N.M. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 09 2018, 6:31 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael G. Moore Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N.M., May 9, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1711-JV-2539
v. Appeal from the Marion Superior
The Honorable Marilyn Moores,
State of Indiana, Judge
Appellee-Plaintiff. The Honorable Geoffrey A.
Gaither, Magistrate
Trial Court Cause No.
49D09-1706-JD-797
Barnes, Judge.
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Case Summary
[1] N.M. appeals his adjudications as a delinquent child for offenses that would be
Level 6 felony receiving stolen auto parts, Level 6 felony theft, and Class A
misdemeanor criminal trespass, if committed by an adult. We reverse and
remand with instructions.
Issues
[2] The restated issue before us is whether the evidence is sufficient to support the
trial court’s true findings.
Facts
[3] Shortly after 6:00 P.M. on the evening on June 7, 2017, Anne Schott drove her
husband’s 2012 Ford E-350 twelve-passenger van to the Skateland Rollerskating
venue in Indianapolis. The van was in good condition. When she emerged at
approximately 8:30 P.M., the van was gone. The next day, at approximately
6:00 A.M., Officer Anthony Carter of the Indianapolis Metropolitan Police
Department discovered the van in the parking lot of an apartment complex
located six blocks from Skateland.
[4] When Officer Carter approached the van, he saw three juveniles sleeping inside
the vehicle. Seventeen-year-old N.M. was in the rear of the van, while the
other two juveniles were in the driver’s seat and middle row of the van,
respectively. Officer Carter entered the van’s license plate number into his on-
board computer and determined that the van was registered to John Schott and
had been reported stolen. Officer Carter and other responding officers banged
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on the windows to wake the juveniles. The juveniles emerged without incident
and were handcuffed, arrested, and transported to the juvenile processing
center.
[5] Anne and John Schott were called to the scene, where they advised officers that
they did not know N.M. or the other juveniles and that they had not granted the
juveniles permission to use their van. The van “was just trashed,” “reeked of
marijuana . . . [and] was just covered in trash.” Tr. p. 19. There was physical
damage to seatbelts, air vents, and the overhead DVD player, as well as
cigarette burns in the upholstery. Also, the Schotts’ six child car seats and
accessories, food, personal items, and supplies from Lowe’s Hardware were
missing. Total damages, including replacement, cleaning, shampooing, and
repair costs, were approximately $4,000. The van also contained drug
paraphernalia that did not belong to the Schotts.
[6] On June 8, 2017, the State filed a petition alleging that N.M. was a delinquent
child for committing offenses that would be Level 6 felony receiving stolen auto
parts, Level 6 felony theft, and Class A misdemeanor criminal trespass, if
committed by an adult. The trial court conducted a denial hearing on August
17, 2017. The Schotts and law enforcement witnesses testified to the foregoing
facts. At the close of the evidence, the trial court entered true findings on all
counts. On October 5, 2017, the trial court placed N.M. on probation,
suspending his commitment to the Department of Correction. He now appeals.
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Analysis
[7] N.M. argues that the evidence is insufficient to support his adjudications. In
juvenile delinquency adjudication proceedings, the State must prove every
element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d
1223, 1226 (Ind. 2008). “‘In reviewing a sufficiency of the evidence claim, we
do not reweigh the evidence or assess the credibility of the witnesses.’” K.W. v.
State, 984 N.E.2d 610, 612 (Ind. 2013) (quoting Treadway v. State, 924 N.E.2d
621, 639 (Ind. 2010)). We look to the evidence and reasonable inferences
drawn therefrom that support the judgment, and we will affirm the adjudication
if there is probative evidence from which a reasonable factfinder could have
found the defendant guilty beyond a reasonable doubt. Id. We will reverse if
there is no evidence or reasonable inference to support any one of the necessary
elements of the offense. Id. We must thus determine whether substantial
evidence of probative value was presented at trial from which a reasonable
factfinder could conclude beyond a reasonable doubt that N.M.’s 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.
A. Sufficiency – Receiving Stolen Property
[8] N.M. first argues that the evidence was insufficient to prove that he committed
Level 6 felony receiving stolen auto parts. Specifically, he contends that the
State failed to present evidence that he acquired possession or control of the van
or that he knew it was stolen.
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[9] In order to make a true finding of delinquency against N.M. for Level 6 felony
receiving stolen auto parts, the State was required to prove beyond a reasonable
doubt that he knowingly or intentionally received, retained, or disposed of a
motor vehicle or any part of a motor vehicle of another person, John Schott,
that had been the subject of theft. See Ind. Code § 35-43-4-2.5(c). In addition to
proving the explicit elements of the crime, 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 (Ind. 2010)).
[10] “Knowledge that the property is stolen may be established by circumstantial
evidence; however, knowledge of the stolen character of the property may not
be inferred solely from the unexplained possession of recently stolen property.”
Fortson, 919 N.E.2d at 114; Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App.
2005). “The test of knowledge is a subjective one, asking whether the
defendant knew from the circumstances surrounding the possession that the
property had been the subject of a theft.” Barnett, 834 N.E.2d at 172 (quoting
Purifoy v. State, 821 N.E.2d 409, 414 (Ind. Ct. App. 2005)). “Possession of
recently stolen property when joined with attempts at concealment, evasive or
false statements, or an unusual manner of acquisition may be sufficient
evidence of knowledge that the property was stolen.” Id.; see Driver v. State, 725
N.E.2d 465 (Ind. Ct. App. 2000) (trier of fact may infer defendant’s knowledge
that the property is stolen from possession, coupled with facts like the defendant
lying about how he acquired the property).
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[11] In Fortson, the defendant was seen driving a stolen vehicle within hours of its
owner reporting it stolen. He was convicted in absentia of receiving stolen
property. On appeal, he challenged the sufficiency of the evidence. A panel of
this court reversed his conviction. Our supreme court granted transfer and
summarily affirmed this court’s opinion stating,
[T]he Court of Appeals concluded that in this case the
circumstances did not support a reasonable inference that
Fortson knew the property was stolen. The court noted that
there was no evidence that Fortson attempted to conceal the
truck from the officers, physically resist the officers, flee, or that
he provided evasive answers. The court concluded, “Although
Fortson was found to be in possession of recently stolen property,
the State failed to provide any other facts to support an inference
of knowledge . . . .
[B]ecause the State could only prove that he was in possession of
recently stolen property, that fact alone cannot support the
inference that Fortson knew the truck was stolen. We agree.
And with our holding today, the same conclusion would obtain
had Fortson been charged with theft as opposed to receiving
stolen property.”
Id. at 1143-44.
[12] Here, the State presented the following evidence in its case in chief: Mrs.
Schott testified that her husband’s twelve-passenger van was stolen outside
Skateland; Officer Carter testified that he discovered the stolen van
approximately six blocks away, with three juveniles sleeping inside; a juvenile
was asleep in the driver’s seat, another in the middle row, and N.M. was
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sleeping in the rear of the “trashed” van; the Schotts testified that they did not
know or give the juveniles permission to use their van; and when the police
woke the sleeping juveniles, they emerged without incident. Tr. p. 19.
[13] As in Fortson, the State’s evidence proved only that N.M. was in possession of
the Schotts’ recently-stolen van; however, without additional evidence to
support the inference that he knew, beyond a reasonable doubt, that the van
was stolen, we cannot say that sufficient evidence exists to support the trial
court’s true finding. There was no evidence of evasion, concealment, furtive, or
otherwise suspicious action by N.M. presented at the denial hearing. We must
decline the State’s invitation to infer N.M.’s knowledge that the van was stolen
from the fact that he was found sleeping in its back row. The evidence
presented to support N.M.’s delinquency adjudication was insufficient.
B. Sufficiency – Level 6 Felony Theft
[14] Next, N.M. argues that the evidence was insufficient to prove that he
committed Level 6 felony theft. He argues that the State presented “no
evidence that [he] was present when the van was stolen” or “that he committed
or assisted in the original theft of the van” in which the Schotts’ missing
property was last seen. Appellant’s Br. p. 7. He argues that the State “relied
solely on the fact that N.M. was present in the stolen van hours after the van
had been stolen and [the fact] that the car seats and bases were missing.” Id.
[15] To prove that N.M. committed what would be Level 6 felony theft if committed
by an adult, the State was required to prove that N.M. knowingly or
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intentionally exerted unauthorized control over the property of John Schott –
children’s car seats and bases—with the intent to deprive John Schott of any
part of its value or use, in an amount greater than seven hundred fifty dollars
($750) and less than fifty thousand dollars ($50,000). See I.C. § 35-43-4-2.
[16] Here, the State presented no evidence of what transpired in the twelve hours
that elapsed between Mrs. Schott parking the van outside Skateland and the
police’s discovery of the van—sans car seats—with N.M. and the other
juveniles sleeping inside it. The record contains no evidence whatsoever from
which an inference may be drawn, beyond a reasonable doubt, that N.M. stole
the vehicle from Skateland. The State presented no evidence that N.M. was
present when the child car seats and accessories were removed from the van, no
evidence that linked him to the car seats and accessories after the theft, and no
evidence that he attempted to conceal the van, to resist or flee, or that he was
evasive.
[17] Based upon Fortson, and for the reasons stated above, we conclude that, absent
any circumstantial evidence to support the inference that N.M. knew beyond a
reasonable doubt that the van was stolen and that he had any physical contact
whatsoever with the missing car seats and accessories, the State failed to present
sufficient evidence to support a true finding of Level 6 felony theft.
C. Sufficiency – Class A Misdemeanor Criminal Trespass
[18] N.M. argues that the evidence was insufficient to prove that he committed
Class A misdemeanor criminal trespass. To prove that N.M. committed what
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would be Class A misdemeanor criminal trespass if committed by an adult, the
State was required to prove that he knowingly or intentionally interfered with
the possession or use of the property of John Schott, without his consent. I.C. §
35-43-2-2(b)(4).
[19] N.M. concedes that he interfered with the Schotts’ possession or use of the van,
but denies that he “had the requisite knowledge or intent to do so.” Appellant’s
Br. p. 15. As stated above, the State’s evidence that N.M. was found asleep in
the rear of the Schott’s “trashed” van twelve hours after it was stolen from
Skateland is insufficient to prove that he knowingly or intentionally interfered
with the possession or use of Mr. Schott’s van. See Tr. p. 19. We cannot say
that the State presented sufficient evidence to support a true finding of class A
misdemeanor criminal trespass beyond a reasonable doubt.
Conclusion
[20] The evidence was insufficient to support the trial court’s entry of true findings
against N.M. for offenses that would be Level 6 felony receiving stolen auto
parts, Level 6 felony theft, and Class A misdemeanor criminal trespass if
committed by an adult. 1 We reverse and remand with instructions to vacate the
true findings.
[21] Vaidik, C.J., and Pyle, J., concur.
1
Because N.M.’s sufficiency claims are dispositive, we need not reach his remaining challenges to admission
of evidence and his invocation of the prohibition against double jeopardy.
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