MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jul 14 2020, 9:03 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald J. Frew                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General

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


                                           IN THE
    COURT OF APPEALS OF INDIANA

T.W.,                                                     July 14, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-3028
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Andrea R. Trevino,
Appellee-Petitioner                                       Judge

                                                          The Honorable Carolyn S. Foley,
                                                          Magistrate

                                                          The Honorable Daniel G. Pappas,
                                                          Magistrate

                                                          Trial Court Cause No.
                                                          02D07-1908-JD-703



Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020                    Page 1 of 14
      Crone, Judge.


                                              Case Summary
[1]   T.W. was adjudicated delinquent for conduct amounting to level 5 felony

      robbery and class A misdemeanor dangerous possession of a firearm. He

      appeals, challenging the sufficiency of the evidence to support his delinquency

      adjudication for dangerous possession of a firearm and claiming that his

      adjudications for that offense and robbery violate double jeopardy principles.

      He also challenges his placement in the Indiana Department of Correction

      (DOC). We affirm.


                                  Facts and Procedural History
[2]   On May 21, 2003, T.W. was born with a heart condition that required two

      surgeries during his first year. On May 19, 2019, he underwent aortic valve

      surgery at Riley Hospital in Indianapolis. He was scheduled for several

      postoperative appointments and attended the first but left the hospital before

      tests could be performed. He did not attend the remaining appointments

      scheduled for May and June 2019. T.W. also suffers from a nerve and tendon

      condition that has resulted in his wearing casts on his legs and likely will

      require surgery. He has been diagnosed with oppositional defiant disorder and

      attention deficit hyperactivity disorder (ADHD). Although he was a high

      school junior by age, he had accumulated only eight credits as of the fall of

      2019.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 2 of 14
[3]   At age eleven, T.W. began using marijuana regularly. Prior to the current case,

      he accumulated fourteen criminal delinquency referrals, which included true

      findings for conduct amounting to disorderly conduct, possession of

      paraphernalia, domestic battery, and dangerous possession of a firearm.


[4]   On June 18, 2019, T.W. arranged to purchase a vape pen from seventeen-year-

      old K.P. K.P. had not previously met T.W., who identified himself as

      “Fesmob,” but they conversed on Snapchat and arranged a meeting place.

      Around dinnertime, T.W. contacted K.P. and told her to be at the rendezvous

      spot in about twenty minutes. K.P. drove her vehicle to the Fort Wayne street

      address that T.W. had provided. She was accompanied by her boyfriend, A.R.,

      who sat in the front passenger seat, and her brother, J.P., who sat in the back

      passenger seat. She parked her vehicle along the side of the street, and T.W.

      exited a vehicle parked across the street facing hers. Three or four other persons

      were in T.W.’s vehicle. K.P. recognized T.W. by his neck tattoos, one of which

      said, “R.I.P.” followed by a person’s name. Tr. Vol. 2 at 11. She and her

      passengers noticed that T.W. walked with an unusual gait and appeared to have

      leg braces under his slacks. As T.W. got closer to the vehicle, A.R. recognized

      him as someone that he was familiar with and knew to be involved in bad

      activities. He urged K.P. to drive away, but just then, T.W. opened the back

      driver’s-side door and cocked the handgun he was carrying. He said, “Run me

      your pockets and hurry up before I blow this bitch up.” Id. at 11-12, 27, 48-49.

      He demanded that K.P., A.R., and J.P. (collectively the Victims) hand him

      their cell phones. They complied, and then he ordered them to unlock/reset the


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 3 of 14
      phones, which they did. He took K.P.’s and A.R.’s phones but left J.P.’s older-

      model phone and the vape pen behind. He also took ten dollars in cash that

      K.P. had with her phone and said, “Nice doing business with you.” Id. at 13,

      50. He returned to his vehicle, which his companions had pulled up near K.P.’s

      vehicle, and then left the area.


[5]   That evening, the Victims reported the robbery to their parents and to police.

      Each separately identified T.W. from a photo array. The firearm was never

      recovered. Ten days after the robbery, T.W., who had failed to attend follow-

      up appointments with his cardiac surgeon, became septic. He underwent

      emergency surgery and was hospitalized until the end of August 2019.


[6]   On September 25, 2019, the State filed a juvenile delinquency petition alleging

      that T.W. committed acts amounting to level 5 felony robbery if committed by

      an adult and class A misdemeanor dangerous possession of a firearm. 1 During

      September, T.W. failed three drug screens, each time testing positive for THC.

      During his factfinding hearing, T.W. denied that he committed the robbery,

      claiming that he was too ill to have done so. The Victims testified concerning

      T.W.’s distinct neck tattoos and gait and stated that they were 100% certain that

      T.W. was the person who robbed them. T.W. acknowledged having a neck




      1
        Dangerous possession of a firearm, by definition, is committed by a child and thus not properly stated as
      conduct amounting to dangerous possession of a firearm if committed by an adult. J.R. v. State, 100 N.E.3d
      256, 257 n.1 (Ind. 2018).

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020                   Page 4 of 14
      tattoo that says, “R.I.P. Darius.” Id. at 109-10. The trial court entered true

      findings on both allegations.


[7]   During the dispositional hearing, T.W. and his mother asked that he be placed

      at home on electronic monitoring. Finding that T.W. posed a danger to the

      community, the trial court ordered that he be placed in the DOC. At the close

      of the hearing, the court indicated that it would make a specific

      recommendation that T.W. be placed in the Pendleton facility, where medical

      personnel could best attend to his special needs. T.W. now appeals.

      Additional facts will be provided as necessary.


                                      Discussion and Decision

        Section 1 – Sufficient evidence supports T.W.’s true finding
                   for dangerous possession of a firearm.
[8]   T.W. challenges the sufficiency of the evidence to support his true finding for

      dangerous possession of a firearm. Juvenile court proceedings are civil, not

      criminal, in nature. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 2018),

      trans. denied (2019). Nevertheless, in a juvenile delinquency adjudication, the

      State must prove beyond a reasonable doubt that the juvenile committed acts

      amounting to the charged offense if committed by an adult. T.G. v. State, 3

      N.E.3d 19, 23 (Ind. Ct. App. 2014), trans. denied. When reviewing claims of

      insufficient evidence with respect to delinquency adjudications, we neither

      reweigh evidence nor reassess witness credibility. Id. Rather, we examine the

      evidence and reasonable inferences most favorable to the judgment and will


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 5 of 14
       affirm if substantive evidence of probative value establishes every material

       element of the offense. Id.


[9]    Indiana Code Section 35-47-10-5(a) reads, in relevant part, “A child who

       knowingly, intentionally, or recklessly possesses a firearm for any purpose other

       than a purpose described in section 1 of this chapter commits dangerous

       possession of a firearm, a Class A misdemeanor.” The exceptions outlined in

       Indiana Code Section 35-47-10-1 include a child’s possession of a firearm while

       attending a hunters or firearm safety course, attending a target shooting activity

       or organized and supervised competition at an established range, engaging in

       licensed hunting/trapping, transporting an unloaded firearm to or from one of

       the aforementioned activities, or while at home or on his property under a

       parent’s or guardian’s supervision. To satisfy its burden of proof, the State must

       establish that the juvenile actually or constructively possessed the firearm. K.F.

       v. State, 961 N.E.2d 501, 509 (Ind. Ct. App 2012), trans. denied.


[10]   T.W. maintains that the State failed to prove each element of the dangerous

       possession of a firearm offense beyond a reasonable doubt. He briefly renews

       his mistaken identity claim from below, stating simply that no firearm was ever

       recovered and that the State’s case relied largely on the Victims’ testimony

       concerning his identity as the perpetrator. Appellant’s Br. at 15. He has failed

       to develop a cogent argument as required by Indiana Appellate Rule 46(A)(8),

       and we therefore decline to address it. D.E. v. State, 962 N.E.2d 94, 96 n.6 (Ind.

       Ct. App. 2011). Notwithstanding, we note that addressing the argument would



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 6 of 14
       require us to reweigh evidence and reassess credibility, which we may not do.

       T.G., 3 N.E.3d at 23.


[11]   T.W. also suggests that the evidence is insufficient because the State failed to

       prove that he did not fall within one of the exceptions found in Indiana Code

       Section 35-47-10-1. In making this argument, he does not allege that he, in fact,

       fell within one of the exceptions but simply that the State failed to disprove that

       he did. He cites no authority to support the proposition that the State had this

       burden, and we do not find any cases supporting it. The State analogizes the

       circumstances to those in which an adult is charged with carrying a handgun

       without a license: “Once the State demonstrates that [an adult] defendant had

       possession of a handgun on his body or in a vehicle, it then becomes the

       defendant’s burden to demonstrate [as an affirmative defense] that he had a

       valid license to carry the handgun.” Wilson v. State, 39 N.E.3d 705, 717 (Ind.

       Ct. App. 2015). We see no reason why this rationale should not be applied to

       juveniles facing allegations of dangerous possession of a firearm, once the State

       has presented probative evidence that the child knowingly, intentionally, or

       recklessly possessed the firearm. 2


[12]   Even so, T.W. concedes “that a fair appraisal of the testimony presented at trial

       would support the conclusions that the relevant exceptions provided under I.C.




       2
         The application of the Wilson rationale to juveniles is particularly compelling in cases such as this, where
       T.W.’s sole defense below was mistaken identity, which is incongruous with a claim of carrying the firearm
       for some ostensibly legitimate reason and therefore would not naturally lead the State to question him
       regarding his purpose for possessing the firearm.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020                      Page 7 of 14
       § 35-47-10-1 were, in all likelihood, not present and the testimony of the acts

       presented at factfinding.” Appellant’s Br. at 15. The foregoing evidence

       supports that appraisal.


         Section 2 – T.W.’s delinquency adjudications do not violate
                        double jeopardy principles.
[13]   T.W. also contends that the trial court violated double jeopardy principles in

       adjudicating him delinquent for acts amounting to robbery and dangerous

       possession of a firearm. Double jeopardy principles apply in juvenile

       delinquency adjudications. H.M. v. State, 892 N.E.2d 679, 681-82 (Ind. Ct.

       App. 2008), trans. denied. In his concurring opinion in Richardson v. State, 717

       N.E.2d 32, 55-56 (Ind. 1999), Justice Sullivan articulated circumstances in

       common law often described as double jeopardy but not governed by the

       constitutional tests set forth by the majority in Richardson. Among those is

       “[c]onviction and punishment for a crime which consists of the very same act as

       an element of another crime for which the defendant has been convicted and

       punished.” Id. at 55 (Sullivan, J., concurring).


[14]   Here, the State alleged in the delinquency petition that T.W. committed

       delinquent acts amounting to level 5 felony robbery if committed by an adult by

       “knowingly or intentionally tak[ing] property to wit: one or more cellular

       telephone(s) and/or a vape pen and/or U.S. currency, from the person or

       presence of [the Victims] by using or threatening the use of force.” Appellant’s

       App. Vol. 2 at 36 (citing Ind. Code § 35-42-5-1(a)(1)). With respect to

       dangerous possession of a firearm, the State alleged that T.W. “knowingly,

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 8 of 14
       intentionally or recklessly possess[ed] a firearm for any purpose other than a

       purpose described in Indiana Code Section 35-47-10-1.” Id. (citing Ind. Code §

       31-37-1-2).


[15]   T.W. asserts that the instrument of “force” for purposes of the robbery

       allegation was the same firearm that he was accused of dangerously possessing.

       Even if the firearm was the source of the force used to commit the robbery,

       double jeopardy principles are not implicated here for two reasons. First, the

       delinquency order indicates that T.W. was charged and found true as to robbery

       as a level 5 felony, not as a level 3 felony for circumstances involving the use of

       a firearm. Appealed Order on Factfinding at 1; Ind. Code § 35-42-5-1(a)(1).

       Thus, T.W.’s robbery adjudication did not require proof of possession of a

       firearm, and the record shows that he verbally threatened the Victims during the

       robbery. Second, T.W.’s possession of the firearm involves not only the

       moment of the robbery but also before he entered the Victims’ vehicle and after

       he left it. In other words, “[c]arrying the gun along the street was one crime

       and using it was another.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)

       (quoting Mickens v. State, 742 N.E.2d 927, 931 (Ind. 2001)). T.W.’s

       adjudications do not violate double jeopardy principles.


             Section 3 – The trial court acted within its discretion in
                           placing T.W. in the DOC.
[16]   Finally, T.W. challenges his placement in the DOC. The disposition of a

       juvenile adjudicated a delinquent is a matter committed to the trial court’s

       discretion, subject to the statutory considerations of the child’s welfare,

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 9 of 14
       community safety, and the policy favoring the least harsh disposition. R.H. v.

       State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010). We review the trial court’s

       disposition for an abuse of discretion, which occurs if its decision is clearly

       against the logic and effect of the facts and circumstances before it or the

       reasonable inferences that may be drawn therefrom. Id.


[17]   “[T]he goal of the juvenile process is rehabilitation so that the youth will not

       become a criminal as an adult.” J.S., 110 N.E.3d at 1175-76 (quoting R.H., 937

       N.E.2d at 388). Thus, juvenile courts have a variety of placement choices. Id.

       at 1176. Indiana Code Section 31-37-18-6 reads,


               If consistent with the safety of the community and the best
               interest of the child, the juvenile court shall enter a dispositional
               decree that:

               (1) is:


               (A) in the least restrictive (most family like) and most appropriate
               setting available; and


               (B) close to the parents’ home, consistent with the best interest
               and special needs of the child;


               (2) least interferes with family autonomy;


               (3) is least disruptive of family life;


               (4) imposes the least restraint on the freedom of the child and the
               child’s parent, guardian, or custodian; and


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 10 of 14
               (5) provides a reasonable opportunity for participation by the
               child’s parent, guardian, or custodian.


       Indiana Code Section 31-37-18-9(a)(5) requires the trial court to state its reasons

       for the disposition chosen. This involves the trial court’s issuance of written

       findings and conclusions concerning the child’s care, treatment, rehabilitation,

       or placement; parental participation in the plan; efforts made to prevent the

       child’s removal from the parent; family services offered; and the court’s reasons

       for its disposition.


[18]   Below, T.W. and his mother asked that he be put on home placement with

       electronic monitoring. In ordering placement in the DOC, the trial court

       specifically found that T.W. posed “a danger to the community.” Appealed

       Dispositional Order at 2. The court incorporated into its order the

       predispositional order, as well as the reports and recommendations from the

       county juvenile center, the placement board, and the psychological evaluation.

       The probation department, placement board, and psychological evaluation all

       recommended that T.W. be placed in the DOC. The defense stipulated to the

       reasonable efforts made to prevent T.W.’s removal from his mother, including

       the use of an electronic monitoring device, drug and alcohol groups, a thinking

       errors program, and a psychological evaluation.


[19]   In the dispositional order, the trial court articulated the following reasons for

       placement in the DOC: T.W.’s extensive history of delinquent behavior, with

       fifteen juvenile referrals in six years and conduct that is “chronic and

       escalating,” e.g., recent delinquency findings for domestic battery and another
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 11 of 14
       firearms possession offense; the serious nature of his current true finding for

       conduct amounting to felony robbery and involving his use of a firearm; his

       attitude in minimizing his delinquent behavior and his corresponding need to

       learn the logical and natural consequences of such behavior; his ample

       opportunities to alter his behavior; his need for a highly structured

       environment; his negative peer relationships in the local community; the lack of

       parental control over his behavior; his educational deficiencies and the need for

       a structured educational environment offered in the DOC so he can earn

       enough credits to graduate from high school; and, most importantly, the overall

       need to protect T.W. and the community and to advance his best interests. Id.

       at 1-2; see K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App. 2002) (“[I]n certain

       situations the best interest of the child is better served by a more restrictive

       placement.”), trans. denied.


[20]   T.W. asserts that the trial court failed to consider his serious medical conditions

       before placing him in the DOC, the most restrictive placement. We

       acknowledge that the dispositional order does not specifically mention his

       medical issues, but the trial court specifically addressed T.W.’s special medical

       circumstances in its comments at the close of the dispositional hearing. The

       court described T.W.’s case as involving some of the most difficult choices it

       had ever had to make in six years on the bench. The court considered the

       facilities and nursing care at the Pendleton juvenile facility as well as its

       proximity to hospitals and made an unprecedented request that T.W. be placed

       in that facility. The court emphasized its duty to resolve T.W.’s case pursuant


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 12 of 14
       to the statutory considerations, and at the same time assured T.W.’s mother as

       follows:


               I want you to know that he’ll be taken care of, well taken care of.
               They’ll tend to the medical needs of him. I am not finding that
               his, the ease to which he can get to Riley Hospital, or Anderson,
               or wherever, that’s not a factor in my decision here today. My,
               my job is to protect the community and, and to try to assist him
               in getting services. To the extent that it’s easier to get to Riley,
               that’s not something that I would be comfortable making a
               finding of, and that’s the reason I’m committing him to the
               Department of Corrections. I’m not committing him to the
               Department of Corrections because it’s going to get him medical
               services more easily. I want to be clear on that. I’m committing
               him there because he should be there, based upon my review of
               the record in this case. They will make a determination as to
               when he gets released. That’s not up to me, okay, just so you
               know. And I don’t commit him for a determinate period of time.
               In other words, I don’t say you’re going there for a year, you’re
               going there for two years or three years. I’m not doing that. I’m
               sending him to them. They will review his, his, his physical
               situation, his history, they’ll review all those things. And they’ll
               make a determination as to what’s best for him.

               ….

               I’ve never recommended a placement in an order before, but I
               will, I will in this instance recommend, for a number of reasons,
               much more modern facility [in Pendleton], probably better able
               to accommodate him in a wheelchair.


       Tr. Vol. 4 at 25, 27.


[21]   In sum, the dispositional order and transcript reveal that the trial court made a

       well-considered, if not agonizing, decision in placing T.W. in the DOC with a
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 13 of 14
       special request for placement in Pendleton’s juvenile facility. Based on the

       foregoing, we find no abuse of discretion in its decision to do so. Accordingly,

       we affirm.


[22]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-3028 | July 14, 2020   Page 14 of 14
