MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Jun 18 2018, 10:11 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.
Deborah Markisohn                                         Attorney General of Indiana
Marion County Public Defender Agency
                                                          Katherine Cooper
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.D.,                                                     June 18, 2018
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-6
        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.
                                                          49D09-1709-JD-1222



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018                            Page 1 of 8
[1]   A.D. appeals his adjudication as a delinquent child for resisting law

      enforcement,1 which would be a Class A misdemeanor if committed by an

      adult. He raises the following issue for our review on appeal: whether the State

      presented sufficient evidence sufficient evidence to show that the stop of A.D.

      was supported by reasonable suspicion under the Fourth Amendment and was

      also reasonable based on the totality of circumstances under the Indiana

      Constitution.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Around 8:30 p.m. on September 7, 2017, A.D. and seven or eight other

      juveniles entered Rickers BP gas station on Georgetown Road in Indianapolis,

      Indiana. Tr. Vol. II at 8, 15, 18. The store clerk observed that three of the

      juveniles wore backpacks, and the rest wore hoodies. Id. at 18, 21. Two of the

      juveniles proceeded to the counter while the others went to the candy aisle and

      filled their bags with candy before walking out of the store. Id. at 18. The store

      clerk observed most of the juveniles running while holding items in their hands

      such as “[c]andy, juice, chips, things like that.” Id. at 21. The store clerk called

      the police to report the theft and described the juveniles, including their attire

      and the direction in which they fled. Id. at 22.




      1
          See Ind. Code § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 2 of 8
[4]   Indianapolis Metropolitan Police Department (“IMPD”) Officer Christian

      Burney (“Officer Burney”) was on patrol in his police vehicle when he observed

      a group of about six juveniles running northbound from the BP parking lot. Id.

      at 29-30. Officer Burney made contact with IMPD Officer Matthew Pankonie

      (“Officer Pankonie”) and told Officer Pankonie that he had observed a group of

      juveniles run northbound across 56th Street, coming from the BP and going

      behind the Marathon gas station. Id. at 36-37. Shortly thereafter, Officer

      Burney heard a radio report of a theft in progress at the BP. Id. at 31. While

      stopped at a red light, Officer Pankonie heard the radio dispatch of a theft in

      progress at the BP by a group of juveniles, who had then fled from the store. Id.

      at 37. Officer Pankonie proceeded to drive northbound on 56th Street and then

      made a u-turn to travel back southbound, when he saw a group of juveniles

      walking through the parking lot of a Boston Market restaurant about 100 yards

      from the BP. Id.


[5]   Officer Pankonie activated his vehicle’s lights and pulled into a nearby Wendy’s

      parking lot when “two juveniles ran southbound away from [him].” Id. at 38.

      Officer Pankonie exited his vehicle and “observed two juveniles running

      southbound wearing gray hoodies, [and] one with a backpack, [running]

      southbound in the Boston Market parking lot.” Id. at 42-43. Officer Pankonie

      “yelled in a loud manner, ‘Stop, police.’” Id. at 38, 43. The juveniles did not

      stop running, so Officer Pankonie notified his partners and began pursuit of the

      juveniles. Id. at 42. Officer Pankonie pursued the juveniles on foot until he lost

      sight of them when they entered a tree line behind the strip mall. Id. at 43.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 3 of 8
[6]   When Officer Pankonie approached the tree line, he drew his gun and ordered

      the juveniles to come out from where they were hiding. Id. The juveniles

      emerged, one of whom was later identified as A.D. Id. at 44-45. A.D. had a

      candy wrapper in his hand and wore a backpack. Id. at 43. Officer Pankonie

      handcuffed A.D. and waited for backup to handcuff the other juvenile. Id. at

      44.


[7]   Officer Pankonie conducted a search incident to arrest and discovered that the

      backpack belonging to the other juvenile contained candy and a drink that

      matched the description of items stolen from the BP. Id. at 46-48. The officers

      arrested A.D. and the other juvenile for theft2 and resisting law enforcement,

      acts which would both be Class A misdemeanors if committed by an adult. Id.

      at 46. During the denial hearing, A.D. objected to testimony regarding what

      occurred after Officer Pankonie stopped A.D. on the basis that the detention

      violated his rights under the United States and Indiana Constitutions because

      the stop was not based on reasonable suspicion. Id. at 41. At the conclusion of

      the hearing, A.D. was adjudicated a juvenile delinquent for an act which would

      be Class A misdemeanor resisting law enforcement if committed by an adult.

      Id. at 54. A.D. now appeals, arguing that the evidence was insufficient to

      support his adjudication because the stop violated his federal and state

      constitutional rights.




      2
         The trial court found that the State failed to meet its burden as to the theft count and entered a not true
      finding on that charge. Tr. Vol. II at 54.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018                             Page 4 of 8
                                     Discussion and Decision
[8]   When reviewing a claim of sufficiency of the evidence with respect to juvenile

      adjudications, we do not reweigh the evidence or judge the credibility of the

      witnesses. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.

      denied. We look only to probative evidence supporting the adjudication and the

      reasonable inferences that may be drawn from the evidence to determine

      whether a reasonable trier of fact could conclude the juvenile was guilty beyond

      a reasonable doubt. Id. If there is substantial evidence of probative value to

      support the adjudication, it will not be set aside. Id. The uncorroborated

      testimony of one witness may be sufficient by itself to sustain an adjudication of

      delinquency on appeal. J.D.P. v. State, 857 N.E.2d 1000, 1010 (Ind. Ct. App.

      2006).


[9]   To convict A.D. of resisting law enforcement as charged, the State was required

      to prove beyond a reasonable doubt that A.D. fled from the law enforcement

      officers after the officers, by visible and audible means, identified themselves

      and ordered A.D. to stop. Ind. Code § 35-44.1-3-1(a)(3). Although the resisting

      law enforcement statute, on its face, does not expressly require the order to stop

      to be lawful, in order to interpret the statute as constitutional, the Indiana

      Supreme Court has explained that such an order to stop must be understood to

      require probable cause or reasonable suspicion. Gaddie v. State, 10 N.E.3d 1249,

      1254-55 (Ind. 2014). Absent proof that an officer’s order to stop rests on

      probable cause or on reasonable suspicion, which is defined as specific,

      articulable facts that would lead the officer to reasonably suspect that criminal

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 5 of 8
       activity is afoot, the evidence will be insufficient to establish the offense of

       resisting law enforcement. Id. at 1255.


[10]   A.D. first argues that the police lacked reasonable suspicion to detain and seize

       him under the Fourth Amendment to the United States Constitution. A.D.

       contends that the State failed to prove articulable facts -- other than the fact that

       A.D. was a juvenile -- that justified Officer Pankonie’s stop of A.D. However,

       we find the evidence was sufficient to support that Officer Pankonie had

       reasonable suspicion to detain and seize A.D. Shortly after the theft occurred at

       the BP gas station, and just before the call came in to dispatch, Officer Burney

       notified Officer Pankonie that he had just seen a group of juveniles running

       from the BP gas station and across the street behind the Marathon gas station

       and CVS. While waiting for the traffic light to cycle, Officer Pankonie received

       a call from dispatch. Dispatch relayed that a gas station clerk from the BP gas

       station reported having seen a group of five black males run out of the store

       without paying for their candy, chips, and juice. Dispatch also relayed the gas

       station clerk’s description of what the males were wearing and in which

       direction they had gone. Relying on the information received from both

       dispatch and Officer Burney, Officer Pankonie located a group of juveniles

       walking across the Boston Market parking lot, which is in close proximity to the

       BP gas station. A.D. was found with a group of juveniles matching the

       description of the group who had committed a theft at the BP gas station, was

       found within close proximity to the gas station shortly after the theft had

       occurred, and ran once Officer Pankonie activated the lights on his police


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 6 of 8
       vehicle and pulled into the parking lot; accordingly, the evidence was sufficient

       to support that Officer Pankonie had reasonable suspicion to detain and seize

       A.D. under the Fourth Amendment to the United States Constitution.


[11]   A.D. also argues that the police violated his rights under Article 1, Section 11 of

       the Indiana Constitution. A.D. contends that Officer Pankonie’s conduct was

       unreasonable under the totality of the circumstances. In evaluating the

       reasonableness of police conduct under Article 1, Section 11 of the Indiana

       Constitution, a reviewing court considers: “1) the degree of concern, suspicion,

       or knowledge that a violation has occurred, 2) the degree of intrusion the

       method of the search or seizure imposes on the citizen’s ordinary activities, and

       3) the extent of law enforcement needs.” Carpenter v. State, 18 N.E. 998, 1002

       (Ind. 2014).


[12]   In the present case, there was a high degree of concern, suspicion, or knowledge

       that a violation had occurred. A theft of candy, chips, and drinks had just

       occurred at the BP gas station by a group of juveniles. A.D. was found within a

       close proximity to the gas station shortly after the theft with a group of juvenile

       males matching the description of the suspects that the gas station clerk

       provided to dispatch. A.D. also fled when Officer Pankonie pulled into the

       parking lot and initiated the lights on his police car. Additionally, the degree of

       intrusion that the method of the search imposed on A.D.’s ordinary activities

       was small. Officer Pankonie ordered A.D. and the other juvenile to come out

       from the wooded area, and he performed a search incident to arrest. Tr. Vol. II

       at 46-48. Finally, the extent of law enforcement needs was high. A theft of

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 7 of 8
several items of the BP gas station’s merchandise had just occurred, and the

police officers were doing their job by conducting an investigation, locating the

individuals that were responsible, and returning the merchandise back to the BP

gas station. Therefore, the evidence was sufficient to support that Officer

Pankonie, under the totality of the circumstances, displayed reasonable conduct

by detaining and seizing A.D. under Article 1, Section 11 of the Indiana

Constitution. Because we have concluded that the stop of A.D. did not violate

either the Fourth Amendment or Article 1, Section 11 of the Indiana

Constitution, the evidence presented was sufficient to sustain A.D.’s

adjudication for an act that would be a Class A misdemeanor resisting law

enforcement if committed by an adult.


Affirmed.


Baker, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-6 | June 18, 2018   Page 8 of 8
