MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jul 25 2019, 10:35 am

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
David L. Joley                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

S.C.,                                                     July 25, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-3045
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Andrea R. Trevino,
Appellee-Petitioner.                                      Judge
                                                          The Honorable Carolyn S. Foley,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          02D07-1808-JD-914



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019                    Page 1 of 13
                                        Statement of the Case
[1]   S.C. appeals the juvenile court’s adjudication of him as a delinquent on one

      count of battery, as a Class B misdemeanor when committed by an adult, and

      the court’s award of guardianship over him to the Department of Correction.

      S.C. raises three issues for our review, which we revise and restate as follows:


              1.       Whether the juvenile court abused its discretion when it admitted
                       as evidence the victim’s show-up identification of S.C.


              2.       Whether the juvenile court violated S.C.’s due process rights when
                       it did not advise him of his of right to appeal the court’s
                       dispositional order.


              3.       Whether the juvenile court abused its discretion when it awarded
                       guardianship over him to the Department of Correction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   At approximately 9:30 p.m. on August 19, 2018, Timothy Oberley, Jr. was

      walking from his house to a gas station to get some snacks. While walking,

      Oberley observed four young black men, later identified as S.C., J.M, J.W., and

      T.H., walking toward him. Oberley noticed that S.C. was wearing a dark red t-

      shirt, that J.M. was wearing a blue “soccer style zip-up jacket,” and that J.W.

      was wearing a tie-dyed shirt. Tr. Vol. II at 43. Oberley did not notice what

      T.H. was wearing. As Oberley walked by the group, J.M. made a comment to

      him. Oberley thought they were “just trying to start something,” so he ignored

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 2 of 13
      them and kept walking. Id. at 41. On his way home from the gas station,

      Oberley again saw the same four people. As Oberley walked by the group the

      second time, S.C. made a comment to him. Oberley again did not respond but

      kept walking. Oberley then noticed that the four individuals were following

      him.


[4]   At one point, Oberley stopped walking, and he set his phone on the ground in

      order to light a cigarette. J.M. then grabbed Oberley’s cell phone. Oberley

      asked for his phone back, but the group walked away. Oberley followed them

      down an alley. The individuals stopped walking, and Oberley again asked for

      his phone back. J.M. held the phone out for Oberley to take. But “right when

      [Oberley] went to grab it,” J.M. “socked [him] in the face and dropped [him] to

      the ground.” Id. at 42. At that point, S.C. and J.W. “joined in” and started

      hitting Oberley in the chest. Id. After Oberley heard one of the individuals

      suggest searching his pockets, he stood up, “pushed [his] way out,” and made

      his way back to the gas station. Id. at 43. Oberley then borrowed a phone to

      call the police. The whole incident took “a minute or two.” Id. at 46


[5]   Officer Alvin Davis with the Fort Wayne Police Department (“FWPD”)

      received a dispatch from 9-1-1 shortly after 9:30 p.m. Dispatch advised officers

      that there had been a report of a “strong armed robbery” and that the suspects

      were four black males. Id. at 8. Dispatch further advised officers that one

      suspect was in a red shirt, one was in a blue zip-up shirt, and one was in a tie-

      dyed shirt. Approximately ten minutes after he had received the dispatch,

      Officer Davis arrived at the scene, and he began to check the area for the

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 3 of 13
      suspects. Officer Davis observed four individuals “matching the exact clothing

      descriptions” Oberley had given to the officers. Id. at 9. Officer Davis then

      detained the four males and informed other officers in the area that he had

      located possible suspects.


[6]   Approximately twenty-three minutes after Oberley had called 9-1-1, FWPD

      Officer Brock Hassenzahl transported Oberley to the suspects’ location in order

      to conduct a show-up identification. After they had arrived, Officer Hassenzahl

      parked his police car, illuminated his spotlight, and aimed it toward the

      sidewalk near where Officer Davis was standing with S.C., J.M., J.W., and

      T.H. Officer Hassenzhal then exited his vehicle, and Oberley remained inside.

      At that point, Officer Davis walked the subjects one at a time, unrestrained, to

      the illuminated portion of the sidewalk. After Officer Davis had walked each

      subject into the spotlight, Officer Hassenzahl asked Oberley if he recognized the

      individuals. Oberley was able to positively identify S.C., J.M, and J.W.

      Oberley was “completely certain” that those three individuals had attacked

      him. Id. at 53. However, even though “all signs pointed toward” the fourth

      individual having been involved, Oberley “couldn’t identify him.” Id.


[7]   On September 4, the State filed a petition alleging that S.C. was a delinquent.

      In that report, the State asserted that S.C. had committed battery, as a Class B

      misdemeanor when committed by an adult. On October 26, the juvenile court

      held a hearing on the State’s petition. During the hearing, the court admitted

      evidence of Oberley’s show-up identification of S.C. over S.C.’s objection. The

      State also presented Oberley’s testimony as evidence. During his testimony,

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 4 of 13
      Oberley identified S.C. as one of the four individuals who had attacked him.

      Oberley was “[o]ne hundred percent certain” about his identification of S.C.

      Id. at 54. At the conclusion of the hearing, the juvenile court adjudicated S.C. a

      delinquent.


[8]   The court then held a dispositional hearing on November 28. Prior to the start

      of the hearing, S.C. and his parents watched a video that informed S.C. of his

      rights. After S.C. and his parents stated that they had no questions regarding

      the video, the court proceeded with the hearing. At the beginning of the

      hearing, the juvenile court admitted as evidence S.C.’s predispositional report, a

      placement board staffing report, and a report from the Allen County Juvenile

      Center (“ACJC”) where S.C. had been detained.


[9]   The predispositional report outlined S.C.’s legal history, which includes eight

      prior delinquency referrals. As a result of previous referrals, S.C. served a term

      on probation in 2016, which term ended after S.C. had violated his

      dispositional order. Additionally, S.C. was placed in the ACJC from January

      12, through March 17, 2017, when he was released to an electronic monitoring

      program. S.C. was in that program until June 7, when he absconded. Further,

      S.C. was incarcerated in the Department of Correction from July 24 through

      May 7, 2018. And S.C. was again placed in the ACJC from May 30 until July

      24. The predispositional report also identified S.C. as having a high risk to

      reoffend. The report recommended that guardianship over S.C. be awarded to

      the Department of Correction so that he would have a “structured and

      supervised environment.” Id. at 98.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 5 of 13
[10]   The placement board staffing report indicated that S.C. had had his first

       delinquency referral at the age of twelve, he has had past unsuccessful terms on

       probation, he has problems with substance abuse, he is a “[d]anger to Self

       and/or Community,” he continues to engage in risky or dangerous behaviors,

       he is physically aggressive, and he was on parole at the time of the current

       offense. Id. at 65. Based on those factors, a majority of the placement board

       recommended that guardianship over S.C. be awarded to the Department of

       Correction. Further, the ACJC report indicated that, between the dates of

       September 24 and November 15, 2018, S.C. received three disciplinary reports,

       including one for “riotous behavior.” Id. at 68.


[11]   At the end of the hearing, the juvenile court stated:


               The Court does find that [S.C.], who is sixteen years of age, is
               before the Court on what is designated as case thirteen. This
               does appear to be his ninth delinquency referral before the
               Court. . . . So the Court does therefore find that [S.C.] does have
               an extensive history of delinquent behavior before the Court. I’ll
               note that formal probation supervision began for him in August
               of 2016 and it looks like he has been the recipient of services
               fairly consistently since that point in time, although it looks like
               there’s some . . . brief stoppages here and there, most notably in
               2017 with absconding from the probation supervision, and it
               looks like that was for about a month and a half. I do find that
               [S.C.] has been given opportunities to alter his behaviors. He has
               been supervised at the formal level as well . . . , including the
               Electronic Monitoring Program. As, and as already noted, he
               does have a prior commitment to the Indiana Department of
               Correction[]. This report is pretty clear that [S.C.] remains in
               need of rehabilitation, does need to learn logical and natural
               consequences of his delinquent behavior. . . . I do find that

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 6 of 13
               probation services have been exhausted. While I understand the
               recommendation for the defense as to placement, statutorily
               speaking, placement is not even on the table at this point. The
               Psychological Test Report did not recommend, placement board
               did not recommend, and as a result, I do not have discretion, as
               I, I think the defense is aware, to simply order placement, unless
               such placement is a private placement through the family. The
               Department of Child Services will not pay for placement unless
               it’s been recommended by a mental health professional. So that
               is not an option. At this point, I don’t see that we have any other
               options at this point in time.


       Tr. Vol. IV at 17-18. Accordingly, the juvenile court found that “detention is

       essential to protect the child and community” and awarded guardianship over

       S.C. to the Department of Correction. Appellant’s App. Vol. II at 102. This

       appeal ensued.


                                       Discussion and Decision
                                    Issue One: Show-Up Identification

[12]   S.C. first contends that the trial court abused its discretion when it admitted

       evidence of the show-up identification of him by Oberley. “[T]he admission of

       evidence is within the sound discretion of the trial court, and we review the trial

       court’s decision only for an abuse of that discretion.” Rasnick v. State, 2 N.E.3d

       17, 23 (Ind. Ct. App. 2013). “The trial court abuses its discretion only if its

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or if the court misinterprets the law.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 7 of 13
[13]   On appeal, S.C. asserts that the trial court abused its discretion when it

       admitted evidence of the show-up identification because that identification was

       unduly suggestive. Specifically, S.C. contends that the show-up identification

       was unduly suggestive because “four young juveniles were one by one walked

       in front of the complaining party via a spotlight,” and because the only

       description of him Oberley had given to the officers was of “a young black man

       wearing a reddish shirt.” Appellant’s Br. at 12, 14. And S.C. contends that the

       admission of that evidence violated his rights under the Fourteenth

       Amendment to the United States Constitution.


[14]   This Court previously addressed a similar argument in N.W.W. v. State, 878

       N.E.2d 506 (Ind. Ct. App. 2007), trans. denied. In that case, N.W.W. robbed a

       female at gunpoint. The victim “got a good look at the face of the gunman[.]”

       Id. at 507. The gunman then fled, and the victim called the police. The police

       responded and located N.W.W. Id. at 508. The officers then brought the

       victim to N.W.W.’s location, and she positively identified him as the gunman.

       Id. Thereafter, the State filed a petition alleging that N.W.W. had committed

       robbery, as a Class B felony if committed by an adult. Id. At a hearing, the

       victim again “unequivocally identified N.W.W. as the person who had robbed

       her.” Id. The trial court entered a true finding on the State’s robbery allegation.


[15]   On appeal, N.W.W. “raised several arguments regarding the constitutionality

       of the of show-up identification.” Id. at 509. However, this Court determined

       that it “need not address” N.W.W.’s arguments regarding the show-up

       identification because the victim had identified N.W.W. in open court as the

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 8 of 13
       person who had robbed her. This court noted that, “‘where a witness had an

       opportunity to observe the perpetrator during the crime, a basis for in-court

       identification exists, independent of the propriety of pre-trial identification.’”

       Id. (quoting Adkins v. State, 703 N.E.2d 182, 185 (Ind. Ct. App. 1998)). Because

       N.W.W. did not challenge the sufficiency of the basis for the victim’s

       unequivocal in-court identification of him as the person who had robbed her,

       we held that the evidence regarding the show-up identification was merely

       cumulative of the in-court identification. Id. And the erroneous admission of

       evidence that is merely cumulative of other evidence in the record is not

       reversible error. Id.


[16]   Here, we agree with the State that the trial court did not abuse its discretion

       when it admitted evidence of the show-up identification because that

       identification was not unduly suggestive. However, even if we assumed for the

       sake of argument that the show-up identification was improper, S.C. still cannot

       show that the court committed reversible error when it admitted that evidence.

       Oberley was able to observe S.C. as one of the four individuals who had

       attacked him in the alley. Then, at the fact-finding hearing on the State’s

       petition, Oberley again identified S.C. as one of his attackers with “[o]ne

       hundred percent” certainty. Tr. Vol. II at 54. But S.C. does not challenge the

       sufficiency of the basis for Oberley’s in-court identification of him.

       Accordingly, the show-up identification evidence was merely cumulative of

       Oberley’s in-court identification of S.C. S.C. has therefore not shown that any




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 9 of 13
       error in the admission of the show-up identification was reversible error. See

       N.W.W., 878 N.E.2d at 509.


                                           Issue Two: Due Process

[17]   S.C. next contends that the juvenile court violated his due process rights. As

       our Supreme Court has stated, a “juvenile charged with delinquency is entitled

       to have the court apply those common law jurisprudential principles which

       experience and reason have shown are necessary to give the accused the essence

       of a fair trial.” In re K.G., 808 N.E.2d 631, 635 (Ind. 2004). As a general rule,

       the standard for determining what due process requires in a particular juvenile

       proceeding is “fundamental fairness.” D.M. v. State, 108 N.E.3d 393, 395 (Ind.

       Ct. App. 2018). On appeal, S.C. specifically asserts that the juvenile court

       violated his due process rights when it did not advise him of his right to appeal

       the court’s dispositional order.


[18]   However, while S.C. contends that the juvenile court failed to advise him of his

       right to appeal the dispositional order, S.C. has not presented any evidence to

       support that assertion. The record demonstrates that, prior to the start of the

       dispositional hearing, S.C. and his parents watched a video that advised S.C. of

       his rights. But S.C. has not provided a copy or a transcript of that video on

       appeal. Accordingly, we agree with the State that “it is possible that the video

       contained an advisement of S.C.’s appellate rights.” Appellee’s Br. at 10. In

       any event, even if the juvenile court did not advise S.C. of his right to appeal,

       S.C. has not demonstrated that he suffered any harm due to the alleged error as


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 10 of 13
       he timely appealed the court’s dispositional order. Therefore, S.C. has not met

       his burden on appeal to demonstrate any reversible error on this issue.


                                  Issue Three: Guardianship over S.C.

[19]   Finally, S.C. challenges the juvenile court’s order that he be placed in the

       wardship of the Department of Correction. As the Indiana Supreme Court has

       explained:


               The specific disposition of a delinquent is within the juvenile
               court’s discretion, to be guided by the following considerations:
               the safety of the community, the best interests of the child, the
               least restrictive alternative, family autonomy and life, freedom of
               the child, and the freedom and participation of the parent,
               guardian, or custodian. We reverse only for an abuse of
               discretion, namely a decision that 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.


       K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (citations and quotation marks

       omitted). S.C. asserts that the juvenile court abused its discretion when it

       awarded guardianship over him to the Department of Correction because there

       was a less restrictive option available, namely, a private facility. And S.C.

       contends that the only reason the juvenile court did not place him in a private

       facility was due to financial concerns, which he asserts “cannot be a means for

       a finding that is not the least restrictive setting for the child.” Appellant’s Br. at

       18.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 11 of 13
[20]   But we cannot say that the juvenile court abused its discretion when it awarded

       guardianship over S.C. to the Department of Correction. At only sixteen years

       old, S.C. has already had many contacts with the juvenile court. Due to

       previous referrals, S.C. has been placed on probation, on electronic monitoring,

       in the ACJC, and in the Department of Correction. He has previously violated

       the terms of his probation, and he has absconded from electronic monitoring.

       But despite those previous attempts to correct his behavior, S.C. continues to

       commit delinquent acts. Indeed, S.C. committed the instant offense only four

       weeks after he had been released from the ACJC and while he was on parole for

       a prior offense. In addition, the placement board recommended that S.C. be

       placed in the Department of Correction because he is a danger to himself and

       his community. And, while awaiting his dispositional hearing for the instant

       offense at the ACJC, S.C. received several disciplinary referrals, including one

       for riotous behavior. We also note that the predispositional report assessed S.C.

       as having a high risk of reoffending. As such, we cannot say that the trial court

       abused its discretion when it determined that less-restrictive options than

       placement with the Department of Correction would not be successful.


[21]   We acknowledge that one reason the juvenile court declined to place S.C. in a

       private facility was due to the financial restrictions of both the State and S.C.

       However, as discussed above, it is clear that that was not the only factor the

       court considered. Rather, the juvenile court considered S.C.’s history of

       delinquent behavior, the recommendation of the placement board, and the

       ACJC report, all of which indicated that S.C. continues to engage in delinquent


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 12 of 13
       behavior despite previous attempts at probation, electronic monitoring, and a

       commitment to the Department of Correction. Based on all of those factors,

       the juvenile court concluded that the detention of S.C. “is essential to protect

       the child or community and is in the child’s best interests.” Appellant’s. App.

       Vol. II at 102. Accordingly, the trial court did not abuse its discretion when it

       declined to place S.C. in a private facility and when it awarded guardianship

       over S.C. to the Department of Correction.


                                                  Conclusion
[22]   In sum, the trial court did not abuse its discretion when it admitted as evidence

       the show-up identification of S.C. because that evidence was cumulative of

       Oberley’s in-court identification of S.C. Further, S.C. has not met his burden

       on appeal to demonstrate that the juvenile court violated S.C.’s right to due

       process. And the juvenile court did not abuse its discretion when it awarded

       guardianship over S.C. to the Department of Correction. Accordingly, we

       affirm the juvenile court’s judgment.


[23]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-3045 | July 25, 2019   Page 13 of 13
