      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
                                                                         Jan 20 2016, 10:59 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Megan Shipley                                            Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana                                    Karl Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      D.L.,                                                    January 20, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1507-JV-834
              v.                                               Appeal from the Marion Superior
                                                               Court, Juvenile Division
      State of Indiana,                                        The Honorable Marilyn A.
      Appellee-Plaintiff.                                      Moores, Judge. The Honorable
                                                               Geoffrey A. Gaither, Magistrate.
                                                               Trial Court Cause No.
                                                               49D09-1503-JD-512



      Mathias, Judge.


[1]   D.L. appeals the order of the Marion Superior Court finding him to be a

      delinquent child for committing what would be Class B misdemeanor criminal

      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016   Page 1 of 7
      mischief if committed by an adult. On appeal, D.L. claims the evidence was

      insufficient to support the trial court’s finding.

[2]   We affirm.


                                     Facts and Procedural History

[3]   At approximately one o’clock in the morning on March 29, 2015, Robert

      Lipinski and his wife were watching television in their bed when they heard a

      noise coming from the area of their driveway. When they looked out their

      window, they saw five youths yelling and making a lot of noise. Mr. Lipinski

      telephoned the police, who arrived at the scene only a few minutes later. By the

      time the police arrived, however, the youths had moved to a less well-lighted

      area next to a nearby creek. The responding officer said something to the

      youths, who then moved away.

[4]   At approximately 1:34 a.m., Mr. Lipinski again heard noise, this time coming

      from the darker area near the creek. He again called the police. Shortly

      thereafter, Mr. Lipinski saw one of the youths, later identified as then thirteen-

      year-old D.L., jump over the Lipinskis’ chain-link fence and come into his yard.

      D.L. appeared to be picking something up off the ground. Mr. Lipinski and his

      wife yelled at D.L. through their window. D.L. then jumped back over the

      fence, and the youths began to walk away.


[5]   The police arrived and ordered the youths to stop and sit near the Lipinskis’

      fence. Mr. Lipinski identified D.L. as the one who had jumped his fence and



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      entered his yard. After an initial denial, D.L. eventually admitted to jumping

      over the Lipinskis’ fence.

[6]   Because Mr. Lipinski had heard a “cracking” sound earlier, he and the

      responding officer looked for damage to his fence. Tr. p. 13. They discovered

      damage to the top of one section of the fence which had not been present

      earlier. Mr. Lipinski later presented evidence that it would cost $560 to repair

      the damage to that part of the fence.


[7]   On March 30, 2015, the State filed a petition alleging that D.L. was a

      delinquent child for committing what would be Class A misdemeanor trespass

      and Class B misdemeanor criminal mischief if committed by an adult. The trial

      court held an evidentiary hearing on the matter on June 2, 2015. At the

      conclusion of the State’s case-in-chief, the trial court granted D.L.’s motion to

      dismiss the charge of criminal trespass. The court found that D.L. did commit

      what would have been Class B misdemeanor criminal mischief if committed by

      an adult. At the dispositional hearing held on June 30, 2015, the court ordered

      D.L. to be placed on probation, write a letter of apology to the Lipinskis, abide

      by curfew, and participate in services. D.L. now appeals.

                                        Discussion and Decision

[8]   D.L. challenges the sufficiency of the evidence supporting the trial court’s

      delinquency finding. In reviewing the sufficiency of the evidence in a juvenile

      adjudication, we neither reweigh the evidence nor judge the credibility of the

      witnesses. K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006). Instead, we consider


      Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016   Page 3 of 7
       only the evidence most favorable to the trial court’s judgment and the

       reasonable inferences to be drawn from that evidence. Id. We affirm if

       substantial probative evidence supports the conclusion. Id. Although the State

       must prove every element of the alleged offense beyond a reasonable doubt, it is

       not necessary that the evidence overcome every reasonable hypothesis of

       innocence. A.M. v. State, 981 N.E.2d 91, 94 (Ind. Ct. App. 2012) (citing A.B. v.

       State, 885 N.E.2d 1223, 1226 (Ind. 2008)).


[9]    To prove that D.L. committed what would be Class B misdemeanor criminal

       mischief if committed by an adult, the State was required to prove that D.L.

       recklessly, knowingly, or intentionally damaged the property of another person

       without the other person’s consent. See Ind. Code § 35-43-1-2(a).


[10]   D.L. acknowledges that evidence exists that he jumped over the Lipinskis’ fence

       and that some damage was done to the fence. He claims, however, that the

       State failed to prove precisely where D.L. jumped over the fence and that this is

       where the damage was located. D.L. notes that the Lipinskis’ yard was quite

       large and that the area where he could have jumped was not necessarily where

       the damage occurred. This is little more than an argument that we reweigh the

       evidence, which we will not do.

[11]   The evidence favorable to the trial court’s judgment reveals the following. The

       Lipinskis’ fence had no damage earlier that evening. Mr. Lipinski saw D.L.

       jump over his fence, appear to pick something up from the Lipinskis’ yard, and

       then jump back over the fence. Mr. Lipinski also heard a cracking sound. After


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016   Page 4 of 7
       this, Mr. Lipinski discovered damage done to his fence that had not been

       present before. From this, the trial court could reasonably infer that the damage

       to the fence was caused by D.L.’s actions of jumping over the fence.


[12]   D.L. draws our attention to Zinn v. State, 424 N.E.2d 1058 (Ind. Ct. App. 1981).

       In that case, the evidence established only that a series of harassing telephone

       calls were placed from the telephone associated with the defendant’s home. Id.

       at 1060. No evidence in the record indicated who had actually placed the calls

       or that the defendant was the only one with access to her telephone. Id.

       Accordingly, the Zinn court held that the evidence was insufficient to establish

       the defendant’s guilt beyond a reasonable doubt. Id.


[13]   The present case is readily distinguishable from Zinn. Here, Mr. Lipinski

       identified D.L. as the one he saw jump over his fence twice. Mr. Lipinski heard

       a cracking sound, and later discovered damage to his fence that had not been

       there earlier that evening. This is unlike the case in Zinn where the identity of

       the caller was unknown.

[14]   We find this case more similar to Jennings v. State, 956 N.E.2d 203 (Ind. Ct.

       App. 2011), summarily aff’d in relevant part, 982 N.E.2d 1003 (Ind. 2013), also

       cited by D.L. In Jennings, the defendant went to the home where the victim,

       Pope, was visiting friends with the defendant’s girlfriend, Terrell. When Terrell

       prepared to leave, Jennings pulled up in his vehicle and approached Terrell.

       Pope stayed inside his friends’ home because Jennings had previously

       threatened his life for “messing with” Terrell. Id. at 204. Shortly thereafter,


       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016   Page 5 of 7
       Pope and his friends heard a loud noise, which they described as a “a pssshh

       sound” akin to the sound made by an airbrake. Id. They then heard Jennings’

       car quickly drive away. When Pope went to his truck, he discovered that it had

       been scratched and that one of the tires had been slashed. Jennings was charged

       with criminal mischief for damaging Pope’s vehicle.


[15]   On appeal, we held that the evidence, though circumstantial, was sufficient to

       support Jennings’ conviction:


               It was reasonable for the jury to infer that the noise Pope and Ms.
               Martin heard was the sound of air escaping from Pope’s slashed
               tire, especially in light of the testimony that Jennings
               immediately sped away with “screeching tires.” Further, the
               testimony concerning Jennings’s animosity toward Pope,
               combined with the lack of any evidence supporting a conclusion
               that Terrell bore any ill will toward Pope, supports an inference
               that Jennings, not Terrell, was the perpetrator.


       Id. at 205 (record citation omitted).


[16]   If anything, the evidence in the present case is stronger than that in Jennings. In

       Jennings, no one saw the defendant damage the truck. Here, although no

       evidence of any animosity between D.L. and the Lipinskis exists, Mr. Lipinski

       actually saw D.L. jump the fence twice and heard a cracking sound before he

       discovered the damage to his fence.


[17]   We therefore conclude that the State presented evidence sufficient to establish

       that D.L. committed what would be Class B criminal mischief if committed by



       Court of Appeals of Indiana | Memorandum Decision No. 49A02-1507-JV-834 | January 20, 2016   Page 6 of 7
       an adult. Accordingly, the trial court did not err in finding D.L. to be a

       delinquent child.

[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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