MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 06 2020, 8:47 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
Shannon Mears                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General
                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.P.,                                                     January 6, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-JV-1484
        v.                                                Appeal from the
                                                          Hendricks Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Karen M. Love, Judge
                                                          Trial Court Cause No.
                                                          32D03-1903-JD-27



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020                  Page 1 of 9
                                           Case Summary
      In this interlocutory appeal, K.P., who was seventeen years old when he

      burglarized an unoccupied house while armed with a BB gun, argues that the

      juvenile court abused its discretion in waiving him to adult court. Because,

      among other things, this was K.P.’s first referral to the juvenile-justice system,

      K.P. quickly turned himself in after a video of the burglary surfaced and

      cooperated with the police, and his seventeen-year-old accomplice was not

      waived to adult court, we find that it is not in the best interests of K.P. and the

      safety and welfare of the community for him to become a convicted felon on his

      first offense without ever having received the benefit of services offered through

      the juvenile-justice system. We therefore reverse the juvenile court.



                            Facts and Procedural History
[1]   K.P., who was born in Indianapolis in March 2001, is the second oldest of five

      siblings. K.P. has a different father than his siblings and is the only one who

      does not know who his father is. In 2012, K.P.’s maternal grandmother, a

      school administrator, became guardian of K.P. and his siblings because K.P.’s

      mother was struggling with alcoholism. They lived in Fisher, Illinois, which is

      a “small rural town,” and K.P. attended Fisher High School, which has an

      enrollment of 190 students. Tr. p. 47. K.P. excelled in sports at Fisher High

      School, playing football, basketball, and baseball, and everyone in the

      community knew who K.P. was. While living in Fisher, K.P. never got into

      any trouble, except for one fight in elementary school.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020   Page 2 of 9
[2]   In June 2018, after K.P.’s sophomore year of high school, K.P.’s family moved

      to Indianapolis, and K.P. was enrolled in Ben Davis High School, one of the

      largest high schools in Indiana. K.P.’s grandmother became the assistant

      principal at Indianapolis Metropolitan High School. From the beginning, K.P.

      struggled getting acclimated to Ben Davis. He had to tryout for the football

      team, which he never had to do before. When K.P. only made the practice

      squad, he quit.


[3]   In early March 2019, K.P.’s grandmother took him to a crisis center for an

      initial assessment due to his continued struggles getting acclimated and suicidal

      thoughts. A follow-up appointment was scheduled for March 14.


[4]   In the meantime, on the evening of Thursday, March 7, 2019—less than two

      weeks before K.P.’s eighteenth birthday—K.P. and two of his classmates,

      seventeen-year-old A.H. and eighteen-year-old Brandon Kapangama, were

      looking for a way to get money to pay off a marijuana debt and to buy more

      marijuana. The trio decided to purchase two BB guns, which looked like a

      Glock, and to burglarize a home. They selected a house in an Avon

      neighborhood that was dark inside. One of the boys rang the doorbell, and no

      one answered. Believing that no one was home, K.P. and A.H. used a pry bar

      to open a window and then entered the house while Kapangama served as

      lookout. The homeowner had a security camera inside, which showed K.P.

      walking through the house carrying a BB gun. Ex. 1. K.P. and A.H. took a 70-

      inch television and about $2,500 in cash. The homeowner’s security system

      alerted him that people were inside his house, and he alerted the Avon Police

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020   Page 3 of 9
      Department. By the time the police arrived, the boys were gone. The

      homeowner gave the police the video from his security camera. Having no

      leads, the police released the video to the public through Crime Stoppers on

      Saturday, March 9.


[5]   The next day, K.P.’s grandmother saw the video online. She recognized K.P.

      from his mannerisms and confronted him about it. K.P. admitted that it was

      him on the video. K.P.’s grandmother then called the Avon Police Department

      and told them that K.P. wanted to turn himself in. K.P. and his grandmother

      went to the police station. K.P. waived his rights and admitted his involvement

      in the burglary. He also identified A.H. and Kapangama and told the police

      where they could find the BB guns. According to the police, K.P. was “very

      cooperative” and “[v]ery kind.” Tr. p. 29.


[6]   On Monday, March 11, the State filed a delinquency petition alleging that K.P.

      committed acts that would be Level 2 felony burglary (armed with a deadly

      weapon), Level 6 felony theft, and Class A misdemeanor carrying a handgun

      without a license if committed by an adult. The State also filed a delinquency

      petition against A.H. (who is four months younger than K.P.), alleging that he

      committed acts that would be Level 2 felony burglary (armed with a deadly

      weapon) and Level 6 felony theft if committed by an adult. In each case, the

      State filed a motion to waive jurisdiction to adult court pursuant to Indiana




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020   Page 4 of 9
      Code section 31-30-3-5. The trial court denied the motion as to A.H. 1 As for

      K.P., a hearing was held on Friday, March 15, three days before his eighteenth

      birthday.


[7]   K.P.’s grandmother testified at the waiver hearing. In addition, K.P. presented

      numerous letters on his behalf, including from his football coach (who was also

      an administrator) at Fisher High School, his chemistry teacher at Ben Davis,

      and his television-broadcasting teacher at Ben Davis. All the letters recognized

      the seriousness of what K.P. had done but implored the court to give K.P. a

      second chance. Exs. C, D, & E.


[8]   The juvenile court granted the waiver, finding in part:


               (31) The video of the burglary clearly shows youth armed with a
               gun. BB guns can inflict serious bodily injury (loss of eye, loss of
               hearing, etc.). BB guns that appear to be a real firearm also may
               cause others to respond in seconds with tragic consequences.


               People have need to be safe in their own homes. When an
               intruder enters a home holding a gun like those depicted in
               Exhibits 7 and 8, someone in the home could respond by using a
               firearm to shoot the intruder.


               If the police officers responding to the 911 call of burglary in
               progress had caught youth while he was armed with one of the



      1
       A.H. later admitted to Level 4 felony burglary as a lesser-included offense, and the State dismissed the theft
      count. The court ordered a suspended commitment to the Indiana Department of Correction and placed
      A.H. on juvenile probation for twelve months.



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020                     Page 5 of 9
              guns identified in Exhibits 7 or 8 and youth made any furtive
              movement, youth may have been shot by the police.


              (32) The alternatives available in the juvenile court system are
              inadequate to protect the safety and welfare of the community. It
              is in the best interests of the safety and welfare of the community
              that youth be waived to the adult court system.


      Appellant’s App. Vol. II p. 49. The court later certified its order for

      interlocutory appeal. We accepted jurisdiction.



                                 Discussion and Decision
[9]   The State sought waiver to adult court pursuant to Indiana Code section 31-30-

      3-5, which provides, in relevant part:


              [The juvenile] 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:


                       (A) a Level 1 felony, Level 2 felony, Level 3 felony, or
                       Level 4 felony, except a felony defined by IC 35-48-4;


                       (B) involuntary manslaughter as a Level 5 felony under IC
                       35-42-1-4; or


                       (C) reckless homicide as a Level 5 felony under IC 35-42-
                       1-5;


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020   Page 6 of 9
               (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.


       (Emphasis added).


[10]   We review a juvenile court’s decision to waive its jurisdiction for an abuse of

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

       the three elements outlined in Section 31-30-3-5 creates a presumption in favor

       of waiver. State v. D.R., 119 N.E.3d 1060, 1065 (Ind. Ct. App. 2019), reh’g

       denied, trans. denied. The burden then shifts to the juvenile to present evidence

       and prove that it is in the best interests of him and the safety and welfare of the

       community for him to remain in the juvenile-justice system. Moore, 723 N.E.2d

       at 446.


[11]   K.P. argues that the juvenile court abused its discretion in finding that he did

       not rebut the presumption of waiver. We agree. This was K.P.’s first referral to

       the juvenile-justice system. K.P. had never been in any trouble before, besides

       getting into one fight in elementary school. By all accounts, K.P. was doing

       well until he moved from a small town and school in Illinois to a large city and

       school in Indiana. The troubles started when K.P., a star athlete at Fisher High

       School, did not make the football team at Ben Davis High School. His
       Court of Appeals of Indiana | Memorandum decision 19A-JV-1484 | January 6, 2020   Page 7 of 9
       grandmother, a high-school assistant principal, noted that K.P. was having

       troubles getting acclimated and took him to a crisis center for an initial

       assessment; unfortunately, the incident in this case occurred shortly before

       K.P.’s follow-up appointment. Although K.P. burglarized a house while armed

       with a BB gun, he and A.H. only made entry after they rang the doorbell and

       no one answered. When K.P.’s grandmother saw the video of the burglary

       online, she confronted K.P. about it, and he admitted that it was him on the

       video. K.P.’s grandmother then called the police and told them that K.P.

       wanted to turn himself in. At the police station, K.P. admitted his involvement

       in the burglary and identified A.H. and Kapangama. According to the police,

       K.P. was “very cooperative” and “[v]ery kind.” The actions of K.P.’s

       grandmother as well as K.P.’s willingness to take responsibility for his actions

       and cooperation with the police show that he is a not a lost cause and would

       respond positively to services offered through the juvenile-justice system.

       Indeed, several teachers submitted letters attesting to K.P.’s character and how

       he was deserving of a second chance. Ex. C (stating that this was “a pivotal

       moment” in K.P.’s life); Ex. D (believing that the adult criminal system would

       “destroy any chance [K.P.] has to make it in this world”); Ex. E (noting that the

       court’s decision would have “a profound effect on the rest of [K.P.’s] life”).


[12]   We acknowledge the seriousness of K.P.’s actions in burglarizing an

       unoccupied home while armed with a BB gun and the limited options that the

       juvenile court may have had given K.P.’s impending eighteenth birthday. But

       given the other circumstances in this case—including K.P.’s willingness to take


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020   Page 8 of 9
       responsibility for his actions and cooperation with the police and that A.H.,

       who is only four months younger than K.P., was not waived to adult court and

       received juvenile probation—it is not in the best interests of K.P. and the safety

       and welfare of the community for him to become a convicted felon on his first

       offense without ever having received the benefit of services offered through the

       juvenile-justice system. We therefore reverse the juvenile court.2


[13]   Reversed.


       Najam, J., and Tavitas, J., concur.




       2
        In light of this result, we do not address K.P.’s alternate argument that a BB gun is not a deadly weapon
       and therefore there is no probable cause to believe that he committed a Level 2 felony.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1484 | January 6, 2020                    Page 9 of 9
