                                                                      FILED
                                                                  Jul 15 2016, 9:46 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David M. Payne                                             Gregory F. Zoeller
Marion, Indiana                                            Attorney General
Joe Keith Lewis                                            Ellen H. Meilaender
Marion, Indiana                                            Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Larenz Jordan,                                             July 15, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           27A02-1511-CR-1897
        v.                                                 Appeal from the Grant Circuit
                                                           Court
State of Indiana,                                          The Honorable Mark E. Spitzer,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           27C01-1501-F1-2



Bailey, Judge.




Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016                  Page 1 of 13
                                                 Case Summary
[1]   Larenz Jordan (“Jordan”), at age fifteen, was waived into the Grant Circuit

      Court and convicted after a jury trial of twelve counts of Rape1 and one count of

      Conspiracy to Commit Rape,2 as Level 1 felonies; one count of Burglary, as a

      Level 4 felony;3 and one count of Robbery, as a Level 5 felony. 4 He now

      appeals.


[2]   We affirm.



                                                             Issues
[3]   Jordan raises two issues for our review, which we restate as:


                    I.     Whether the juvenile court abused its discretion when it
                           granted the State’s motion to waive jurisdiction over
                           Jordan’s case; and


                   II.     Whether Jordan’s sentence was inappropriate and requires
                           revision under Appellate Rule 7(B).




      1
          Ind. Code §§ 35-42-4-1(a)(1) & (b).
      2
          I.C. §§ 35-42-4-1(a)(1) & (b), I.C. § 35-41-5-2.
      3
          I.C. §§ 35-43-2-1 & 35-43-2-1(1).
      4
          I.C. § 35-42-5-1(1).


      Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016        Page 2 of 13
                             Facts and Procedural History
[4]   On the night of July 15, 2014, in Marion, Jordan, then fifteen years old, along

      with two friends, Jamar Greer (“Greer”), also fifteen years old, and Nytarian

      Callahan (“Callahan”), then eighteen years old, broke into and entered the

      home of R.H. and her family while R.H.’s husband was out of town. The

      couple’s four children were asleep at the time. Greer had suggested that the

      three burglarize the home with the intent to steal valuables from the residence.

      Jordan, Greer, and Callahan observed the home for some time. Jordan saw

      movement from inside the home during this period.


[5]   Greer entered the home through a window and then opened a door to allow

      Jordan and Callahan inside. Soon after the three entered the home, R.H.

      approached them and asked what they wanted. The three demanded money,

      and R.H. said she did not have any. R.H. begged the three not to harm or wake

      up her children, and Greer forced R.H. into a guest bedroom while Jordan and

      Callahan went upstairs to ensure the children were asleep.


[6]   While Jordan and Callahan were upstairs, Greer forced R.H. to perform oral

      sex upon him. When Jordan and Callahan returned, Greer told them they

      could participate, as well. For the next several hours, the three repeatedly

      forced R.H. to engage in vaginal and oral sex, and threatened her safety and

      that of her children in order to force R.H. to comply and to persuade her not to

      report the events. R.H. was compliant with the trio’s demands to prevent her

      children from being awakened or harmed.


      Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 3 of 13
[7]   At one point during the events of that night, Jordan and Callahan took R.H.’s

      van, which they drove to a nearby store to buy soda and a bag of chips as a

      snack. Greer continued to engage in sex acts with R.H. while Jordan was gone.

      After Jordan and Callahan returned, only Greer continued to engage in sex

      acts. After this, the three forced R.H. to bathe in an effort to remove from her

      body evidence of their offenses. Eventually the three left, taking with them

      laptop computers and other electronics. As a result of Jordan’s, Callahan’s, and

      Greer’s acts, R.H. suffered numerous injuries, including vaginal lacerations and

      bruising and abrasions to other parts of her body. When they left, one member

      of the trio told R.H. to have a “blessed day.” (Trial Tr. at 172.)


[8]   Jordan was alleged to be a delinquent juvenile on August 27, 2014. The same

      day, the State moved the juvenile court to waive jurisdiction over Jordan. A

      hearing on the State’s motion was conducted on October 10, 2014, which

      included testimony as to Jordan’s psychological and behavior status and

      argument from the parties. On January 9, 2015, after briefing from the parties,

      the juvenile court waived Jordan into the trial court to be tried as an adult in the

      Grant Circuit Court. On January 15, 2015, the State charged Jordan with

      twelve counts of Rape5 and one count each of Conspiracy to Commit Rape,

      Burglary, and Robbery.




      5
          Some of these counts were based on principles of accomplice liability.


      Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016     Page 4 of 13
[9]    A jury trial was conducted from July 20, 2015 to July 23, 2015. At the

       conclusion of the trial, the jury found Jordan guilty of all fifteen charged

       offenses. After several hearings and a continuance, a sentencing hearing was

       conducted on October 9, 2015. The trial court entered judgments of conviction

       against Jordan, heard testimony from R.H. and her husband, and sentenced

       Jordan to forty years imprisonment for each of the twelve counts of Rape, forty

       years imprisonment for the single count of Conspiracy to Commit Rape, ten

       years imprisonment for Burglary, and six years imprisonment for Robbery. The

       trial court ran these sentences concurrent with one another, yielding an

       aggregate term of imprisonment of forty years, with four years suspended to

       probation. This appeal ensued.



                                   Discussion and Decision
                                       Waiver of Jurisdiction
[10]   Jordan’s first contention on appeal is that his conviction should be vacated

       because the juvenile court abused its discretion when it waived jurisdiction over

       his case to the trial court. Because the juvenile court abused its discretion,

       Jordan argues, the trial court lacked subject matter jurisdiction over Jordan’s

       case.


[11]   Juvenile courts have exclusive original jurisdiction over children who are

       alleged to be delinquent under Indiana Code article 31-37. I.C. § 31-30-1-1(1).

       “Upon motion of the prosecuting attorney and after full investigation and [a]

       hearing,” a juvenile court may waive jurisdiction over a child alleged to be a
       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 5 of 13
       delinquent. I.C. § 31-30-3-2. A juvenile court is within its discretion to waive

       jurisdiction in this manner when it finds that:


               (1) the child is charged with an act that is a felony:


                        (A) that is heinous or aggravated, with greater weight
                        given to acts against the person than to acts against
                        property; or


                        (B) that is a part of a repetitive pattern of delinquent acts,
                        even though less serious;


               (2) the child was at least fourteen (14) years of age when the act
               charged was allegedly committed;


               (3) there is probable cause to believe that the child committed the
               act;


               (4) the child is beyond rehabilitation under the juvenile justice
               system; and


               (5) it is in the best interests of the safety and welfare of the
               community that the child stand trial as an adult.


       Id.


[12]   Juvenile proceedings, unlike criminal proceedings, are civil in nature and the

       burden is on the State to establish by a preponderance of the evidence that

       juvenile jurisdiction should be waived. Phelps v. State, 969 N.E.2d 1009, 1016

       (Ind. Ct. App. 2012), trans. denied. We review a juvenile court’s decision to

       waive its jurisdiction for an abuse of discretion. Id. The juvenile court is
       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016          Page 6 of 13
       entitled to give the evidence whatever weight it deems appropriate. Id. To the

       extent an appellant challenges the sufficiency of the evidence supporting a

       juvenile court’s decision to waive jurisdiction, our review is conducted similarly

       to other sufficiency cases. Id. We do not reweigh evidence or assess witness

       credibility, and we look only to the evidence favorable to the State and the

       reasonable inferences to be drawn therefrom considering both the record from

       the waiver hearing and the court’s findings of fact. Id. A juvenile court’s

       waiver order must include specific findings of fact to support the order. I.C. §

       31-30-3-10.


[13]   Here, the juvenile court found that all of the elements of Section 31-30-3-2 were

       met, entered a detailed set of findings, and waived jurisdiction over Jordan’s

       case to the Grant Circuit Court. Jordan’s challenge to the juvenile court’s order

       centers only on whether the trial court was within its discretion to conclude that

       Jordan was “beyond rehabilitation under the juvenile justice system.” I.C. § 31-

       30-3-2(4). The determination of whether a juvenile is beyond rehabilitation of

       the juvenile justice system is fact sensitive and can vary widely from individual

       to individual and circumstance to circumstance. Hall v. State, 870 N.E.2d 449,

       457 (Ind. Ct. App. 2007), trans. denied.


[14]   Jordan’s specific allegation of error centers on the court’s use of the phrase

       “criminal thinking” in its findings concerning the “beyond rehabilitation”

       element of the waiver statute. Jordan contends that for the court to have

       entered findings concerning “criminal thinking,” as used in the waiver order,

       the record required evidence related to “criminogenic traits” as those are

       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 7 of 13
       understood to apply within the context of evidence-based practices in

       sentencing and rehabilitation. (Appellant’s Br. at 12.) Jordan notes that “no

       data was presented regarding criminogenic traits, testing of said traits, or

       criminal thinking as an area of relevant inquiry.” (Appellant’s Br. at 11.)

       Absent such evidence, Jordan insists, “the juvenile court had no basis to

       conclude that Jordan’s criminal thinking presented a bar to his successful

       rehabilitation within the juvenile justice system.” (Appellant’s Br. at 11.) Thus,

       Jordan argues that the court’s waiver order was defective as a matter of law.


[15]   To the extent Jordan would require the application, at the time of a waiver

       hearing, of evidence-based practices each time the phrase “criminal thinking” is

       invoked, he provides us with no legal authority to support that proposition.

       Nor do we see any reason to impose such a requirement as a matter of law.

       Jordan’s construction of the court’s order is excessively narrow and seeks to

       impose requirements not stated in the juvenile waiver statute. The juvenile

       court’s finding with respect to the “beyond rehabilitation” element states, “The

       juvenile’s lack of any prospect of rehabilitation in the juvenile justice system is

       demonstrated by his criminal thinking. The following factors are indicative of the

       insufficiency of rehabilitative programs in the criminal justice system…” (App’x at 52,

       emphasis added.) That is, even with invocation of the phrase “criminal

       thinking,” the court’s order addresses the statutory “beyond rehabilitation”

       element. And the court’s order goes on to recite numerous evidentiary matters

       that are in the waiver hearing record, including Jordan’s minimization of his

       part in the crime, his apparent lack of remorse, “his beliefs of [the victim’s]


       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016      Page 8 of 13
       willingness to ‘go along’” being inconsistent with his actions, the decision to

       move from a burglary of his victim’s home with a planned theft to rape upon

       discovering little of value to steal, the alleged escalation of the rape, indifference

       to the presence of the victim’s children in the home, and threats made on the

       children in order to compel the victim’s compliance. (App’x at 52-54.) Jordan

       does not challenge as insufficient the evidence underlying these findings.


[16]   There is no error associated with the juvenile court’s use of the phrase “criminal

       thinking” without reference to evidence-based measures of criminogenic

       behavior where, as here, the elements of the waiver statute are otherwise

       properly addressed and supported by evidence from the record of the waiver

       hearing. The juvenile court did not abuse its discretion where there was no

       evidence related to criminal thinking as that term is used in evidence-based

       practices assessing criminogenic behavior.


                                Inappropriateness of Sentence
[17]   We turn to Jordan’s other contention on appeal, that his sentence is

       inappropriate under Appellate Rule 7(B).


[18]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “The Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” Under this rule, and as

       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016    Page 9 of 13
       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

       inappropriate in light of the nature of the offense and the character of the

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[19]   In reviewing an inappropriateness challenge, the central inquiry is not whether

       one sentence is more appropriate than another, but rather whether the sentence

       in the challenged case is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.

       Ct. App. 2008). Comparison of sentences for similar offenses can, then, be a

       proper consideration in addressing an inappropriateness claim. Hunt v. State, 43

       N.E.3d 588, 590 (Ind. Ct. App. 2015), trans. denied. Comparison of sentences is

       not, however, a requirement. Id.


[20]   Jordan was convicted of twelve counts of Rape and one count of Conspiracy to

       Commit Rape, all as Level 1 felonies; Burglary, as a Level 4 felony; and

       Robbery, as a Level 5 felony. For each Level 1 felony, Jordan faced a

       sentencing range of between twenty and forty years imprisonment, with an

       advisory term of thirty years. I.C. § 35-50-2-4(b). For the single Level 4 felony

       conviction, Jordan faced a sentencing range of between two and twelve years,

       with an advisory term of six years. I.C. § 35-50-2-5.5. For the Level 5 felony

       conviction, Jordan faced a sentencing range of between one and six years, with

       an advisory term of three years. I.C. § 35-50-2-6(b). The trial court imposed the

       maximum terms of imprisonment for each offense, and ran the sentences

       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 10 of 13
       concurrent with one another, yielding an aggregate term of imprisonment of

       forty years, with four years suspended to probation.


[21]   The nature of the Jordan’s offenses is, put simply, horrendous. As the State

       observed in its brief, “‘[h]einous’ is too weak an adjective to accurately describe

       the nature of these offenses.” (Appellee’s Br. at 31.) Jordan, along with two

       others, broke into the victim’s home in the middle of the night, knowing that

       the house was occupied. Jordan and his co-defendants, encountering a

       frightened woman, proceeded to repeatedly rape R.H. while her children were

       in the home, threatening injury to R.H. and to her children in order to obtain

       her compliance. Jordan and his co-defendants looked for valuables to steal, and

       took several items, including computers and other electronics. At some point,

       Jordan, along with Callahan, stole the family’s van to buy snacks and returned

       to the home. R.H. suffered considerable psychological harm, as well as

       numerous physical injuries to her neck, shoulder, hips, abdomen, buttocks, and

       vagina from the assault. The assault was prolonged and brutal, and does

       nothing to suggest Jordan’s sentence was inappropriate in light of his offenses.


[22]   Jordan’s character also does not militate in his favor. Jordan correctly notes

       that he was less than sixteen years of age at the time of the offenses and that he

       has no prior criminal history, though he was suspended from school for

       “incorrigibility.” (App’x at 717.) Jordan also indicated that he was involved in

       school sports and had above-average grades. However, even after having been

       convicted of twelve counts of rape and a count of conspiracy to commit rape,

       Jordan insisted to a probation officer not simply that he was innocent, but that

       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 11 of 13
       his victim “did not protest” and that she “did not seem to be upset with the sex”

       except for her concern that she would have “to explain to her husband about

       the condom wrappers.” (App’x at 718.) Jordan stated that he experienced “joy

       and thrill” when he took the victim’s car to leave the crime scene to buy snacks.

       (App’x at 718.) Jordan testified at trial that while burglarizing the home was

       disrespectful of R.H., he was otherwise respectful of her, despite having no

       prior knowledge of or relationship with R.H. and acknowledging that under

       similar circumstances, he would consider it disrespectful for someone to

       commit the same acts upon women important in his own life. (Tr. at 603.)

       When the State, on cross-examination, asked Jordan whether it was courageous

       of him to break into a dark house at night and confront the homeowner without

       backing down, Jordan responded that he thought he was courageous in doing

       so. (Tr. at 618-19.) He also stated that he believed he was respectful of women

       generally. A probation officer who observed Jordan’s trial testimony opined

       that “the Defendant has no ‘moral compass and I don’t know how to fix that.’”

       (App’x at 720.)


[23]   Simply put, even given his age, Jordan’s character speaks poorly of him and of

       the likelihood of rehabilitation. Recognizing this, Jordan argues that we should

       determine his sentence inappropriate based largely upon the objective

       measurements in the pre-sentencing investigation report. And, though he does

       not challenge his sentence as unconstitutional, Jordan suggests that in light of

       Supreme Court case law and psychological research his age should significantly

       militate in favor of reducing his aggregate sentence to twenty years. He also


       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 12 of 13
       compares his sentence to those of defendants in other cases that he contends are

       similar in criminal history and charged offenses.


[24]   We decline Jordan’s invitation to conclude that comparison to others and the

       objective measures in the pre-sentencing investigation report render his sentence

       inappropriate. The heinous nature of the offenses and his character militate

       against it. We cannot conclude his sentence was inappropriate.



                                                Conclusion
[25]   The juvenile court did not abuse its discretion when it waived Jordan into the

       Grant Circuit Court. Jordan’s sentence is not inappropriate.


[26]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1511-CR-1897 | July 15, 2016   Page 13 of 13
