MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 17 2019, 8:54 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
Troy D. Warner                                            Curtis T. Hill, Jr.
Deputy Public Defender                                    Attorney General of Indiana
South Bend, Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

T.F.,                                                     July 17, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-2562
        v.                                                Appeal from the St. Joseph Probate
                                                          Court
State of Indiana,                                         The Honorable James C. Stewart
Appellee-Plaintiff.                                       Brown, Magistrate
                                                          Trial Court Cause No.
                                                          71J01-1806-JD-166



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019                      Page 1 of 9
                                        Statement of the Case

[1]   T.F. was adjudicated a delinquent child with a true finding for Class A

      misdemeanor dangerous possession of a firearm. 1 T.F. argues that there was

      insufficient evidence to support his true finding and that the probate court

      abused its discretion by committing him to the Department of Correction

      (“DOC”). Concluding that there was sufficient evidence and the probate court

      did not abuse its discretion, we affirm the trial court.


[2]   We affirm.


                                                     Issues

                 1. Whether the State presented sufficient evidence to sustain T.F.’s true
                    finding for dangerous possession of a firearm.
                 2. Whether the probate court abused its discretion by committing T.F. to
                    the DOC.
                                                      Facts

[3]   On June 8, 2018, Officer Hunter Miller (“Officer Miller”) with the South Bend

      Police Department initiated a traffic stop of a vehicle with a false license plate.

      The vehicle had five occupants: the driver, a front-seat passenger, and three

      individuals in the backseat. After the vehicle had stopped, two of the

      individuals from the backseat exited the left rear passenger door and fled on




      1
          IND. CODE § 35-47-10-5.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 2 of 9
      foot. T.F. exited the vehicle from the right rear passenger door and was ordered

      to stop by Officer Miller. Officer Miller had observed T.F. sitting in the

      backseat behind the front passenger seat and did not observe any of the

      occupants attempt to crawl over each other prior to exiting the vehicle.


[4]   After all parties had been detained, Officer Miller approached the vehicle and

      observed a rifle and a handgun in plain view in the backseat. The rifle was

      leaning against the seat which T.F. had previously occupied and the handgun

      was located on the seat. Ammunition for the rifle was also observed on the

      floor where T.F. had been sitting.


[5]   The State filed a petition alleging that T.F. was a delinquent child for

      committing the crime of Class A misdemeanor dangerous possession of a

      firearm. On August 24, 2018, the probate court held a fact-finding hearing on

      the delinquency petition. Several officers from the South Bend Police

      Department, including Officer Miller, testified to the facts above. In addition to

      the testimony of the officers, the State also introduced into evidence

      photographs depicting the location of the firearms in the backseat. After the

      presentation of evidence, the probate court entered a true finding against T.F.

      for dangerous possession of a firearm.


[6]   On September 24, 2018, the court held a disposition hearing. The Probation

      Department recommended the court commit T.F. to the DOC because

      “probation, home detention, placement, [and] day reporting” had all failed “to

      get [T.F.] to make the right choices.” (Tr. 62). The Probation Department


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 3 of 9
      further explained that T.F. had “been out [of residential placement] for two

      months when he was involved in the new offense that is pending disposition

      today.” (Tr. 62). The court found that “[i]t is in the best interests of the child to

      be removed from the home environment and [that] remaining in the home

      would be contrary to the health and welfare of the child because: [T.F.’s]

      actions pose [a] danger to self and others[ ]” and awarded wardship of T.F. to

      the DOC. (App. Vol. 2 at 16). T.F. now appeals.


                                                   Decision

[7]   T.F. argues that: (1) there was insufficient evidence to support his true finding;

      and (2) the probate court abused its discretion by committing him to the DOC.

      We address each of his contentions in turn.


      1. Sufficiency of Evidence


[8]   T.F. first contends that the evidence was insufficient to support his true finding.

      A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §

      31-37-14-1. When reviewing a challenge to the sufficiency of evidence

      supporting a true finding, “we do not reweigh the evidence or judge witness

      credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e

      consider only the evidence favorable to the judgment and the reasonable

      inferences supporting it.” Id. We will affirm the judgment so long as there is

      “substantial evidence of probative value . . . from which a reasonable fact finder

      could conclude beyond a reasonable doubt” that the juvenile engaged in the

      unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 4 of 9
[9]    T.F. challenges the sufficiency of the evidence of constructive possession.

       INDIANA CODE § 35-47-10-5(a) provides, in pertinent part, that “[a] child who

       knowingly, intentionally, or recklessly possesses a firearm . . . commits

       dangerous possession of a firearm, a Class A misdemeanor.” To satisfy these

       elements, the State must prove the defendant had either actual or constructive

       possession of the firearms. Negash v. State, 113 N.E.3d 1281, 1291 (Ind. Ct.

       App. 2018). Actual possession occurs when a person has direct physical control

       over an item, whereas constructive possession occurs when a person has the

       intent and the capability to maintain dominion and control over the item. Id.

       Specifically, T.F. contends that there was “insufficient [evidence] to prove

       dominion and control sufficient for [a] dangerous possession of a firearm” true

       finding. (T.F.’s Br. 8).


[10]   To fulfill the intent element of constructive possession, the State must

       demonstrate the defendant’s knowledge of the presence of the contraband.

       Griffin v. State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011). In cases where the

       accused has exclusive possession of the premises in which the contraband is

       found, an inference is permitted that he knew of the presence of the contraband

       and was capable of controlling it. Id. Where the control is non-exclusive, as

       was the case here, knowledge may be inferred from evidence of additional

       circumstances indicating the defendant’s knowledge of the presence of the

       firearm. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). These

       additional circumstances may include: (1) incriminating statements made by

       the defendant; (2) attempted flight or furtive gestures; (3) proximity of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 5 of 9
       firearm to the defendant; (4) location of the firearm within the defendant’s plain

       view; and (5) the mingling of a firearm with other items owned by the

       defendant. Deshazier v. State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans.

       denied. To fulfill the capability requirement of constructive possession, the State

       must demonstrate that the defendant had the ability to reduce the firearm to his

       personal possession. K.F. v. State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012),

       trans. denied.


[11]   Our review of the record reveals that there were a total of five individuals in the

       vehicle: the driver, front passenger, and three in the backseat. Two of the

       backseat occupants fled out of the left rear passenger door, and T.F. exited the

       right rear passenger door when he was ordered to stop by Officer Miller. After

       all parties had been detained, Officer Miller observed, in plain view, two

       firearms in the seat that was previously occupied by T.F. A rifle was leaning

       against T.F.’s seat and a handgun was on top of his seat. Additionally,

       ammunition was on the floor. This evidence sufficiently supports the probate

       court’s finding that T.F. had constructive possession of the firearms because he

       had the intent and capability to exercise dominion and control over both

       firearms. The State presented sufficient evidence to support T.F.’s true finding

       beyond a reasonable doubt.


       2. DOC Commitment


[12]   T.F. asserts that the probate court abused its discretion by committing him to

       the DOC. He argues that his commitment “was a punitive decision based upon


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 6 of 9
       T.F.’s presence in the [vehicle] that day and the size of the rifle found by police

       in the back seat.” (T.F.’s Br. 10). We note that “the purpose of the juvenile

       process is vastly different from the criminal justice system.” R.H. v. State, 937

       N.E.2d 386, 388 (Ind. Ct. App. 2010). Specifically, the goal of juvenile

       proceedings is “rehabilitation so that the youth will not become a criminal as an

       adult.” Id. (emphasis in original). To facilitate this goal, courts have a number

       of options available for juvenile placement: “from a private home in the

       community, a licensed foster home, a local juvenile detention center, to State

       institutions[.]” Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987), reh’g denied.


[13]   To assist juvenile courts in selecting amongst available placement alternatives,

       the Indiana Legislature has provided guidance regarding the option selected for

       any particular child:

            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

             (5) provides a reasonable opportunity for participation by the child’s
             parent, guardian, or custodian.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 7 of 9
       IND. CODE § 31-37-18-6. Within those parameters, a juvenile court has

       discretion in choosing the disposition appropriate for each juvenile delinquent.

       D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct. App. 2011). We review a court’s

       disposition for an abuse of discretion. Id. at 97. An abuse of discretion occurs

       if the court’s decision is “clearly against the logic and effect of the facts and

       circumstances before it, or the reasonable, probable, and actual deductions to be

       drawn therefrom.” Id.


[14]   Here, a representative from the Probation Department testified at the

       disposition hearing that “probation, home detention, placement, [and] day

       reporting” had all failed “to get [T.F.] to make the right choices.” (Tr. 62).

       Further, the representative testified that within two months of release from a

       residential placement facility, T.F. had been charged with the present offense.

       It is clear from the disposition hearing transcript that the probate court, after

       reviewing the ineffectiveness of numerous less-restrictive alternatives afforded

       to T.F., determined that making T.F. a ward of the DOC would be in his best

       interest. In light of T.F.’s failure to modify his behavior in response to prior

       services and placements, the probate court did not abuse its discretion by

       committing him to the DOC. See, e.g., D.E., 962 N.E.2d at 97 (concluding that

       there was no abuse of discretion in placement of juvenile at DOC where less-

       restrictive dispositions had been unsuccessful). Accordingly, we affirm the

       court’s commitment of T.F. to the DOC.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 8 of 9
[15]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2562| July 17, 2019   Page 9 of 9
