Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      Dec 11 2014, 10:22 am

any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                                  GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   CHRISTINA D. PACE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA
D.B.,                                              )
                                                   )
        Appellant-Respondent,                      )
                                                   )
               vs.                                 )        No. 49A02-1406-JV-376
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee-Petitioner.                       )

        APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
                      The Honorable Marilyn Moores, Judge
                    The Honorable Geoffrey Gaither, Magistrate
                         Cause No. 49D09-1403-JD-524

                                       December 11, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          D.B. challenges the court’s order committing him to the Department of Correction

(“DOC”) for delinquent act that, if committed by an adult, would be Class B felony burglary

in violation of Ind. Code § 35-43-2-1 and Class D felony theft in violation of Ind. Code § 35-

43-4-2. D.B. also challenges the sufficiency of evidence supporting a restitution order. We

affirm.

                         FACTS AND PROCEDURAL HISTORY

          On August 1, 2013, when D.B. was sixteen years old, he entered Jason Seaver’s home

and stole a MacBook, an iPad, an iPhone, an iPod, and some cash. Seaver and his family

were sleeping in the house at the time. Seaver heard the disturbance and found D.B. in front

of his children’s bedroom door. D.B. ran and was not arrested for this act.

          On August 23, 2013, D.B. committed another burglary. This matter was disposed of

on December 5, 2013, without the court having knowledge of the August 1 burglary. D.B.

was ordered to complete probation with a suspended commitment to the DOC, complete one

hundred hours of “Restitution Work Program,” complete substance abuse evaluation and

counseling, submit to drug testing, abide by a curfew, complete the Restoring Excellence

Program, pay $500.00 restitution, attend school, and have no contact with the victims or their

property. (App. at 142-43.)

          On March 7, 2014, the State filed a delinquency petition for the August 1, 2013

burglary. D.B. and the State filed an admission agreement on April 10, 2014, and the court

held a disposition hearing on May 1, 2014. The court committed D.B. to the DOC for a

recommended term of six months and ordered him to pay $1000.00 in restitution.

                                              2
                             DISCUSSION AND DECISION

       1.     Placement in DOC

       The choice of a specific disposition of a juvenile adjudicated a delinquent child
       is within the sound discretion of the juvenile court, subject to the statutory
       considerations of the welfare of the child, the community’s safety, and the
       Indiana Code’s policy of favoring the least harsh disposition. We will not
       reverse a juvenile disposition absent a showing of an abuse of discretion. An
       abuse of discretion occurs when the [juvenile] court’s action is clearly
       erroneous and against the logic and effect of the facts and circumstances
       before the court, or the reasonable, probable, and actual deductions to be
       drawn therefrom.

D.S. v. State, 829 N.E.2d 1081, 1084 (Ind. Ct. App. 2005) (internal citations omitted). See

also Ind. Code § 31-37-18-6 (listing factors the court must consider in entering a

dispositional decree).

       Since 2008, D.B. has had nine referrals and five true findings: once for burglary,

twice for theft, and twice for criminal mischief. He has been afforded rehabilitation services

including psychological evaluation, substance abuse services, counseling services, prior

Child in Need of Services services, and prior probation services. (Id. at 62.) Since his

detention in March, 2014, D.B. has had three “incidents” reported. (Id.) His psychological

evaluation stated he would likely get little benefit from primary residential services and “a

delinquency-based residential care setting would will [sic] not likely have much impact on

his future delinquency risk status.” (Id.)

       D.B. asserts the court abused its discretion in ordering him to the DOC. D.B. argues

that his case is not like D.S. v. State, wherein we affirmed a juvenile court placement of a

juvenile in the DOC for committing an additional crime while on probation. D.S., 829

                                              3
N.E.2d at 1083. D.B. notes that, in contrast, his August 1, 2013, actions were prior to the

actions for which he was placed on probation in December of 2013. While that may be true,

like D.S., D.B. “has a prior history of delinquent activity and true findings; . . . previous

dispositional alternatives had been exercised . . . and . . . [he] was in need of care, treatment,

rehabilitation, or placement.” Id. at 1085.

       D.B. also argues that, although the current crime for which he is being committed to

the DOC was not known to the court when the court placed him on probation in December, if

probation was sufficient in December, then it should be sufficient for a crime committed

earlier. Regardless of the order in which delinquent acts come to light, it remains the court’s

obligation to consider the welfare of the child and the community at the time of disposition.

See Ind. Code § 31-37-18-6 (listing factors the court must consider in entering a dispositional

decree). Upon the court becoming aware of all the delinquent acts committed by D.B.,

regardless of the timing, these considerations become key, and it was not an abuse of

discretion for the court to commit D.B. to the DOC. See J.B. v. State, 849 N.E.2d 714, 717-

18 (Ind. Ct. App. 2006) (court did not abuse its discretion when taking the safety of the

community into account when committing J.B. to DOC).

       2.      Restitution

       Pursuant to Indiana Code section 31-37-19-5(b)(4), a juvenile court may order a child

to pay restitution if the victim provides reasonable evidence of loss, which evidence the child

may challenge at the dispositional hearing.

       The restitution order is within the court’s discretion, and this court will reverse
       only upon a showing of an abuse of discretion. An abuse of discretion occurs
                                               4
       when the trial court’s determination is clearly against the logic and effect of
       the facts and circumstances before the court, or the reasonable, probable, and
       actual deductions to be drawn therefrom.

J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal citations omitted). Evidence

supporting a restitution order is sufficient “if it affords a reasonable basis for estimating loss

and does not subject the trier of fact to mere speculation or conjecture.” T.C. v. State, 839

N.E.2d 1222, 1227 (Ind. Ct. App. 2005) (quoting State v. Kinneman, 155 Wash.2d 272, 119

P.3d 350, 357 (2005)).

       D.B. asserts the order he pay $1000 in restitution was error because there was no

evidence of loss to Seaver. However, Seaver testified his insurance company “replace[d]

items less the deductible of $1000.” (Tr. at 86.) The State offered into evidence a

declarations page from Seaver’s insurance company showing that deductible. (Ex. at 2.)

That evidence permitted the court’s finding Seaver’s loss was at least $1000. D.B.’s

argument is an invitation for us to reweigh the evidence, which we cannot do. See In re

Ma.J., 972 N.E.2d 394, 400 (Ind. Ct. App. 2012) (court neither reweighs evidence nor judges

witness credibility).

       The court did not abuse its discretion by placing D.B. in the DOC. The State also

presented sufficient evidence D.B. owed restitution in the amount of $1000.00. Accordingly,

we affirm.

       Affirmed.

BARNES, J., and PYLE, J., concur.



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