      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                                  FILED
      Memorandum Decision shall not be regarded as                            Aug 06 2018, 9:05 am
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,                         CLERK
                                                                               Indiana Supreme Court
      collateral estoppel, or the law of the case.                                Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Steven Knecht                                             Curtis T. Hill, Jr.
      Vonderheide & Knecht, P.C.                                Attorney General of Indiana
      Lafayette, Indiana
                                                                Ellen H. Meilaender
                                                                Supervising Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Alia Sierra,                                             August 6, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               12A02-1710-CR-2339
              v.                                               Appeal from the Clinton Circuit
                                                               Court

      State of Indiana,                                        The Honorable Bradley K. Mohler,
      Appellee-Plaintiff.                                      Judge

                                                               Trial Court Cause Nos.
                                                               12C01-1707-JD-207
                                                               12C01-1708-F5-873



      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Appellant Alia Sierra appeals the juvenile court’s waiver of juvenile jurisdiction.

      We affirm.
      Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018            Page 1 of 8
                                                     Issue
[2]   Sierra presents one issue for our review: whether the juvenile court erred by

      waiving jurisdiction of this matter to adult court.


                               Facts and Procedural History
[3]   On the evening of July 12, 2017, seventeen-year-old Sierra was driving a vehicle

      with four teenage passengers. Sierra was travelling between 80 and 107 m.p.h.

      on a county road when she hit a bump and lost control of the vehicle. The

      vehicle left the road and crashed through the front porch and living room of a

      home. The vehicle struck and killed two children who were in the living room

      and seriously injured their mother.


[4]   Based upon these events, a delinquency petition was filed alleging that Sierra is

      a delinquent child for committing the following acts that would be crimes if

      committed by an adult: two counts of reckless homicide as Level 5 felonies;

      two counts of causing death while operating a motor vehicle with a controlled

      substance in the blood as Level 5 felonies; two counts of causing death while

      operating a motor vehicle while intoxicated as Level 5 felonies; causing serious

      bodily injury while operating a vehicle while intoxicated, a Level 6 felony;

      causing serious bodily injury while operating a vehicle with a controlled

      substance in the body, a Level 6 felony; criminal recklessness, a Level 6 felony;

      and criminal mischief, a Level 6 felony. The State subsequently filed a petition

      to waive juvenile jurisdiction. The juvenile court held a hearing on the State’s




      Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018   Page 2 of 8
      petition, after which it waived jurisdiction. The State then filed an information

      charging the same offenses as contained in the delinquency petition.


[5]   Sierra moved the juvenile court to certify its order for interlocutory appeal,

      which the court granted. This Court accepted jurisdiction over the

      interlocutory appeal but then granted Sierra’s motion to temporarily stay the

      appeal and remand to the trial court. In the meantime, Sierra filed a motion to

      reconsider the waiver order in the trial court. The court affirmed the waiver
                                                                                                                  1
      order, and this Court resumed jurisdiction to hear the interlocutory appeal.


                                       Discussion and Decision
[6]   A juvenile court’s decision to waive its jurisdiction is reviewed for an abuse of

      discretion. Moore v. State, 723 N.E.2d 442, 445 (Ind. Ct. App. 2000).

      Accordingly, the court’s decision will be reversed only if it is clearly against the

      logic and effect of the facts of the case. Soward v. State, 606 N.E.2d 885, 886

      (Ind. Ct. App. 1993). We will not weigh the evidence or judge the credibility of

      the witnesses. Hall v. State, 870 N.E.2d 449, 455 (Ind. Ct. App. 2007), trans.

      denied. We look only to the evidence most favorable to the State and any

      reasonable inferences to be drawn therefrom, considering both the waiver

      hearing and the findings of fact stated by the court. Id. Unlike criminal

      proceedings, juvenile proceedings are civil in nature, and the State has the




      1
        In her reply brief, Sierra requests the Court to strike certain material from the State’s brief. We grant this
      request.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018                  Page 3 of 8
      burden to establish by a preponderance of the evidence that juvenile jurisdiction

      should be waived. Id. Further, the juvenile court is entitled to give the evidence

      whatever weight it deems appropriate. Id.


[7]   In general, waiver of juvenile jurisdiction is governed by Indiana Code section

      31-30-3-5 (2014), which provides, in pertinent part, that:


              the court shall, upon motion of the prosecuting attorney and after
              full investigation and hearing, waive jurisdiction if it finds that:
              (1) the child is charged with an act that, if committed by an adult,
              would be:
              ...
              (C) reckless homicide as a Level 5 felony under IC 35-42-1-5;
              (2) there is probable cause to believe that the child has committed
              the act; and
              (3) the child was at least sixteen (16) years of age when the act
              charged was allegedly committed;
              unless it would be in the best interests of the child and of the
              safety and welfare of the community for the child to remain
              within the juvenile justice system.
      There is a presumption in favor of waiver when the State’s evidence satisfies

      these three statutory prerequisites. Moore, 723 N.E.2d at 446. “The burden to

      present evidence that waiver is not in the best interests of the juvenile or of the

      safety and welfare of the community remains at all times upon the juvenile

      seeking to avoid waiver.” Villalon v. State, 956 N.E.2d 697, 705 (Ind. Ct. App.

      2011), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018   Page 4 of 8
[8]   The parties agree that the necessary statutory requirements were met in this

      case. Consequently, Sierra contends that waiver was not in her best interest or

      the best interest of the safety and welfare of the community. She argues that her

      lack of a juvenile/criminal record, her grades, her employment, her volunteer
                                                                                         2
      work, and the negative results of drug tests from that night lead to the

      conclusion that she should be retained in the juvenile justice system. Sierra also

      points to studies admitted at the waiver hearing that discuss brain development

      in adolescents and the consequences of juveniles being waived into adult court.


[9]   At the waiver hearing, the juvenile court was presented with evidence that

      Sierra was operating her vehicle containing four other teenagers on a county

      road at an extremely high rate of speed. A detective from the sheriff’s

      department who is trained in accident reconstruction calculated Sierra’s speed

      to be 107 m.p.h. One of her teenage passengers stated Sierra was driving

      recklessly at over 100 m.p.h., another passenger had asked Sierra to slow down,

      and a third passenger had requested to be let out of the vehicle. Sierra told

      officers she was driving 80 m.p.h. when she hit a bump and lost control of the

      vehicle. The vehicle left the roadway, went airborne for a short distance, and

      crashed into a home that was approximately two hundred feet from the road,




      2
        In its waiver order, the court states that Sierra was “drug screened and tested positive for opiates.”
      Appellant’s App. Vol. 2, p. 107. After this interlocutory appeal was initiated, the results of further drug tests
      were received showing negative results for opiates. At Sierra’s request, this Court stayed the appeal and
      remanded the cause to the trial court in order for her to petition the court to reconsider its waiver order in
      light of these test results. The court affirmed its waiver ruling as appropriate, stating that the facts
      surrounding Sierra’s drug use on the night in question are not pivotal given the remaining facts outlined
      during the waiver hearing.

      Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018                 Page 5 of 8
       killing two children inside the home and seriously injuring their mother, who

       was taken from the scene by lifeline helicopter.


[10]   The juvenile court also viewed evidence of pictures and videos from Sierra’s cell

       phone depicting marijuana and alcohol use, including by juveniles in Sierra’s

       car, as well as a video of Sierra aggressively accosting another teen. Further,

       the court received evidence of Sierra’s drug and alcohol use, the effect upon

       Sierra when a friend was killed in a drunk driving accident, and her sibling’s

       battle with substance abuse.


[11]   In addition, the court heard the testimony of probation officer Dan Matz that

       retaining Sierra in the juvenile system limits the court’s options for services and

       enforcement of the terms of probation. He indicated there were not

       “appropriate services” in the juvenile system to address issues in this case. Tr.

       Vol. 2, p. 66. He also stated that many of the services available in the juvenile

       system could not be completed before Sierra turned eighteen, thereby limiting

       the court’s enforcement options.


[12]   Sierra presented the testimony of Natalie Walker, Assistant Director of the

       Indiana Department of Correction Division of Youth Services who testified

       about programs available at the Department of Correction Girls School. Dr.

       Robin Kohli, a psychologist who evaluated Sierra, testified to the likelihood of

       Sierra’s rehabilitation and her need for substance abuse and behavioral

       counseling. She concluded it is in Sierra’s best interest to stay in the juvenile




       Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018   Page 6 of 8
       system in order to avoid a felony conviction that would most likely prevent her

       from becoming a special education teacher.


[13]   As to Sierra’s best interest, the juvenile court acknowledged in its waiver order

       that she has “many positive attributes,” which it specifically recognized: no

       criminal/juvenile history, solid student, employed full time in the summer and

       part time during the school year, and active in a “pro-social activity” at school.

       Appellant’s App. Vol. 2, p. 108.


[14]   The court further considered Sierra’s age—17—at the time of the accident, her

       history of substance abuse, her failure to alter her behavior in response to life

       experiences, and her indifference to destructive and aggressive behavior as

       evidenced by photos and videos on her cell phone. In addition, the court

       evaluated the options for treatment and rehabilitation available to Sierra in the

       juvenile justice system versus the adult system, given her age. In considering

       Dr. Kohli’s recommendation and the options to which Walker testified, the

       court stated it could not be assured of long-term enforcement options after

       Sierra’s release from the Girls School. We note that the juvenile court is under

       no obligation to accept the recommendations of expert witnesses. Hall, 870

       N.E.2d at 457. Moreover, the juvenile court is not compelled to give overriding

       weight to testimony that supports a finding the juvenile should remain in the

       juvenile system. Gerrick v. State, 451 N.E.2d 327, 330 (Ind. 1983).


[15]   As for the safety and welfare of the community, the court noted its concern that

       there are limited enforcement options for violations of probation in the juvenile


       Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018   Page 7 of 8
       system once the juvenile turns eighteen. The court concluded there was no

       evidence that retaining Sierra in the juvenile system is in the best interest of the

       safety and welfare of the community and that “[t]he community’s interest in

       ensuring [Sierra] obtains the necessary treatment, services, and consequences

       can only be obtained through the adult justice system which provides sufficient

       time and enforcement capabilities.” Appellant’s App. Vol. 2, p. 110.


[16]   The evidence that was before the court provides ample support for its

       determination that waiver of jurisdiction was in Sierra’s best interest and the

       best interest of the safety and welfare of the community. Accordingly, we find

       no abuse of discretion.


                                                Conclusion
[17]   The juvenile court did not abuse its discretion in determining that Sierra failed

       to rebut the presumption that jurisdiction should be waived to the adult court.


[18]   Judgment affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1710-CR-2339 | August 6, 2018   Page 8 of 8
