MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jul 31 2019, 11:49 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
Chris M. Teagle                                           Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana
                                                          J. T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

N. S.,                                                    July 31, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-JV-165
         v.                                               Appeal from the Blackford Circuit
                                                          Court
State of Indiana,                                         The Honorable Dean Young,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          05C01-1808-JD-82



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019                   Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, N.S., appeals the juvenile court’s denial of his motion to

      correct error following his adjudication as a delinquent child for having

      committed what would have constituted intimidation, a Level 5 felony, if

      committed by an adult, by placing his victim in fear of retaliation for a prior

      lawful act while using a deadly weapon.


[2]   We affirm.


                                                     ISSUE
[3]   N.S. presents one issue on appeal, which we restate as: Whether the juvenile

      court abused its discretion in denying N.S.’s motion to correct error after

      submitting new evidence which purportedly establishes the complaining witness

      recanted his previous trial testimony.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 23, 2018, M.R. was at Sigma Park in Hartford City, Indiana, when he

      was approached by N.S. The boys knew each other from school. However,

      N.S. had been found in possession of marijuana on school property and had

      been expelled. When N.S. noticed M.R. at the park, N.S. dismounted his bike,

      and accosted M.R., asking him if M.R. had “snitched on him.” (Transcript p.

      7). M.R. denied this, but N.S. stated, “we have a video of you going down to

      the office and snitching.” (Tr. p. 7). N.S. then pulled a black knife with a silver

      blade and told M.R. that he was “going to cut [his] shit if [he] snitch[ed] on

      [him] again.” (Tr. p. 8). M.R. walked away and N.S. screamed, “You’re a
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 2 of 8
      dead nigga.” (Tr. p. 9). When M.R. returned home, he informed his parents of

      the incident. M.R.’s parents contacted the police.


[5]   Victoria Eppard (Eppard) lived in the residence near where M.R. and N.S. were

      arguing. She was keeping an eye on the confrontation because she did not want

      a fight to ensue. She saw N.S. pull a knife on M.R. “like [N.S.] was being

      threatening [sic],” with the blade of the knife being “as clear as day.” (Tr. p.

      16). Eppard called the police.


[6]   On August 6, 2018, the State filed a Petition, alleging N.S. to be a delinquent

      child for having committed what would have constituted intimidation, a Level

      5 felony, if committed by an adult by using a deadly weapon to place M.R. in

      fear of retaliation for a prior lawful act. On October 23, 2018, the juvenile court

      conducted a fact-finding hearing. During the hearing, M.R. was asked multiple

      times whether he had lied to others about the incident. Each time, M.R. denied

      lying and maintained his allegation that N.S. had pulled a knife on him and had

      threatened him. N.S. presented two witnesses who testified that M.R. had told

      them that N.S. had not pulled a knife on him. At the conclusion of the fact-

      finding hearing, the juvenile court issued an order, finding that the State had

      established beyond a reasonable doubt that N.S. had committed what would be

      a Level 5 felony intimidation if committed by an adult. On November 16,

      2018, the juvenile court held a dispositional hearing and placed N.S. in the

      custody of the Blackford County Probation Department Juvenile Division.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 3 of 8
[7]   On December 12, 2018, N.S. filed a motion to correct error based on newly-

      discovered evidence. Six days later, on December 18, 2018, the juvenile court

      conducted a hearing on N.S.’s motion. Denying the motion, the juvenile court

      concluded, in pertinent part:


              3. That the [c]ourt has reviewed the newly discovered evidence,
              which consists of a 44-second recording of the victim in this case
              which was obtained by the juvenile’s girlfriend and produced in
              open court.


              4. That the video recording is offered by the juvenile to
              demonstrate that the victim lied during his testimony on the
              State’s Petition Alleging Delinquency with respect to the alleged
              conduct engaged in by the delinquent in this case. Having heard
              the video recording the [c]ourt does not find persuasive the
              juvenile’s contention that the victim’s testimony is not credible.
              The victim does make certain references that he attempted to get
              the Prosecuting Attorney to drop the charges in this case and that
              he told the Prosecutor that he had lied. No reference is made as
              to which facts he lied about. However, the victim in this case is
              also a minor child and it is clear from the testimony presented
              during trial and also during the hearing on the [m]otion to
              [c]orrect [e]rror that the victim has been under continuing and
              intense pressure by friends and family of the delinquent to admit
              that he was lying about the facts of the case.


              5. That the victim testified regarding the statements made in the
              video recording and acknowledged that he in fact did make those
              statements. However, the victim also indicated that his
              statements were made in response to constant questioning and
              urging by the delinquent’s girlfriend, members of the delinquent’s
              family, and others to confess to lying regarding the allegations
              contained in the State’s petition.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 4 of 8
              6. That following the bench trial on the State’s Petition Alleging
              Delinquency the [c]ourt indicated on the record and before the
              parties and their counsel that the [c]ourt placed great weight on
              the testimony of [Eppard]. [Eppard] was an adult witness to the
              events alleged in the State’s petition and she corroborated in all
              respects the relevant testimony of the victim through her own
              eye-witness account.


              7. That the [c]ourt is aware from its own common sense and
              life’s experiences that young persons who are subject to constant
              pressures and questioning regarding an event may recant their
              testimony in their effort to terminate the incessant barrage of
              questioning and urging by others. Further, this [c]ourt had an
              opportunity to judge the demeanor of all witnesses while they
              testified in this case, the circumstances surrounding the “newly
              discovered” video-tape evidence, and to weigh that testimony
              and observations in light of all other testimony and observations
              in concluding beyond a reasonable doubt that the juvenile
              delinquent committed the acts of delinquency as alleged in the
              State’s petition. Further, no evidence has been presented which
              moves the [c]ourt from its earlier conclusion of guilt beyond a
              reasonable doubt.


      (Appellant’s App. Vol. II, pp. 63-65).


[8]   N.S. now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
[9]   N.S. contends that the trial court abused its discretion by denying his motion to

      correct error based on newly-discovered evidence warranting a new trial, i.e., a

      video-taped statement indicating that the witness recanted his previous

      testimony. A trial court is vested with the discretion to deny a motion to


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 5 of 8
       correct error alleging newly-discovered evidence, and we will reverse only for

       an abuse of that discretion. Harbert v. State, 51 N.E.3d 267, 280 (Ind. Ct. App.

       2016), trans. denied.


[10]   Motions for a new trial based on newly-discovered evidence are generally

       disfavored. Denny v. State, 695 N.E.2d 90, 93 (Ind. 1998). To succeed, the

       defendant must satisfy a nine-part test, submitting proof that establishes:


                    (1) that the evidence has been discovered since trial; (2) that it
                    is material and relevant; (3) that it is not cumulative; (4) that it
                    is not merely impeaching; (5) that it is not privileged or
                    incompetent; (6) that due diligence was used to discover it in
                    time for trial; (7) that the evidence is worthy of credit; (8) that
                    it can be produced upon a retrial of the case; and (9) that it
                    will probably produce a different result.


       Harbert, 51 N.E.3d at 280. The defendant bears the burden of showing that the

       newly-discovered evidence meets all nine requirements. Godby v. State, 736

       N.E.2d 252, 258 (Ind. 2000), reh’g denied.


[11]   Here, N.S.’s newly-discovered evidence amounts to a post-trial video-recording

       in which M.R. states that he had lied and wanted the prosecutor to drop the

       charges. Although the recording merely impeaches M.R.’s previous testimony,

       as referenced by N.S., “our supreme court decided long ago that evidence

       which destroys or obliterates the testimony upon which a conviction was

       obtained is not appropriately considered as merely impeaching evidence.”

       Dennis v. State, 2 N.E. 349, 355 (Ind. 1885); Wilson v. State, 677 N.E.2d 586, 588

       (Ind. Ct. App. 1997). However, even though M.R. appears to admit in the

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019    Page 6 of 8
       recording that he lied, he never explained what exactly he lied about or what

       statement he recanted. As such, we cannot say that the newly-discovered

       evidence “destroys or obliterates” M.R.’s trial testimony. See Dennis, 2 N.E.at

       355.


[12]   Moreover, even if we characterize M.R.’s recorded statement as a complete

       recantation of his previous trial testimony, the State correctly points out that a

       recantation, or even an admission of perjury, does not necessarily lead to a new

       trial if the introduction of the evidence would not probably result in a different

       outcome. See Wilson v. State, 677 N.E.2d at 589. In its findings denying N.S.’s

       motion to correct error, the juvenile court explained that it had placed “great

       weight” on Eppard’s testimony in the adjudication of N.S., as Eppard was an

       adult, independent eye-witness who corroborated M.R.’s statements.

       (Appellant’s App. Vol. II, p. 64). Furthermore, the juvenile court accounted for

       M.R.’s recorded statement as the result of “the incessant barrage of questioning

       and urging” by N.S.’s family and friends and thus found the recording to be

       unpersuasive. (Appellant’s App. Vol. II, p. 64). Mindful of the juvenile court’s

       detailed order, we cannot conclude that the introduction of this new evidence

       would probably result in a different outcome. See id. Therefore, we decline to

       find error in the juvenile court’s denial of N.S.’s motion to correct error.


                                              CONCLUSION
[13]   Based on the foregoing, we hold that the juvenile court appropriately denied

       N.S.’s motion to correct error based on new evidence.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 7 of 8
[14]   Affirmed.


[15]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-165 | July 31, 2019   Page 8 of 8
