MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 07 2020, 9:28 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                         Curtis T. Hill, Jr.
Elkhart, Indiana                                          Attorney General of Indiana

                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of T.M., Jr.,                               February 7, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-1979
        v.                                                Appeal from the Elkhart Circuit
                                                          Court, Juvenile Division
State of Indiana,                                         The Honorable Michael A.
Appellee-Petitioner.                                      Christofeno, Judge
                                                          The Honorable Deborah A.
                                                          Domine, Magistrate
                                                          Trial Court Cause Nos.
                                                          20C01-1904-JD-81, 20C01-1904-
                                                          JD-104



Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020                  Page 1 of 16
                                              Case Summary
[1]   T.M., Jr., appeals his adjudications on two counts of criminal recklessness and

      two counts of dangerous possession of a firearm, all of which would constitute

      criminal offenses if committed by an adult. T.M. argues that the adjudications

      must be set aside because the juvenile court improperly admitted a Facebook

      post and a witness’s testimony into evidence, the evidence was insufficient to

      support the adjudications, double jeopardy principles barred adjudications on

      all four counts, and the juvenile court abused its discretion in placing him in the

      Indiana Department of Correction (DOC).


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 23, 2019, T.D. saw seventeen-year-old T.M. standing across the

      street from T.D.’s Elkhart residence. T.D. noticed that T.M. was constantly

      “peeking and looking [around].” Transcript Vol. II at 67. On prior occasions,

      T.D. observed T.M. instigate fist fights with others. T.D. had “friended” T.M.

      on Facebook so he could “keep tabs” on T.M. and stay out of his way. Id. at

      61-62. T.M. referred to himself as “Nocap Savo” on his Facebook page. Id.

      “Savo” was also T.M.’s street name. Id. at 51.


[4]   T.D. was concerned about T.M.’s presence, so he rounded up his younger

      siblings and took them inside. Shortly after completing this task, T.D. noticed a

      vehicle approach his house. Two individuals got out of the car, and T.D.

      identified one of them as T.M. Both T.M. and the other individual “shot at”

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 2 of 16
      T.D. “four times.” Id. at 69, 73. T.M. then ran to his nearby residence and the

      shooting stopped.


[5]   The next day, T.D. was in his bedroom and noticed a truck in front of his

      house. The back passenger window was rolled down, and T.D. saw T.M.

      holding a gun. T.M. fired the gun in his direction, and T.D. immediately

      jumped to the floor and heard three more gunshots. T.D.’s mother also heard

      the shots, and one of her sons ran inside the house and identified T.M. as the

      shooter. T.D.’s mother contacted the police, and an Elkhart Police officer was

      dispatched to the residence. The officer photographed two fresh bullet holes in

      the siding of T.M.’s house.


[6]   On April 9, 2019, the State filed a delinquency petition under cause number

      20C01-1904-JD-81 (JD-81), which alleged that on March 24, 2019, T.M. had

      committed what would be Level 5 felony criminal recklessness and Class A

      misdemeanor dangerous possession of a firearm, if T.M. were an adult. That

      same day, the State filed a delinquency petition under cause number 20C01-

      1904-JD-104 (JD-104), alleging that on March 23, 2019, T.M. had committed

      what would be Level 6 felony criminal recklessness and Class A misdemeanor

      dangerous possession of a firearm, if T.M. were an adult. The cases were

      consolidated, and an evidentiary hearing was held on April 29, 2019.


[7]   At the hearing, the juvenile court admitted over T.M.’s hearsay objection,

      testimony by L.D.—T.D.’s mother—that T.D. had told her sometime prior to

      these incidents that T.M. had “shown him a gun” because the two of them had


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 3 of 16
      been arguing and “beefing” over a girl. Transcript Vol. II at 121. The court also

      admitted, over objection, screenshots of posts from T.M.’s Facebook page that

      T.D. had obtained. One of the posts stated, “You rock with the opps then you

      gone die w em.” Exhibits Vol. IV at 11. T.M. argued that the posts were

      irrelevant and were not properly authenticated because the Facebook page had

      been removed prior to the hearing.


[8]   Following the hearing, the juvenile court entered true findings on all four

      offenses and adjudicated T.M. a delinquent child. On July 15, 2019, the

      juvenile court adopted the probation department’s recommendation that T.M.

      be made a ward of the DOC because of his behavior and the number of prior

      adjudications that he had amassed. In so doing, the juvenile court rejected the

      mental health evaluators’ recommendations that T.M. be placed with his

      mother or father and receive outpatient services including individual and family

      therapy and assistance in understanding instructions. The juvenile court

      determined that it was in the community’s and T.M.’s best interest to be

      removed from his home because he continually placed himself in high risk

      situations and showed no remorse for his actions. T.M. now appeals.


                                     Discussion and Decision

                                       I. Admission of Evidence
[9]   T.M. argues that the screenshots of the Facebook page should not have been

      admitted into evidence because there was no way to authenticate them as the

      Facebook page had been deleted. T.M. also claims that L.D.’s testimony about


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 4 of 16
       what her son had told her about T.M.’s possession of a gun should have been

       excluded because it was hearsay and irrelevant.


[10]   In general, the trial court has inherent discretionary power as to the admission

       of evidence, and its decisions are reversed only when there has been an abuse of

       discretion. Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015). An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court. Collins v. State, 966 N.E.2d 96, 104 (Ind.

       Ct. App. 2012).


[11]   As for T.M.’s contention that the trial court erred in allowing the screenshots of

       the Facebook page into evidence, we note that the proponent of the evidence

       must show that it has been authenticated. Hape v. State, 903 N.E.2d 977, 989

       (Ind. Ct. App. 2009), trans. denied. Indiana Rule of Evidence 901(a) provides

       that “[t]o satisfy the requirement of authenticating or identifying an item of

       evidence, the proponent must produce evidence sufficient to support a finding

       that the item is what the proponent claims it is.” Absolute proof of authenticity

       is not required. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016), trans.

       denied. Rather, the proponent of the evidence must establish only a reasonable

       probability that the evidence is what it is claimed to be and may use direct or

       circumstantial evidence to do so. Richardson v. State, 79 N.E.3d 958, 962 (Ind.

       Ct. App. 2017), trans. denied. Evidence that establishes a reasonable probability

       that the document is what it is claimed to be constitutes sufficient

       authentication or identification. Id. Indiana Evidence Rule 901 also sets forth a

       variety of ways that will satisfy the authentication requirement. These include

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 5 of 16
       “testimony that an item is what it is claimed to be, by a witness with

       knowledge, as well as “[t]he appearance, contents, substance, internal patterns,

       or other distinctive characteristics of the item, taken together with all the

       circumstances.” Evid. R. 901(b)(1), (b)(4). Once a reasonable probability has

       been established, “any inconclusiveness of the evidence’s connection with the

       events at issue” goes to the weight of the evidence. Fry v. State, 885 N.E.2d 742,

       748 (Ind. Ct. App. 2008), trans. denied.


[12]   When the State offered the Facebook page posts into evidence, T.D. had

       already testified that he had sent a friend request to T.M. on Facebook, that

       T.M. accepted the request, and that T.M. referred to himself as “Nocap Savo”

       on Facebook. Transcript Vol. II at 61-62. T.D. indicated he used Facebook to

       “keep tabs” on T.M., so he could try to stay out of T.M.’s way. Transcript Vol.

       II at 61-62. T.D. also testified that “everybody” knew that the “Nocap Savo”

       Facebook page was T.M.’s. Id. at 88. T.D. also testified that he knew the

       “Nocap Savo” Facebook page was T.M.’s because T.M. “goes live on

       Facebook 1 and you can see all of that,” and he had viewed some of those

       videos. Id. at 90-91.


[13]   T.M. claims that T.D. “never added” T.M. as a friend on Facebook. Id. at 88.

       However, T.D. testified that he and T.M. had become Facebook friends during

       the school year. Thus, in the portion of T.D’s testimony upon which T.M.



       1
        Facebook Live is a feature of that social network that uses the camera on a computer or mobile device to
       broadcast real-time video to Facebook. See Facebook.com

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020                Page 6 of 16
       relies, where T.D. stated that he had been aware of T.M.’s Facebook page but

       “I just never added him as a friend[,]” the juvenile court could reasonably infer

       that T.D. meant he had not added T.M. as a Facebook friend before the point in

       the school year in which he sent a friend request to T.M.


[14]   Furthermore, in Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015), trans.

       denied, this court found that “the witness testimony identifying the Twitter

       account as belonging to [the defendant] and the content posted on the account,

       including pictures and gang references, are more than sufficient to authenticate

       the Twitter posts as being authored by [the defendant].” Id. at 1269. Similarly,

       when considering T.D.’s testimony that the Nocap Savo Facebook page was

       T.M.’s and that T.D. watched T.M.’s Facebook “live” videos, the juvenile court

       properly exercised its discretion in determining that there was an adequate basis

       to find that the posts were authored by T.M.


[15]   T.M. next argues that the trial court erred in admitting L.D.’s testimony where

       she commented that T.D. told her that T.M. had “shown him a gun” prior to

       the incident. Transcript Vol. II at 121. T.M. does not assert how he may have

       been harmed by the admission of this evidence. Moreover, even assuming that

       such testimony was irrelevant or amounted to hearsay evidence, errors in the

       admission of evidence are to be disregarded unless they affect the substantial

       rights of a party. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). The

       juvenile court did not mention the above testimony in its findings. Rather, it

       determined that T.M. had committed the acts by relying on the testimony

       concerning T.M.’s actions on March 23 and 24. Thus, we conclude that any

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 7 of 16
       error in the admission of this evidence was harmless at best, and T.M. is not

       entitled to a reversal of his adjudications on this basis.


                                 II. Sufficiency of the Evidence
[16]   T.M. next argues that the evidence was insufficient to support the

       adjudications. T.M. claims that the State failed to establish beyond a

       reasonable doubt that he was the shooter in either incident or that he possessed

       a handgun.


[17]   A true finding “must be based upon proof beyond a reasonable doubt.” Ind.

       Code § 31-37-14-1. When reviewing a challenge to the sufficiency of the

       evidence supporting a true finding, we do not reweigh the evidence or judge the

       credibility of witnesses. B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018).

       Rather, this court will consider only the evidence favorable to the judgment and

       the reasonable inferences supporting it. Id. The juvenile court’s judgment will

       be affirmed as long as there is substantial evidence of probative value from

       which a reasonable fact finder could conclude beyond a reasonable doubt that

       the juvenile engaged in the unlawful conduct. Stephenson v. State, 29 N.E.3d

       111, 114 (Ind. 2015).


[18]   Indiana Code section 35-47-10-5(a) provides that a “child who knowingly,

       intentionally, or recklessly possesses a firearm for any purpose . . . commits

       dangerous possession of a firearm, a Class A misdemeanor.” The delinquency

       petitions alleged that T.M. knowingly possessed a firearm on March 23, 2019,

       and March 24, 2019, and that on both occasions he was seventeen years old.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 8 of 16
       As for the counts of criminal recklessness, the State was required, under the

       delinquency petition filed in cause number JD-104, to prove that on March 23,

       2019, T.M. recklessly, knowingly, or intentionally performed an act which

       created a substantial risk of bodily injury to T.D., and that T.M. was armed

       with a deadly weapon. I.C. § 35-42-2-2(a), (b)(1)(A) (emphasis added). The

       delinquency petition filed under cause number JD-81 required the State to

       prove that on March 24, 2019, T.M. recklessly performed an act that created a

       substantial risk of bodily injury to T.D. “by shooting a firearm into an inhabited

       dwelling or other building or place where people were likely to gather.”

       Appendix Vol. II at 35.


[19]   T.M.’s sole sufficiency challenge is the alleged lack of evidence identifying him

       as the assailant. However, T.D. testified at the fact-finding hearing that T.M

       was the shooter on both occasions. As for the incident that occurred on March

       23, 2019, T.D. testified that he saw T.M. standing across the street “in the

       back” of a nearby house and “there was peeking and looking.” Transcript Vol. II

       at 67. At some point, a vehicle approached the front of T.D.’s residence, and

       two individuals got out of the car and ran toward T.D. T.D. positively

       identified one of the individuals as T.M. T.M. and the other individual “shot

       at” T.D. “four times.” Id. at 69, 73. Because T.D. identified T.M. as one of the

       individuals who was “running up and shooting[,]” the juvenile court as the

       factfinder could reasonably conclude that there was sufficient evidence to

       establish T.M.’s identity with regard to the March 23, 2019 incident. See

       Goolsby v. State, 517 N.E.2d 54, 58 (Ind. 1987) (holding that there was sufficient


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 9 of 16
       evidence establishing the defendant’s identity when the victim was able to

       observe the defendant’s profile in adequate lighting several times during an

       attack, knew his voice, and identified the defendant at trial).


[20]   As to the March 24 incident, T.D. testified that he was looking out his bedroom

       window and saw a truck nearby. The rear passenger window was rolled down,

       and T.D. observed T.M. in the truck holding a gun. T.D. saw the gun fire once

       and he jumped to the floor before hearing three more gunshots. J.J., another

       individual who was present at the scene, testified that when the shooting

       occurred, he was not able to positively identify the shooter, but he did notice

       that the shooter was wearing the same type of hat that T.M. typically wore and

       that the shooter’s hat was “cocked to the left” in the same manner that he had

       seen T.M. wear his hat. Transcript Vol . II at 169.


[21]   Based on T.D.’s testimony that identified T.M. as the shooter during the March

       24, 2019, incident and J.J.’s corroborating testimony, the trial court could

       reasonably conclude that T.M. was the individual in the truck who fired the gun

       at T.D.’s residence. See Bailey v. State, 979 N.E.2d 133, 136 (Ind. 2012) (holding

       that the uncorroborated testimony of a single witness, including the victim, is

       sufficient to support a conviction); see also Goolsby, 517 N.E.2d at 58.


[22]   Nonetheless, T.M. alleges that the adjudications cannot stand because there

       were inconsistencies in T.D.’s testimony. We find that the alleged

       inconsistencies were, at best, a few minor contradictions, and “[i]t is the

       function of a trier of fact to judge the victim’s credibility in part on those


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 10 of 16
       inconsistent statements[.]” Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App.

       2002), trans. denied; see also Reed v. State, 748 N.E.2d 381, 396-97 (Ind. 2001)

       (concluding that the evidence was sufficient to support the defendant’s

       conviction for felony murder where the only witness to place the defendant at

       the scene of the crime and identify him as the triggerman “was not a model

       witness,” some of his testimony was “improbable,” and “he was impeached by

       a number of prior inconsistent statements”); Cohen v. State, 714 N.E.2d 1168,

       1179 (Ind. 1999) (although a witness gave conflicting testimony, it was the

       responsibility of the factfinder to resolve these conflicts and to decide what to

       believe and disbelieve), trans. denied.


[23]   In sum, the essence of T.M’s arguments are requests for this Court to reweigh

       the evidence. We decline that invitation and conclude that the evidence was

       sufficient to support T.M.’s adjudications.


                                           III. Double Jeopardy
[24]   T.M. next claims that both adjudications for criminal recklessness and the two

       adjudications for possessing a handgun violate double jeopardy principles and

       cannot stand. T.M. alleges the same evidence was used to support the two

       separate adjudications “on each of the two days” that the offenses were

       committed. Appellant’s Brief at 34. Thus, T.M. maintains that he is being

       punished twice for the same offense.


[25]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Two offenses are the same

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 11 of 16
       offense for double jeopardy purposes if, “with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999). The Double Jeopardy Clause is not violated when the evidentiary facts

       establishing the essential elements of one offense also establish only one or even

       several, but not all, of the essential elements of a second offense. Spivey v. State,

       761 N.E.2d 831, 833 (Ind. 2002).


[26]   Under the actual evidence test, “the actual evidence presented at trial is

       examined to determine whether each challenged offense was established by

       separate and distinct facts.” Id. at 53. To find a double jeopardy violation

       under this test, we must conclude that there is “a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the essential elements of

       one offense may also have been used to establish the essential elements of a

       second challenged offense. Id.


[27]   A reasonable possibility requires substantially more than a logical possibility,

       and turns on a practical assessment of whether the factfinder may have latched

       on to exactly the same facts for both convictions. Garrett v. State, 992 N.E.2d

       710, 719-20. We evaluate the evidence from the fact finder’s perspective and

       may consider the charging information, jury instructions, and arguments of

       counsel. Id. at 720. Whether multiple convictions violate double jeopardy is a

       question of law, which this Court reviews de novo. Black v. State, 79 N.E.3d 965,

       975 (Ind Ct. App. 2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 12 of 16
[28]   T.M. claims that he should have been adjudicated a delinquent for only one

       offense committed each day and relies upon the “actual evidence test” for that

       proposition. Appellant’s Brief at 22. We reject that contention, in that the

       evidence establishes that it was one delinquent act for T.M. to bring a firearm to

       T.D.’s house and it was another delinquent act for T.M. to actually fire the

       weapon. Unlike the offense of criminal recklessness, the dangerous possession

       of a firearm offense did not require evidence that T.M. had fired the weapon.

       See I.C. § 35-47-10-5. Thus, because T.M. committed the separate acts of

       dangerous possession of a firearm and criminal recklessness on both March 23

       and March 24, 2019, we conclude that his adjudications did not violate the

       double jeopardy provision of the Indiana Constitution. See, e.g., Mickens v. State,

       742 N.E.2d 927, 931 (Ind. 2001) (convictions for carrying a handgun without a

       license and murder did not violate double jeopardy because carrying the gun

       along the street was one crime and killing a person was another); see also Ho v.

       State, 725 N.E.2d 988, 992-93 (Ind. Ct. App. 2000) (concluding that robbery

       and carrying a handgun without a license convictions did not violate double

       jeopardy principles because the defendant failed to establish that the same

       evidentiary facts may have been used to prove the elements of each challenged

       offense). As our Supreme Court commented in Mickens, “[t]his seems about

       right. Carrying the gun . . . was one crime and using it was another.” 742

       N.E.2d at 931.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 13 of 16
[29]   Accordingly, T.M.’s argument that double jeopardy concerns were violated

       because “each day’s offenses were based on the same incident of criminal

       conduct and were proven by the same evidence,” fails. Appellant’s Brief at 22.


                                   IV. T.M.’s Placement in the DOC


[30]   T.M. next claims that the juvenile court abused its discretion in placing him

       with the DOC. T.M. argues that the DOC was not the least restrictive

       alternative and that placing him in the DOC went against the mental health

       evaluators’ recommendations.


[31]   The specific disposition of a delinquent child is within the juvenile court’s

       discretion to be guided by the following considerations: the safety of the

       community, the best interests of the child, the least restrictive alternative, family

       autonomy and life, freedom of the child, and the freedom and participation of

       the parent, guardian, or custodian. K.S. v. State, 849 N.E.2d 538, 544 (Ind.

       2006) (citing Ind. Code § 31-34-19-6). The juvenile court’s decision will be

       reversed only for an abuse of discretion, which is a decision that is clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom. Id.


[32]   Because of competing priorities in the juvenile system, including supporting

       family life, promoting individual accountability and promoting public safety,

       the juvenile court is given the discretion to determine what is in the juvenile’s

       best interest. See K.A. v. State, 775 N.E.2d 382, 387-88 (Ind. Ct. App. 2002)

       (citing Ind. Code § 31-10-2-1), trans. denied. In certain situations, the best

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 14 of 16
       interest of the child is better served by a more restrictive placement. D.B. v.

       State, 842 N.E.2d 399, 406 (Ind. Ct. App. 2006).


[33]   In this case, the juvenile court observed that in addition to the charged offenses,

       T.M. had committed other delinquent acts, including battery resulting in

       serious bodily injury. In light of T.M.’s repeated acts of violence, including the

       use of a firearm on multiple occasions, it was within the juvenile court’s

       discretion to determine that commitment to the DOC, where counseling and

       educational programs were to continue, served everyone’s best interests. See

       K.S., 849 N.E.2d at 544.


[34]   Additionally, T.M.’s actions in this case were inherently dangerous and

       presented an extremely high risk of death to others. T.M.’s behavior indicated

       a need for rehabilitation in a much more secure environment before he reached

       the age where his delinquent behavior would be considered criminal. Because

       of T.M.’s repeated acts of violence, it was not inappropriate for the juvenile

       court to place T.M. in a secure facility to give him a more structured

       opportunity to learn how to modify his behavior and develop life skills.


[35]   As this court has pointed out, confinement may be one of the most effective

       rehabilitative techniques available in some instances. Id. Moreover, a

       “delinquent child’s first exposure to the consequences he will face should he

       continue to break the law may indeed be the best treatment available in helping

       a young person readjust his values and priorities in life.” B.K.C. v. State, 781

       N.E.2d 1157, 1172 (Ind. Ct. App. 2003). In our view, the juvenile court’s


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 15 of 16
       decision to commit T.M. to the DOC was consistent with the safety of the

       community and the “best interest of the child.” See I.C. § 31-37-18-6; see also

       S.C. v. State, 779 N.E.2d 937, 940 (Ind. Ct. App. 2002)(observing that the

       commitment to the DOC ensured that the juvenile would receive, “in a secure

       environment, the extended rehabilitative counseling that she needs to address

       her mental health and substance abuse issues”), trans. denied.


[36]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1979 | February 7, 2020   Page 16 of 16
