MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this                        Nov 09 2016, 6:27 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                      CLERK
                                                                    Indiana Supreme Court
purpose of establishing the defense of res judicata,                   Court of Appeals
                                                                         and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of C.B., a Child                           November 9, 2016
alleged to be Delinquent,                                Court of Appeals Case No.
                                                         32A01-1604-JV-873
Appellant-Respondent,
                                                         Appeal from the Hendricks Superior
        v.                                               Court.
                                                         The Honorable Karen M. Love,
                                                         Judge.
State of Indiana,                                        Cause No. 32D03-1512-JD-337
Appellee-Petitioner.




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016      Page 1 of 7
                                           Statement of the Case
[1]   C.B. was adjudicated a delinquent for committing an act that would be
                          1
      intimidation, a Level 6 felony, if committed by an adult. C.B. now appeals,

      contending that the evidence is insufficient to support his adjudication. We

      affirm.


                                                           Issue
[2]   The sole issue presented in the appeal is whether there is sufficient evidence of a

      prior lawful act to support C.B.’s adjudication.


                                   Facts and Procedural History
[3]   In November of 2015, Christine Pate was the manager of the Woodland Trace

      Mobile Home Community in Plainfield, Indiana. Part of Pate’s duties were to

      oversee the tenants and the properties, and to ensure that the children living

      there were complying with park rules. During the four to five years she had

      held this job, Pate had many encounters with C.B., who was twelve years old in

      November of 2015. She described many of the interactions with him as

      addressing general “orneriness.” Tr. p. 43. On one recent occasion, however,

      C.B. was “caught defacing a light pole with a spray can of paint.” Id. After

      Pate brought C.B.’s parents to the scene, C.B. yelled at Pate that “this is not

      over until I say it’s over.” Id. C.B.’s mother chased him around the pole,




      1
          Ind. Code § § 35-45-2-1(a)(2) and (b)(1)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 2 of 7
      “smacking at him.” Id. Other damage had occurred in the park, but could not

      be directly attributed to C.B.


[4]   C.B. testified that he was getting in trouble with Pate for “doing fun stuff” with

      his friends. Id. at 53. He thought that she was mean and that she had told him

      to stop having fun “about 500 times.” Id.


[5]   On November 18, 2015—a Wednesday, which was Pate’s day off—at around

      4:00 p.m., Pate was at home watching television. C.B. had gotten off the bus

      and went directly to Pate’s trailer. Pate described on direct examination what

      happened next as follows:


              It was a Wednesday, it was after 4:00 Wednesday so usually my
              day off. [C.B.] came to my home banged on my door, not
              knocked, banged after school. I opened the door and he stands
              there screaming at me, I know what you’re doing, I know what
              you’re doing, you’re getting rid of X—I cannot say the tenants
              [sic] names—then you’re going to get rid of X and then us. He
              said I’ll get a gun and come shoot you. . . . I told him to get off
              my deck, not once but twice I told him to get off my deck. He
              walked down the steps, turned around and gave me his dead
              stare and then walked down the street to his house.
      Id. at 42-45.


[6]   The following exchange took place on cross-examination:


              Q:      You said that [C.B.] said I know you are evicting X and
                      then Y and then us and you said the first part of that
                      statement is true, what do you mean by that?
              A:      We did evict someone out of the park that he was talking
                      about.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 3 of 7
              Q:      And this was on November 18th?
              A:      It was on a Wednesday, the date, I’ll say it’s the 18th, I
                      don’t remember the exact date. It was after 4:00 when the
                      bus let the kids out.
      Id. at 46.


[7]   On December 18, 2015, the State filed a delinquency petition against C.B.

      alleging that he had committed the crime of intimidation, a Level 6 felony if

      committed by an adult. At the conclusion of the fact-finding hearing on March

      14, 2016, the juvenile court found that the State had proved beyond a

      reasonable doubt that C.B. had committed the offense, but took the matter

      under advisement because the charging document specified the wrong victim.

      On April 4, 2016, the juvenile court entered a true finding of intimidation and

      placed C.B. on supervised probation for six months. C.B. now appeals.


                                   Discussion and Decision
[8]   When the State alleges that a juvenile should be 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 offense beyond a reasonable doubt. Al-Saud v.

      State, 658 N.E.2d 907, 908 (Ind. 1995). On appellate review of a challenge of

      the sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of the witnesses. Id. We will consider only the evidence most

      favorable to the judgment and reasonable inferences therefrom. J.B. v. State,

      748 N.E.2d 914, 916 (Ind. Ct. App. 2001). We will affirm if the evidence and




      Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 4 of 7
       those inferences constitute substantial evidence of probative value to support

       the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).


[9]    The charging document alleged that C.B. “did communicate a threat to another

       student, with the intent that the other person be placed in fear of retaliation for

       a prior lawful act, to-wit: stated ‘I know what you are trying to do evicting

       Alex in Lot 5 and trying to get rid of Heather Neal in Lot 28 and us. . . I will get

       a gun and come back and shoot you.’ The threat was to commit a forcible

       felony.” Appellant’s App. p. 16. The juvenile delinquency report submitted to

       the juvenile court correctly identified the victim as Pate and not another

       student. Id. at 6. The report further alleged that “Pate stated that she was

       planning on evicting the Lot 5 resident due to lot violations but the others that

       [C.B.] thought she was trying to evict was incorrect.” Id.


[10]   The State was required to prove beyond a reasonable doubt that C.B.

       communicated a threat to Pate with the intent to place Pate in fear of retaliation

       for a prior lawful act. Ind. Code § 35-45-2-(a)(2) & (b)(1)(A). To establish that

       C.B. committed intimidation, the State must prove that the legal act occurred

       prior to the threat. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). If the

       threat does not place the person in fear of retaliation for a prior lawful act, then

       the conviction or adjudication cannot stand. Id.


[11]   Considering the evidence most favorable to the adjudication, there is evidence

       of a threat to commit a forcible felony communicated to Pate with the intent to

       place Pate in fear. The issue here is whether the evidence is sufficient to


       Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 5 of 7
       establish that the lawful act occurred before the threat was made. The trial

       court, as fact-finder, correctly concluded that the State presented sufficient

       evidence that the lawful act occurred before C.B.’s threat was made.


[12]   In Roar v. State, 52 N.E.3d 940 (Ind. Ct. App. 2015), trans. granted, 54 N.E.3d

       371 (Ind. 2016), sufficiency adopted and incorporated by reference, 54 N.E.3d 1001

       (Ind. 2016), the threat, which placed the landlord in fear, was communicated to

       her after the defendant saw the landlord place an eviction notice on the

       defendant’s sister’s door. Therefore, the threat came after and in retaliation for

       the prior lawful act—placing the eviction notice on the tenant’s door.


[13]   Likewise, here, evidence was presented that C.B.’s threat came after a prior

       lawful act. The delinquency report stated that Pate was planning on evicting

       the Lot 5 resident. Appellant’s App. p. 6. Her testimony at the fact-finding

       hearing was that C.B. screamed that he knew “what you’re doing, I know what

       you’re doing, you’re getting rid of X. . . .” Tr. p. 43. On cross-examination,

       Pate stated that “we did evict someone out of the park that he was talking

       about.” Id. at 46. The record reflects that Pate, in her capacity as manager of

       the mobile home community, had made the decision to evict the tenants in Lot

       5, referred to by C.B. in his subsequent threat, for lot violations. Although the

       record does not clearly establish precisely when the eviction took place, the

       record does reflect that the decision to evict had been made and that C.B. was

       aware of that decision prior to making his threat. Therefore, the evidence is

       sufficient beyond a reasonable doubt to establish a prior lawful act.

       Consequently, we affirm the trial court’s adjudication.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 6 of 7
                                                Conclusion
[14]   In light of the foregoing, we affirm the trial court’s adjudication of C.B. as a

       delinquent child.


[15]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1604-JV-873 | November 9, 2016   Page 7 of 7
