MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                         Jan 23 2017, 5:36 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel C. Reuter                                         Curtis T. Hill
Nashville, Indiana                                       Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

L.O.C.,                                                  January 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         07A01-1606-JV-1300
        v.                                               Appeal from the Brown Circuit
                                                         Court
State of Indiana,                                        The Honorable Judith A. Stewart,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         07C01-1512-JD-85



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 1 of 9
                                             Case Summary
[1]   L.C. appeals his adjudication as a delinquent child for his act that would have

      been Level 6 felony possession of a legend drug if committed by an adult. We

      affirm.


                                                     Issues
[2]   L.C. raises two issues, which we restate as:


                           I. whether the evidence is sufficient to sustain his
                              adjudication as a delinquent child; and

                           II. whether he received the effective assistance of
                               trial counsel.


                                                     Facts
[3]   On August 27, 2015, L.C. and A.B. were high school students. Another

      student reported seeing L.C. give a plastic bag containing pills to A.B. during

      class. The principal questioned L.C. and A.B., and both students denied the

      report. However, a baggie containing fifty-nine pink pills, later identified as

      paroxetine hydrochloride, also known as Paxil, were found in A.B.’s

      possession. L.C. gave a written statement to the principal that provided: “I was

      holding the pills for [A.B.] after he gave them to my cousin [B.C.] to hold two

      days ago. I was supposed to give them to him yesterday but I was not at school

      so he had me give them to him today.” State’s Ex. 1.


[4]   The State filed a delinquency petition alleging that L.C. had committed an act

      that would be Level 6 felony possession of a legend drug. L.C. attempted to

      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 2 of 9
      admit the allegation, but the trial court found an insufficient factual basis and

      did not accept L.C.’s admission. At the fact-finding hearing, A.B. testified that

      he had given a bag of pills to L.C. and that L.C. gave the pills back to him on

      August 27, 2015. A.B. testified that he assumed it was illegal for him to possess

      the pills without a prescription and that he concealed the pills in his pocket and

      his waistband. L.C.’s counsel did not cross-examine A.B. L.C.’s counsel

      argued that the State had failed to prove that L.C. knew the pills were

      paraoxetine hydrochloride.


[5]   The juvenile court found that “the State proved [L.C.] possessed Paroxetine

      Hydrochloride, that [L.C.] knew he was in possession of pills, and that [L.C.]

      was aware of a high probability that the pills required a prescription.”

      Appellant’s Second Suppl. App. Vol. II p. 44. The trial court concluded that

      the State did not prove that L.C. knew the specific legend drug that he

      possessed but that the State had still met its burden. The trial court found L.C.

      delinquent for committing an act that would be Level 6 felony unlawful

      possession of a legend drug if committed by an adult. L.C. now appeals.


                                                   Analysis
                                                 I. Sufficiency

[6]   L.C. challenges the sufficiency of the evidence to support his adjudication as

      delinquent. In juvenile delinquency adjudication proceedings, the State must

      prove every element of the offense beyond a reasonable doubt. A.B. v. State, 885

      N.E.2d 1223, 1226 (Ind. 2008). “‘In reviewing a sufficiency of the evidence


      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 3 of 9
      claim, we do not reweigh the evidence or assess the credibility of the

      witnesses.’” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013) (quoting Treadway

      v. State, 924 N.E.2d 621, 639 (Ind. 2010)). We look to the evidence and

      reasonable inferences drawn therefrom that support the judgment, and we will

      affirm the adjudication if there is probative evidence from which a reasonable

      factfinder could have found the defendant guilty beyond a reasonable doubt. Id.

      We will reverse if there is no evidence or reasonable inference to support any

      one of the necessary elements of the offense. Id. We must thus determine

      whether substantial evidence of probative value was presented at trial from

      which a reasonable factfinder could conclude beyond a reasonable doubt that

      L.C.’s conduct, if committed by an adult, would constitute Level 6 felony

      unlawful possession of a legend drug as charged.


[7]   It is a Level 6 felony to knowingly possess a legend drug without a prescription.

      See Ind. Code § 16-42-19-13; Ind. Code § 16-42-19-27. “A person engages in

      conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

      probability that he is doing so.” I.C. § 35-41-2-2(b).


[8]   L.C. first argues that the trial court applied the wrong standard of proof when

      the trial court stated at the fact-finding hearing that the “evidence has

      established that [L.C.] knowingly possessed these pills and I think that based on

      circumstantial evidence I think it also established a high probability that [he]

      knew that they were illegal pills.” Tr. pp. 80-81. According to L.C., the trial

      court applied a “high probability” standard of proof rather than a “beyond a

      reasonable doubt” standard of proof. Appellant’s Br. p. 11. We do not

      Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 4 of 9
       interpret the trial court’s statement in the way that L.C. does. Rather, we

       conclude that the trial court was discussing the requirement that L.C.

       “knowingly” possess the legend drug. This is consistent with the trial court’s

       other statements that the State had proven that L.C. knew he was possessing an

       illegal drug and the trial court’s written order finding that L.C. was “aware of a

       high probability that the pills required a prescription.” See Tr. p. 81;

       Appellant’s Second Amended App. p. 44.


[9]    Next, L.C. argues that the evidence is insufficient to show that he was aware of

       a high probability that it was illegal to possess the pills without a prescription.

       L.C. does not dispute that he possessed the pills, that the pills were paroxetine

       hydrochloride, or that paroxetine hydrochloride is a legend drug. The State

       presented evidence that A.B. gave a baggie of pills to L.C. and that L.C. gave

       the pills back to him on August 27, 2015. A.B. concealed the pills in his pocket

       and his waistband. When confronted by the school principal, A.B. and L.C.

       initially denied having the pills. However, a baggie containing fifty-nine

       paroxetine hydrochloride pills was found in A.B.’s waistband. The State

       presented circumstantial evidence from which the trier of fact could infer that

       L.C. was aware of the illegal nature of the pills, and L.C.’s argument is merely

       a request that we reweigh the evidence, which we cannot do. The evidence is

       sufficient to sustain L.C.’s adjudication.


                                   II. Ineffective Assistance of Counsel

[10]   L.C. argues that his trial counsel was ineffective. Generally, to prevail on a

       claim of ineffective assistance of counsel, a petitioner must demonstrate both
       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 5 of 9
       that his or her counsel’s performance was deficient and that the petitioner was

       prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

       2052, 2064 (1984)), cert. denied. A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the

       appropriate test for prejudice, the petitioner must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. Id. “A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Strickland, 466

       U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the

       claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Most

       ineffective assistance of counsel claims can be resolved by a prejudice inquiry

       alone. Id.


[11]   The State responds that the Strickland Sixth Amendment right to counsel

       discussion and, thus, the ineffective assistance of counsel standard are

       inapplicable in juvenile delinquency adjudications. The State points out that

       juvenile delinquency adjudications are civil in nature and argues that the Sixth

       Amendment right to counsel is inapplicable. See Appellee’s Br. pp. 17-18 (citing

       T.K. v. State, 899 N.E.2d 686 (Ind. Ct. App. 2009); McKeiver v. Pennsylvania, 403

       U.S. 528 (1971)); see also A.S. v. State, 923 N.E.2d 486, 489 (Ind. Ct. App. 2010)

       (“Post-conviction procedures are not available to challenge a juvenile

       delinquency adjudication, which is civil in nature.”). Rather, according to the

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 6 of 9
       State, a juvenile’s right to counsel is statutory, see Indiana Code Section 31-32-2-

       2 and Indiana Code Section 31-32-4-1, and a Fourteenth Amendment due

       process analysis is applicable. However, in S.T. v. State, 764 N.E.2d 632 (Ind.

       2002), our supreme court applied the Strickland ineffective assistance of counsel

       standard in a juvenile delinquency adjudication. Given S.T., we will likewise

       apply the Strickland standard here.


[12]   L.C. first argues that his trial counsel was ineffective for failing to cross-

       examine A.B. According to L.C., his trial counsel should have cross-examined

       A.B. regarding the concealment of the pills, who had given the pills to L.C.,

       and the time frame in which L.C. received the pills. Generally, ineffective

       assistance of counsel claims in this context are presented through an Indiana

       Trial Rule 60(B) motion for relief from judgment, which would allow the

       juvenile to present evidence. Here, however, L.C. makes the claim on direct

       appeal of his conviction. See J.A. v. State, 904 N.E.2d 250, 254 (Ind. Ct. App.

       2009), trans. denied. We do not know trial counsel’s reasons for not cross-

       examining A.B., how A.B. would have answered the proposed cross-

       examination questions, or how the evidence would have been helpful to L.C.

       We simply cannot say that L.C.’s trial counsel was deficient or that L.C. was

       prejudiced based on the record presented to us.


[13]   L.C. next argues that his trial counsel was ineffective for failing to present his

       own testimony at the fact-finding hearing. L.C. contends that any possible

       strategic reason for trial counsel’s failure to present his testimony was “ruled

       out by his use of it in determining the acceptance of the admission and in the

       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 7 of 9
       dispositional hearing.” Appellant’s Br. p. 17. As the State points out, “For all

       that can be known from this record, it is entirely possible that Respondent told

       his attorney he was not going to testify.” Appellee’s Br. p. 25. Given the

       limited record presented to us, we cannot say that L.C.’s trial counsel was

       deficient or that L.C. was prejudiced by the alleged deficiency.


[14]   Next, L.C. argues that his trial counsel was ineffective for failing to call his

       mother as a witness. L.C.’s mother testified at the dispositional hearing that

       she saw the pills and thought they were an over-the-counter pill. L.C. argues

       that his mother’s testimony would have made it more credible that he did not

       believe the pills required a prescription. However, whether L.C.’s mother

       thought the pills required a prescription is not relevant to whether L.C. knew

       they required a prescription. L.C. has failed to demonstrate that the testimony

       would have been helpful to him or that he was prejudiced by his trial counsel’s

       decision not to present the testimony during the fact-finding hearing.


[15]   Finally, L.C. argues that his trial counsel was ineffective for failing to argue that

       the State had not proven the element of knowledge. According to L.C., his

       trial counsel “never argued that the State had failed to prove that [L.C.] knew

       that the pills were unlawful to possess without a prescription.” Appellant’s Br.

       p. 18. We have held that the evidence was sufficient to prove L.C. was aware

       of a high probability that the pills were illegal to possess without a prescription.

       L.C. cannot demonstrate that he was prejudiced by trial counsel’s alleged

       deficiency in failing to argue the element of knowledge.



       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 8 of 9
                                                 Conclusion
[16]   The evidence is sufficient to sustain L.C.’s adjudication, and L.C. has failed to

       prove that his trial counsel was ineffective. We affirm.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1606-JV-1300 | January 23, 2017   Page 9 of 9
