MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    Dec 21 2018, 10:00 am
regarded as precedent or cited before any
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

B.F.,                                                    December 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-JV-460
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki L.
Appellee-Plaintiff                                       Carmichael, Judge
                                                         The Honorable Maria Granger,
                                                         Special Judge
                                                         Trial Court Cause No.
                                                         10C04-1611-JD-300



Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018             Page 1 of 7
                                               Case Summary


[1]   On three consecutive days at school, B.F. grabbed E.S. and forced him into a

      bathroom where E.S. was held and struck with a belt or otherwise hurt. Several

      other boys were also involved in one or more of these incidents, but B.F. was

      the ringleader each time. Following a delinquency fact-finding hearing, B.F.

      was adjudicated a delinquent for committing multiple acts that would constitute

      crimes if committed by an adult. Specifically, the trial court entered true

      findings of three counts of battery, three counts of confinement, and one count

      of hazing. On appeal, B.F. challenges the sufficiency of the evidence

      supporting his delinquency adjudication.


[2]   We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History


[3]   B.F. and E.S. attended a small private school in southern Indiana, and both

      were members of the school’s soccer team. B.F. was a senior and E.S was a

      freshman at all relevant times.


[4]   During a passing period on Wednesday, October 19, 2016, E.S. was walking

      down the stairs to his locker when B.F. grabbed him by the shoulders, held him

      tight, and forced him into the bathroom at the bottom of the stairs. While

      doing this, B.F. told another student, T.B., to come to the bathroom to “whip”

      E.S. Transcript Vol. Two at 81. T.B. followed and took off his own cloth belt.

      T.B. then proceeded to “whip[] E.S. in the butt a couple times” while B.F. held


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018   Page 2 of 7
      him. Id. When E.S. struggled to get away, B.F. picked E.S. up by the legs and

      held him upside down. E.S. squirmed again and fell to the tile floor, landing on

      his neck and shoulders. B.F. and T.B. then left E.S. in the bathroom. E.S.

      testified that he endured substantial pain as a result of landing on the floor and

      that it hurt when B.F. held him by the shoulders. At some point during the

      encounter, E.S. heard references to “Freshman Wednesday”. Id. at 143.


[5]   The next day, B.F. confronted E.S. once again in the stairwell. B.F. and one or

      two other boys picked E.S. up by his arms and legs and carried him into the

      bathroom. On the way, E.S. grabbed the stairwell and a doorframe, but his

      hands were pried off each time. Inside the bathroom, he was dropped to the

      floor. M.D., a boy much larger than E.S., placed hard pressure on E.S.’s chest,

      holding him to the ground for up to ten seconds. This caused E.S. “a great deal

      of pain.” Id. at 140. E.S. tried to squirm away and kept saying, “I need to go to

      third period”. Id. at 141. M.D. eventually got off of E.S., and the boys left.


[6]   Again, the next day, a Friday, B.F. approached E.S. on the same stairway and

      carried him into the bathroom with the help of others. Several other boys were

      in the bathroom, and B.F. called T.B. in there too. T.B. was not wearing a belt

      this time, so he obtained one from an observer. This time it was a leather belt.

      B.F. restrained E.S., while T.B. struck him several times with the belt. This

      hurt E.S. “a great deal” and left him with a red mark on his leg. Id. at 144.


[7]   E.S. initially said nothing to his parents or school staff because he was

      embarrassed and scared. On Saturday, however, he told his mother about what


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018   Page 3 of 7
      had happened at school the three previous days. Friday had been the most-

      serious incident, and E.S. was afraid the attacks would get worse. His mother

      immediately contacted the dean of the school. All of the boys who engaged in

      the improper behavior, including B.F., admitted their involvement and were

      suspended from school for five days.


[8]   On November 23, 2016, the State alleged that B.F. was delinquent for having

      committed the following acts that would constitute crimes if committed by an

      adult: three counts of Level 6 felony battery, three counts of Level 6 felony

      criminal confinement, one count of Level 6 felony stalking, and one count of

      Class B misdemeanor hazing.1 An evidentiary hearing was held on August 25

      and December 1, 2017. At the conclusion of the evidence, the State sought and

      obtained a dismissal of the stalking allegation. The juvenile court then entered

      a true finding with respect to the remaining allegations. At the dispositional

      hearing on January 8, 2018, the juvenile court ordered that B.F. perform

      twenty-five hours of community service, have no contact with E.S., write an

      apology to E.S. to be filed with the court, and write an essay regarding what

      B.F. had learned from the experience. B.F. now appeals, challenging the

      sufficiency of the evidence.


                                            Discussion & Decision




      1
        Delinquency proceedings were also brought against the other boys involved, each later admitting the
      allegations.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018                 Page 4 of 7
[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 that crime beyond a reasonable doubt. A.E.B. v.

       State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001). On review, we apply the same

       sufficiency standard as that used in criminal cases. Id. We will not reweigh the

       evidence or judge the credibility of witnesses. Id. Instead, we will look only to

       the evidence of probative value and the reasonable inferences that support the

       court’s determination. Id. We will affirm the adjudication unless no reasonable

       factfinder could find the elements of the offense proven beyond a reasonable

       doubt. R.H. v. State, 916 N.E.2d 260, 267 (Ind. Ct. App. 2009), trans. denied.


[10]   We first address the hazing true finding. B.F. contends that the evidence failed

       to establish any of the necessary elements beyond a reasonable doubt. Hazing

       is defined as knowingly or intentionally forcing or requiring another person,

       with or without that person’s consent and as a condition of association with a

       group or organization, to perform an act that creates a substantial risk of bodily

       injury. Ind. Code § 35-42-2-2.5. We agree with B.F. that the evidence was far

       too thin regarding the hazing allegation. Most notably, there was no substantial

       evidence that E.S. was forced or required to endure the abuse in the bathroom

       as a condition of association with the soccer team. Accordingly, we reverse the

       true finding for hazing and remand to the juvenile court to vacate that true

       finding.


[11]   Next, B.F. argues that the State failed to establish that he knowingly or

       intentionally committed the acts for which he was found delinquent. B.F.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018   Page 5 of 7
       asserts that all of the boys involved were members of the soccer team, where

       horseplay and roughhousing were common practice. Further, B.F. notes that

       E.S. laughed at times during the incidents, did not cry, and “never told B.F. or

       the others that he did not like the activities, that they bothered him, that they

       hurt him, or to stop.” Appellant’s Brief at 10. B.F. claims he had “no evil intent

       towards E.S.” Id.


[12]   Each of the offenses required proof that B.F. acted knowingly or intentionally.

       See I.C. § 35-42-2-1(c)(1) (battery is committed when a person “knowingly or

       intentionally…touches another person in a rude, insolent, or angry manner”);

       I.C. § 35-42-3-3(a) (“A person who knowingly or intentionally confines another

       person without the person’s consent commits criminal confinement.”). “A

       person engages in conduct ‘intentionally’ if, when he engages in the conduct, it

       is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). He “engages in

       conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” I.C. § 35-41-2-2(b). Intent is a mental function

       that can be proved by circumstantial evidence and inferred from the defendant’s

       conduct and the natural and usual sequence to which such conduct logically

       and reasonably points. Phipps v. State, 90 N.E.3d 1190, 1195-96 (Ind. 2018).


[13]   The evidence establishes that on three separate occasions, B.F. grabbed or

       picked up E.S. in the hallway, sometimes with the help of others, and forced

       E.S. into the bathroom. On two occasions in the bathroom (Wednesday and

       Friday), B.F. held E.S. while another boy whipped E.S. with a belt and caused



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018   Page 6 of 7
       him substantial pain.2 On Thursday, after being carried into the bathroom, E.S.

       was dropped to the floor and then a much larger boy applied his body weight to

       E.S., placing hard pressure on E.S.’s chest and causing pain. In each instance,

       E.S. struggled unsuccessfully to get free, and on one occasion, his fingers had to

       be pried off the doorway and stairwell.


[14]   This evidence is more than sufficient to establish that B.F. acted knowingly or

       intentionally when he battered and confined E.S. Further, we reject B.F.’s

       suggestion that he enjoyed some privilege to repeatedly impose himself on E.S.

       in this manner – in the name of horseplay – without legal consequence due to

       E.S.’s failure to make clearer his lack of consent.3


[15]   We affirm the battery and confinement true findings and the resulting

       delinquency adjudication. On remand, the juvenile court shall vacate the hazing

       true finding.


[16]   Judgment affirmed in part, reversed in part, and remanded.


       Najam, J. and Pyle, J, concur.




       2
        On Wednesday, B.F. also held E.S. upside down and eventually dropped him to the ground as E.S.
       squirmed to get free.
       3
        Lack of consent is not even a defense to a charge of battery. See Jaske v. State, 539 N.E.2d 14, 18 (Ind.
       1989); Helton v. State, 624 N.E.2d 499, 506 (Ind. Ct. App. 1993), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-460 | December 21, 2018                     Page 7 of 7
