 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of                      Aug 15 2014, 6:15 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

CHRISTOPHER L. CLERC                                  GREGORY F. ZOELLER
Columbus, Indiana                                     Attorney General of Indiana

                                                      JUSTIN F. ROEBEL
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

IN THE MATTER OF Q.F.,                                )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )       No.03A01-1401-JV-45
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                  APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                        The Honorable Stephen R. Heimann, Judge
                            Cause No. 03C01-1310-JD-5682


                                           August 15, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Q.F. appeals his adjudication as a delinquent based upon acts that would constitute

class A misdemeanor battery resulting in bodily injury and class B misdemeanor disorderly

conduct if committed by an adult. Q.F. presents the following restated issues for review:

       1.     Did the State present sufficient evidence to support the true finding of
              battery resulting in bodily injury?

       2.     Did the victims’ in-court identifications of Q.F. constitute a violation
              of due process?

       3.     Did the entry of true findings of both battery and disorderly conduct
              constitute double jeopardy under our state constitution?

       We affirm in part, reverse in part, and remand.

       The facts favorable to the adjudication follow. Around 8:00 p.m. on October 15,

2013, twenty-year-old Teddy Albertson and two friends, Erik Moody and Jeffery Holmes,

were walking a few blocks to a friend’s house in Columbus, Indiana. As they turned a

corner, they were approached by a group of six or more males, including Q.F. and P.D.

Q.F. initiated a confrontation by asking Albertson and his friends if they wanted to fight,

while the others were “fanning out” around the three men. Transcript at 22. Feeling like

there was no way out of the situation, Albertson punched Q.F. Albertson then immediately

began “getting punched from like everywhere, all sorts of ways”. Id. at 10. Everyone

began throwing punches. Albertson suffered injuries to both eyes and abrasions on his

neck, while Moody received even more severe injuries. Holmes was able to defend himself

and remained unharmed.

       Because things happened so fast, Albertson could not recall if Q.F. hit him, but he

was sure that P.D. struck him at least once in the face. About two hours after the incident,


                                             2
Q.F. provided a voluntary statement to police, in which he admitted involvement in the

fight. Q.F. stated that he punched Albertson at least three or four times. When asked by

police where he struck Albertson, Q.F. responded: “Like in the face. I really wasn’t even

paying attention where I hit him”. Id. at 72.

         The State alleged Q.F. to be a delinquent based on acts that would be three counts

of battery resulting in bodily injury and one count of disorderly conduct if committed by

an adult.1 At the fact-finding hearing on November 18, 2013, Albertson, Moody, and

Holmes testified and identified Q.F. as a participant in the fight, though they could not say

whether Q.F. ever struck Albertson. The State, however, presented Q.F.’s admissions to

police that he repeatedly struck Albertson. Further, at the delinquency hearing, P.D.

testified that Albertson and Q.F. were “going at it”. Id. at 81.

         At the conclusion of the hearing, the juvenile court took the matter under advisement

and then issued an order on November 21, 2013. With respect to Q.F., the court found that

he had committed the following delinquent acts: “Battery Resulting In Bodily Injury, a

Class A Misdemeanor (as it relates to Teddy Albertson) [and] Disorderly Conduct, a Class

B Misdemeanor.” Appendix at 13. Following the dispositional hearing on December 11,

2013, the court ordered Q.F. confined for ninety days in a secure detention facility. Q.F.

now appeals.

                                                    1.




1
    The State made the same allegations against A.D., who was tried with Q.F.
                                                    3
       Q.F. initially challenges the sufficiency of the evidence regarding the true finding

of battery resulting in serious bodily injury. Our standard of review in this regard is well

settled.

       When the State seeks to have a juvenile adjudicated to be a delinquent for
       committing an act which would be a crime if committed by an adult, the State
       must prove every element of the crime beyond a reasonable doubt. Upon
       review of a juvenile adjudication, this court will consider only the evidence
       and reasonable inferences supporting the judgment. We will neither reweigh
       the evidence nor judge witness credibility. If there is substantial evidence of
       probative value from which a reasonable trier of fact could conclude that the
       defendant was guilty beyond a reasonable doubt, we will affirm the
       adjudication.

J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App. 2006) (citations omitted), trans. denied.

       At the time of Q.F.’s delinquent act, class A misdemeanor battery was defined, in

relevant part, as “knowingly or intentionally touch[ing] another person in a rude, insolent,

or angry manner…result[ing] in bodily injury to any other person”. Ind. Code Ann. § 35-

42-2-1 (West, Westlaw 2013).

       Q.F. claims the evidence was insufficient because none of the three victims testified

that he punched anyone. While Q.F. acknowledges that he admitted to police that he

punched Albertson several times, he claims the State failed to establish a connection

between these punches and any injury or pain being caused to Albertson. In other words,

Q.F. argues that Albertson’s injuries could have “just as easily” been caused by one of the

other males in Q.F.’s group. Appellant’s Brief at 5.

       We reject Q.F.’s request to reweigh the evidence. The evidence favorable to the

adjudication establishes that Q.F. instigated the fight and punched Albertson at least three

to four times, including in the face. Although Albertson was likely struck by others too,

                                             4
the trier of fact could reasonably infer that at least some of Albertson’s injuries and pain

was caused by Q.F.2 Sufficient evidence supports the true finding of battery causing bodily

injury.

                                                   2.

          Q.F. contends that the in-court identifications of him violated due process because

“they were tainted by an unduly suggestive pre-trial confrontation and no independent

factual basis exists independent of the pre-trial confrontation.” Appellant’s Brief at 6. This

issue is waived because Q.F. did not object to this evidence below. See Shoultz v. State,

995 N.E.2d 647, 654 (Ind. Ct. App. 2013) (“failure to make a contemporaneous objection

to evidence when it is offered waives any claim of error in its admission on appeal”), trans.

denied. Moreover, any error in the admission of the identification evidence, which placed

Q.F. at the scene, was harmless due to Q.F.’s own admission of involvement in the fight.

See Willis v. State, 776 N.E.2d 965, 967 (Ind. Ct. App. 2002) (“[w]e do not reverse

judgments based upon harmless errors in the admission of evidence”, such as where the

evidence “was merely cumulative of other evidence properly admitted”).



                                                   3.

          Finally, Q.F. contends that the true findings entered for both battery and disorderly

conduct violate principles of double jeopardy under the Indiana Constitution. He claims



2
  We note that accomplice liability would apply here, even if Q.F. did not directly cause the injuries to
Albertson. “The evidence need not show that the accomplice personally acted in the commission of each
element of the offense. It is only necessary to show that the accomplice acted in concert with the actor”.
Rivera v. State, 575 N.E.2d 1072, 1074 (Ind. Ct. App. 1991), trans. denied.
                                                    5
there is a reasonable possibility that the juvenile court used the same evidence to establish

both offenses.

       Two or more offenses are the same offense in violation of article 1, section 14 of

the Indiana Constitution if, with respect to either the statutory elements of the challenged

crimes or the actual evidence used to obtain convictions, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.

Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Under the actual evidence test, we

examine the evidence and arguments presented at trial in order to determine whether each

challenged offense was established by separate and distinct facts. Id. See also Lee v. State,

892 N.E.2d 1231, 1234 (Ind. 2008) (“[i]n determining the facts used by the fact-finder to

establish the elements of each offense, it is appropriate to consider the charging

information, jury instructions, and arguments of counsel”). To find a double jeopardy

violation under this test, we must conclude 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.” Richardson v. State, 717 N.E.2d at 53.

       The State essentially concedes that a double jeopardy violation exists, noting that

“the deputy prosecutor specifically asked the court to find disorderly conduct based on the

act of fighting.” Appellee’s Brief at 9. In fact, the thrust of the State’s closing argument




                                             6
was that disorderly conduct was an available alternative to battery if the juvenile court

found that the batteries were not sufficiently established.3

        On the record before us, we agree that entering true findings of both battery and

disorderly conduct violates Indiana constitutional double jeopardy principles. See D.B. v.

State, 842 N.E.2d 399 (Ind. Ct. App. 2006) (holding that juvenile adjudications can

implicate double jeopardy). Accordingly, we remand with instructions to vacate Q.F.’s

true finding of disorderly conduct. We note, however, that the adjudication of delinquency

is unaffected, as it is supported by the true finding of battery resulting in bodily injury,

which we have affirmed.

        Judgment affirmed in part, reversed in part, and remanded with instructions.

VAIDIK, C.J., and MAY, J., concur.




3
  The prosecutor explained:
       I would just also remind the Court that both individuals are charged with disorderly
       conduct, as well. So, even if the evidence isn’t necessarily, oh we know beyond a
       reasonable doubt that this person hit this victim, under the disorderly conduct, as long as
       the Court finds beyond a reasonable doubt that they were engaging in fighting or
       tumultuous conduct, that was [sic] suffice without, you know, having to specify which
       victim was hit by one specific individual….So, I think, especially, with regard to disorderly
       conduct against [Q.F.], it’s very clear. He admits he was involved in the fight.
Transcript at 94-95.
                                                     7
