MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   May 09 2018, 6:31 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael G. Moore                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

N.M.,                                                    May 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1711-JV-2539
        v.                                               Appeal from the Marion Superior
                                                         The Honorable Marilyn Moores,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      The Honorable Geoffrey A.
                                                         Gaither, Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1706-JD-797



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018                Page 1 of 9
                                             Case Summary
[1]   N.M. appeals his adjudications as a delinquent child for offenses that would be

      Level 6 felony receiving stolen auto parts, Level 6 felony theft, and Class A

      misdemeanor criminal trespass, if committed by an adult. We reverse and

      remand with instructions.


                                                    Issues
[2]   The restated issue before us is whether the evidence is sufficient to support the

      trial court’s true findings.


                                                     Facts
[3]   Shortly after 6:00 P.M. on the evening on June 7, 2017, Anne Schott drove her

      husband’s 2012 Ford E-350 twelve-passenger van to the Skateland Rollerskating

      venue in Indianapolis. The van was in good condition. When she emerged at

      approximately 8:30 P.M., the van was gone. The next day, at approximately

      6:00 A.M., Officer Anthony Carter of the Indianapolis Metropolitan Police

      Department discovered the van in the parking lot of an apartment complex

      located six blocks from Skateland.


[4]   When Officer Carter approached the van, he saw three juveniles sleeping inside

      the vehicle. Seventeen-year-old N.M. was in the rear of the van, while the

      other two juveniles were in the driver’s seat and middle row of the van,

      respectively. Officer Carter entered the van’s license plate number into his on-

      board computer and determined that the van was registered to John Schott and

      had been reported stolen. Officer Carter and other responding officers banged
      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 2 of 9
      on the windows to wake the juveniles. The juveniles emerged without incident

      and were handcuffed, arrested, and transported to the juvenile processing

      center.


[5]   Anne and John Schott were called to the scene, where they advised officers that

      they did not know N.M. or the other juveniles and that they had not granted the

      juveniles permission to use their van. The van “was just trashed,” “reeked of

      marijuana . . . [and] was just covered in trash.” Tr. p. 19. There was physical

      damage to seatbelts, air vents, and the overhead DVD player, as well as

      cigarette burns in the upholstery. Also, the Schotts’ six child car seats and

      accessories, food, personal items, and supplies from Lowe’s Hardware were

      missing. Total damages, including replacement, cleaning, shampooing, and

      repair costs, were approximately $4,000. The van also contained drug

      paraphernalia that did not belong to the Schotts.


[6]   On June 8, 2017, the State filed a petition alleging that N.M. was a delinquent

      child for committing offenses that would be Level 6 felony receiving stolen auto

      parts, Level 6 felony theft, and Class A misdemeanor criminal trespass, if

      committed by an adult. The trial court conducted a denial hearing on August

      17, 2017. The Schotts and law enforcement witnesses testified to the foregoing

      facts. At the close of the evidence, the trial court entered true findings on all

      counts. On October 5, 2017, the trial court placed N.M. on probation,

      suspending his commitment to the Department of Correction. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 3 of 9
                                                  Analysis
[7]   N.M. argues that the evidence is insufficient to support his adjudications. In

      juvenile delinquency adjudication proceedings, the State must prove every

      element of the offense beyond a reasonable doubt. A.B. v. State, 885 N.E.2d

      1223, 1226 (Ind. 2008). “‘In reviewing a sufficiency of the evidence claim, we

      do not reweigh the evidence or assess the credibility of the witnesses.’” K.W. v.

      State, 984 N.E.2d 610, 612 (Ind. 2013) (quoting Treadway v. State, 924 N.E.2d

      621, 639 (Ind. 2010)). We look to the evidence and reasonable inferences

      drawn therefrom that support the judgment, and we will affirm the adjudication

      if there is probative evidence from which a reasonable factfinder could have

      found the defendant guilty beyond a reasonable doubt. Id. We will reverse if

      there is no evidence or reasonable inference to support any one of the necessary

      elements of the offense. Id. We must thus determine whether substantial

      evidence of probative value was presented at trial from which a reasonable

      factfinder could conclude beyond a reasonable doubt that N.M.’s conduct, if

      committed by an adult, would constitute Level 6 felony receiving stolen auto

      parts, Level 6 felony theft, and Class A misdemeanor criminal trespass.


                                A. Sufficiency – Receiving Stolen Property

[8]   N.M. first argues that the evidence was insufficient to prove that he committed

      Level 6 felony receiving stolen auto parts. Specifically, he contends that the

      State failed to present evidence that he acquired possession or control of the van

      or that he knew it was stolen.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 4 of 9
[9]    In order to make a true finding of delinquency against N.M. for Level 6 felony

       receiving stolen auto parts, the State was required to prove beyond a reasonable

       doubt that he knowingly or intentionally received, retained, or disposed of a

       motor vehicle or any part of a motor vehicle of another person, John Schott,

       that had been the subject of theft. See Ind. Code § 35-43-4-2.5(c). In addition to

       proving the explicit elements of the crime, the State must also prove beyond a

       reasonable doubt that the person knew the property was stolen. Fortson v. State,

       919 N.E.2d 1136, 1143 (Ind. 2010)).


[10]   “Knowledge that the property is stolen may be established by circumstantial

       evidence; however, knowledge of the stolen character of the property may not

       be inferred solely from the unexplained possession of recently stolen property.”

       Fortson, 919 N.E.2d at 114; Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App.

       2005). “The test of knowledge is a subjective one, asking whether the

       defendant knew from the circumstances surrounding the possession that the

       property had been the subject of a theft.” Barnett, 834 N.E.2d at 172 (quoting

       Purifoy v. State, 821 N.E.2d 409, 414 (Ind. Ct. App. 2005)). “Possession of

       recently stolen property when joined with attempts at concealment, evasive or

       false statements, or an unusual manner of acquisition may be sufficient

       evidence of knowledge that the property was stolen.” Id.; see Driver v. State, 725

       N.E.2d 465 (Ind. Ct. App. 2000) (trier of fact may infer defendant’s knowledge

       that the property is stolen from possession, coupled with facts like the defendant

       lying about how he acquired the property).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 5 of 9
[11]   In Fortson, the defendant was seen driving a stolen vehicle within hours of its

       owner reporting it stolen. He was convicted in absentia of receiving stolen

       property. On appeal, he challenged the sufficiency of the evidence. A panel of

       this court reversed his conviction. Our supreme court granted transfer and

       summarily affirmed this court’s opinion stating,


               [T]he Court of Appeals concluded that in this case the
               circumstances did not support a reasonable inference that
               Fortson knew the property was stolen. The court noted that
               there was no evidence that Fortson attempted to conceal the
               truck from the officers, physically resist the officers, flee, or that
               he provided evasive answers. The court concluded, “Although
               Fortson was found to be in possession of recently stolen property,
               the State failed to provide any other facts to support an inference
               of knowledge . . . .


               [B]ecause the State could only prove that he was in possession of
               recently stolen property, that fact alone cannot support the
               inference that Fortson knew the truck was stolen. We agree.
               And with our holding today, the same conclusion would obtain
               had Fortson been charged with theft as opposed to receiving
               stolen property.”


       Id. at 1143-44.


[12]   Here, the State presented the following evidence in its case in chief: Mrs.

       Schott testified that her husband’s twelve-passenger van was stolen outside

       Skateland; Officer Carter testified that he discovered the stolen van

       approximately six blocks away, with three juveniles sleeping inside; a juvenile

       was asleep in the driver’s seat, another in the middle row, and N.M. was


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 6 of 9
       sleeping in the rear of the “trashed” van; the Schotts testified that they did not

       know or give the juveniles permission to use their van; and when the police

       woke the sleeping juveniles, they emerged without incident. Tr. p. 19.


[13]   As in Fortson, the State’s evidence proved only that N.M. was in possession of

       the Schotts’ recently-stolen van; however, without additional evidence to

       support the inference that he knew, beyond a reasonable doubt, that the van

       was stolen, we cannot say that sufficient evidence exists to support the trial

       court’s true finding. There was no evidence of evasion, concealment, furtive, or

       otherwise suspicious action by N.M. presented at the denial hearing. We must

       decline the State’s invitation to infer N.M.’s knowledge that the van was stolen

       from the fact that he was found sleeping in its back row. The evidence

       presented to support N.M.’s delinquency adjudication was insufficient.


                                    B. Sufficiency – Level 6 Felony Theft

[14]   Next, N.M. argues that the evidence was insufficient to prove that he

       committed Level 6 felony theft. He argues that the State presented “no

       evidence that [he] was present when the van was stolen” or “that he committed

       or assisted in the original theft of the van” in which the Schotts’ missing

       property was last seen. Appellant’s Br. p. 7. He argues that the State “relied

       solely on the fact that N.M. was present in the stolen van hours after the van

       had been stolen and [the fact] that the car seats and bases were missing.” Id.


[15]   To prove that N.M. committed what would be Level 6 felony theft if committed

       by an adult, the State was required to prove that N.M. knowingly or


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 7 of 9
       intentionally exerted unauthorized control over the property of John Schott –

       children’s car seats and bases—with the intent to deprive John Schott of any

       part of its value or use, in an amount greater than seven hundred fifty dollars

       ($750) and less than fifty thousand dollars ($50,000). See I.C. § 35-43-4-2.


[16]   Here, the State presented no evidence of what transpired in the twelve hours

       that elapsed between Mrs. Schott parking the van outside Skateland and the

       police’s discovery of the van—sans car seats—with N.M. and the other

       juveniles sleeping inside it. The record contains no evidence whatsoever from

       which an inference may be drawn, beyond a reasonable doubt, that N.M. stole

       the vehicle from Skateland. The State presented no evidence that N.M. was

       present when the child car seats and accessories were removed from the van, no

       evidence that linked him to the car seats and accessories after the theft, and no

       evidence that he attempted to conceal the van, to resist or flee, or that he was

       evasive.


[17]   Based upon Fortson, and for the reasons stated above, we conclude that, absent

       any circumstantial evidence to support the inference that N.M. knew beyond a

       reasonable doubt that the van was stolen and that he had any physical contact

       whatsoever with the missing car seats and accessories, the State failed to present

       sufficient evidence to support a true finding of Level 6 felony theft.


                       C. Sufficiency – Class A Misdemeanor Criminal Trespass

[18]   N.M. argues that the evidence was insufficient to prove that he committed

       Class A misdemeanor criminal trespass. To prove that N.M. committed what


       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018   Page 8 of 9
       would be Class A misdemeanor criminal trespass if committed by an adult, the

       State was required to prove that he knowingly or intentionally interfered with

       the possession or use of the property of John Schott, without his consent. I.C. §

       35-43-2-2(b)(4).


[19]   N.M. concedes that he interfered with the Schotts’ possession or use of the van,

       but denies that he “had the requisite knowledge or intent to do so.” Appellant’s

       Br. p. 15. As stated above, the State’s evidence that N.M. was found asleep in

       the rear of the Schott’s “trashed” van twelve hours after it was stolen from

       Skateland is insufficient to prove that he knowingly or intentionally interfered

       with the possession or use of Mr. Schott’s van. See Tr. p. 19. We cannot say

       that the State presented sufficient evidence to support a true finding of class A

       misdemeanor criminal trespass beyond a reasonable doubt.


                                                   Conclusion
[20]   The evidence was insufficient to support the trial court’s entry of true findings

       against N.M. for offenses that would be Level 6 felony receiving stolen auto

       parts, Level 6 felony theft, and Class A misdemeanor criminal trespass if

       committed by an adult. 1 We reverse and remand with instructions to vacate the

       true findings.


[21]   Vaidik, C.J., and Pyle, J., concur.




       1
        Because N.M.’s sufficiency claims are dispositive, we need not reach his remaining challenges to admission
       of evidence and his invocation of the prohibition against double jeopardy.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JV-2539 | May 9, 2018              Page 9 of 9
