                                                                                   FILED
                                                                               Oct 27 2017, 8:57 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ruth Ann Johnson                                           Curtis T. Hill, Jr.
      Deborah Markisohn                                          Attorney General of Indiana
      Marion County Public Defender
      Appellate Division                                         James B. Martin
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      T.H.,                                                      October 27, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1703-JV-518
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Marilyn Moores,
      Appellee-Plaintiff                                         Judge
                                                                 The Honorable Geoffrey Gaither,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49D09-1607-JD-1198



      May, Judge.


[1]   T.H. appeals his adjudication as a delinquent child based on the trial court

      finding he had committed an act that, if committed by an adult, would be Class




      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017                       Page 1 of 15
      A misdemeanor criminal mischief. 1 T.H. argues the State failed to prove he

      committed the $750 in damages required for the Class A misdemeanor finding.

      We agree and order the trial court to correct its records to indicate T.H.’s

      adjudication was based on his commission of an act that would be Class B

      misdemeanor criminal mischief if committed by an adult.



                                Facts and Procedural History
[2]   In the second half of July 2016, T.H. threw a brick through the passenger side

      window of Maria Castro’s 2006 Toyota Sienna. T.H.’s mother saw him throw

      the brick and immediately called the police. T.H. was arrested and taken to the

      Juvenile Detention Center. On July 25, 2016, the State filed a delinquency

      petition alleging T.H. had committed an act that, if committed by an adult,

      would be Class A misdemeanor criminal mischief:


                 On or about the 22nd day of July, 2016, said child did recklessly,
                 knowingly or intentionally damage or deface the property of
                 Maria Castro . . . by having thrown an object which broke
                 Castro’s car window, in an amount greater than seven hundred
                 fifty dollars ($750) but less than fifty thousand dollars ($50,000).


      (Appellant’s App. Vol. II at 16.)


[3]   After an informal adjustment failed, the court held a fact-finding hearing as to

      the allegation. The State called Castro, who testified she owned a 2006 Sienna




      1
          Ind. Code § 35-43-1-2 (2016).


      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017        Page 2 of 15
      and, on July 22, 2016, “the window on the passenger side was broken and there

      was a big rock- in fact, it scratched the dashboard of the vehicle[.]” (Tr. at 33.)

      Castro explained she took the car to a Toyota dealership between Lafayette

      Road and Georgetown Road and asked for an estimate for repair of the

      damage, and then she returned later to get the car and the estimate. When

      asked whether she had the vehicle repaired, she testified: “They just put the

      glass on because my husband needed to work[.]” (Id. at 36.) She did not know

      how much that repair had cost or where the vehicle had been repaired.


[4]   Counsel for T.H. then cross-examined Castro about the estimate, pointing out

      numerous irregularities that called into question the validity of the estimate.

      The trial court found T.H. had committed criminal mischief that caused more

      than $750 in damages, which would have been a Class A misdemeanor, and

      adjudicated him a juvenile delinquent. The trial court did not issue an order of

      restitution, choosing instead “to release the records for the purpose of civil

      litigation.” (Id. at 53.)



                                  Discussion and Decision
[5]   When an appellant challenges the sufficiency of evidence to support a trial

      court’s findings, we will consider only probative evidence in the light most

      favorable to the trial court’s judgment. Binkley v. State, 654 N.E.2d 736, 737

      (Ind. 1995), reh’g denied. The decision comes before us with a presumption of

      legitimacy, and we will not substitute our judgment for that of the fact-finder.

      Id. We do not assess the credibility of the witnesses or reweigh the evidence in

      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 3 of 15
      determining whether the evidence is sufficient. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt. Id.

      Thus, the evidence is not required to overcome every reasonable hypothesis of

      innocence and is sufficient if an inference may reasonably be drawn from it to

      support the verdict. Id. at 147.


[6]   The trial court found T.H. committed Class A misdemeanor criminal mischief,

      which is defined as:


              A person who recklessly, knowingly, or intentionally damages or
              defaces property of another person without the other person’s
              consent commits criminal mischief, a Class B misdemeanor.
              However, the offense is:


                       (1) a Class A misdemeanor if the pecuniary loss is at least
                       seven hundred fifty dollars ($750) but less than fifty
                       thousand dollars ($50,000)[.]


      Ind. Code § 35-43-1-2(a) (2016). T.H. acknowledges he committed Class B

      misdemeanor criminal mischief when he threw the brick through the window of

      Castro’s car, but he challenges the court’s finding that he committed more than

      $750 in damage to that car.


[7]   The State asserts we need not address T.H.’s argument because, regardless

      whether he committed Class A or Class B misdemeanor criminal mischief, his

      adjudication as a delinquent child remains intact. This is true; however, the

      trial court also released the documents regarding T.H.’s adjudication for the

      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017     Page 4 of 15
      purposes of civil litigation. As the burden of proof is higher in criminal cases

      than civil cases, T.H.’s adjudication results in a presumption that he committed

      at least $750 in damages. As his adjudication could have financial

      consequences, we decline to ignore T.H.’s concerns about the validity of the

      trial court’s finding regarding the monetary damages caused by his delinquent

      act.


[8]   Castro testified the car window was broken and the dashboard was scratched.

      She also testified that she went to a Toyota dealership “between Lafayette and

      Georgetown” to get an estimate for repair of the damage, but she could not

      remember when she got the estimate or when she turned it in to the prosecutor.

      (Tr. at 34.) Castro did not stay at the dealership while the estimate was

      prepared; she dropped the car off and went back later for the car and the

      estimate. Based on her testimony that the document presented was the

      document she received, the trial court admitted State’s Exhibit 1:




      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 5 of 15
      (Ex. at 3.)


[9]   In his cross-examination of Castro, T.H.’s counsel challenged nearly a dozen

      aspects of this Exhibit: it is dated five months prior to T.H.’s delinquent act; the

      dealership’s name is erroneously written as one word; the phone number calls a

      private citizen, not the dealership; no quotation number is listed; the VIN# does

      not match Castro’s car; the estimate does not indicate the make, model, or

      brand of the vehicle; the arithmetic does not add up to the Total; there is no


      Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 6 of 15
       indication which door glass or door panel was to be replaced; and there is no

       rate for the labor or explanation of the labor for each repair. In our review of

       the document, we also noted the address of the dealership is misspelled, the

       sales tax of 7% is incorrectly calculated, no contact information was included in

       the designated area at the bottom of the form, and there is no logical way to

       reconcile the arithmetical disparities that plague the estimate.


[10]   Recently, our Indiana Supreme Court modified the standard of review for

       sufficiency of evidence cases to provide “a narrow failsafe” for cases involving

       video evidence:


               This rule has since been stated as courts “give almost total
               deference to the trial court’s factual determinations unless the
               video recording indisputably contradicts the trial court’s
               findings.” State v. Houghton, 384 S.W.3d 441, 446 (Tex. App.
               2012). We find this to be a workable approach that allows for
               appropriate deference to the trial court unless and until there is a
               reason such deference is not appropriate. We recognize these
               situations may be rare. But in those instances, where the video
               evidence indisputably contradicts the trial court’s findings,
               relying on such evidence and reversing the trial court’s findings
               do not constitute reweighing. To be clear, in order that the video
               evidence indisputably contradict the trial court’s findings, it must
               be such that no reasonable person could view the video and
               conclude otherwise. When determining whether the video
               evidence is undisputable, a court should assess the video quality
               including whether the video is grainy or otherwise obscured, the
               lighting, the angle, the audio and whether the video is a complete
               depiction of the events at issue, among other things. In cases
               where the video evidence is somehow not clear or complete or is
               subject to different interpretations, we defer to the trial court’s
               interpretation.

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 7 of 15
       Love v. State, 73 N.E.3d 693, 699-700 (Ind. 2017).


[11]   Like video evidence, documents submitted as exhibits are capable of being

       reviewed de novo by an appellate court. See, e.g., Trinity Homes, LLC v. Fang, 848

       N.E.2d 1065, 1068 (Ind. 2006) (“where a small claims case turns solely on

       documentary evidence, we review de novo, just as we review summary judgment

       rulings and other ‘paper records’”). However, when “the evidence submitted by

       the parties and evaluated by the trial court was not limited to documents,” our

       review is for clear error. Indianapolis Convention & Visitors Assn, Inc. v.

       Indianapolis Newspapers, Inc., 577 N.E.2d 208, 211 (Ind. 1991).


[12]   The Exhibit here was rife with error, at best, and likely fraudulent. It included

       multiple spelling and arithmetic errors, as well as incorrect information

       regarding the vehicle and its condition, the date of the damage, and the contact

       phone number. It simply was not credible evidence of Castro’s alleged

       damages. As a result, we hold that the State failed to prove the $750 in

       damages required to support a true finding of criminal mischief as a Class A

       misdemeanor if committed by an adult. 2




       2
        The State, relying on Mitchell v. State, 559 N.E.2d 313 (Ind. Ct. App. 1990), trans. denied, asserts “the exact
       amount of the damages is irrelevant for purposes of proving the pecuniary loss element . . . once the evidence
       establishes that the damages exceed the threshold amount.” (Appellee’s Br. at 9.) In Mitchell, the defendant
       drove his grain truck into his own house three times after a fight with his wife. An estimator, employed as
       such for twenty years, testified that the damages were $11,053.20. We held
                the purpose of presenting evidence on damages is to fulfill an element of a crime: Ind.
                Code 35-43-1-2(a)(2)(B)(i) criminal mischief exceeding twenty-five hundred dollars
                ($2,500.00). Once it is established that the amount is over twenty-five hundred dollars
                ($2,500.00), the exact amount is irrelevant in completing that element of the crime.

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017                          Page 8 of 15
[13]   The evidence does, however, support a true finding of Class B misdemeanor

       criminal mischief, as T.H. admitted throwing a brick through the window of

       Castro’s car. We accordingly remand for the court to modify its records to

       indicate T.H. was adjudicated a delinquent for committing an act that would be

       Class B misdemeanor criminal mischief if committed by an adult.



                                            CONCLUSION
[14]   As the State failed to provide any credible evidence of the damage T.H. caused

       to Castro’s car, the State failed to prove an essential element of Class A

       misdemeanor criminal mischief. We accordingly reverse the court’s finding

       that T.H. committed more than $750.00 in damage. We affirm T.H.’s

       adjudication as a delinquent, but remand for the court to modify its records to

       indicate T.H. committed an act that would be Class B misdemeanor criminal

       mischief.


[15]   Affirmed and remanded.




       Mitchell, 559 N.E.2d at 314.
       Here, in contrast, no witness with twenty years of car repair experience testified as to the amount of damage
       to Castro’s car. Rather, Castro testified to the total damage listed on State’s Exhibit 1. Castro testified she
       was not present when the estimate was produced, and she did not know how or why the document contained
       the information that it contained. As such, her credibility could not vouch for the credibility of the Exhibit.
       The Exhibit had to stand or fall on its own merits, and in light of all the errors in the Exhibit, there is no
       reason to believe this estimate was provided by anyone with any knowledge whatsoever. The exhibit fails to
       serve as any evidence of damages, much less the threshold amount required for a finding of Class A
       misdemeanor damages. Mitchell is inapposite.

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017                        Page 9 of 15
Barnes, J., concurs.


Bradford, J., dissents with opinion.




Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 10 of 15
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       T.H.,                                                      October 27, 2017
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  49A02-1703-JV-518
               v.                                                 Appeal from the Marion Superior
                                                                  Court
       State of Indiana,                                          The Honorable Marilyn A.
       Appellee-Plaintiff.                                        Moores, Judge
                                                                  The Honorable Geoffrey Gaither,
                                                                  Magistrate
                                                                  Trial Court Cause No.
                                                                  49D09-1607-JD-1198



       Bradford, Judge, dissenting.


[16]   Because I disagree with the conclusion reached by the majority, I respectfully

       dissent.


[17]   Review of the transcript demonstrates that the victim, Maria Castro, testified

       about the damage done to her 2006 Toyota Sienna when T.H. threw a large

       rock through the vehicle’s passenger side window. Castro testified that in

       addition to breaking the window, the rock scratched the vehicle’s dashboard.

       Castro testified that after being told that she should obtain an estimate relating

       to the cost to fix the damage, she took the vehicle to a Toyota dealership

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017             Page 11 of 15
       located between Lafayette and Georgetown Roads in Indianapolis. Castro left

       the vehicle at the dealership and was later given an estimate which indicated

       that it would cost $2475.35 to complete the necessary repairs. T.H.’s defense

       counsel stated that he had “[n]o objection” to the admission of this estimate.

       Tr. Vol. II, p. 35.


[18]   Defense counsel subsequently questioned Castro on cross-examination about

       certain alleged inaccuracies in the estimate. These inaccuracies included: (1)

       the phone number listed on the estimate was not the phone number for the

       dealership, but instead is the number for a Jeremy Forsyth; (2) there was no

       “quotation number” listed on the estimate; (3) the VIN number listed on the

       estimate is incorrect; (4) there was an issue with the spacing of the words “Tom

       Wood” on the top of the estimate; (5) the arithmetic on the estimate is wrong;

       (6) the estimate is dated six months before the damage occurred; (7) the

       estimate did not specify the hourly rate for labor, but rather included a set

       amount; and (8) the estimate did not identity which door panel or window was

       damaged. Tr. Vol. II, pp. 38, 39. Castro testified that she was not aware of and

       could not explain any issues with the estimate. She merely repeatedly indicated

       that she took the vehicle to the Tom Wood dealership because she was told that

       she would need to get an estimate of the damage by a “legal institution.” Tr.

       Vol. II, p. 37. Castro further testified that her husband, who works at an auto

       body shop, has never worked at Tom Wood Toyota and she does not have any

       personal friends who work or have ever worked at Tom Wood Toyota. Castro

       additionally indicated that she took the vehicle to a Toyota dealership


       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 12 of 15
               Because uh- it is a Sienna and I know it is Toyota vehicle so I
               asked them to do it because the officer said that I needed to do it
               if I wanted to be able to make a claim for the damages. I needed
               to do things through the legal route so … and so I couldn’t allow
               my husband to touch it, he couldn’t take it to his work in order to
               respect the law. He couldn’t take it to his job.



       Tr. Vol. II, p. 43.


[19]   During closing argument, the State acknowledged that defense counsel had

       attempted to cast “some doubt” on the legitimacy of the estimate. Tr. Vol. II,

       p. 51. However, the State argued that Castro “testified several times that she

       went to Tom Wood Toyota to go a legal route.” Tr. Vol. II, p. 51.


               She did not want to go to some, maybe less reputable auto shop,
               she went to Tom Wood Toyota because she knew it was a good
               legal institution because she wanted to do this the right way.
               This was the estimate that they gave her and she is just trying to
               recover, to be made whole and she did nothing. [T.H.] came
               over through no action of her own and threw a rock through her
               window. She did not ask for this. She is just merely trying to do
               what is right. She came here today and testified.



       Tr. Vol. II, p. 51. For its part, defense counsel argued as followed:


               Given the fact that the police officer who inspected the car told
               Ms. Castro or her son that the window was broken, they didn’t
               mention any other damage and given the fact that the State
               witness Joanne Bowie looked at the car and saw no other
               damage, just the broken window and she was very honest person
               and she was up front and she was the one who called the police.
               She went to the lady to tell her what had happened. She offered

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 13 of 15
               to pay for the reasonable amount of damages. She offered to go
               to a glass repair shop with her. Those things combined with the
               horrid fraudulent quotation that has been presented. A real
               legitimate, quotation or estimate from a real legitimate dealership
               repair shop would not have made mistakes in the math, a
               computer would do all of that. They don’t make mistakes. It
               would have what the labor rate was. It would identify what door
               panel. It would identify what doors [sic] glass. It probably
               would identify the handle grip or whatever that is. It would have
               actually [sic] the shops [sic] actual phone number on it and not
               the phone number of some random individual, who may not be
               so random. We don’t know. It would give a quotation number
               and it would have the VIN# correct. As the State merely
               proceeded with just the broken window, we were looking at less
               than five-hundred dollars damage and a B misdemeanor. That is
               as far as the court should go with this.



       Tr. Vol. II, pp. 52-53.


[20]   The record clearly reveals that defense counsel raised concern about the

       legitimacy of the estimate before the trial court and questioned Castro at length

       about the numerous errors or inconsistencies contained therein. Defense

       counsel argued that given the issues with the estimate, it could not be relied on

       as accurate. The juvenile court, acting as the trier-of-fact, was free to believe

       all, some or none of the evidence presented by the parties, including the

       estimate.


[21]   Most importantly, in order to prove that T.H. committed what would have

       been Class A misdemeanor criminal mischief, the State did not have to prove

       the exact amount of damage caused by T.H., just that T.H. caused at least $750

       Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017   Page 14 of 15
in damage. Under the applicable standard of review, we consider both the

evidence most favorable to the judgment and the reasonable inferences which

can be drawn therefrom. See Graham v. State, 713 N.E.2d 309, 311 (Ind. Ct.

App. 1999) (providing that when considering the sufficiency of the evidence, an

appellate court neither reweighs the evidence nor judges the credibility of

witnesses, but rather examines the evidence most favorable to the judgment

together with all reasonable inferences which can be drawn therefrom), trans.

denied. It is common knowledge that auto repairs are often expensive. The

juvenile court, acting as the trier-of-fact, determined that the State met its

burden of proving that the damage to Castro’s vehicle was at least $750. When

the sole focus is on the amount and quality of the estimate, we are distracted

from our appellate review of the ultimate question, which is whether the

evidence is sufficient to show damages of at least $750. Given the documentary

evidence coupled with Castro’s testimony, I would conclude that the evidence

is easily sufficient to sustain the juvenile court’s adjudication. 3 I therefore

would vote to affirm the judgment of the juvenile court.




3
   I believe that the Indiana Supreme Court’s opinion in Love v. State, 73 N.E.3d 693, 699 (Ind. 2017), makes
it clear that the approach creating the “narrow failsafe” discussed therein applies only to video evidence. I
would not expand Love’s holding to apply to this case.

Court of Appeals of Indiana | Opinion 49A02-1703-JV-518 | October 27, 2017                       Page 15 of 15
