A.H. and J.H. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Feb 22 2016, 5:49 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT A.H. ATTORNEYS FOR APPELLEE
Stuart K. Baggerly Gregory F. Zoeller
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana Chandra K. Hein
ATTORNEY FOR APPELLANT J.H. Deputy Attorney General
Indianapolis, Indiana
Kara E. Krothe
Monroe County Public Defender
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.H. and J.H., February 22, 2016
Appellants-Defendants, Court of Appeals Case No.
53A01-1507-JV-994
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Stephen R. Galvin,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
53C07-1412-JD-752
53C07-1412-JD-753
Mathias, Judge.
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[1] In this consolidated appeal, A.H. and J.H. challenge the order of the Monroe
Circuit Court adjudicating them to be delinquent children for committing what
would be Level 3 arson and Level 4 arson if committed by an adult. On appeal,
A.H. and J.H. claim that the State failed to present evidence sufficient to prove
that the acts at issue were committed in Monroe County, Indiana.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Maria Cortes lived in a house on West 12th
Street in Bloomington, Indiana. On December 11, 2014, Ms. Cortes came
home from a shopping trip and observed a teenage boy and girl walking from
behind the house at 1019 West 12th Street, which was next door to her house.
This struck Ms. Cortes as odd, as the 1019 house was vacant at the time. Ms.
Cortes recognized the boy as A.H. and the girl as J.H., both of whom had been
friends of the previous tenants at the now-vacant house. About two minutes
after Ms. Cortes arrived home, a neighbor knocked on her front door and
informed her that the vacant house next door was on fire. Another neighbor
telephoned 911.
[4] In the meantime, A.H. and J.H. had gone to a nearby basketball court, where
they met an acquaintance, S.B., who asked them if they had set the house on
fire. According to S.B.:
[A.H.] wasn’t shy about it. He told me he done it. And then I
asked him how he done it and why were they in the house and
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they told me that they were in the house because they were bored
and they were just hanging out. And then they were bored I
guess and they tried to light a cup on fire I think and it didn’t
light and so then they lit a blanket on fire and [J.H.] shoved it in
the couch cushion and that’s how the fire got started.
Tr. p. 44.
[5] The first officer on the scene was Shawn Hines (“Officer Hines”) of the
Bloomington Police Department, who reported to a possible structure fire on
West 12th Street. Officer Hines determined that no one was in the structure,
then began to keep the gathering crowd away from the fire. Officer Hines spoke
with the man who had called 911. This man told Officer Hines that Ms. Cortes
had “possibly seen something.” Tr. p. 5. Officer Hines spoke to Ms. Cortes who
indicated that A.H. was possibly involved with the fire.
[6] The Bloomington Fire Department responded to the scene. As the firefighters
battled the blaze, Bloomington Fire Department Fireman Matthew Peterson
(“Fireman Peterson”) was knocked down the stairs and injured his lower back
and buttocks, causing him pain. The firefighters were able to put out the fire but
not before the house sustained severe damage. Bloomington Fire Inspector Joe
Johnson (“Inspector Johnson”) investigated the fire and determined that it had
started on a futon located in the upstairs living room. Inspector Johnson ruled
out accidental causes, such as an electrical fire, and concluded that the fire had
been set. He based his conclusion on the burn patterns on the ceiling above the
futon and the lack of other sources of ignition near where the fire started. It was
later determined that the house, which was valued at $179,000, was a total loss.
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[7] Bloomington Police Department Detective Steven Reynolds (“Detective
Reynolds”) investigated the suspected arson and later spoke with the prior
tenant of the home. Detective Reynolds mentioned that two children were seen
leaving the area of the home and asked the former tenant if her children had
any friends about the age of these children. The tenant then mentioned A.H.
and J.H. by name. Detective Reynolds later interviewed A.H. and J.H., who
denied involvement with the arson.
[8] On December 15, 2014, the trial court authorized the filing of a petition alleging
that A.H. and J.H. were delinquent children for committing what would be
Level 4 arson if committed by an adult. On April 27, 2015, the State amended
the petition to include allegations that A.H. and J.H. had committed what
would be Level 3 felony arson resulting in bodily injury if committed by an
adult.
[9] The trial court held a fact-finding hearing on April 29, 2015, at the conclusion
of which the court took the matter under advisement. On May 6, 2015, the trial
court entered a true finding adjudicating A.H. and J.H. to be delinquent
children. At a dispositional hearing held on June 1, 2015, the trial court ordered
A.H. and J.H. to serve sixth months of formal probation, pay restitution to the
victims, and complete the Bloomington Fire Department’s Fire Setting
Program. A.H. and J.H. now appeal.
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Discussion and Decision
[10] A.H. and J.H. claim that the State failed to sufficiently establish that the acts
upon which their delinquency finding was based occurred in Monroe County.
When the State seeks to have a juvenile adjudicated as a delinquent child for
committing an act which would be a crime if a committed by an adult, the State
must prove every element of the crime beyond a reasonable doubt. E.D. v. State,
905 N.E.2d 505, 506 (Ind. Ct. App. 2009). When we review a juvenile
adjudication, we consider only the evidence and reasonable inferences
supporting the judgment and will neither reweigh evidence nor judge the
credibility of the witnesses. Id. If substantial evidence of probative value exists
from which a reasonable trier of fact could conclude that the juvenile was guilty
beyond a reasonable doubt, we will affirm the adjudication. Id. at 506-07.
[11] A.H. and J.H. argue that the State was required to prove “territorial
jurisdiction” beyond a reasonable doubt. See An-Hung Yao v. State, 975 N.E.2d
1273, 1276-77 (Ind. 2012) (noting that the State of Indiana must prove beyond a
reasonable doubt that the crime at issue occurred in Indiana). Here, the issue is
not one of “territorial jurisdiction” because no one contends that the crimes
occurred outside Indiana. Instead, A.H. and J.H. claim that the State failed to
prove that the crimes occurred in Monroe County. This may raise a claim of
failure to prove venue, not territorial jurisdiction.
[12] In a criminal proceeding, a defendant has a constitutional and statutory right to
be tried in the county in which an offense allegedly was committed. Baugh v.
State, 801 N.E.2d 629, 631 (Ind. 2004) (citing Ind. Const. Art. 1, § 13; Ind.
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Code § 35-32-2-1(a)). A juvenile alleged to be a delinquent child has a similar
statutory right. See Ind. Code § 31-32-7-1 (If a child is alleged to be a delinquent
child . . . proceedings under the juvenile law may be commenced in the county:
(1) where the child resides; (2) where the act occurred; or (3) where the
condition exists.”). However, venue is not an element of the offense, and the
State may establish venue by a preponderance of the evidence and need not
prove it beyond a reasonable doubt. Id. Venue may be established by
circumstantial evidence. Bryant v. State, 41 N.E.3d 1031, 1037 (Ind. Ct. App.
2015).
[13] Here, however, neither A.H. nor J.H. made any objection to the trial court’s
venue at either the fact-finding hearing or the dispositional hearing. The failure
to object to venue results in waiver of the alleged error. Smith v. State, 809
N.E.2d 938, 942 (Ind. Ct. App. 2004). Waiver notwithstanding, we conclude
that the State presented evidence from which the trial court could reasonably
find, by a preponderance of the evidence, that the acts alleged to be crimes
occurred in Monroe County. Several witnesses testified that the fire occurred on
1019 West 12th Street. The first person to respond to the 911 call was an officer
with the Bloomington Police Department, and the Bloomington Fire
Department also responded to the call. The fire inspector who investigated the
fire testified that he was employed by the City of Bloomington. Also, the police
detective who investigated the arson worked for the Bloomington Police
Department. From this evidence, the trial court could reasonably conclude that
the fire took place in Bloomington, Indiana. Both this court and the trial court
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are allowed to take judicial notice that Bloomington is in Monroe County. See
Buhmeier v. State, 206 Ind. 645, 647, 190 N.E. 857, 858 (1934) (taking judicial
notice that City of Evansville is in Vanderburgh County); see also Ind. Evidence
Rule 201(a) (providing that a trial court may take judicial notice of a fact that
“is not subject to reasonable dispute because it is generally known within the
trial court’s territorial jurisdiction[.]”).1
Conclusion
[14] Under the facts and circumstances present in this case, the trial court could
reasonably conclude that the acts alleged occurred in Monroe County. Thus,
the State properly proved venue, and we affirm the judgment of the trial court.
[15] Affirmed.
Kirsch, J., and Brown, J., concur.
1
Even if the issue were to be framed as one of territorial jurisdiction as alleged by A.H. and J.H., this same
evidence is sufficient to establish beyond a reasonable doubt that the acts alleged to be crimes occurred in
Indiana.
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