MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Jul 18 2018, 9:26 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.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Jesse R. Drum
Elizabeth A. Houdek                                       Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.W.,                                                     July 18, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1712-JV-2849
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Petitioner.                                      Marilyn A. Moores, Judge
                                                          The Honorable
                                                          Geoffrey Gaither, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1706-JD-796



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018              Page 1 of 14
[1]   D.W. appeals his adjudication as a delinquent child for committing offenses

      that would be Level 6 felony receiving stolen auto parts,1 Level 6 felony theft,2

      and Class A misdemeanor criminal trespass,3 if committed by an adult. He

      raises three issues, of which we find the following to be dispositive: whether the

      State presented sufficient evidence to support each of the true findings.


[2]   We reverse and remand with instructions.


                                       Facts and Procedural History
[3]   At around 9:00 p.m. on June 7, 2017, Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Jordan Huffman (“Officer Huffman”) was

      dispatched to the Skateland roller skating rink on the report of a stolen vehicle,

      namely a 2012 Ford E-350 twelve-passenger van owned by John Schott

      (“Schott”). When he arrived, Officer Huffman met with Schott’s wife, Anne

      Schott (“Anne”), who several hours earlier had driven seven children in the van

      to Skateland, and when they came out around 8:30 p.m., the van was gone.

      Schott arrived on the scene and verified that he had not moved the vehicle.

      Anne still had the keys with her, and she told Officer Huffman that she thought

      she had locked it. There was no broken glass on the ground in the parking lot

      where the van had been parked. Anne told Officer Huffman that, when she




      1
          See Ind. Code § 35-43-4-2.5(c).
      2
          See Ind. Code § 35-43-4-2.
      3
          See Ind. Code § 35-43-2-2(b)(4).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 2 of 14
      parked the vehicle and went inside the rink, there had been two booster seats

      and two child car seats, along with two infant seat bases (together, “the child

      safety seats”), in the van.


[4]   At around 5:00 a.m. the next day, officers were dispatched to an apartment

      complex in Marion County regarding a suspicious vehicle, specifically a white

      passenger van parked and occupied by individuals. IMPD Officer Anthony

      Carter (“Officer Carter”) responded and observed three juvenile males, later

      identified as G.K., D.W., and N.M., asleep in the van. G.K. was in the driver’s

      seat, D.W. was in the middle row of seats, and N.M. was in the back row.

      Officer Carter checked the license plate in his computer and determined it had

      been reported as stolen. Other officers arrived at the scene, and the three

      occupants were awakened, removed, and transported to the juvenile processing

      center. Anne was contacted and came to the scene to take possession of the

      van. Upon arrival, she observed that the van’s interior was damaged, the child

      safety seats were missing, and there were various personal items in the van that

      did not belong to the Schotts. Those items were removed and transported to

      IMPD’s property room.


[5]   On June 8, 2017, the State filed, and the trial court subsequently approved, a

      delinquency petition, alleging that D.W. committed acts that would constitute

      the following offenses if committed by an adult: Count 1, Level 6 felony

      receiving stolen auto parts by knowingly or intentionally receiving, retaining, or

      disposing of Schott’s motor vehicle, which had been the subject of theft; Count

      2, Level 6 felony theft by knowingly or intentionally exerting unauthorized

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 3 of 14
      control over Schott’s child safety seats; and Count 3, Class A misdemeanor

      criminal trespass by knowingly or intentionally interfering with the possession

      or use of “the property of [] Schott” without his consent. Appellant’s App. Vol. II

      at 22.4


[6]   On August 27, 2017, the juvenile court conducted a combined denial hearing

      for D.W., G.K. and N.M., who each faced the same delinquency allegations.

      Schott testified that he owned the van, that that he did not know D.W. or the

      other two juveniles who were found asleep in his van, and none had his

      permission to use it. He said when it was found the next morning, it was

      “trashed” and had “lots of . . . I guess stolen items in it[.]” Tr. Vol. II at 10.

      Anne testified that on June 7 she drove the van to Skateland around 6:00 p.m.,

      taking a group of children to skate. She described that the van “was in good

      condition since it was fairly new” and that it had six child safety seats in it

      when she parked and went inside Skateland. Id. at 13. When she came out

      around 9:00 p.m., the van was gone, so she called 911. She stated that when

      she saw the van the next morning, “[I]t reeked of marijuana, it was trashed,

      there was food, there was a variety of electronics, sunglasses, shoes, cologne,

      candy, drug paraphernalia, um, it was just covered in trash.” Id. at 14. She

      testified that none of those items belonged to the Schotts. Anne stated that the




      4
        On appeal, one of D.W.’s three claims of error is that the delinquency petition’s charging information for
      criminal trespass was defective because it did not identify what property of Schott’s was used or interfered
      with, and because D.W. did not object to the allegation, he acknowledges that he needed to show
      fundamental error. Because we resolve D.W.’s appeal on other grounds, we do not reach this issue.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018              Page 4 of 14
      child safety seats were gone and also testified, “[A]ll of my personal items were

      no longer in there[,]” except for a “a few small items.” Id. Receipts were

      admitted into evidence showing the cost to replace what was stolen, as well as

      what she paid to repair damage to the seat belts, air vents, the overhead DVD

      player, and burns to the upholstery. Anne stated that she did not know D.W.

      or the other juveniles and that they did not have permission to be in the Schotts’

      van.


[7]   Officer Carter testified that when he arrived at the apartment parking lot at

      around 5:20 a.m., in response to the dispatch regarding a suspicious vehicle, he

      saw the van with three sleeping occupants, he determined that the “large 12-

      passenger van” was stolen, and he called for assistance. Id. at 20. He said

      when other officers arrived, they banged on the windows and woke the driver

      and then the others. Officer Carter testified that D.W. was in the middle row of

      seats. He stated that the location where the van was found was “within six

      blocks” of Skateland. Id. at 19. Officer Joshua Treft (“Officer Treft”) testified

      that he arrived at the scene, parked his vehicle in front of the van, and waited

      for other officers to arrive. He described that the occupants were “compliant”

      once the officers woke them. Id. at 25. He estimated that where the van was

      found was “maybe a mile” from Skateland. Id. at 24.


[8]   At the conclusion of the hearing, the juvenile court entered a true finding as to

      the three allegations: receiving stolen auto parts, theft, and criminal trespass.

      Id. at 33. That same date the juvenile court issued a written Order on Fact

      Finding hearing that ordered D.W. to continue on previously-imposed release

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 5 of 14
       conditions and set the matter for dispositional hearing. Appellant’s App. Vol. II

       at 84-86. The November 9, 2017 Dispositional Order suspended commitment

       to the Indiana Department of Correction and placed D.W. on probation, which

       included terms of day reporting and GPS electronic monitoring. Id. at 14-16.

       D.W. now appeals.


                                       Discussion and Decision
[9]    D.W. argues that the evidence was not sufficient to support the three true

       findings. A finding by a juvenile court adjudicating a child to be a delinquent

       must be based upon proof beyond a reasonable doubt. Ind. Code § 31-37-14-1.

       Our review for the sufficiency of the evidence with respect to juvenile

       adjudications is the same as for criminal convictions. A.J.R. v. State, 3 N.E.3d

       1000, 1004 (Ind. Ct. App. 2014). We neither reweigh the evidence nor judge

       the credibility of the witnesses. D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App.

       2017). We consider only the evidence most favorable to the judgment and the

       reasonable inferences drawn therefrom and will affirm if the evidence and those

       inferences constitute substantial evidence of probative value to support the

       judgment. C.L. v. State, 2 N.E.3d 798, 799 (Ind. Ct. App. 2014). We will

       reverse if there is no evidence or reasonable inference to support any one of the

       necessary elements of the offense. K.W. v. State, 984 N.E.2d 610, 612 (Ind.

       2013).


[10]   D.W. argues that the State did not present substantial evidence of probative

       value from which a reasonable factfinder could conclude beyond a reasonable


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 6 of 14
       doubt that his conduct, if committed by an adult, would constitute Level 6

       felony receiving stolen auto parts, Level 6 felony theft, and Class A

       misdemeanor criminal trespass. We agree.5


                                       Receiving Stolen Property
[11]   In order to make a true finding of delinquency for Level 6 felony receiving

       stolen auto parts, the State was required to prove beyond a reasonable doubt

       that D.W. knowingly or intentionally received, retained, or disposed of a motor

       vehicle or any part of a motor vehicle of another person, here, Schott, that had

       been the subject of theft. Ind. Code § 35-43-4-2.5(c); Appellant’s App. Vol. II at

       22. The State must also prove beyond a reasonable doubt that the person knew

       the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1143-44 (Ind. 2010).

       D.W. argues that “[t]here was simply no evidence at all that D.W. knew the

       van was stolen.” Appellant’s Br. at 8-9. We agree.


[12]   Knowledge that property is stolen may be established by circumstantial

       evidence. Fortson, 919 N.E.2d. at 1143. However, knowledge of the stolen

       character of the property may not be inferred solely from the unexplained

       possession of recently stolen property. Id. “Possession of recently stolen

       property when joined with attempts at concealment, evasive or false statements,




       5
         We note that the juvenile court entered the same three true findings for N.M., who was in the back row of
       seats, as it did for D.W., and N.M. filed a direct appeal. By memorandum decision, a panel of this court
       reversed, determining that the evidence was not sufficient to support any of the three true findings. N.M. v.
       State, No. 49A05-1711-JV-2539, 2018 WL 2124676 (Ind. Ct. App. May 9, 2018). We agree with our
       colleagues’ decision and reasoning.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018              Page 7 of 14
       or an unusual manner of acquisition may be sufficient evidence of knowledge

       that the property was stolen.” Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct.

       App. 2005); see also Driver v. State, 725 N.E.2d 465, 470-71 (Ind. Ct. App. 2000)

       (trier of fact may infer that a defendant had knowledge that property was stolen

       based on defendant having possession of it along with lying about how he

       acquired it).


[13]   Here, at the denial hearing, the State presented evidence that Anne drove the

       van to Skateland, and it was stolen sometime between about 6:00 p.m. and 9:00

       p.m. on June 7, 2017. No surveillance or other evidence was presented as to

       when or how it was stolen. When Anne parked and left the van, it was in

       “good” condition. Tr. Vol. II at 13. It was found at around 5:00 a.m. the next

       day, parked in an apartment complex about six blocks away, and three juveniles

       were sleeping in it. The van was “trashed,” and D.W. was in the middle row of

       seats. Id. at 10. The Schotts testified that they did not know the three juveniles

       and did not give any of them permission to use or be in their van. When the

       police woke the juveniles, they exited the van one by one and were described as

       “compliant.” Id. at 25.


[14]   While the State’s evidence proved that D.W. was found asleep in the recently-

       stolen van, there was no evidence that D.W. gave evasive or false answers to

       officers or attempted to resist or flee. There also was no evidence that anyone

       attempted to conceal the van or alter its plates, and no evidence that windows

       or locks were broken. Based on the record before us, the State failed to present

       sufficient evidence from which the juvenile court could infer that D.W. knew

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 8 of 14
       that the van was stolen. See Fortson, 919 N.E.2d at 1143-44 (reversing

       conviction for receiving stolen property where defendant was found driving

       stolen vehicle within hours after it was stolen, but there was no evidence that

       defendant provided evasive answers, attempted to flee or resist officers, or

       attempted to conceal the truck, and thus State failed to provide other facts to

       support an inference of knowledge). Accordingly, the evidence to support

       D.W.’s true finding for receiving stolen auto parts was insufficient.


                                                       Theft
[15]   To prove that D.W. committed what would be Level 6 felony theft if

       committed by an adult, as charged, the State was required to prove that he

       knowingly or intentionally exerted unauthorized control over Schott’s child

       safety seats with the intent to deprive Schott of any part of the property’s value

       or use, in an amount greater than seven hundred fifty dollars and less than fifty

       thousand dollars. Ind. Code § 35-43-4-2; Appellant’s App. Vol. II at 22. D.W.

       argues that the evidence was insufficient to prove theft as charged, arguing,

       “The State offered no evidence at all to support its charge of theft other than

       D.W.’s mere presence inside the stolen van that had contained the missing car

       seats twelve hours previously.” Appellant’s Br. at 9.


[16]   Here, the State presented no evidence of what occurred in the less-than-twelve

       hours between the time that the van was taken from Skateland and when it was

       found with the three juveniles sleeping in it and no evidence that D.W.

       removed the child safety seats or even was present when the seats were

       removed from the van. The State failed to prove beyond a reasonable doubt
       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 9 of 14
       that he knowingly or intentionally exerted unauthorized control over the child

       safety seats with the intent to deprive Schott of any part of their use or value.

       Accordingly, the State failed to present sufficient evidence to support a true

       finding of what would be Level 6 felony theft if committed by an adult.


                                            Criminal Trespass
[17]   To support D.W.’s true finding for criminal trespass, the State had to prove that

       D.W. knowingly or intentionally interfered with the possession or use of the

       property of Schott without his consent. Ind. Code § 35-43-2-2(b)(4); Appellant’s

       App. Vol. II at 22. D.W. argues, “Without knowledge the van was stolen, D.W.

       could not knowingly or intentionally interfere with the actual owner’s interest

       in the van[.]” Appellant’s Br. at 10. We disagree with that reasoning because the

       offense of criminal trespass did not require the State to prove that D.W. knew

       the van was stolen; it required the State to show that he knowingly or

       intentionally used it without the owner’s consent. Nevertheless, we must agree

       with D.W. that the evidence was insufficient to support a true finding for

       criminal trespass.


[18]   Here, the State’s evidence was that Anne drove the van to Skateland on the

       evening of June 7, and it was stolen sometime before 9:00 p.m. Early the next

       morning, officers found the van about half a mile away, and D.W. was asleep

       in it without the Schotts’ permission. Tr. Vol. II at 9, 19-20, 24. The evidence

       thus established that (1) D.W. interfered with the Schotts’ use or possession of

       the van (2) without the owner’s consent. What remains is whether the evidence


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 10 of 14
       was sufficient to prove that D.W. knowingly or intentionally did so, as required

       by Indiana Code section 35-43-2-2(b)(4).


[19]   We recognize that “the mens rea element for a criminal offense is almost

       inevitably, absent a defendant’s confession or admission, a matter of

       circumstantial proof.” Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012).

       Here, the State failed to present any evidence to prove that D.W. knowingly or

       intentionally used or possessed the van without Schott’s consent. D.W. was

       found asleep in the middle row of seats of Schott’s trashed van less than twelve

       hours after it was stolen. We do not know how the van was stolen, who stole it,

       when or under what circumstances D.W. entered the van, whether he knew it

       did not belong to any of the other two occupants, or whether he believed he or

       the others had obtained consent from someone for its use. Based on the limited

       evidence presented and our standard of review, and like our colleagues in N.M.

       v. State, No. 49A05-1711-JV-2539, 2018 WL 2124676, at *3 (Ind. Ct. App. May

       9, 2018), we conclude that the State failed to present sufficient evidence that

       D.W. knowingly or intentionally interfered with the possession or use of

       Schott’s van without Schott’s consent. We reverse and remand with

       instructions to vacate the true findings.6


[20]   Reversed and remanded with instructions.




       6
        Because D.W.’s sufficiency claims are dispositive, we need not reach his claim that the true findings violate
       Indiana’s prohibition against double jeopardy.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018             Page 11 of 14
Bradford, J., concurs.


Baker, J., concurs in part and dissents in part with separate opinion.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 12 of 14
                                                      IN THE
            COURT OF APPEALS OF INDIANA

       D.W.,
       Appellant-Respondent,
                                                                     Court of Appeals Case No.
                v.                                                   49A02-1712-JV-2849

       State of Indiana,
       Appellee-Petitioner.




       Baker, Judge, dissenting in part.

[21]   I respectfully dissent from the majority’s conclusion regarding D.W.’s

       delinquency adjudication for criminal trespass.7 As the majority notes, to

       establish that D.W. committed an act that would have been criminal trespass

       had it been committed by an adult, the State needed to prove that D.W.

       knowingly or intentionally interfered with the possession or use of the property

       of Schott—the van—without his consent. I.C. § 35-43-2-2(b)(4).




       7
        I likewise respectfully disagree with the resolution of this issue by a different panel in the companion case of
       N.M. v. State, No. 49A05-1711-JV-2539 (Ind. Ct. App. May 9, 2018).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018               Page 13 of 14
[22]   Schott testified that he owned the van, that he did not know D.W. or the other

       two juveniles who were found asleep in his van, and that none had his

       permission to use it. A reasonable factfinder could infer from this testimony

       that as D.W. did not know Schott and did not have his permission to use the

       van, D.W. acted knowingly or intentionally. As such, I believe the evidence is

       sufficient to support this adjudication and would affirm on this issue. In all

       other respects, I agree with the majority.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2849 | July 18, 2018   Page 14 of 14
