MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Apr 23 2019, 11:02 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
Karen M. Heard                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.Y.,                                                     April 23, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-2668
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Renee A. Cain,
Appellee-Plaintiff,                                       Magistrate
                                                          Trial Court Cause No.
                                                          82D04-1808-JD-1596




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019                     Page 1 of 9
                                              Case Summary
[1]   A.Y. appeals his adjudication as a delinquent for an act that would be

      considered attempted armed robbery if committed by an adult, a Level 3 felony.

      We affirm.


                                                     Issues
[2]   A.Y. raises two issues, which we restate as:


              I.       Whether the evidence is sufficient to sustain A.Y.’s
                       adjudication as a delinquent for an act that would be
                       considered attempted armed robbery if committed by an
                       adult, a Level 3 felony.

              II.      Whether the juvenile court erred by committing A.Y. to the
                       Department of Correction.


                                                      Facts
[3]   On August 10, 2018, A.Y.’s friend sent a message to Giles Thomas on

      Facebook asking if he had marijuana for sale. Thomas’ Facebook name is

      “Mob Jay.” Tr. Vol. II p. 47. Thomas responded that he did have some

      marijuana for sale and asked who wanted to buy it. A.Y.’s friend said, “He’s

      gonna inbox you.” Id. at 42. Fourteen-year-old A.Y. then sent Thomas a

      message asking to buy a “zip” of marijuana, which is half an ounce. Id. They

      later arranged to meet at a church near “Boeke and Riverside.” Id. at 43. The

      church was also near a Circle K gas station.


[4]   That evening, A.Y. arrived at the residence of Chloe Redfield and asked for a

      ride “down the road” to pick up clothes from “Mob.” Id. at 12. Redfield was
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 2 of 9
      giving her daughter a bath and told A.Y. that, if he could walk there, she could

      pick him up. A.Y. said he was walking toward the gas station at the “corner of

      Riverside and Boeke,” which was four or five blocks from Redfield’s residence.

      Id. at 13.


[5]   Thomas took his loaded handgun with him. Thomas met with A.Y. and

      another person unknown to Thomas at the church’s parking lot. Thomas

      showed A.Y. the marijuana and asked to see the money. Instead of money,

      A.Y. pulled out what Thomas thought was a handgun and said, “Give me

      everything.” Id. at 44. Thomas acted like he was reaching for the marijuana

      and, instead, pulled out his handgun. Thomas then shot A.Y. in the stomach.

      A.Y.’s friend ran away, and Thomas drove off.


[6]   Redfield went to the gas station to pick up A.Y. When she arrived, she heard a

      gunshot and saw A.Y. running, holding his stomach, and yelling for help.

      Redfield went to help A.Y. and called 911. Officers later discovered a realistic-

      looking BB gun and a shell casing behind the church. Thomas was arrested that

      evening, and a police detective read the Facebook messages between Thomas

      and A.Y.


[7]   The State filed a petition alleging that A.Y. was a delinquent child for

      committing acts that would be considered: (1) armed robbery if committed by

      an adult, a Level 3 felony; and (2) robbery if committed by an adult, a Level 5

      felony. On October 1, 2018, the State filed an amended petition to allege A.Y.

      committed acts that would be considered: (1) attempted armed robbery if


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 3 of 9
       committed by an adult, a Level 3 felony; and (2) attempted robbery if

       committed by an adult, a Level 5 felony.


[8]    After a hearing, the juvenile court found that A.Y. committed acts that would

       be attempted armed robbery if committed by an adult, a Level 3 felony. The

       State moved to dismiss the Level 5 felony allegation, which the juvenile court

       granted. The juvenile court then committed A.Y. to the Department of

       Correction (“DOC”). A.Y. now appeals.


                                                    Analysis
                                        I. Sufficiency of the Evidence

[9]    A.Y. challenges the sufficiency of the evidence to support his adjudication as a

       delinquent for an act that would be considered attempted armed robbery if

       committed by an adult, a Level 3 felony. “When reviewing the sufficiency of

       the evidence in a juvenile adjudication, we do not reweigh the evidence or

       judge witness credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018).

       “We consider only the evidence favorable to the judgment and the reasonable

       inferences supporting it.” Id. “We will affirm a juvenile-delinquency

       adjudication if a reasonable trier of fact could conclude the defendant was guilty

       beyond a reasonable doubt.” Id.


[10]   The offense of attempted armed robbery, a Level 3 felony, is governed by

       Indiana Code Section 35-42-5-1 and Indiana Code Section 35-41-5-1. The State

       was required to prove that A.Y. knowingly or intentionally engaged in conduct

       constituting a substantial step toward taking “property from another person or

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 4 of 9
       from the presence of another person . . . by using or threatening the use of force

       on any person . . . while armed with a deadly weapon.” Ind. Code § 35-42-5-

       1(a); Ind. Code § 35-41-5-1(a).


[11]   According to A.Y., no evidence was presented that he threatened to rob

       Thomas except for Thomas’ testimony. A.Y. argues no video of the meeting

       exists, and there were no witnesses to the meeting. A.Y. also contends that no

       physical evidence linked the BB gun to A.Y. Finally, A.Y. points out that the

       Facebook messages could not be retrieved.


[12]   A.Y.’s argument is merely a request that we reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do. Thomas’s credibility was

       within the province of the juvenile court to decide. The State points out that

       A.Y. does not argue Thomas’ testimony was incredibly dubious. Although

       Thomas may not have been a “model witness” due to his history of dealing

       drugs, we cannot reassess his credibility. Reed v. State, 748 N.E.2d 381, 395

       (Ind. 2001). “[T]he uncorroborated testimony of one witness is sufficient to

       sustain a conviction on appeal . . . .” Id. at 396. Similarly, the lack of physical

       evidence tying A.Y. to the offense was a matter for the juvenile court to weigh.


[13]   The State presented sufficient evidence that A.Y. arranged a drug transaction

       with Thomas in the church parking lot and that A.Y. pointed a realistic-looking

       BB gun at Thomas while demanding the marijuana. We have held that “BB

       guns can be considered deadly weapons within the statute.” Merriweather v.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 5 of 9
       State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002). The State presented sufficient

       evidence to sustain A.Y.’s adjudication.


                                                 II. Disposition

[14]   A.Y. also argues that the juvenile court erred by committing A.Y. to the DOC.

       “The juvenile court has discretion in choosing the disposition for a juvenile

       adjudicated delinquent.” D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct. App. 2011)

       (citing L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002), trans. denied).

       “The discretion is subject to the statutory considerations of the welfare of the

       child, the safety of the community, and the policy of favoring the least harsh

       disposition.” Id. “We may overturn [A.Y.’s] disposition order only if the court

       abused its discretion.” Id. “An abuse of discretion occurs when the juvenile

       court’s judgment is clearly against the logic and effect of the facts and

       circumstances before it, or the reasonable, probable, and actual deductions to be

       drawn therefrom.” Id.


[15]   Indiana Code Section 31-37-18-6 states:


               If consistent with the safety of the community and the best
               interest of the child, the juvenile court shall enter a dispositional
               decree that:


                        (1) is:


                            (A)in the least restrictive (most family like) and most
                               appropriate setting available; and




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 6 of 9
                            (B) close to the parents’ home, consistent with the best
                                interest and special needs of the child;


                        (2) least interferes with family autonomy;


                        (3) is least disruptive of family life;


                        (4) imposes the least restraint on the freedom of the child
                            and the child’s parent, guardian, or custodian; and


                        (5) provides a reasonable opportunity for participation by
                            the child’s parent, guardian, or custodian.


       “[T]he statute requires placement in the least restrictive setting only ‘[i]f

       consistent with the safety of the community and the best interest of the child.’”

       J.S. v. State, 881 N.E.2d 26, 29 (Ind. Ct. App. 2008) (quoting I.C. § 31-37-18-6).

       “Thus, the statute recognizes that in certain situations the best interest of the

       child is better served by a more restrictive placement.” Id.


[16]   According to A.Y., the juvenile court should have committed A.Y. to a less

       restrictive setting. A.Y. argues that: (1) his adjudication history is limited; (2)

       he has been placed in special education services at school; (3) he has been

       diagnosed with ADHD; (4) he suffered severe injuries as a result of the gunshot

       wound; and (5) the juvenile court did not consider other placement alternatives.


[17]   A.Y.’s juvenile criminal history, although limited, has escalated. A.Y. was

       referred to the juvenile court in September 2015 and October 2017 for

       disorderly conduct. In both cases, A.Y. was lectured and released. A.Y. was


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 7 of 9
       then adjudicated in February 2018 for two counts of criminal mischief. He was

       placed on probation, and a motion to modify was filed in March 2018 because

       A.Y. left home. A.Y. was placed at Hillcrest and released to his mother in

       April 2018. His mother reported that A.Y. was missing in May 2018. A.Y.

       then committed this offense of attempted armed robbery in August 2018. After

       A.Y. was released from the hospital due to his gunshot wound, he was placed

       at Southwest Indiana Regional Youth Village (“SIRYV”). There, he was

       verbally aggressive to staff, participated in the assault of another youth while

       the youth was sleeping, and was caught making gang signs.


[18]   The probation department recommended that A.Y. be committed to the DOC

       “due to the seriousness of the offense and the juvenile being a risk to the

       community.” Tr. Vol. II p. 71. The juvenile court noted A.Y.’s “slight juvenile

       history” but focused on A.Y.’s severe, armed offense and continued violent and

       aggressive behavior at SIRYV. The juvenile court concluded that A.Y.

       “presents as a danger to others [and] himself.” Id. at 76. As a result, the

       juvenile court determined that the “only place” appropriate for A.Y. was the

       DOC. Id.


[19]   Although A.Y. requests that we conclude that the juvenile court abused its

       discretion by placing him in the DOC because a less restrictive option was

       available, there are times when commitment to the DOC is in the best interest

       of the juvenile and society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App.

       2005). Given A.Y.’s escalating criminal offenses, the seriousness of his current

       offense, and his continued aggressive behavior at SIRYV, this is one of those

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 8 of 9
       times. We cannot say that the juvenile court abused its discretion in

       committing A.Y. to the DOC.


                                                  Conclusion
[20]   The evidence is sufficient to sustain A.Y.’s adjudication, and the juvenile court

       did not abuse its discretion by committing A.Y. to the DOC. We affirm.


[21]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019   Page 9 of 9
