MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jul 03 2019, 8:08 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General of Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA
N.G.                                                      July 3, 2019
                                                          Court of Appeals Case No.
Appellant-Respondent,                                     19A-JV-18
        v.                                                Appeal from the Vigo Circuit
                                                          Court
State of Indiana,                                         The Honorable Sarah K. Mullican,
                                                          Judge
Appellee-Petitioner.
                                                          Trial Court Cause Nos. 84C01-
                                                          1701-JD-60, 84C01-1711-JD-1482,
                                                          & 84C01-1810-JD-1235




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019                           Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, N.G., appeals his adjudication for an offense that would

      constitute theft, a Class A misdemeanor, Ind. Code § 35-43-4-2, if committed by

      an adult.


[2]   We affirm.


                                                     ISSUE
[3]   N.G. presents one issue on appeal, which we restate as follows: Whether the

      State presented sufficient evidence beyond a reasonable doubt to sustain his

      adjudication as a delinquent.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2018, N.G. was on probation for two acts that would be offenses committed

      by an adult, namely Level 6 felony intimidation (under Cause No. 84C01-1701-

      JD-60), and Level 6 felony resisting law enforcement (under Cause No. 84C0l-

      l7ll-JD-l482). On September 20, 2018, N.G., A.C., A.M., J.E., and E.R., all

      rode together in one vehicle to the Jiffy Mart convenience store in Terra Haute,

      Indiana. The store’s surveillance video showed the juveniles scatter to various

      locations inside the store to either serve as a distraction or a look for A.M.

      N.G. walked to the middle of the store, stood in front of the cashier for a

      moment, and then retrieved his cellphone from his pocket and began looking at

      the screen. A surveillance video from another angle showed A.M. walking to

      the counter near the bathrooms and reach for a packet of cigars worth “99

      cent[s].” (Transcript Vol. X, p 30). After putting the cigars in his pocket, A.M.
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019   Page 2 of 7
      made a hand gesture to the other juveniles, including N.G., to leave the store.

      A.M. successfully left the store, but when the other juveniles attempted to leave,

      one of the store clerks, Robert Bailey (Bailey), stopped them.


[5]   When Bailey asked N.G. what he was doing inside the store, N.G. stated that

      he was waiting on A.M., who was using the bathroom. Bailey asked the boys

      to empty their pockets and, after determining that they did not have any stolen

      merchandise, he ordered them to leave. Bailey then followed them outside.

      The surveillance camera outside the store showed the teenage boys, excluding

      N.G., confront Bailey and hit him several times before running away. N.G.

      was not involved in the battery.


[6]   On October 25, 2018, the State filed a Petition Alleging Delinquency, claiming

      that N.G. had committed acts that would be offenses if committed by an adult,

      namely, Level 3 felony aggravated battery, Class A misdemeanor theft, Class A

      misdemeanor criminal trespass, and Level 3 felony robbery. On November 14,

      2018, the juvenile court conducted a fact-finding hearing. The store’s

      surveillance videos were introduced as evidence. N.G. testified that he was

      unaware that A.M. intended to steal the cigars, and the videos showed that he

      was not present with the other juveniles when they battered Bailey outside the

      store. On November 16, 2018, the juvenile court entered the following order:


              There was no evidence tendered by the State that [N.G.] was
              involved in an aggravated battery (Count 1), criminal mischief
              (Count 3), or robbery (Count 5). While others in his group
              appeared to commit criminal trespass (Count 4), the evidence
              indicated that [N.G.] left the premises when asked to do so.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019   Page 3 of 7
              However, the court does find that the State carried its burden
              with regard to Count 2, [t]heft. The evidence indicated that the
              same group of boys had come into the convenience store earlier
              that day and shoplifted. When they returned for the incident in
              question, [A.M.] was clearly shown on the surveillance video
              stealing a package of cigars and then signaling to the rest of the
              group. Presumably, [A.M.] had reason to believe the group was
              waiting for his signal. While [N.G.] testified that the purpose of
              the stop at the Store was for [A.M.] to use the restroom, neither
              [A.M.] nor anyone else was shown to have used the restroom or
              have made any purchases.


              Accordingly, the court finds that [N.G.] did commit the
              delinquent act of theft (I.C. [§] 35-43-4-2). This matter is set for
              disposition on this cause and for modification in Cause No.
              84C01-1711-JD-1482 on November 29, 2018 at 9:30 a.m.


[7]   N.G. now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[8]   N.G. argues that the State failed to present sufficient evidence beyond a

      reasonable doubt that he acted as an accomplice to what would be a Class A

      misdemeanor theft, if committed by an adult.


[9]   When the State seeks to have a juvenile adjudicated a delinquent for

      committing an act that would be a crime if committed by an adult, the State

      must prove every element of the offense beyond a reasonable doubt. C.L. v.

      State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing on appeal the

      sufficiency of the evidence supporting a juvenile adjudication, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019     Page 4 of 7
       N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most

       favorable to the judgment and the reasonable inferences therefrom, and we will

       affirm if the evidence and those inferences constitute substantial evidence of

       probative value to support the judgment. C.L., 2 N.E.3d at 800.


[10]   In order to make a true finding of delinquency for theft against N.G., the State

       was required to prove beyond a reasonable doubt that N.G. knowingly or

       intentionally exerted unauthorized control over the property of another person

       with the intent to deprive that person of any part of the property’s value or use.

       I.C. § 35-43-4-2. While it is undisputed that A.M. stole the cigars, N.G. argues

       that his adjudication can only stand if he was an “accomplice to A.M.’s theft of

       the cigars.” (Appellant’s Br. p. 11). It is well-established in Indiana that there

       is no distinction between criminal responsibility of a principal and that of an

       accomplice. McQueen v. State, 711 N.E.2d 503, 504 (Ind. 1999). Thus, one may

       be charged as a principal yet convicted as an accomplice. Id. Under

       accomplice liability, the State was required to prove beyond a reasonable doubt

       that N.G. knowingly or intentionally aided, induced, or caused A.M. to

       commit theft. I.C. § 35-41-2-4. Factors to consider in deciding accomplice

       liability include: (1) presence at the scene of the crime; (2) companionship with

       another engaged in a crime; (3) failure to oppose the commission of the crime;

       and (4) the course of conduct before, during, and after the occurrence of the

       crime. Whedon v. State, 765 N.E.2d 1276, 1277 (Ind. 2002). While mere

       presence at the scene or acquiescence in the crime is not sufficient to establish




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019   Page 5 of 7
       accomplice liability, they may be considered along with these factors to

       determine participation. Id.


[11]   The facts and circumstances presented here establish that N.G., A.M., and the

       other boys, acted together in depriving Jiffy Mart of the value and use of the

       cigars. After entering the convenience store together, each of the juveniles,

       including N.G., scattered throughout the store to either watch the store

       employees or to serve as distractions. After A.M. stole a package of cigars, he

       signaled with his hands to the rest of the group including N.G. Upon A.M.’s

       signal, the entire group of juveniles, including N.G., attempted to leave the

       store with A.M., but the store clerk confronted them and forced them to turn

       their pockets inside out. While N.G. asserts that it was only A.M. who exerted

       unauthorized control over the cigars and that he was unaware that A.M. and

       the other boys intended to steal the cigars, N.G. merely invites us to reweigh

       the evidence and reassess witness credibility, an invitation that we must decline.

       The record supports the trial court’s true finding that N.G. committed theft

       pursuant to the theory of accomplice liability. As such, we hold that the State

       presented sufficient evidence beyond a reasonable doubt to support the juvenile

       court’s true finding of delinquency.


                                              CONCLUSION
[12]   The State established that N.G. assisted A.M. in the commission of the theft.

       As a result, the evidence supports N.G.’s adjudication as a juvenile delinquent

       for committing what would constitute Class A misdemeanor theft if committed

       by an adult.
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019   Page 6 of 7
[13]   Affirmed.


[14]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-18 | July 3, 2019   Page 7 of 7
