Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                           Apr 18 2013, 8:54 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                           GREGORY F. ZOELLER
Marion County Public Defender                   Attorney General of Indiana
Indianapolis, Indiana
                                                JONATHAN R. SICHTERMANN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

J.S.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )      No. 49A04-1209-JV-490
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Petitioner.                    )


        APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
                     The Honorable Marilyn A. Moores, Judge
                         Cause No. 49D09-1207-JD-1864



                                      April 18, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, the juvenile court adjudicated J.S. a delinquent child for committing

what would have been class D felony Resisting Law Enforcement 1 if committed by an

adult after he was caught disregarding a stop sign on a moped and then leaving the scene.

Contending that the police officer merely held up his hand in an ambiguous gesture

during a brief traffic stop before leaving J.S. to pursue his friend, J.S. claims that the

evidence was insufficient to prove that he knowingly or intentionally fled from the officer

when he left to go home, especially in light of his tender years and immaturity. Finding

the evidence sufficient to support the true finding of delinquency, we affirm the judgment

of the juvenile court.

                                            FACTS

          On July 5, 2012, fourteen-year-old J.S. and a friend were riding mopeds when they

failed to stop at a stop sign. Sergeant Michael Lair of the Lawrence Police Department,

who was patrolling the area in an unmarked police vehicle headed in the opposite

direction, observed the two teenagers disregard the stop sign and then veer into his lane

of traffic. Sergeant Lair had to pull his emergency brake to keep from hitting them, so he

turned around and initiated a brief stop of J.S. before also leaving J.S. to attempt to locate

J.S.’s friend, who had driven out of sight. Although Sergeant Lair had intended for J.S.

to wait for him to return, J.S. left the scene but was later located at his residence.

Thereafter, the State filed a delinquency petition alleging that J.S. had committed an act




1
    Ind. Code § 35-44.1-3-1.
                                               2
that would have been resisting law enforcement, a class D felony, if committed by an

adult.

         At a hearing on August 22, 2012, Sergeant Lair and J.S. presented different

accounts of the brief stop. Sergeant Lair testified that he activated his emergency lights

and sirens to stop J.S., but ultimately he had to pull the front of his vehicle to the curb in

front of J.S.’s moped before J.S. stopped. Sergeant Lair then rolled down his passenger

side window and told J.S., “[B]oys you stay here.” Tr. p. 10. Although the moped was

loud, Sergeant Lair believed he spoke loudly enough so that J.S. could hear him over the

sound of the moped’s engine. As Sergeant Lair drove away to pursue the other moped,

he observed J.S. leaving through his rearview window. Shortly thereafter, Sergeant Lair

located J.S. at his home, where the moped was in the driveway.

         J.S. recounted a slightly different version of the events. J.S. claimed that Sergeant

Lair never activated the siren or lights on the unmarked police vehicle, but J.S. stopped

on his own because he had seen a vehicle turn around and thought it was probably the

police. J.S. claimed that Sergeant Lair “barely stopped,” that Sergeant Lair did not say

anything to him, and that Sergeant Lair “just put his hand up and waved, . . . like pushed

out his hand.” Tr. p. 27. J.S. stated that he interpreted the “palm out” hand signal to

mean “[g]et out of my face” because that is what his mother means when she uses that

hand signal. Id. at 31. Then, when Sergeant Lair left to pursue his friend, J.S. “figure[ed]

he didn’t even really want me.” Id. at 30. J.S. felt that he was left “just sitting there like

a dummy at the corner, so [he] turn[ed] around and [went] home.” Id. at 27.

                                               3
       J.S.’s counsel attempted to impeach Sergeant Lair’s testimony by observing that

Sergeant Lair failed to state in his police report that he had verbally instructed J.S. to

remain where he was and that the report stated only that Sergeant Lair “looked at [J.S.] to

stop the other vehicle.” Tr. p. 17. Sergeant Lair admitted that his report does not

reference any verbal commands to stop, but he claimed that he had merely omitted that

information by mistake.       Finally, J.S.’s mother testified that when she spoke with

Sergeant Lair shortly after J.S. had returned home, Sergeant Lair told her that he “threw

his hand up for [J.S.] to stop, and went after the other guy,” but he did not mention

verbally telling J.S. to stop. Id. at 23.

       At the conclusion of the hearing, the juvenile court entered a true finding that J.S.

was a juvenile delinquent because he had committed an act that would have been

resisting arrest, a class D felony, had it been committed by an adult. The juvenile court

held a disposition hearing on September 5, 2012, and J.S. now appeals.

                               DISCUSSION AND DECISION

       J.S. contends that the State presented insufficient evidence to support the true

finding for resisting law enforcement. More precisely, J.S. claims that when the evidence

is viewed in light of the United States Supreme Court’s recognition “that children are not

miniature adults, that they lack the capacity to exercise mature judgment, and [that] they

incompletely understand the world around them,” appellant’s br. p. 4, the State proved

only that J.S. was confused by Sergeant Lair’s hand gesture to wait for him and that he



                                             4
left the scene when Sergeant Lair sped after his friend. In other words, J.S. claims that

the State failed to prove that he knowingly or intentionally fled from Officer Lair.

       In reviewing a claim of insufficient evidence in delinquency proceedings, we

apply the standard of review that applies to all sufficiency matters. Johnson v. State, 719

N.E.2d 445, 448 (Ind. Ct. App. 1999). We consider only the probative evidence and

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). We do not reweigh the evidence or assess the credibility of witnesses, and we

consider conflicting evidence most favorably to the trial court’s ruling. Id.

       As in adult criminal prosecutions, the State must prove every element of the

offense beyond a reasonable doubt to obtain a juvenile delinquency adjudication. A.B. v.

State, 885 N.E.2d 1223, 1226 (Ind. 2008). Here, the delinquency petition alleged that

J.S. had violated Indiana Code section 35-44.1-3-1, which makes it a class D felony to

use a vehicle to “knowingly or intentionally . . . flee[] from a law enforcement officer

after the officer has, by visible or audible means, including operation of the law

enforcement officer’s siren or emergency lights, identified himself or herself and ordered

the person to stop.”

       Citing J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), J.S. asserts that the trial

court erred by failing to take into account J.S.’s age in determining whether or not he

knowingly or intentionally fled from Sergeant Lair. See J.D.B., 131 S. Ct. at 2403-06




                                             5
(holding that a minor’s age is a relevant circumstance under Miranda2 for the objective

determination of whether a reasonable person in the minor’s position would feel free to

leave police questioning because “children characteristically lack the capacity to exercise

mature judgment and possess only an incomplete ability to understand the world around

them”).

          Notwithstanding this claim, a determination of whether a person knowingly or

intentionally committed a crime, which is the relevant inquiry here, is a subjective

analysis and primarily a question of fact, not law. See Ritchie v. State, 809 N.E.2d 258,

270 (Ind. 2004). The finder of fact may properly infer the existence of the requisite level

of mens rea from the circumstances. Id. at 273. So long as there is sufficient evidence in

the record from which this inference could be made, we will not second-guess a

conviction or juvenile delinquency adjudication even where conflicting evidence on one’s

mental state is presented. See Owens v. State, 272 Ind. 652, 655, 400 N.E.2d 1124, 1126

(1980) (stating that the jury was not obliged to accept the defendant’s explanation that he

killed another in sudden heat when sufficient evidence existed from which the jury could

have inferred that the defendant acted knowingly).

          In the instant case, regardless of J.S.’s argument that he was confused by Sergeant

Lair’s hand signal and thought that he was free to leave, the State presented sufficient

evidence to meet its burden of showing that J.S. knowingly or intentionally fled from a

law enforcement officer. Indeed, Sergeant Lair testified that he activated the police

2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               6
vehicle’s emergency lights and siren, pulled the vehicle directly in front of J.S.’s moped

to stop him, and verbally commanded J.S. to stay where he was. Tr. p. 10. Additionally,

Sergeant Lair apparently held up his hand in a gesture that reasonably could have been

interpreted to further communicate his desire for J.S. to stop and wait for him to return.

Tr. p. 23, 27-29.

       The judgment of the juvenile court is affirmed.

MAY, J., and MATHIAS, J., concur.




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