                                                                            FILED
                                                                       Nov 19 2018, 10:14 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Deborah Markisohn                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Appellate Division                                         Evan Matthew Comer
Indianapolis, Indiana                                      Caroline G. Templeton
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.S.,                                                      November 19, 2018
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           18A-JV-826
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Gary K. Chavers,
Appellee-Petitioner.                                       Judge Pro Tempore
                                                           Trial Court Cause No.
                                                           49D09-1710-JD-1490



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018                            Page 1 of 10
                                           Case Summary
[1]   J.S. was adjudicated a delinquent child with true findings for: (1) Dangerous

      Possession of a Firearm, a Class A misdemeanor;1 and (2) Resisting Law

      Enforcement, an act that would be a Class A misdemeanor if committed by an

      adult.2 J.S. now challenges the sufficiency of the evidence supporting his true

      finding for Dangerous Possession of a Firearm. We affirm.



                                 Facts and Procedural History                       3




[2]   On October 18, 2017, the Indianapolis Metropolitan Police Department learned

      that a juvenile—other than J.S.—had stolen a vehicle and a firearm from his

      parents. That evening, Officer Nicholas Snow (“Officer Snow”) encountered a

      vehicle matching the description of the stolen vehicle, with three occupants

      inside. Officer Snow began following the vehicle and contacted additional

      officers. The plan was to conduct a tactical stop for officer safety, ordering the

      occupants out of the vehicle one at a time. Among the responding officers was

      Officer William Hornaday (“Officer Hornaday”), who assisted with the stop.


[3]   The officers first ordered the driver out of the vehicle. Thereafter, the front

      passenger ran from the vehicle. Officer Hornaday ran after the individual.




      1
          Ind. Code § 35-47-10-5(a).
      2
          I.C. § 35-44.1-3-1(a)(3).
      3
        On October 25, 2018, we held oral argument at Princeton Community High School in Gibson County. We
      thank the staff and students for their hospitality, and thank counsel for their skilled advocacy.

      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018                     Page 2 of 10
      Meanwhile, Officer Snow took note of the individual’s appearance, observing

      that the individual was a Hispanic male wearing white shoes, dark pants, and a

      white shirt under a sweatshirt. The individual was holding a black object.

      Although Officer Snow could not readily identify the object, whether it was

      through his training—or “the way [the individual] was holding whatever it

      was”—Officer Snow “believed it to be a gun so much so that [he] got on the

      radio and . . . said that [the individual] was armed.” Tr. Vol. II at 16-17.


[4]   Officer Hornaday pursued the individual through a residential area, into a dark

      area between houses. Officer Hornaday lost sight of the individual, but then

      found a black gun on the ground nearby. A few blocks away, Officer Ryan

      Deakin (“Officer Deakin”) saw a Hispanic male running toward him wearing

      white shoes, dark pants, and a white t-shirt. Officer Deakin arrested the

      person—later identified as J.S.—who complained that he was cold. When

      Officer Deakin said that J.S. should not have taken off his sweatshirt, J.S.

      laughed. At this time, J.S. did not have a firearm but did have a cell phone that

      kept ringing. J.S. was transported to the area of the vehicle stop, where Officer

      Snow identified J.S. as the passenger who fled. J.S. was sweating and was

      uncooperative with the officers. Around that time, J.S. was near the two other

      individuals who had been in the vehicle. J.S. tried to make eye contact with

      them. Eventually, the three of them were placed together inside a transport

      vehicle, and a conversation ensued in Spanish. One individual called J.S. a

      dumbass, and J.S. said “I can’t believe they got me” or “I thought that I was




      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018      Page 3 of 10
      going to get away and not get caught.”4 Id. at 81. At some point, law

      enforcement recovered contraband from the center console of the stolen vehicle.


[5]   The State filed a petition alleging that J.S. was a delinquent child for conduct

      related to the firearm, the contraband in the console, and the flight from law

      enforcement. After a denial hearing, the juvenile court entered true findings for

      Dangerous Possession of a Firearm and Resisting Law Enforcement. The

      juvenile court adjudicated J.S. a delinquent child and placed him on probation

      with a suspended commitment to the Indiana Department of Correction.


[6]   J.S. now appeals.



                                     Discussion and Decision
[7]   A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §

      31-37-14-1. When reviewing a challenge to the sufficiency of evidence

      supporting a true finding, “we do not reweigh the evidence or judge witness

      credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e

      consider only the evidence favorable to the judgment and the reasonable

      inferences supporting it.” Id. We will affirm the judgment so long as there is

      “substantial evidence of probative value . . . from which a reasonable fact finder




      4
          An officer who overheard this conversation offered both statements as possible translations.


      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018                               Page 4 of 10
       could conclude beyond a reasonable doubt” that the juvenile engaged in the

       unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).


[8]    J.S. challenges only his true finding for Dangerous Possession of a Firearm.

       Indiana Code Section 35-47-10-5(a) provides, in pertinent part, that “[a] child

       who knowingly, intentionally, or recklessly possesses a firearm . . . commits

       dangerous possession of a firearm, a Class A misdemeanor.” Moreover, “[a]

       person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

       aware of a high probability that he is doing so.” I.C. § 35-41-2-2.


[9]    At the denial hearing, J.S. pursued a defense of mistaken identity—but the State

       presented ample evidence that J.S. was the person who fled. Indeed, among the

       evidence was testimony from Officer Snow, who identified J.S. as the person he

       saw running from the vehicle. There was also evidence of the incriminating

       conversation between J.S. and the others from the vehicle. In now pursuing his

       appeal, J.S. does not focus on evidence of his identity. Rather, he challenges

       whether the State presented sufficient evidence that he possessed a firearm.


[10]   It is well-settled that possession can be actual or constructive, with “[a]ctual

       possession occur[ing] when a person has direct physical control over the item.”

       Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). According to J.S., a theory

       of actual possession cannot support his true finding because he “was not found

       in direct physical control of the gun.” Br. of Appellant at 13. Yet, the evidence

       favorable to the adjudication indicates that law enforcement found a black

       firearm along the route J.S. took when he fled—shortly after Officer Snow saw


       Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018       Page 5 of 10
       J.S. clutching a black object, and suspected the object was a firearm. A fact-

       finder may consider flight to be “circumstantial evidence of consciousness of

       guilt.” Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (quoting Brown v. State,

       563 N.E.2d 103, 107 (Ind. 1990)). Furthermore, there was no explanation for

       the firearm on the ground, other than pure coincidence.


[11]   J.S. minimizes the evidence against him, arguing that it “establishes a

       possibility J.S. may have possessed a firearm but it falls far short of proof

       beyond a reasonable doubt.” Br. of Appellant at 13. As to any inference to be

       drawn from his flight, J.S. argues that he could have fled for other reasons—

       “because he knew drugs and paraphernalia would be found in the vehicle”—

       and that, “[w]hatever his motive, at best it has a tenuous connection to

       possession of a firearm.” Id. at 15. J.S. also speculates that the object might

       have been a cell phone, “which could readily have been mistaken for a weapon

       during the heightened tensions present in a ‘high risk’ traffic stop.” Id. at 14.

       J.S. also focuses on other exculpatory evidence, including evidence that he was

       “excluded . . . as the source” of fingerprints found on the firearm. Id. at 15.


[12]   Yet, we cannot reweigh the evidence, from which a reasonable fact-finder could

       conclude—beyond a reasonable doubt—that when J.S. fled from the vehicle, he

       knowingly and actually possessed the black firearm recovered along his route.

       Thus, we conclude that there is sufficient evidence to support the true finding.




       Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018       Page 6 of 10
[13]   Affirmed.


       Najam, J., concurs.
       May, J., concurs in result with opinion.




       Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018   Page 7 of 10
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      J.S.,                                                      Court of Appeals Case No.
                                                                 18A-JV-826
      Appellant-Respondent,

              v.

      State of Indiana,
      Appellee-Petitioner.




      May, Judge, concurring in result.


[1]   I write separately to note the discrepancy between Officer Snow’s testimony at

      trial and his Probable Cause Affidavit. In the Probable Cause Affidavit, Officer

      Snow reported:


              [T]he passenger of the vehicle the front seat passenger fled on
              foot. The male was described as a Hispanic male approximately
              5-09 wearing a blue sweatshirt with a white undershirt and black
              jeans. Officer Snow observed this male to be gripping his waist
              band as he ran east bound from the location of the traffic stop.
              Officer Hornaday gave chase on foot and began yelling loud
              verbal commands to the male, identifying himself as the police
              and commanding the male to stop running. While Officer
              Hornaday was giving chase, Officer Hornaday located a black
              semi-automatic Springfield 9mm XD-9 handgun with serial
              number MG727669 and a magazine loaded with 6 live 9mm
              rounds, in front of 6038 Allendale Dr, in the direct path of where
              the male was running.



      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018                   Page 8 of 10
      (App. Vol. II at 18) (errors in original).


[2]   However, at trial Officer Snow testified, regarding the same series of events:


              [Prosecutor]:             And when the suspect who was in the vehicle
                                        ran, did you get a look at him?


              [Officer Snow]:           I did sir. He was wearing a blue hooded
                                        sweatshirt, a white shirt. I remember it being
                                        out from underneath the blue hooded
                                        sweatshirt. Dark blue jeans and white tennis
                                        shoes and he was clutching a black object in
                                        his hand. And when he ran he turned and
                                        looked at me to the point where I could see
                                        from this side of his nose to his ear as he
                                        turned. I couldn’t readily identify exactly
                                        what was in his hand. I was, through my
                                        training experience the way he was holding
                                        whatever it was, I believed it be to a gun so
                                        much so that I got on the radio and I said that
                                        he was armed.


              [Prosecutor]:             After the suspect ran, what did you do?


              [Officer Snow]:           There was another officer to my right, Officer
                                        Hornaday, he gave chase. . . .


      (Tr. Vol. II at 16-7.) On cross-examination, J.S.’s counsel questioned Officer

      Snow about the details of the encounter, but counsel did not attempt to

      impeach Officer Snow with the discrepancies in his iterations of the events,

      specifically, the lack of information regarding something he believed to be a gun

      in J.S.’s hand when he fled from the passenger side of the vehicle.

      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018           Page 9 of 10
[3]   As a result of the failure to point out the difference between Officer Snow’s

      account of the incident in the Probable Cause Affidavit and his testimony at

      trial, the only evidence heard by the trial court judge was that Officer Snow

      observed a black object, which he believed to be a gun, in J.S.’s hand. Because

      of our standard of review, I concur in result.




      Court of Appeals of Indiana | Opinion 18A-JV-826 | November 19, 2018    Page 10 of 10
