MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                   Mar 12 2019, 10:37 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
Ana M. Quirk                                             Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

L.D.,                                                    March 12, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-2391
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Petitioner.                                     Dowling, Judge
                                                         The Honorable Amanda Yonally,
                                                         Magistrate
                                                         Trial Court Cause Nos.
                                                         18C02-1804-JD-45
                                                         18C02-1807-JD-73



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019                       Page 1 of 12
[1]   L.D. appeals his adjudication as a delinquent for committing acts that

      constitute dangerous possession of a firearm and the juvenile court’s

      dispositional order awarding wardship of him to the Department of Correction

      (the “DOC”) for housing in any correctional facility for children. L.D. raises

      two issues which we revise and restate as:


            I.    Whether the evidence is sufficient to sustain his adjudication as
                  a delinquent; and

           II.    Whether the juvenile court abused its discretion when it
                  awarded wardship to the DOC.

      We affirm.


                                      Facts and Procedural History

[2]   On April 18, 2018, the State filed a delinquency petition under cause number

      18C02-1804-JD-45 (“Cause No. 45”), alleging L.D. to be a delinquent child for

      committing: Count 1, battery, a class B misdemeanor if committed by an adult;

      and Count 2, resisting law enforcement, a level 6 felony if committed by an

      adult. When L.D. appeared for an initial hearing in Cause No. 45, he admitted

      to Count 2, the State dismissed Count 1, and the court adjudicated him a

      delinquent for resisting law enforcement, a level 6 felony if committed by an

      adult, and set a dispositional hearing for June 26, 2018. On June 27, 2018, the

      court issued an order for warrant, which indicates that L.D. failed to appear for

      the June 26, 2018 hearing.


[3]   On July 1, 2018, “just a little bit before 6:26 a.m. that morning,” at the

      intersection of Eighth Street and Port Avenue in Muncie, Indiana, Officer

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 2 of 12
Melissa Pease was in a marked, black-and-white police vehicle and observed a

“purpleish-blue colored Hyundai Sonata” coming from the north on Port

Avenue that did not stop at the four-way intersection. Transcript Volume II at

6-7. Officer Pease, who “immediately . . . could tell that [the vehicle] was

picking up speed, accelerating,” entered the intersection, turned on the police

vehicle’s lights and sirens, and observed the vehicle turn east on Ninth Street,

run through the stop sign at the intersection of Ninth Street and Perkins, and

turn north on Sampson. Id. at 7. As she was “coming around on to Sampson,”

she saw the vehicle “kind of rolling toward the west side of Sampson” where

there was a parking lot and “where there used to be a business and some

cement that’s kind of up higher,” and saw four occupants exit the vehicle and

“take off running as the vehicle was still in gear and hit the cement.” Id. at 8.

Deciding to follow the individuals running west down the alley in her police

vehicle, she focused on “the larger individual, [who was L.D.], wearing a white

tee shirt and black basketball shirts.” 1 Id. At about two car lengths behind

L.D., Officer Pease watched him grab in his waistband and throw items down

in the alley.




1
 At the August 14, 2018 fact-finding hearing in cause number 18C02-1807-JD-73, the prosecutor stated,
“[y]ou uh, identified the juvenile in this case,” and asked whether that was the same person she saw running
down the alleyway, and Officer Pease answered affirmatively. Transcript Volume II at 8. When asked what
was distinguishable about L.D. that morning, Officer Pease stated that L.D. was “a larger individual of the
ones running, taller, his hair – um, longer hair on top, um, and I observed the – the white tee shirt and black
shorts,” and testified later that “I have them in sight and as I’m watching – like I said I was – I think because
he was the larger individual I was more focused on him.” Id. at 8-9.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019                       Page 3 of 12
[4]   After losing sight of the individuals, Officer Pease returned to the running

      vehicle that the individuals had fled and gave the vehicle’s plate number and

      VIN number to dispatch. At some point, she then “continued back – or came

      back to the area and set up the alley on the west end at Ninth and Perkins”

      facing east, and saw L.D., who wore the same clothing, “pop out” from the

      houses on the north side of the alley. Id. at 12. She attempted to marshall units

      into the area because she “felt like he was going to take off again,” L.D. looked

      in her direction, she started driving to the east, and he took off running south in

      between a house just to the west of Sampson. Id. He was ultimately found

      hiding in “like a cellar” on the west side of the house at 1521 South Sampson.

      Id. at 13. When Officers Dustin Lee and Tyronna Benning returned to the

      location where Officer Pease had witnessed L.D. grab in his waistband, they

      “secured the items that were thrown down” and Officer Pease “met them and

      uh, located a money bag with change in it and a black, semi-automatic

      handgun.” Id. at 9.


[5]   On July 6, 2018, the State filed a delinquency petition under cause number

      18C02-1807-JD-73 (“Cause No. 73”), alleging L.D. to be a delinquent child for

      committing acts that would be a crime if committed by an adult, to-wit: “Count

      I, Criminal Trespass, I.C. 35-43-2-2(b)(3), a Class A Misdemeanor . . . . Count

      II, Resisting Law Enforcement, I.C. 35-44.1-3-1(a)(3), a Class A Misdemeanor .

      . . Count III, Dangerous Possession of a Firearm, I.C. 35-47-10-5(a), a Class A

      Misdemeanor.” Appellant’s Appendix Volume II at 150.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 4 of 12
[6]   On August 14, 2018, the court held a fact-finding hearing under Cause No. 73,

      at which Officer Pease and L.D. testified. After mentioning the money bag and

      handgun, Officer Pease testified that the handgun was a “three eighty caliber

      revol – or I’m sorry, Ruger” which had “four in the magazine but it was not

      chambered.” Transcript Volume II at 9. She answered affirmatively when

      asked if “those items were the items that she saw L.D. throw from his

      waistband.” Id. She was later shown a photograph that she had taken of the

      “money bag and the gun that [were] located on the south side of the alley where

      [she] saw the items dropped,” and she answered affirmatively when asked if the

      photograph truly and accurately depicted what she saw the juvenile drop and if

      the gun was in the lower center of the picture. Id. at 14. The State moved to

      admit the photograph as State’s Exhibit 4, which the court admitted without

      objection. L.D. testified that “[w]e all ran” and answered, “[b]ecause I had a

      warrant,” when asked why he ran. Id. at 21-22. He answered in the negative

      when asked if he had a gun in his possession at the time he ran down the alley;

      if he knew from where the gun came; and, if he reached into his waistband and

      threw anything. When his counsel asked if he had a money bag, L.D.

      responded, “Nah. No, I know the money bag,” it “came from Mike,” 2 and “[i]t




      2
       L.D. previously answered that “the Mike dude, he – me and him tryin’ (sic) to put some change together
      and he was about to take me back to my crib” when asked why he had been in the vehicle during the
      morning of July 1, and stated “[y]eah” when asked whether the individual that “you guys call Money Mike”
      was also in the vehicle. Transcript Volume II at 19-20. L.D. also testified that Money Mike was driving the
      vehicle. Id. at 21.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019                  Page 5 of 12
      had to because me and (indiscernible) (indiscernible) change together for them

      to take us home.” Id. at 22.


[7]   On August 19, 2018, the court issued its order on the fact-finding hearing in

      Cause No. 73, which found that the evidence did not prove beyond a

      reasonable doubt that L.D. committed the act of criminal trespass and that the

      evidence presented at the hearing was sufficient for the court to conclude

      beyond a reasonable doubt that L.D. did resist law enforcement and knowingly,

      intentionally or recklessly possessed a firearm for a purpose other than a

      purpose described in Ind. Code § 35-47-10-1. The order also adjudicated L.D.

      delinquent as to Counts II and III and ordered the juvenile probation

      department to prepare a pre-dispositional report.


[8]   On September 19, 2018, the court held a dispositional hearing in Cause Nos. 45

      and 73, at which it noted having pre-dispositional reports filed by juvenile

      probation in both causes. Probation Officer Hollie Partin asked that L.D. be

      given, under Cause No. 45, a “sixty day commitment to the Delaware County

      Juvenile Detention Center and . . . credit for time served and that that matter be

      closed out” and that, under Cause No. 73, L.D. in part be placed on formal

      probation for up to one year, receive a suspended commitment to the DOC,

      and be released from the Delaware County Juvenile Detention Center to the

      custody of the Youth Opportunity Center and “placed in cottage seven, INTAC

      progam.” Id. at 31. She indicated that in January 2016, L.D. was arrested and

      adjudicated of burglary, in December of 2016 at his disposition for the offense

      he received a DOC suspended commitment and formal probation under cause

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 6 of 12
       number 18C02-1601-JD-14, and testified that “it appears that [L.D.] was still

       on” formal probation for the offense “for probation fees um, because it was not

       an official release and he was re-arrested then in March, which was a year and

       four months after that.” Id. at 33. She further testified that L.D. had never

       successfully completed probation before a re-arrest. After questioning L.D, the

       court found him to be “beyond the rehabilitative efforts of Delaware County.”

       Id. at 39.


[9]    On September 19, 2018, the court issued dispositional orders in Cause Nos. 45

       and 73, which found it was in L.D.’s best interest to be removed from his home

       environment and that remaining in the home would be contrary to his welfare

       because he presented as a danger to himself and others. It also issued its Order

       on DOC Commitment under Cause No. 73, which noted L.D.’s delinquent

       adjudication for resisting law enforcement in Cause No. 45 and awarded

       wardship of L.D. to the DOC for housing in any correctional facility for children.


                                                      Discussion

                                                            I.

[10]   The first issue is whether the evidence is sufficient to sustain L.D.’s

       adjudication as a delinquent for committing dangerous possession of a firearm. 3

       When the State seeks to have a juvenile adjudicated a delinquent, it must prove




       3
         L.D. does not challenge his adjudications as a delinquent for having committed acts that would constitute
       resisting law enforcement if committed by an adult under Cause Nos. 73 and 45.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019                   Page 7 of 12
       every element of the offense beyond a reasonable doubt. D.B. v. State, 842

       N.E.2d 399, 401 (Ind. Ct. App. 2006) (citing C.T.S. v. State, 781 N.E.2d 1193,

       1200-1201 (Ind. Ct. App. 2003), trans. denied). In reviewing a juvenile

       adjudication, this Court will consider only the evidence and reasonable

       inferences supporting the judgment and will neither reweigh evidence nor judge

       the credibility of the witnesses. J.L. v. State, 5 N.E.3d 431, 442 (Ind. Ct. App.

       2014). If there is substantial evidence of probative value from which a

       reasonable trier of fact could conclude that the juvenile was guilty beyond a

       reasonable doubt, we will affirm the adjudication. Id.


[11]   L.D. argues that the State did not present evidence that he was in possession of

       the firearm, contends that he did not have exclusive possession of the premises

       in which the firearm was found, and asserts that the located firearm could have

       been dropped, thrown, or abandoned by other persons as he “was not the only

       person who passed through the alley.” Appellant’s Brief at 13. The State

       underscores L.D.’s claims at the fact-finding hearing that “he recognized the

       money bag as his friend Mike’s, but he did not recognize the gun and had not

       discarded either of them”; points to Officer Pease’s testimony, recognition of

       distinct characteristics about the specific individual who discarded the items,

       and observation that multiple items were discarded at the same time at the

       location where the money bag and gun were found; and contends that the

       evidence, including the recovery of only two items in that location, viewed in

       the light most favorable to the adjudication support the finding that L.D. had

       possessed the gun before discarding it in the alley. Appellee’s Brief at 8.


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 8 of 12
[12]   Ind. Code § 35-47-10-5(a) provides in part that a “child who knowingly,

       intentionally, or recklessly possesses a firearm for any purpose other than a

       purpose described in section 1 of this chapter commits dangerous possession of

       a firearm, a Class A misdemeanor.” 4 The record reveals that the State

       presented the testimony of Officer Pease, who witnessed four occupants exit a

       vehicle which she had pursued and followed the individuals running west down

       the alley. She testified that she focused on the larger individual and identified

       him as L.D. She further testified that she watched L.D. grab in his waistband

       and throw items into the alley; indicated that Officers Lee and Benning

       returned to the location and “secured the items that were thrown down” and

       that she returned and located a money bag and a black, semi-automatic

       handgun; and answered affirmatively when asked if “those items” were the

       items she saw L.D. throw from his waistband. Transcript Volume II at 9. To

       the extent that L.D. requests that we judge the credibility of the witnesses and

       reweigh evidence, we will not do so. See J.R.T. v. State, 783 N.E.2d 300, 302

       (Ind. Ct. App. 2003), trans. denied. Based upon our review of the evidence and

       in light of the reasonable inferences which support the judgment, we conclude

       the State presented evidence of probative value from which a reasonable

       factfinder could find beyond a reasonable doubt that L.D. was delinquent on

       this basis.




       4
        On appeal, L.D. challenges the adjudication only on the element of possession and does not suggest that
       any other elements of Ind. Code § 35-47-10-5(a) were not satisfied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019                 Page 9 of 12
                                                         II.

[13]   The second issue is whether the juvenile court abused its discretion in awarding

       wardship of L.D. to the DOC for housing in any correctional facility for

       children. The juvenile court is given “wide latitude and great flexibility” in

       determining the specific disposition for a child adjudicated a delinquent. D.A. v.

       State, 967 N.E.2d 59, 65 (Ind. Ct. App. 2012). However, its discretion is

       circumscribed by Ind. Code § 31-37-18-6, which provides:


               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.


[14]   “Under the statute, placement in ‘the least restrictive (most family like) and

       most appropriate setting available’ applies only ‘[i]f consistent with the safety of

       the community and the best interest of the child.’” J.D. v. State, 859 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 10 of 12
       341, 346 (Ind. 2007) (quoting Ind. Code § 31-37-18-6). A disposition will not be

       reversed absent a showing of an abuse of the juvenile court’s discretion, which

       occurs when the juvenile court’s order is clearly against the logic and effect of

       the facts and circumstances before the court or the reasonable inferences that

       can be drawn therefrom. R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App.

       2010).


[15]   L.D. argues that the completion of a residential program, like that which was

       recommended by probation, would have been in his best interests, contends that

       the court has never attempted any type of rehabilitative treatment or offered

       counseling to him, and asserts that, prior to the incident “under [Cause No. 45],

       [he] has not been in trouble since January 2016.” Appellant’s Brief at 15. The

       State argues in response that L.D. has a history of delinquent conduct going

       back to the age of twelve that consists of true findings for carrying a handgun

       without a license and burglary, that there is no requirement for a juvenile court

       to offer rehabilitative treatment prior to commitment to the DOC, and that the

       court could reasonably conclude that it was both in the best interest of L.D. and

       the safety of the community to commit him to the custody of the DOC.


[16]   The September 17, 2018 pre-dispositional report indicates that L.D. first

       became involved with the Delaware County Probation Department in June

       2014 for theft, at which time he was warned and released, and that, in April

       2015, he was placed on informal adjustment for being incorrigible. Appellant’s

       Appendix Volume II at 182. The report further indicates that his legal history

       includes carrying a handgun without a license in 2015 while he “was on

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 11 of 12
       Informal Adjustment for Incorrigibility from March 2015,” for which he was

       placed on formal probation, and burglary of a dwelling in 2016. Id. The report

       also states that “Informal Adjustment; OP counseling; Day Reporting; Informal

       house arrest; Formal probation” services were provided. Id. at 187.


[17]   L.D. admitted in Cause No. 45 that he resisted law enforcement. He failed to

       appear for the June 26, 2018 dispositional hearing in Cause No. 45, and a

       warrant was issued for his arrest. On July 1, 2018, Officer Pease encountered

       L.D., who ran because he had an outstanding warrant. The court adjudicated

       L.D. delinquent for resisting law enforcement and dangerous possession of a

       firearm in Cause No. 73. Under these circumstances we conclude that the

       placement ordered by the juvenile court is consistent with his best interest and

       the safety of the community and find no abuse of discretion.


[18]   For the foregoing reasons, we affirm the juvenile court’s adjudication of L.D. as

       a delinquent and its order awarding wardship to the DOC.


[19]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2391 | March 12, 2019   Page 12 of 12
