “[I]t reeked of marijuana, it was trashed,
there was food, there was a variety of electronics, sunglasses, shoes, cologne,
candy, drug paraphernalia, um, it was just covered in trash.” Id. at 14. She
testified that none of those items belonged to the Schotts. Anne stated that the
4
On appeal, one of D.W.’s three claims of error is that the delinquency petition’s charging information for
criminal trespass was defective because it did not identify what property of Schott’s was used or interfered
with, and because D.W. did not object to the allegation, he acknowledges that he needed to show
fundamental error. Because we resolve D.W.’s appeal on other grounds, we do not reach this issue.
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child safety seats were gone and also testified, “[A]ll of my personal items were
no longer in there[,]” except for a “a few small items.” Id. Receipts were
admitted into evidence showing the cost to replace what was stolen, as well as
what she paid to repair damage to the seat belts, air vents, the overhead DVD
player, and burns to the upholstery. Anne stated that she did not know D.W.
or the other juveniles and that they did not have permission to be in the Schotts’
van.
[7] Officer Carter testified that when he arrived at the apartment parking lot at
around 5:20 a.m., in response to the dispatch regarding a suspicious vehicle, he
saw the van with three sleeping occupants, he determined that the “large 12-
passenger van” was stolen, and he called for assistance. Id. at 20. He said
when other officers arrived, they banged on the windows and woke the driver
and then the others. Officer Carter testified that D.W. was in the middle row of
seats. He stated that the location where the van was found was “within six
blocks” of Skateland. Id. at 19. Officer Joshua Treft (“Officer Treft”) testified
that he arrived at the scene, parked his vehicle in front of the van, and waited
for other officers to arrive. He described that the occupants were “compliant”
once the officers woke them. Id. at 25. He estimated that where the van was
found was “maybe a mile” from Skateland. Id. at 24.
[8] At the conclusion of the hearing, the juvenile court entered a true finding as to
the three allegations: receiving stolen auto parts, theft, and criminal trespass.
Id. at 33. That same date the juvenile court issued a written Order on Fact
Finding hearing that ordered D.W. to continue on previously-imposed release
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conditions and set the matter for dispositional hearing. Appellant’s App. Vol. II
at 84-86. The November 9, 2017 Dispositional Order suspended commitment
to the Indiana Department of Correction and placed D.W. on probation, which
included terms of day reporting and GPS electronic monitoring. Id. at 14-16.
D.W. now appeals.
Discussion and Decision
[9] D.W. argues that the evidence was not sufficient to support the three true
findings. A finding by a juvenile court adjudicating a child to be a delinquent
must be based upon proof beyond a reasonable doubt. Ind. Code § 31-37-14-1.
Our review for the sufficiency of the evidence with respect to juvenile
adjudications is the same as for criminal convictions. A.J.R. v. State, 3 N.E.3d
1000, 1004 (Ind. Ct. App. 2014). We neither reweigh the evidence nor judge
the credibility of the witnesses. D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App.
2017). We consider only the evidence most favorable to the judgment and the
reasonable inferences drawn therefrom and will affirm if the evidence and those
inferences constitute substantial evidence of probative value to support the
judgment. C.L. v. State, 2 N.E.3d 798, 799 (Ind. Ct. App. 2014). We will
reverse if there is no evidence or reasonable inference to support any one of the
necessary elements of the offense. K.W. v. State, 984 N.E.2d 610, 612 (Ind.
2013).
[10] D.W. argues that the State did not present substantial evidence of probative
value from which a reasonable factfinder could conclude beyond a reasonable
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doubt that his conduct, if committed by an adult, would constitute Level 6
felony receiving stolen auto parts, Level 6 felony theft, and Class A
misdemeanor criminal trespass. We agree.5
Receiving Stolen Property
[11] In order to make a true finding of delinquency for Level 6 felony receiving
stolen auto parts, the State was required to prove beyond a reasonable doubt
that D.W. knowingly or intentionally received, retained, or disposed of a motor
vehicle or any part of a motor vehicle of another person, here, Schott, that had
been the subject of theft. Ind. Code § 35-43-4-2.5(c); Appellant’s App. Vol. II at
22. The State must also prove beyond a reasonable doubt that the person knew
the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1143-44 (Ind. 2010).
D.W. argues that “[t]here was simply no evidence at all that D.W. knew the
van was stolen.” Appellant’s Br. at 8-9. We agree.
[12] Knowledge that property is stolen may be established by circumstantial
evidence. Fortson, 919 N.E.2d. at 1143. However, knowledge of the stolen
character of the property may not be inferred solely from the unexplained
possession of recently stolen property. Id. “Possession of recently stolen
property when joined with attempts at concealment, evasive or false statements,
5
We note that the juvenile court entered the same three true findings for N.M., who was in the back row of
seats, as it did for D.W., and N.M. filed a direct appeal. By memorandum decision, a panel of this court
reversed, determining that the evidence was not sufficient to support any of the three true findings. N.M. v.
State, No. 49A05-1711-JV-2539, 2018 WL 2124676 (Ind. Ct. App. May 9, 2018). We agree with our
colleagues’ decision and reasoning.
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or an unusual manner of acquisition may be sufficient evidence of knowledge
that the property was stolen.” Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct.
App. 2005); see also Driver v. State, 725 N.E.2d 465, 470-71 (Ind. Ct. App. 2000)
(trier of fact may infer that a defendant had knowledge that property was stolen
based on defendant having possession of it along with lying about how he
acquired it).
[13] Here, at the denial hearing, the State presented evidence that Anne drove the
van to Skateland, and it was stolen sometime between about 6:00 p.m. and 9:00
p.m. on June 7, 2017. No surveillance or other evidence was presented as to
when or how it was stolen. When Anne parked and left the van, it was in
“good” condition. Tr. Vol. II at 13. It was found at around 5:00 a.m. the next
day, parked in an apartment complex about six blocks away, and three juveniles
were sleeping in it. The van was “trashed,” and D.W. was in the middle row of
seats. Id. at 10. The Schotts testified that they did not know the three juveniles
and did not give any of them permission to use or be in their van. When the
police woke the juveniles, they exited the van one by one and were described as
“compliant.” Id. at 25.
[14] While the State’s evidence proved that D.W. was found asleep in the recently-
stolen van, there was no evidence that D.W. gave evasive or false answers to
officers or attempted to resist or flee. There also was no evidence that anyone
attempted to conceal the van or alter its plates, and no evidence that windows
or locks were broken. Based on the record before us, the State failed to present
sufficient evidence from which the juvenile court could infer that D.W. knew
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that the van was stolen. See Fortson, 919 N.E.2d at 1143-44 (reversing
conviction for receiving stolen property where defendant was found driving
stolen vehicle within hours after it was stolen, but there was no evidence that
defendant provided evasive answers, attempted to flee or resist officers, or
attempted to conceal the truck, and thus State failed to provide other facts to
support an inference of knowledge). Accordingly, the evidence to support
D.W.’s true finding for receiving stolen auto parts was insufficient.
Theft
[15] To prove that D.W. committed what would be Level 6 felony theft if
committed by an adult, as charged, the State was required to prove that he
knowingly or intentionally exerted unauthorized control over Schott’s child
safety seats with the intent to deprive Schott of any part of the property’s value
or use, in an amount greater than seven hundred fifty dollars and less than fifty
thousand dollars. Ind. Code § 35-43-4-2; Appellant’s App. Vol. II at 22. D.W.
argues that the evidence was insufficient to prove theft as charged, arguing,
“The State offered no evidence at all to support its charge of theft other than
D.W.’s mere presence inside the stolen van that had contained the missing car
seats twelve hours previously.” Appellant’s Br. at 9.
[16] Here, the State presented no evidence of what occurred in the less-than-twelve
hours between the time that the van was taken from Skateland and when it was
found with the three juveniles sleeping in it and no evidence that D.W.
removed the child safety seats or even was present when the seats were
removed from the van. The State failed to prove beyond a reasonable doubt
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that he knowingly or intentionally exerted unauthorized control over the child
safety seats with the intent to deprive Schott of any part of their use or value.
Accordingly, the State failed to present sufficient evidence to support a true
finding of what would be Level 6 felony theft if committed by an adult.
Criminal Trespass
[17] To support D.W.’s true finding for criminal trespass, the State had to prove that
D.W. knowingly or intentionally interfered with the possession or use of the
property of Schott without his consent. Ind. Code § 35-43-2-2(b)(4); Appellant’s
App. Vol. II at 22. D.W. argues, “Without knowledge the van was stolen, D.W.
could not knowingly or intentionally interfere with the actual owner’s interest
in the van[.]” Appellant’s Br. at 10. We disagree with that reasoning because the
offense of criminal trespass did not require the State to prove that D.W. knew
the van was stolen; it required the State to show that he knowingly or
intentionally used it without the owner’s consent. Nevertheless, we must agree
with D.W. that the evidence was insufficient to support a true finding for
criminal trespass.
[18] Here, the State’s evidence was that Anne drove the van to Skateland on the
evening of June 7, and it was stolen sometime before 9:00 p.m. Early the next
morning, officers found the van about half a mile away, and D.W. was asleep
in it without the Schotts’ permission. Tr. Vol. II at 9, 19-20, 24. The evidence
thus established that (1) D.W. interfered with the Schotts’ use or possession of
the van (2) without the owner’s consent. What remains is whether the evidence
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was sufficient to prove that D.W. knowingly or intentionally did so, as required
by Indiana Code section 35-43-2-2(b)(4).
[19] We recognize that “the mens rea element for a criminal offense is almost
inevitably, absent a defendant’s confession or admission, a matter of
circumstantial proof.” Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012).
Here, the State failed to present any evidence to prove that D.W. knowingly or
intentionally used or possessed the van without Schott’s consent. D.W. was
found asleep in the middle row of seats of Schott’s trashed van less than twelve
hours after it was stolen. We do not know how the van was stolen, who stole it,
when or under what circumstances D.W. entered the van, whether he knew it
did not belong to any of the other two occupants, or whether he believed he or
the others had obtained consent from someone for its use. Based on the limited
evidence presented and our standard of review, and like our colleagues in N.M.
v. State, No. 49A05-1711-JV-2539, 2018 WL 2124676, at *3 (Ind. Ct. App. May
9, 2018), we conclude that the State failed to present sufficient evidence that
D.W. knowingly or intentionally interfered with the possession or use of
Schott’s van without Schott’s consent. We reverse and remand with
instructions to vacate the true findings.6
[20] Reversed and remanded with instructions.
6
Because D.W.’s sufficiency claims are dispositive, we need not reach his claim that the true findings violate
Indiana’s prohibition against double jeopardy.
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Bradford, J., concurs.
Baker, J., concurs in part and dissents in part with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
D.W.,
Appellant-Respondent,
Court of Appeals Case No.
v. 49A02-1712-JV-2849
State of Indiana,
Appellee-Petitioner.
Baker, Judge, dissenting in part.
[21] I respectfully dissent from the majority’s conclusion regarding D.W.’s
delinquency adjudication for criminal trespass.7 As the majority notes, to
establish that D.W. committed an act that would have been criminal trespass
had it been committed by an adult, the State needed to prove that D.W.
knowingly or intentionally interfered with the possession or use of the property
of Schott—the van—without his consent. I.C. § 35-43-2-2(b)(4).
7
I likewise respectfully disagree with the resolution of this issue by a different panel in the companion case of
N.M. v. State, No. 49A05-1711-JV-2539 (Ind. Ct. App. May 9, 2018).
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[22] Schott testified that he owned the van, that he did not know D.W. or the other
two juveniles who were found asleep in his van, and that none had his
permission to use it. A reasonable factfinder could infer from this testimony
that as D.W. did not know Schott and did not have his permission to use the
van, D.W. acted knowingly or intentionally. As such, I believe the evidence is
sufficient to support this adjudication and would affirm on this issue. In all
other respects, I agree with the majority.
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