MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                             Sep 30 2016, 9:11 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ana M. Quirk                                             Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

W.B., III,                                               September 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A05-1602-JV-478
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         The Honorable Brian Pierce,
                                                         Magistrate
                                                         The Honorable Amanda Yonally,
                                                         Magistrate

                                                         Trial Court Cause No.
                                                         18C02-1507-JD-136



Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016   Page 1 of 8
      Barnes, Judge.


                                             Case Summary
[1]   W.B. appeals the trial court’s adjudication that he is a delinquent child for

      having committed Level 4 felony burglary and Level 5 felony dangerous

      possession of a firearm. We affirm in part, reverse in part, and remand.


                                                     Issues
[2]   The issues before us are:

              I.       whether the trial court properly admitted evidence
                       regarding recovery of the firearm W.B. allegedly stole and
                       possessed; and


              II.      whether there is sufficient evidence to support the trial
                       court’s delinquency adjudication for Level 5 felony
                       dangerous possession of a firearm.


                                                     Facts
[3]   On June 19, 2015, the Anderson family was on vacation in Florida when their

      Muncie home was broken into and an AR-15 assault rifle belonging to Chad

      Anderson was stolen from underneath his bed. Two weeks before the burglary,

      Chad’s daughter, Lindsey, had shown the rifle to Nehemiah Nash, her

      boyfriend. Nash was aware that the Andersons were on vacation and

      developed a plan with his cousin, Jon Kerr, to break into their home and steal

      the AR-15. Nash invited sixteen-year-old W.B. to participate in the crime, and



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      he agreed to do so. After stealing the AR-15, Nash, Kerr, and W.B. sold it to

      Christian Orebaugh for $1000. The parties evenly split the proceeds of the sale.


[4]   Nash was unaware that there was a security camera at the back of the home

      where they broke into it. Lindsey viewed the footage and identified Nash, Kerr,

      and W.B. as the burglars, and specifically noted that W.B. was carrying the rifle

      at one point. W.B. also showed the AR-15 to another friend after the burglary

      and before it was sold. Police later discovered the rifle in Orebaugh’s home

      while executing a search warrant related to Orebaugh’s murder.


[5]   The State filed a petition alleging that W.B. was a delinquent child for having

      committed acts that would be Level 4 felony burglary, Level 5 dangerous

      possession of a firearm, and Class A misdemeanor theft. At the fact-finding

      hearing, W.B. objected to a police officer’s testimony regarding how the AR-15

      was recovered, which the trial court overruled. After taking the matter under

      advisement, the trial court found that W.B. had committed what would be

      Level 4 felony burglary and Level 5 felony dangerous possession of a firearm

      and adjudicated him to be a delinquent child on those counts. W.B. now

      appeals.


                                                  Analysis
                                         I. Admission of Evidence

[6]   We first address W.B.’s claim that the trial court should have sustained his

      objection to testimony regarding how and where police recovered the AR-15.

      We review a trial court’s ruling on the admissibility and relevancy of evidence

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      for an abuse of discretion. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016).

      An abuse of discretion occurs if a decision is “‘clearly against the logic and

      effect of the facts and circumstances and the error affects a party’s substantial

      rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).


[7]   W.B. asserts that testimony describing recovery of the rifle was inadmissible

      under Indiana Evidence Rule 403, which provides that trial courts “may

      exclude relevant evidence if its probative value is substantially outweighed by a

      danger of one or more of the following: unfair prejudice, confusing the issues,

      misleading the jury, undue delay, or needlessly presenting cumulative

      evidence.” Because all relevant evidence tends to be inherently prejudicial, the

      proper inquiry under Evidence Rule 403 requires balancing the probative value

      of proffered evidence against the likely unfair prejudicial impact of that

      evidence. Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2015), trans. denied.

      “When determining the likely unfair prejudicial impact, courts will look for the

      dangers that the jury will substantially overestimate the value of the evidence or

      that the evidence will arouse or inflame the passions or sympathies of the jury.”

      Id.


[8]   Here, there was no jury. “‘We generally presume that in a proceeding tried to

      the bench a court renders its decisions solely on the basis of relevant and

      probative evidence.’” Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011) (quoting

      Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990)). This is known as the

      “judicial-temperance presumption.” Id. If a defendant on appeal from a bench

      trial challenges the admissibility of evidence and it is determined that the

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       evidence in fact was inadmissible, the defendant must overcome this

       presumption before we will reverse a judgment. Id. at 29. One way in which

       the presumption may be overcome is if the trial court erroneously admitted the

       evidence over a “specific” objection. Id. If the defendant does not overcome

       the presumption, we presume the trial court disregarded the evidence and will

       find the error harmless. Id. If the defendant does overcome the presumption,

       then we must engage in ordinary harmless-error analysis to determine whether

       reversal is warranted. Id.


[9]    On appeal, W.B. takes particular issue with any reference to the fact that

       Orebaugh had been murdered sometime after he purchased the AR-15 and

       claims this evidence was introduced solely to suggest that W.B. was somehow

       involved in Orebaugh’s death. However, W.B.’s objection to the trial court was

       not that specific. In fact, W.B. did not immediately object when a police officer

       testified that he went to Orebaugh’s house as part of an investigation into

       Orebaugh’s homicide. W.B. only objected when the officer was asked to

       describe the search; the full objection was, “That too [sic] (unintelligible), with

       respect to why this is relevant to the burglary, possession of a handgun, theft

       charges on June 19th of 2015.” Tr. p. 101. There was no suggestion in this

       objection that Orebaugh’s murder was too inflammatory to mention. “[A]n

       objection to one question does not serve as an objection to another distinct

       question.” Konopasek, 946 N.E.2d at 27.


[10]   Clearly, the State was entitled to present evidence that officers found the AR-15

       at Orebaugh’s house, which corroborated Nash’s testimony that he, W.B., and

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       Kerr sold the gun to Orebaugh. On appeal, W.B. makes no argument that this

       evidence was irrelevant. Even if we were to assume without deciding that the

       State could have introduced this evidence regarding recovery of the AR-15 at

       Orebaugh’s house without mentioning the fact of his murder, W.B. did not

       make a specific objection to that effect to the trial court. 1 As such, we presume

       the trial court ignored that evidence, and any error in its admission is harmless.

       See id. at 29.


                                          II. Sufficiency of the Evidence

[11]   W.B. also contends there is insufficient evidence to support the finding that he

       committed Level 5 felony dangerous possession of a firearm. Intentional,

       knowing, or reckless possession of a firearm by a child for any purpose, subject

       to a few exceptions, constitutes Class A misdemeanor dangerous possession of

       a firearm. Ind. Code § 35-47-10-5(a). However, the offense is a Level 5 felony

       if the child has a prior conviction or delinquency adjudication for dangerous

       possession of a firearm. Id.


[12]   The State concedes no evidence was presented at the fact-finding hearing that

       W.B. has a prior conviction or delinquency adjudication for dangerous

       possession of a firearm.2 Thus, the finding that W.B. committed Level 5 felony



       1
        We also note that there was no evidence or testimony suggesting that W.B. was in any way responsible for
       Orebaugh’s death.
       2
         At W.B.’s subsequent dispositional hearing, the trial court stated that it had listened to a recording of a 2014
       hearing involving W.B. held by another judge in which he was found to have committed dangerous
       possession of a firearm. The State makes no argument that it was proper for the trial court to effectively take
       judicial notice of a prior delinquency adjudication in this fashion. Cf. Horton v. State, 51 N.E.3d 1154, 1160-

       Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016               Page 6 of 8
       dangerous possession of a firearm is erroneous, and it must be reduced to a

       Class A misdemeanor. As the State notes, unlike with general insufficiency of

       the evidence claims, double jeopardy protections do not preclude the State from

       re-prosecuting a habitual offender enhancement or elevation of a crime from

       one class to another based on a prior conviction when there is an appellate

       holding of insufficient evidence to support the enhancement or elevation. See

       Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind. 2005) (holding State could retry

       defendant for elevated Class B felony operating while intoxicated charge based

       on prior conviction), cert. denied.


                                                    Conclusion
[13]   The trial court did not commit reversible error in allowing testimony that the

       AR-15 stolen from the Anderson residence was found in Orebaugh’s residence

       during an investigation into his murder. We affirm the finding that W.B.

       committed Level 4 felony burglary. However, there is insufficient evidence to

       sustain the finding that W.B. committed Level 5 felony dangerous possession of

       a firearm. We reverse that finding and direct that it be reduced to a Class A

       misdemeanor and remand for further proceedings consistent with this opinion.


[14]   Affirmed in part, reversed in part, and remanded.




       61 (Ind. 2016) (holding trial court properly took judicial notice of defendant’s prior conviction for domestic
       battery in order to elevate current domestic battery charge, which was based on documentary evidence of prior
       conviction).

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




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