                                                                        May 11 2015, 10:03 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                         Gregory F. Zoeller
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      T.S.,                                                     May 11, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1410-JV-739
              v.                                                Appeal from the Marion Superior
                                                                Court, Juvenile Division

      State of Indiana,                                         The Honorable Scott Stowers,
                                                                Magistrate
      Appellee-Plaintiff.                                       The Honorable Marilyn A. Moores,
                                                                Judge
                                                                Case No. 49D09-1312-JD-3747




      Vaidik, Chief Judge.



                                           Case Summary
[1]   The Indiana Supreme Court held in Smith v. State, 765 N.E.2d 578 (Ind. 2002),

      reh’g denied, that where the parties to criminal proceedings in question are not

      identical, the doctrine of judicial estoppel does not apply against the State.
      Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015                    Page 1 of 9
      T.S., a juvenile, argues that Smith does not apply to juvenile-adjudication

      proceedings because they are civil. We find, however, that the rationale for not

      applying judicial estoppel against the State in criminal proceedings applies

      equally in the context of juvenile-delinquency proceedings. We therefore affirm

      the trial court.



                             Facts and Procedural History
[2]   On the evening of December 7, 2013, Connie Bayles went to Dollar Tree at the

      intersection of 38th Street and High School Road in Indianapolis. As Connie

      put her shopping bags in the back seat of her car, she felt something pressed

      against her back and heard someone say, “Give me the bag,” which was a

      reference to the black purse she was carrying on her shoulder. Tr. p. 10.

      Thinking it was a joke, Connie turned around and said, “[Y]ou are kidding.”

      Id. at 9. The person standing behind Connie was a black male wearing dark

      clothes; “it wasn’t an older person and it wasn’t a kid.” Id. The male then

      pushed the gun harder into Connie’s back and again said, “Give me the bag.”

      Id. at 10. Because Connie did not recognize the male, she gave him her purse.

      The male ran toward 38th Street. Connie screamed, “Somebody help, help.

      He just robbed me. Somebody stop him,” and then called the police. Id.


[3]   Indianapolis Metropolitan Police Department Officer William Hornaday was

      parked at the BP gas station across the street from the strip mall where Dollar

      Tree was located when he saw a black male in black clothing running through

      the strip-mall parking lot. Officer Hornaday also saw a black Dodge with no

      Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015   Page 2 of 9
      headlights on driving right behind the male. When the male stopped running,

      the Dodge stopped too. The male then got in the front passenger seat of the

      Dodge, and the Dodge headed toward High School Road. Officer Hornaday

      quickly followed the Dodge.


[4]   When Officer Hornaday saw the Dodge drive through a stop sign without

      stopping or slowing down, he activated his lights. The Dodge slowed down but

      did not stop. Officer Hornaday called for backup, and additional officers

      arrived from the other direction in an attempt to block in the Dodge. However,

      the Dodge maneuvered around the officers’ cars and took off at a high rate of

      speed. A pursuit followed with speeds reaching “well over sixty miles an

      hour.” Id. at 42.


[5]   The pursuit ended when the Dodge pulled up to a house on Fullwood Court. A

      black male, later identified as Leethanel Smith, got out of the driver’s door and

      ran east. Officer Shawn Smith caught up with Leethanel one street over and,

      with a gun in his hand, yelled at Leethanel to stop, turn around, and put his

      hands up. Leethanel, however, kept running. Officer Smith pursued Leethanel

      on foot and saw Leethanel throw a black object. Officer Smith eventually

      caught up to Leethanel, and the two of them struggled in the snow. Officer

      Smith gained control of Leethanel and handcuffed him. Officers recovered the

      black object that Leethanel had thrown during the foot chase: Connie’s purse.


[6]   Meanwhile, the passenger remained in the car and was identified as fourteen-

      year-old T.S. The Dodge was registered to T.S.’s mother, Tewanda Smith. In


      Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015   Page 3 of 9
      addition, Leethanel and Tewanda are cousins, and Leethanel lived with

      Tewanda and T.S. because he had no other place to go when he was released

      from prison for robbery three months earlier. As Officer Hornaday handcuffed

      T.S., Tewanda came out of the house and approached the passenger side of the

      Dodge. She exclaimed, “[W]hat is my gun doing in this car?” Id. at 52.

      Tewanda explained that the gun had been upstairs in her purse. At that point,

      Officer Hornaday looked in the Dodge and saw a gun in the open glove box.

      Later testing showed that T.S.’s thumb print was on the gun.


[7]   A police officer took Connie to the scene for a show-up identification. Connie,

      however, was not able to make a positive identification of the person who

      robbed her.


[8]   The State filed a petition alleging that T.S. was a delinquent based on acts that

      if committed by an adult would be Class B felony robbery, Class A

      misdemeanor dangerous possession of a firearm, and Class A misdemeanor

      carrying a handgun without a license. Before T.S.’s fact-finding hearing,

      Leethanel pled guilty to robbery. T.S.’s attorney questioned Leethanel at T.S.’s

      fact-finding hearing as follows:

              COUNSEL: Where was [T.S.] when you went up to the woman and
              took her purse?
              WITNESS:          He was in the car.
              COUNSEL: Before you got out of the car, did you tell [T.S.] what you
              were going to do?
              WITNESS:          No I just told him to sit back and kind of left the area
              quick.


      Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015               Page 4 of 9
                                               *****
        COUNSEL: Okay did you and [T.S.] at any point get together and
        decide that you would commit a robbery together?
        WITNESS:          No ma’am.
        COUNSEL: Okay did you at any point inform [T.S.] that this is
        something that you might do?
        WITNESS:          No ma’am.
                                               *****
        COUNSEL: Okay when you spoke to the detective on this case, did
        you inform him that it was you and not [T.S.] that had robbed this
        woman?
        WITNESS:          Yes ma’am.
        COUNSEL: And were you doing that just so [T.S.] wouldn’t get into
        trouble because he robbed someone or were you telling the truth?
        WITNESS:          I was telling the truth.
        COUNSEL: Okay now in addition to admitting this to the detective,
        you have also pled guilty to this crime, is that right?
        WITNESS:          Yes ma’am.
        COUNSEL: At that was during a guilty plea hearing in criminal
        court 2 downtown?
        WITNESS:          Yes ma’am.
Id. at 171-73. The State then cross-examined Leethanel as follows:
        COUNSEL: During that hearing, what did you tell the Judge that
        you did?
        WITNESS:          That I committed the robbery.
        COUNSEL: Okay did you tell the Judge that you helped [T.S.]
        commit the robbery?
        WITNESS:          No ma’am.
        COUNSEL: Did you tell the Judge that you committed the robbery
        yourself and you put the gun to Connie Bayles’ back?
        WITNESS:          Yes ma’am.
Id. at 174.
Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015       Page 5 of 9
[9]    Leethanel also described the crime. According to Leethanel, though, when he

       approached Connie, he yelled that it was a “robbery,” at which point Connie

       immediately started screaming. Id. at 170, 178-79. Although he had

       Tewanda’s gun, Leethanel said he did not use it during the robbery because

       Connie was “already screaming”; therefore, he just put the gun in his pocket.

       Id. at 170. He denied touching Connie. Id. at 179.


[10]   T.S. also testified at the fact-finding hearing. T.S., who acknowledged that

       Leethanel was like his brother because they were so close, denied planning the

       robbery with Leethanel and said he had no idea that Leethanel was going to

       commit a robbery. Id. at 198, 200.


[11]   During closing argument, the State pointed out inconsistencies between

       Leethanel’s and the victim’s version of the events, arguing that Leethanel “has

       given you an entirely different account from the victim in this case.” Id. at 209.

       Defense counsel responded that it would be “extremely unethical” for the State

       to say that Leethanel was lying, because it accepted his guilty plea to robbery

       based on the theory that Leethanel robbed Connie.1 Id. at 213.


[12]   The juvenile court entered a true finding for robbery. But because the court

       found that the handgun charges merged, it entered a true finding for Class A

       misdemeanor carrying a handgun without a license and a not-true finding for




       1
        Notably, T.S. did not introduce into evidence a transcript containing the factual basis for Leethanel’s guilty
       plea to robbery.

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       Class A misdemeanor dangerous possession of a firearm. Following a

       dispositional hearing, the court placed T.S. on probation with a suspended

       commitment to the Indiana Department of Correction.


[13]   T.S. now appeals.



                                  Discussion and Decision
[14]   T.S. argues that pursuant to the doctrine of judicial estoppel, the State “should

       have been estopped from arguing [during closing] that Leethanel was dishonest

       about T.S.’[s] lack of involvement in the Robbery.” Appellant’s Br. p. 6. T.S.

       concedes that because he did not object below, “the trial court [must have]

       committed fundamental error when it failed to prevent the State from making

       this argument” in order to prevail on appeal. Id. at 6, 9; see also Ryan v. State, 9

       N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[15]   Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant

       from asserting a position that is inconsistent with one asserted in the same or a

       previous proceeding. Morgan Cnty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind.

       Ct. App. 2008), trans. denied. “Judicial estoppel is not intended to eliminate all

       inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and

       loose’ with the courts. The primary purpose of judicial estoppel is not to protect

       litigants but to protect the integrity of the judiciary.” Id. (quotation omitted).

       “The basic principle of judicial estoppel is that, absent a good explanation, a

       party should not be permitted to gain an advantage by litigating on one theory


       Court of Appeals of Indiana | Opinion 49A02-1410-JV-739 | May 11, 2015       Page 7 of 9
       and then pursue an incompatible theory in subsequent litigation.” Id.

       (quotation omitted). Judicial estoppel applies only to intentional

       misrepresentation, so the dispositive issue supporting the application of judicial

       estoppel is the bad-faith intent of the litigant subject to estoppel. Id.


[16]   As T.S. acknowledges, judicial estoppel has no application against the State in

       criminal proceedings. Smith, 765 N.E.2d at 582-83. The Indiana Supreme

       Court in Smith said that “the purpose of judicial estoppel is not well served by

       applying it against the government in criminal cases” because “the government

       possesses unique status as a litigant and enjoys a great degree of latitude in

       prosecuting the law and striking plea bargains.” Id. at 583. The Court

       explained that judicial estoppel protects the integrity of the judicial process “by

       preventing a party and its counsel from playing fast and loose with the courts.”

       Id. As such, the Court found that the acceptance of a plea bargain from

       Tommy Lampley on one theory of the case and the prosecution of Omond

       Smith in a separate action on an alternate theory could not be construed as

       “playing fast and loose” with the courts.2 Id. at 584. Thus, the Court held that

       “where the parties to the criminal proceedings are not identical, judicial

       estoppel does not apply against the State.” Id.




       2
         Specifically, Smith argued that because the State accepted Lampley’s guilty plea under Indiana Code
       section 35-44-3-2 (now Indiana Code section 35-44.1-2-5), which has been interpreted to apply to people who
       did not actively participate in the crime itself but who assisted a criminal after he committed a crime, the
       doctrine of judicial estoppel precluded an instruction in Smith’s trial that was based on Smith’s aiding
       Lampley in the killing. Smith, 765 N.E.2d at 582.

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[17]   Because juvenile-delinquency proceedings are civil proceedings, T.S. claims

       that Smith, a criminal case, does not apply here. We find, however, that the

       rationale for not applying judicial estoppel against the State in criminal

       proceedings applies equally in the context of juvenile-delinquency proceedings.

       Therefore, accepting a plea agreement from Leethanel based on one theory of

       the case and pursuing a delinquency adjudication against T.S. in a separate

       action based on an alternate theory cannot be construed as playing fast and

       loose with the courts. Moreover, applying judicial estoppel to juvenile-

       delinquency proceedings but not criminal proceedings would be illogical. That

       is, a juvenile would be immunized against an adjudication based on an adult

       defendant’s conviction, but there would be no correlating immunization if the

       juvenile was convicted first. Thus, we find that judicial estoppel does not apply

       to juvenile-delinquency proceedings for the same reasons that it does not apply

       to criminal proceedings. We therefore affirm the juvenile court.


[18]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




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