MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                     Apr 09 2020, 9:01 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Megan Shipley                                             Attorney General of Indiana
Marion County Public Defender Agency
                                                          Myriam Serrano
Appellate Division                                        Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.F.,                                                     April 9, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-1748
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Petitioner.                                      Marilyn A. Moores, Judge
                                                          The Honorable
                                                          Geoffrey A. Gaither, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1905-JD-508



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020                Page 1 of 15
[1]   J.F. appeals his adjudication as a delinquent child for committing acts, which, if

      committed by an adult, would constitute robbery and intimidation, both Level 5

      felonies. J.F. raises two issues for our review, which we restate as:


              I. Whether the juvenile court abused its discretion by admitting
              photographs into evidence at the dispositional hearing; and


              II. Whether the juvenile court abused its discretion by
              committing him to the Indiana Department of Correction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In the early morning hours of May 6, 2019, J.F., who was sixteen at the time,

      was out with four or five other male teenaged friends near the intersection of

      State Street and New York Street in Indianapolis. The friends had been

      drinking at a party, and J.F. was “really intoxicated.” Tr. Vol. II at 6. The boys

      noticed a man and woman, later identified as Austin Brashear (“Brashear”) and

      Ashley Call (“Call”), walking toward a house. Brashear and Call had just been

      dropped off at Brashear’s home by an Uber driver. Brashear and Call exited the

      vehicle and approached Brashear’s house. J.F. and the other boys began to

      follow Brashear and Call. Brashear turned to the boys and asked them why

      they were mad at him. In response, J.F. and the other boys ran up to Brashear

      and Call and attacked them. Brashear was struck in the face, tased with a taser

      gun, and tackled to the ground.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 2 of 15
[4]   Brashear attempted to flee and seek help. He ran to a neighbor’s house and

      banged on the front door, but approximately three of the boys continued to

      physically assault him. One of the boys demanded to know where Brashear’s

      car was. He told the boy that the red Kia was his car, and he heard one of the

      boys say that “they were taking his f***ing car.” Appellant’s App. Vol. II at 87.

      Brashear was again tackled to the ground and struck in the face, and the boys

      took Brashear’s cell phone and car keys.


[5]   While some of the boys were physically assaulting Brashear, the others were

      assaulting Call. The boys grabbed her by the head, took her down to the

      ground, punched her in the back of her head, and began to pound her head into

      the concrete. They kicked her in the ribs and told her that they were going to

      kill her. J.F. and his friends stole Call’s purse, wallet, and cell phones.


[6]   J.F. and at least one other member of the group stole Brashear’s car. Shortly

      after stealing the car, J.F. picked up B.S., his girlfriend and the mother of his
                          1
      young child. They were then involved in a car accident near the intersection of

      10th Street and Tuxedo Street. The youths fled the scene, but one left his cell

      phone in Brashear’s car. J.F., B.S., and one other boy went back to the car to

      retrieve it. When they returned to the car, they were confronted by Donald

      Bolton (“Bolton”) and Brice Siders (“Siders”), who had heard the collision and

      approached to investigate. The boys began reaching into the car, trying to




      1
          J.F. fathered the child when he was fifteen or sixteen years old.


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 3 of 15
      remove items. Bolton tried to stop them. The boys then tried to assault Bolton,

      and J.F. pulled out a gun and threatened to shoot Bolton. Siders intervened to

      protect Bolton, and J.F. pointed the gun at Siders, saying, “[W]hat are you

      gonna do now?” Id. at 89. He also told Siders to “get back” or else “we will

      jump [you.]” Id. at 90. J.F. then approached Siders and said, “[You ain’t] so

      tough now.” Id. at 89.


[7]   The juveniles ran away, stopped down the street, and opened the door to

      another vehicle. Siders yelled at them and began to move in their direction, but

      J.F. pointed the gun at Siders again and said, “[Y]ou better back the hell up.”

      Id. The juveniles then ran away towards 9th Street. When police arrived, the

      three juveniles were standing at the corner of 9th Street and Tuxedo Street.

      Siders alerted the police of their presence. The juveniles attempted to flee, but

      J.F. was apprehended by the police at the scene.


[8]   On May 13, 2019, the State filed a petition alleging J.F. to be a delinquent

      child. He was charged with two counts of Level 5 felony robbery if committed

      by an adult, one count of intimidation as a Level 5 felony if committed by an

      adult, and one count of pointing a firearm as a Level 6 felony if committed by

      an adult. The juvenile court held an admission agreement hearing on June 3,

      2019. Pursuant to the written admission agreement, J.F. admitted to one count

      of robbery and one count of intimidation, and the State agreed to dismiss the

      other two counts. The juvenile court accepted the admission and adjudicated

      J.F. a delinquent. Tr. Vol. II at 9. When the judge asked J.F. why the incident

      occurred, J.F. responded, “I am not going to put it all on that I was intoxicated

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 4 of 15
       but I really didn't know what I was doing. I was intoxicated sir. It wasn’t me.”

       Id.


[9]    The juvenile court held a dispositional hearing on July 1, 2019. Call told the

       court about the injuries she suffered, and described the robbery as the “most

       terrifying thing” she and Brashear had ever gone through. Id. at 18. The State

       introduced photographs of Brashear’s injuries, the stolen car, and J.F., which

       were admitted into evidence over objection. Id. at 16-17.


[10]   The probation department recommended that J.F. be placed on suspended

       commitment to the Indiana Department of Correction (“DOC”) and that he

       receive residential treatment at Transitions Academy, where he had been

       accepted. Id. at 19. The Indiana Department of Child Services (“DCS”) agreed

       with the recommendation for placement at Transitions Academy. Id.;

       Appellant’s App. Vol. II at 108. The pre-dispositional report stated that

       “Commitment [to the DOC] is not a good option for [J.F.] as he is in need of

       therapeutic services to address the underlying trauma in his life. [J.F.]’s age

       and low IQ point to a need for therapeutic services.” Appellant’s App. Vol. II at

       106. The State requested that J.F. be committed to the DOC; defense counsel

       asked that he be placed at home with home-based services. Tr. Vol. II at 17, 20-

       21.


[11]   At the conclusion of the hearing, the juvenile court ordered J.F.’s commitment

       to the DOC and recommended a term of nine months. Id. at 22. The court

       ordered J.F. to participate in education and vocational programs, substance


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 5 of 15
       abuse programs, and “whatever services are available to address [his]

       adolescent anti-social behavior issues” that had been identified in a

       psychological evaluation that J.F. underwent. Appellant’s App. Vol. II at 121; Tr.

       Vol. II at 22. Upon J.F.’s release from his commitment, the court ordered him

       to complete the Transition from Restrictive Placement program, participate in

       the Project Life program, and complete forty hours of community service.

       Appellant’s App. Vol. II at 11-12. J.F. now appeals.


                                       Discussion and Decision

                                   I. Admission of Photographs
[12]   J.F. asserts that the juvenile court erred when, over his objection, it admitted

       into evidence at his dispositional hearing six photographs, which are three

       photographs depicting Brashear’s injuries; two photographs of Brashear’s stolen

       car after the collision; and J.F at the time of his arrest. J.F. argues that the State

       failed to lay a proper foundation for their admission.


[13]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. K.F. v. State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012), trans. denied.

       An abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances. Id. at 510-11. “‘Errors in the admission or

       exclusion of evidence are to be disregarded as harmless error unless they affect

       the substantial rights of a party.’” J.L. v. State, 5 N.E.3d 431, 436 (Ind. Ct. App.

       2014) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)).


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 6 of 15
[14]   J.F. contends that there was an inadequate foundation for the admission of the

       photographs because the State failed to prove they were true and accurate

       representations of what they were intended to portray. During the dispositional

       hearing, the following colloquy took place between the juvenile court and

       counsel:


               [THE STATE]: . . . . Judge, State offers what has been marked
               as exhibits 1-6 [(the photographs in question)], may I approach?


               THE COURT: Yes.


               [THE STATE]: State’s exhibit 1 depicts [a] male victim, in this
               case, Austin Brashear –


               [DEFENSE]: – I am going to object. She is testifying.


               THE COURT: Overruled. Go ahead please.


               THE STATE: Judge if you like, I could ask my witness to
               identify –


               THE COURT: – no, no. Go ahead.


               THE STATE: – and law [sic] foundation for all of these exhibits
               –


               THE COURT: – no. Go ahead please. Go.


               [THE STATE]: #2 is a photograph of his arm after he was
               beaten and thrown to the pavement, tased. #3 his stomach. #4
               the stolen vehicle that was crashed and totaled. #5 another view
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 7 of 15
               of that and in particular we would like to draw the Court’s
               attention to photo #6. This is a photo of [J.F.] after he was
               apprehended. . . .


               [DEFENSE]: Your Honor, I would like to just show a
               continuing objection to State’s exhibits for lack of foundation and
               relevance. . . .


               THE COURT: Alright. Noted. . . .


       Tr. Vol. II at 16-17.


[15]   Generally speaking, to lay a foundation for the admission of evidence, the

       proponent must show that it has been authenticated. Hape v. State, 903 N.E.2d

       977, 989 (Ind. Ct. App. 2009), trans. denied. Writings, recordings, photographs,

       and data compilations are included within the authentication requirements of

       Indiana Evidence Rule 901(a), which provides: “To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Id.; Ind. Evidence Rule 901(a). However, the photographs in

       question were admitted during J.F.’s dispositional hearing, and J.F.

       acknowledges that the rules of evidence do not strictly apply at juvenile

       dispositional hearings. See N.L. v. State, 989 N.E.2d 773, 778-779 (Ind. 2013)

       (“Many juvenile hearings are conducted informally, and are not strictly

       governed by the rules of evidence.”). For example, “hearsay is admissible in

       dispositional hearings, and subsequent hearings to modify a disposition,

       because [e]xcluding hearsay evidence . . . would in many cases disserve the

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 8 of 15
       child by excluding relevant information that might support a less restrictive

       disposition.” Id. at 779 (internal quotations omitted). And, at a dispositional

       hearing, a pre-dispositional report may be admitted into evidence “to the extent

       it is probative, even if the report would otherwise be excluded.” Id. (internal

       quotations omitted). Furthermore, it is well-settled that “[t]he [evidence] rules,

       other than those with respect to privileges, do not apply in . . . [p]roceedings

       relating to . . . sentencing, probation, or parole.” Ind. Evidence Rule 101(d); see

       also White v. State, 756 N.E.2d 1057, 1061 (Ind. Ct. App. 2001) (stating “[w]hen

       a trial court makes its sentence decision, ‘the rules of evidence, other than those

       concerning matters of privilege, do not apply.’”), trans. denied.


[16]   Even if we were to assume, arguendo, that the rules of evidence applied here,

       and the juvenile court erred in admitting the photographs, any error was

       harmless. The improper admission of evidence is harmless error when the

       erroneously admitted evidence is merely cumulative of other evidence before

       the trier of fact. Purvis v. State, 829 N.E.2d 572, 585 (Ind. Ct. App. 2005), trans.

       denied. At J.F.’s admission agreement hearing, J.F. admitted that he punched,

       “start[ed] hitting on[,]” and threatened force against Brashear; robbed Brashear

       of his car keys and cell phone; stole and crashed Brashear’s car; and was

       arrested following the assault and the car crash. Tr. Vol. II at 5-8. The pre-

       dispositional report included a detailed account of what occurred the night of

       the attack, including Brashear’s injuries, the condition of his car following the

       crash, and J.F.’s subsequent arrest. Appellant’s App. Vol. II at 87-90. Call

       provided a statement at the dispositional hearing, describing the viciousness of

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 9 of 15
       the attack. Tr. Vol. II at 17-18. Thus, the photographs admitted at the

       dispositional hearing were merely cumulative of J.F.’s admission, the

       information contained in the pre-dispositional report, and Call’s statement.

       See, e.g., D.Z. v. State, 100 N.E.3d 246, 249 (Ind. 2018) (“The photos were thus

       cumulative of other substantial evidence, so any error in their admission was

       harmless.” (citing McCallister v. State, 91 N.E.3d 554, 562-63 (Ind. 2018))).


                                                II. Placement
[17]   J.F. next contends that the trial court abused its discretion when it ordered him

       to be placed in the DOC for a recommended nine-month term because it was

       not the least restrictive placement and was contrary to the probation

       department’s recommendation. J.F. argues that “[i]t is clear from the record”

       that he needs treatment for substance abuse; more structure and support in his

       education; and counseling to address “the difficulties he has faced because of

       his parents’ absence, incarceration, and drug use.” Appellant’s Br. at 15. He

       maintains that all of these concerns could be addressed during residential

       treatment at Transitions Academy – the dispositional alternative identified by

       the probation department and approved by DCS. Id. Furthermore, according

       to J.F., he has a limited juvenile history; and “a placement at Transitions

       Academy . . . would have met the goals of rehabilitation without preventing

       [him] from having meaningful contact with his mother, grandfather, sister, and

       child.” Id. at 15, 16.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 10 of 15
[18]   “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings

       with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)

       (citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)), trans. denied. The

       choice of a specific disposition of a juvenile adjudicated a delinquent child is a

       matter within the sound discretion of the juvenile court and will only be

       reversed if there has been an abuse of that discretion. Id. “The juvenile court’s

       discretion in determining a disposition 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. An abuse of discretion occurs when

       the juvenile court’s action is clearly erroneous and against the logic and effect of

       the facts and circumstances before it. Id.


[19]   The goal of the juvenile process is rehabilitation rather than punishment. Id.

       “‘Accordingly, juvenile courts have a variety of placement options for juveniles

       with delinquency problems, none of which are considered sentences.’” Id.

       (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010)). Indiana

       Code section 31-37-18-6 provides a list of factors that the juvenile court is to

       consider in entering a dispositional decree. The statute specifically provides

       that:


               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:



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 11 of 15
                        (A) in the least restrictive (most family like) and most
                        appropriate setting available; and


                        (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.


       Ind. Code § 31-37-18-6. “[T]he statute recognizes that in certain situations the

       best interest of the child is better served by a more restrictive placement.” J.S.,

       881 N.E.2d at 29 (citing K.A. v. State, 775 N.E.2d 382, 387 (Ind. Ct. App.

       2002), trans. denied). The law requires only that the disposition selected be the

       least restrictive disposition that is “consistent with the safety of the community

       and the best interest of the child[.]” J.T., 111 N.E.3d at 1026.


[20]   Turning to the facts before us, we find that J.F.’s commitment to the DOC

       furthers the rehabilitative goals of the juvenile justice system. At the time of the

       disposition of this case, J.F. was sixteen years old and had been involved in the

       juvenile justice system since he was thirteen years old. His delinquency history

       included one prior true finding in 2016 for escape, a Level 6 felony when


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 12 of 15
       committed as an adult. J.F. was on formal probation from October 2017 until

       June 2018, when the juvenile court closed the case as “failed” and services with

       the Cross System Care Coordination program were not completed. Appellant’s

       App. Vol. II at 35. J.F. has had other delinquent charges, including, attempted

       battery against a public safety official in March 2016; escape in January and

       October 2017; auto theft in October 2017; visiting a common nuisance and

       possession of marijuana in December 2017; and leaving home without

       permission of parent, guardian, or custodian in March 2018. Id. at 91-93.

       Between his detainment on May 6, 2019 (for the attack on Brashear and Call),

       and June 28, 2019, J.F. received six incident reports, five of which were for

       “overt refusal to comply” and one for property destruction. Id. at 104.


[21]   J.F. has admitted to a history of marijuana and alcohol use and to the previous

       use of methamphetamine, Xanax, and cocaine. Id. at 103. He tested positive

       for amphetamines/methamphetamine in two previous cases. Id.


[22]   J.F. underwent a psychological evaluation in April 2018. He was found to have

       an IQ of 79 and was diagnosed with “Adolescent Antisocial Behavior and

       Cannabis Use Disorder.” Id. at 104. The psychological evaluation determined

       that J.F. would “benefit from living in a predictable, well-established

       environment” and recommended substance abuse treatment and individual

       psychotherapy. Id. In his dispositional risk assessment, J.F. scored at an

       overall “[h]igh risk to reoffend[.]” Id. at 105. The pre-dispositional report

       recommended out-of-home placement because J.F. “has been offered

       community-based services, however his behavioral problems have increased in

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 13 of 15
       severity, making it difficult to keep youth and those around him safe.” Id. at

       106. The report also stated that J.F. “remains a risk to himself by engaging in

       risky behaviors including substance use and activity with anti-social peers[,]”

       and J.F. and “his family have been offered a multitude of services through our

       court, however, the family did not take advantage of these services.” Id. at 107.


[23]   Finally, J.F. perpetrated and participated in a vicious attack on two

       unsuspecting victims, Brashear and Call. He tackled Brashear to the ground,

       struck him in the face, tased him, and robbed him of his car keys and cell

       phone. J.F. stole Brashear’s car, crashed it, and then pulled out a gun and

       threatened to shoot two innocent bystanders. At the dispositional hearing, Call

       told the juvenile court that the ordeal was “the most terrifying thing” she and

       Brashear had ever endured and added that


               the fact that I feel that there is absolutely no remorse is even
               worse. It was awful and it was so personal and us just going to
               [Brashear]’s house to let his dogs out and them coming up
               knowingly wanting to harm people, knowing what they were
               about to do and not one person stopping it, not one person
               stopping it.


       Tr. Vol. II at 18. When J.F. addressed the juvenile court, he expressed no

       remorse, took little responsibility for his actions, and blamed his friends for

       negatively influencing him, stating:


               I was just present and I feel like I was just in the wrong place at
               the wrong time but I was influenced under alcohol but I was
               there and I do take my consequences of being there and letting
               that happen. I am sorry for what my friend did and I

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 14 of 15
               (intelligible) stop [sic] and Your Honor, I would like to say
               something to you; I was under the influence of alcohol, I was
               very, very drunk and my friends were influencing me to do bad
               and that is all I would like to say. I would just like to say that I
               am sorry and hopefully, you will never have to see my face again.


       Id. at 22.


[24]   The juvenile court ultimately determined that J.F. should be committed to the

       DOC. It is well-settled that there are times when commitment to a suitable

       public institution is in the best interest of the juvenile and society. J.S, 881

       N.E.2d at 29. “In some instances, confinement may be one of the most

       effective rehabilitative techniques available.” B.K.C. v. State, 781 N.E.2d 1157,

       1172 (Ind. Ct. App. 2003) (upholding the juvenile court’s order of wardship of

       B.K.C. to the DOC after fourteen-year-old B.K.C. was adjudicated delinquent

       for the act of Class B felony robbery if committed by an adult for robbing a

       restaurant at gunpoint with an older accomplice). In this case and under these

       circumstances, we cannot say that the juvenile court’s decision was an abuse of

       discretion or that it was not in J.F.’s best interests. The juvenile court did not

       abuse its discretion by ordering J.F. committed to the DOC.


[25]   Affirmed.


       Bailey, J., and Mathias, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1748 | April 9, 2020   Page 15 of 15
