MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Apr 25 2019, 9:19 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                           Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

L.F.,                                                     April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-JV-1914
        v.                                                Appeal from the Vigo Circuit
                                                          Court
State of Indiana,                                         The Honorable Daniel W. Kelly,
Appellee-Plaintiff                                        Magistrate
                                                          The Honorable Sarah Mullican,
                                                          Judge
                                                          Trial Court Cause No.
                                                          84C01-1803-JD-360



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019                    Page 1 of 10
[1]   L.F. appeals his adjudication for what would be Level 6 felony intimidation 1 if

      committed by an adult. He presents four issues for our review, which we

      restate as:


                 1. Whether the trial court violated L.F.’s due process rights;


                 2. Whether the State presented sufficient evidence that L.F.
                 voluntarily committed Level 6 felony intimidation; and


                 3. Whether the trial court abused its discretion when it placed
                 L.F. in the Department of Correction.


      We affirm.



                                Facts and Procedural History
[2]   On March 22, 2018, L.F.’s mother and grandmother took him to the police

      station to seek help because they believed “he was on drugs and he was out of

      control.” (Tr. Vol. III at 6.) At the station, L.F. appeared “very, very angry.”

      (Id.) Terre Haute Police Officers Vasco Billberry and David Brewer made

      initial contact with L.F., determined he needed medical attention, and

      transported him to a nearby hospital.




      1
          Ind. Code § 35-45-2-1(b)(1) (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 2 of 10
[3]   On the way to the hospital, L.F. told Officer Billberry that “he was going to

      shoot [Officer Billberry] with a shotgun just like Brent Long 2 was killed.” (Id. at

      5) (footnote added). L.F. also told Officer Brewer that he would “cut [Officer

      Brewer’s] throat and he would cut his mom and grandma’s throat for . . .

      getting the police to help him.” (Id. at 8.) Officer Brewer observed L.F. was

      “acting strange and need[ed] help.” (Id. at 9.) After L.F. was medically cleared

      at the hospital, police took him into custody based on the threats and officers’

      concerns that he may engage in activity consistent therewith.


[4]   On March 28, 2018, the State filed a delinquency petition in which it alleged

      L.F. committed an act that would be Level 6 felony intimidation if committed

      by an adult. On April 5, 2018, the trial court held an initial hearing on the

      matter. In the notes on the chronological case summary, the trial court stated

      that “[d]ue to the minor child’s aggressive behavior while in detention, the

      minor remains in cuffs and shackles.” (App. Vol. II at 3.) The trial court set a

      fact-finding hearing for April 12, 2018.


[5]   On April 12, 2018, the State requested a continuance, to which L.F. did not

      object, and the trial court rescheduled the fact-finding hearing for May 10, 2018.

      At the fact-finding hearing, L.F. and his mother testified that Officer Billberry

      and Officer Brewer were lying, that the officers had been harassing L.F., and

      that L.F. was “talking crap” to the officers, but did not threaten them. (Tr. Vol.



      2
       L.F. notes in his brief, “Brent Long was a Terre Haute police officer who was shot and killed in the line of
      duty in 2011.” (Br. of Appellant at 8 n.1.)

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019                    Page 3 of 10
      III at 32.) The trial court credited the officers’ testimony over that of L.F. and

      his mother, and it entered a true finding. The trial court ordered L.F.

      transferred to the Pendleton Juvenile Correctional Facility, which later issued a

      letter indicating L.F. had a projected release date of December 21, 2018.



                                 Discussion and Decision
                                                Due Process
[6]   Our Indiana Supreme Court has held, regarding the due process rights of a

      juvenile as part of a delinquency proceeding:


              A juvenile charged with delinquency is entitled to have the court
              apply those common law jurisprudential principles which
              experience and reason have shown are necessary to give the
              accused the essence of a fair trial. Without question, these
              include the right to adequate notice of the charges, appointment
              of counsel, the constitutional privilege against self-incrimination,
              and the right to confront opposing witnesses. . . .“[N]either the
              Fourteenth Amendment nor the Bill of Rights is for adults
              alone.” . . . Principles of fundamental fairness require that this
              right [not to be tried unless competent] be afforded in juvenile
              proceedings.


      In re K.G., 808 N.E.2d 631, 635 (Ind. 2004) (internal citations omitted). The

      court ultimately concluded: “The due process clause applies in juvenile

      proceedings, but a juvenile [court] must respect the informality and flexibility

      that characterize juvenile proceedings while insuring that such proceedings

      comport with the fundamental fairness demanded by the due process clause.”

      Id. at 637 (quoting 47 Am. Jur. 2d Juvenile Courts 6 (1995)). Here, L.F. argues

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 4 of 10
      the trial court violated his right to due process in two ways: (1) by requiring he

      wear shackles to his initial hearing and (2) by granting the State’s motion to

      continue the fact-finding hearing beyond the statutory time frame.


                                  L.F.’s Appearance at Initial Hearing

[7]   Regarding the restraint of a juvenile during a court hearing, Indiana Code

      section 31-30.5-2-1 directs:


              (a) Except as provided in subsection (b), a juvenile shall not be
              restrained in court unless the court has determined on the record,
              after considering the recommendation of the sheriff or transport
              officer, that the juvenile is dangerous or potentially dangerous.


              (b) A court may order a juvenile restrained without considering
              the recommendation of the sheriff or transport officer if the
              juvenile has caused a physical disruption while in open court.


      During his initial hearing, L.F. appeared before the court in handcuffs and

      shackles “[d]ue to the minor child’s aggressive behavior while in detention[.]”

      (App. Vol. II at 3.) L.F. argues on appeal that his appearance in such a state

      violated his due process rights because the trial court did not determine on the

      record that L.F. was “dangerous or potentially dangerous.” Ind. Code § 31-

      30.5-2-1(a).


[8]   L.F. did not object to his appearance in handcuffs and shackles at the initial

      hearing, and thus the trial court did not have an opportunity to rule on any

      challenge he had to the procedure. As he presents this issue for the first time on

      appeal, it is waived. See Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004)

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 5 of 10
       (“a trial court cannot be found to have erred as to an issue or argument that it

       never had an opportunity to consider”). To overcome waiver, L.F. must

       demonstrate fundamental error. See Tharpe v. State, 955 N.E.2d 836, 839 (Ind.

       Ct. App. 2011) (appellant can argue fundamental error to overcome waiver of

       issue), trans. denied.


[9]    Fundamental error occurs when a decision violates “basic and elementary

       principles, and the harm or potential for harm [can] not be denied.” Warriner v.

       State, 435 N.E.2d 562, 563 (Ind. 1982). Fundamental error is a “narrow

       exception” to the waiver rule. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).

       We may review fundamental error even if there was no objection at trial. Id.

       L.F. does not argue the error was fundamental, and thus his claim of error is

       waived. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (failure to raise

       issue of fundamental error in initial brief results in waiver of issue).


                                         State’s Motion to Continue

[10]   If a child is in detention and the State has filed a petition of delinquency, “a

       fact-finding hearing or a waiver hearing must be commenced not later than

       twenty (20) days, excluding Saturdays, Sundays, and legal holidays, after the

       petition is filed.” Ind. Code § 31-37-11-2(a). Here, the State filed a petition of

       delinquency as to L.F. on March 28, 2018, and L.F. was detained at that time.

       The trial court originally scheduled the fact-finding hearing for April 12, 2018.

       The State moved to continue the hearing, and L.F. did not object. The trial

       court rescheduled the fact-finding for May 10, 2018, which was outside the

       twenty-day time frame.
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 6 of 10
[11]   L.F. contends the State violated his due process rights when it granted the

       State’s motion to continue and rescheduled the fact-finding hearing outside of

       the twenty-day statutory time limit. However, as noted above, his argument is

       waived for failure to present it before the trial court. See A.K. v. State, 915

       N.E.2d 554, 556 (Ind. Ct. App. 2009) (claim of error regarding timing of

       juvenile fact-finding hearing waived for failure to present it before the trial

       court), trans. denied. To overcome waiver, L.F. must demonstrate fundamental

       error. See Tharpe, 955 N.E.2d at 839 (appellant can argue fundamental error to

       overcome waiver of issue). L.F. does not argue the error was fundamental, and

       thus his claim of error is waived. See Bowman, 51 N.E.3d at 1179 (failure to

       raise issue of fundamental error in initial brief results in waiver of issue).


                                    Sufficiency of the Evidence
[12]   On review of a juvenile adjudication, we apply the same sufficiency standard

       used in criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App.

       2001). We do not reweigh the evidence or judge the credibility of witnesses.

       D.R. v. State, 729 N.E.2d 597, 599 (Ind. Ct. App. 2000). Instead we look only

       to the evidence of probative value and the reasonable inferences that support

       the determination. Id.


[13]   The State alleged L.F. should be adjudicated a delinquent because his actions

       towards officers satisfied the elements of Level 6 felony intimidation had the




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 7 of 10
       crime been committed by an adult. 3 L.F. does not challenge that the State

       proved the elements of the crime. Instead he argues the State did not present

       evidence he acted voluntarily, as involuntariness is a complete bar to criminal

       liability. See Ind. Code § 35-41-2-1(a) (“A person commits an offense only if he

       voluntarily engages in conduct in violation of the statute defining the offense.”).

       However, L.F. did not present this defense before the trial court, and it is

       therefore waived. See Miller v. Griesel, 261 Ind. 604, 608, 308 N.E.2d 701, 704-5

       (1974) (a defense which would serve as a legal bar to a claim cannot be raised

       for the first time on appeal).


                                                 L.F.’s Placement
[14]   Trial 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). To assist trial courts in selecting amongst available placement

       alternatives, the Indiana Legislature has provided guidance regarding the option

       to be 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:




       3
        Specifically, the State alleged L.F. “did verbally threaten to kill Officer Billberry . . . (and other officers)
       with a shotgun to their heads while Officer Billberry was performing his duties at the Terre Haute Police
       Department Headquarters.” (App. Vol. II at 5) (errors in original).

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019                           Page 8 of 10
               (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.


       Ind. Code § 31-37-18-6.


[15]   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), and we review its disposition for an abuse of that

       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.

       Here, the trial court committed L.F. to the Department of Correction.


[16]   The State notes the trial court committed L.F. to the Department of Correction

       on July 18, 2018. On November 9, 2018, the Department of Correction
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019   Page 9 of 10
       notified the trial court pursuant to Indiana Code section 31-30-2-2 4 that L.F.

       was scheduled to be released on December 21, 2018. (App. Vol. II at 33.) L.F.

       has not indicated he was not released as scheduled. Thus, as he has already

       completed the terms of his disposition, we are unable to provide him with relief,

       and this portion of his appeal is moot. See Breedlove v. State, 20 N.E.3d 172, 174

       (Ind. Ct. App. 2014) (appeal is moot when term of incarceration has passed),

       trans. denied.



                                                   Conclusion
[17]   L.F. has waived his challenges to the trial court’s pre-trial decisions regarding

       L.F.’s appearance at his initial hearing and the State’s motion to continue, and

       he has not demonstrated fundamental error for either issue. Additionally,

       L.F.’s argument regarding the voluntariness of his actions is waived for failure

       to argue such a defense before the trial court. Finally, L.F.’s argument

       regarding his placement is moot because the record indicates he has been

       released from the placement of which he complains. Accordingly, we affirm.


[18]   Affirmed.


       Mathias, J., and Brown, J., concur.




       4
         This statute requires the Department of Correction to notify the trial court at least ten days prior to releasing
       a juvenile.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1914 | April 25, 2019                       Page 10 of 10
