MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Jan 17 2019, 8:50 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
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.R.,                                                     January 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-JV-1325
        v.                                                Appeal from the Miami Superior
                                                          Court
State of Indiana,                                         The Honorable Daniel C. Banina,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          52D02-1801-JD-1
                                                          52D02-1707-JD-23



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019              Page 1 of 9
                                        Statement of the Case

[1]   J.R., a juvenile, appeals an adjudication finding him to be a delinquent child for

      having committed an act, that if committed by an adult, would constitute Class

      A misdemeanor battery1 and the modification of his placement from a prior

      dispositional order for various rules violations. Specifically, J.R. challenges the

      sufficiency of the evidence establishing the voluntariness of his actions

      underlying the adjudication as a delinquent and the modification of his prior

      disposition. Concluding that there is sufficient evidence to support the

      adjudication and modification, we affirm the juvenile court.


[2]   We affirm.


                                                      Issue

      Whether the evidence is sufficient to support the juvenile court’s adjudication of
      J.R. as a delinquent and its modification of his prior disposition.

                                                      Facts

[3]   On August 23, 2017, fourteen-year-old J.R. was adjudicated a delinquent child

      under cause number 52D02-1707-JD-23 (“JD-23”) for an act that if committed

      by an adult, would have constituted Class A misdemeanor criminal mischief.

      J.R. was placed on probation and ordered to receive residential services at the




      1
          IND. CODE § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 2 of 9
      Youth Opportunity Center (“YOC”). On January 16, 2018, the State sought to

      modify the dispositional decree for JD-23. The first verified petition for

      modification alleged that J.R. had violated probation by “fail[ing] to comply

      with rules and regulations at Youth Opportunity Center resulting in him being

      unsuccessfully discharged from the program.” (App. Vol. 3 at 69). The State

      filed an amended verified petition for modification on January 24, 2018. This

      amended petition included the allegation from the original modification but

      further alleged that J.R. had violated probation by: (1) committing the act of

      battery on or about January 5, 2018; (2) committing the act of battery on or

      about January 22, 2018; (3) committing the act of attempted battery and battery

      by bodily waste on or about January 23, 2018; and (4) failing to comply with

      rules and regulations at the Robert J. Kinsey Youth Center (“Kinsey”),

      resulting in him being removed from said facility. The State also filed a new

      delinquency petition under cause number 52D02-1801-JD-1 (“JD-1”), alleging

      that J.R. had committed an act that, if committed by an adult, would constitute

      Class A misdemeanor battery on January 5, 2018.


[4]   On April 23, 2018, the juvenile court held a fact-finding hearing for the

      modification and new delinquency petition. Cherisse Thompson

      (“Thompson”) and Tracey Derrick (“Derrick”), staff from Kinsey, testified

      about the attempted battery and battery by bodily waste that had occurred on

      January 23rd. Thompson explained that a teacher requested the removal of a

      student from a classroom for “acting up and not listening.” (Tr. 47). When

      Thompson entered the classroom, she encountered J.R. sitting in a chair. After


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 3 of 9
      ten minutes of talking to J.R. to “deescalate him, to reason with him, to just

      quietly leave the classroom and go back to his cell, uh, he still was refusing to,

      so Tracey Derrick gave a non-verbal queue to remove him from the chair.” (Tr.

      47). Thompson and “several male staff members removed [J.R.] from the chair

      and at that point he got up and walked towards another door.” (Tr. 47). J.R.

      then sat down in a different chair. Thompson, Derrick, and other staff

      members removed J.R. from the chair and he was “gently taken to the ground.”

      (Tr. 47). While he was on the ground, Thompson observed and removed a

      pencil hidden in J.R.’s sleeve. As they stood J.R. up to take him to the

      “isolation cell,” J.R. “tried to bite a male staff member and proceeded to spit on

      [Thompson’s] right arm and [her] torso area.” (Tr. 48). Thereafter, J.R. was

      carried and placed in the isolation area.


[5]   Miranda Litzelswope (“Litzelswope”), the listed victim in JD-1 and staff

      member at YOC, testified regarding the events that had occurred at YOC on

      January 5th. She explained that YOC was having issues with juveniles covering

      surveillance cameras. The juveniles would form a human pyramid and place

      clothing or other material on the cameras to prevent facility staff from observing

      their behavior. Litzelswope testified that J.R. “was the top of the pyramid

      trying to cover the camera.” (Tr. 69). As a result, the juveniles were ordered to

      their cells. Thereafter, J.R. blocked the view into his cell room by placing a

      mattress in front of the cell door window. This was a violation of YOC rules

      and prompted facility personnel to remove the mattress to make sure J.R. was

      safe. The staff opened J.R.’s door and began to pull the mattress out.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 4 of 9
      Litzelswope testified that when they did this, J.R. “threw a punch ‘ish’ slap

      maybe, uh, and that [is] where I had received the cut on my eye.” (Tr. 59). On

      cross-examination Litzelswope was asked “wouldn’t it be fair to say that [J.R.]

      was flailing without the intent to really even hit anyone in particular.” (Tr. 65).

      Litzelswope responded, “[n]o. He hit me and he stopped flailing.” (Tr. 65).

      She later testified that because YOC staff were using physical force to remove

      the mattress, she believed J.R. “went into fight or flight mode.” (Tr. 67). Kaley

      Hesher (“Hesher”) and Ramon Batts (“Batts”), also staff members at YOC,

      testified that they had observed J.R. hit Litzelswope. Hesher testified that when

      J.R. came out of his cell, “he started swinging at staff[,]” striking Litzelswope.

      (Tr. 73). Batts testified that “[J.R.] was basically eye to eye with [Litzelswope]

      at that point and it, it went from a pushing on the mattress to a closed fist

      swinging at her[.]” (Tr. 78).


[6]   J.R. also testified at the fact-finding hearing. He admitted to refusing to follow

      an order to leave the classroom at Kinsey, violating YOC rules by using a

      mattress to cover his cell window, and pushing staff members at YOC.

      Concerning the battery on Litzelswope, J.R. stated, “then they said that I hit

      someone and I said no I didn’t, I didn’t hit him, I didn’t hit him, and then, uh,

      they said no you hit her and I said no didn’t hit her, I didn’t hit her[.]” (Tr. 89).


[7]   After the fact-finding hearing, the juvenile court adjudicated J.R. a delinquent

      child for battery under JD-1 and also found that the State had met its burden for




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 5 of 9
      modification of his disposition under JD-23.2 The juvenile court then ordered

      J.R. into the custody of the Indiana Department of Correction (“DOC”),

      Juvenile Division. J.R. now appeals.


                                                     Decision

[8]   On appeal, J.R. challenges the sufficiency of the evidence with respect to the

      adjudication for battery in JD-1 and the evidence used to support the

      modification of his disposition in JD-23. Because J.R. challenges the

      sufficiency of evidence for both the battery adjudication under JD-1 and the

      battery and attempted battery for the modification of his disposition under JD-

      23, we will address each cause number in turn.


      1. Adjudication for Battery in JD-1


[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. Z.A. v.

      State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). When reviewing the sufficiency

      of the evidence supporting a juvenile adjudication, we neither reweigh the

      evidence nor judge the credibility of the witnesses. Id.




      2
        During closing arguments, the State conceded that it did not present evidence regarding the January 22nd
      battery mentioned in the amended verified modification. Accordingly, the juvenile court did not find that
      this allegation was proven by a preponderance of evidence.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019                  Page 6 of 9
[10]   To sustain the true finding that J.R. committed an act that would constitute

       Class A misdemeanor battery, the State had to prove beyond a reasonable

       doubt that J.R. knowingly or intentionally touched another person,

       Litzelswope, in a rude, insolent, or angry manner that resulted in bodily injury.

       See IND. CODE § 35-42-2-1(c)(1), (d)(1). J.R. argues that the “evidence in the

       record called into question the voluntariness of [his] aggressive responses, and

       therefore the State bore the burden of proving his voluntariness beyond a

       reasonable doubt for the purpose of the new offense, and by a preponderance of

       the evidence for the modification.” (J.R.’s Br. 18). For this argument, J.R.

       relies on Litzelswope’s brief testimony regarding his “fight or flight” response to

       physical force. (Tr. 67). “Once evidence in the record raises the issue of

       voluntariness, the State must prove beyond a reasonable doubt that the

       defendant acted voluntarily.” O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct.

       App. 2012). If the State fails to prove that a defendant’s conduct was voluntary,

       it has not proved every element of the offense. Id. INDIANA CODE § 35-41-2-

       1(a) provides that “[a] person commits an offense only if he voluntarily engages

       in conduct in violation of the statute defining the offense.”


[11]   Our review of the record reveals that Litzelswope and other YOC staff

       attempted to remove a mattress blocking the window on J.R.’s door. During

       the struggle to remove the mattress, J.R. hit Litzelswope in the face leaving a

       visible abrasion near her eye. Three YOC staff members observed J.R. strike

       Litzelswope and testified to the same. Further, J.R.’s complete denial at the

       fact-finding hearing that he hit Litzelswope is at odds with his argument on


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 7 of 9
       appeal. At the fact-finding hearing, J.R. denied that the battery had occurred at

       all. He now argues that he hit Litzelswope but that his actions were not

       voluntary. The Juvenile court was in the best position to make a credibility

       determination; we hold that the testimony presented at the fact-finding hearing

       was sufficient to establish the voluntariness of J.R.’s actions. “The term

       voluntary is used in [I.C. § 35-41-2-1(a)] as meaning behavior that is produced

       by an act of choice and is capable of being controlled by a human being who is

       in conscious state of mind.” O’Connell, 970 N.E.2d at 172. There is no

       evidence in the record that J.R. suffered from a condition excluding his

       behavior from voluntary conduct. J.R. cannot now rely upon the lack of such

       evidence as proof that his actions were involuntary. As such, the evidence

       sufficiently supports the finding that J.R. acted voluntarily and committed

       battery.


       2. Modification of Disposition in JD-23


[12]   Next, J.R. challenges the sufficiency of the evidence underlying the

       modification of his disposition from probation to DOC. We observe that a

       probation revocation hearing is in the nature of a civil proceeding and the

       decision to revoke is a matter within the sound discretion of the trial court. C.S.

       v. State, 735 N.E.2d 273, 276 (Ind. Ct. App. 2000), trans. denied. To establish

       that a juvenile has violated his probation, the State need only prove an alleged

       violation by a preponderance of the evidence. J.P. v. State, 770 N.E.2d 365, 369

       (Ind. Ct. App. 2002), trans. denied. Furthermore, we will affirm the decision of



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 8 of 9
       the juvenile court if there is substantial evidence of probative value to support

       the conclusion that the juvenile violated any condition of his probation. Id.


[13]   Here, the record establishes that, while at Kinsey, J.R. refused orders to leave a

       classroom, spat on a staff member, attempted to bite several staff members, and

       had a pencil in his sleeve, all rule violations. Further, J.R. attempted to cover

       the cameras at YOC, another rule violation. J.R. also testified and admitted to

       refusing to follow an order to leave the classroom, pushing staff members when

       they attempted to keep him in his room at YOC, and violating YOC rules by

       placing a mattress in his door window. We need not address J.R.’s

       insufficiency of voluntariness evidence argument under JD-23 because as we

       have long held, proof of “any probation violation” is sufficient to modify or

       revoke a juvenile’s probation. J.P., 770 N.E.2d at 369. As explained above,

       J.R. committed several probation violations. J.R.’s argument to the contrary

       essentially invites us to reweigh the evidence. We decline this invitation. See

       Z.A. 13 N.E.3d 439. Because there was substantial evidence of probative value

       to support the juvenile court’s determination that J.R. had violated his

       probation, we affirm the juvenile court’s modification of his disposition.


[14]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1325 | January 17, 2019   Page 9 of 9
