                                                                          FILED
                                                                     Nov 30 2017, 8:02 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.J.,                                                    November 30, 2017
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A05-1704-JV-673
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marilyn Moores,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Gary Chavers,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1701-JD-6



Robb, Judge.




Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017                   Page 1 of 11
                               Case Summary and Issues
[1]   The juvenile court adjudicated D.J. a delinquent child for committing two

      counts of armed robbery and two counts of criminal confinement, all Level 3

      felonies if committed by an adult. D.J. appeals his adjudication, raising two

      issues for our review: 1) whether his convictions for armed robbery and

      criminal confinement violate Indiana’s constitutional prohibition against double

      jeopardy; and 2) whether the State presented sufficient evidence to support

      D.J.’s adjudication as a delinquent child. We conclude there is sufficient

      evidence to support the juvenile court’s true findings D.J. committed armed

      robbery. We further conclude the juvenile court’s true findings of criminal

      confinement violate the Double Jeopardy Clause of the Indiana Constitution.

      Accordingly, we affirm D.J.’s adjudication as a delinquent for armed robbery

      but reverse D.J.’s criminal confinement adjudications and remand to the

      juvenile court with instructions to vacate the true findings of criminal

      confinement.



                            Facts and Procedural History
[2]   On January 1, 2017, twelve-year-old R.R. and his family visited his

      grandmother at her apartment in Speedway, Indiana. Instead of playing cards

      with the adults, R.R., his twelve-year-old cousin D.M., and two friends

      (“Children”) played outside for a while. Eventually, the Children resorted to

      loitering in the stairwell of the apartment building playing games on their cell

      phones.

      Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 2 of 11
[3]   As the Children played on their phones in the stairwell, two juveniles, one of

      whom was later identified as D.J., entered through the front door of the

      apartment building. A few seconds later, two other juveniles entered through

      the back door of the apartment building. One of the juveniles who entered

      through the back door instructed D.J. to check upstairs to see if anyone was

      around. D.J. followed his orders and informed him there was no one upstairs.

      That juvenile then told the Children, “I need your money [and] your phones

      . . . .” Transcript, Volume II at 14. R.R. responded he could not give him the

      phone because it belonged to his father, at which point the juvenile pulled out a

      gun and placed it on R.R.’s chest. R.R. complied and gave him the cell phone.

      He also pointed the gun at D.M.’s head and chest and took his phone. The four

      juveniles then fled from the apartment building.


[4]   The Children immediately ran upstairs to tell their parents what had happened.

      R.R.’s father went to search for the juveniles and encountered D.J. and the

      three other juveniles at a gas station a short distance away. When the police

      arrived, they detained D.J., determined he was unarmed, and released him.

      Shortly thereafter, R.R. and D.M. arrived and identified D.J., who was then

      placed under arrest.


[5]   The State filed a delinquency petition alleging D.J. committed two counts of

      armed robbery and two counts of criminal confinement, all Level 3 felonies if

      committed by an adult. At the fact-finding hearing, D.J. testified and

      acknowledged he was present during the robbery but denied taking part in it.

      He testified he was visiting his female cousin who lived in the apartment

      Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 3 of 11
      complex and had been walking to McDonald’s when his cousin’s boyfriend

      asked him to come with him into the stairwell. He further testified he did not

      know the two juveniles who committed the robbery. The juvenile court found

      the allegations to be true and adjudicated D.J. a delinquent child. D.J. now

      appeals.



                                  Discussion and Decision
                                         I. Double Jeopardy
[6]   D.J. first argues the juvenile court’s true findings of armed robbery and criminal

      confinement violate Indiana’s constitutional prohibition against double

      jeopardy. The State responds alleging double jeopardy does not apply to

      multiple true findings in delinquency proceedings because there is only a single

      delinquency adjudication.1


[7]   The argument offered by the State has been previously addressed by this court

      in D.B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006) and H.M. v. State, 892

      N.E.2d 679, 680 (Ind. Ct. App. 2008), trans. denied. In D.B., a juvenile was

      charged with rape and child molesting for a single act of nonconsensual

      intercourse and the juvenile court made true findings on both charges. On

      appeal, this court vacated the juvenile court’s true finding of child molesting,




      1
       The State otherwise concedes that, if double jeopardy applies to delinquency adjudications, the juvenile
      court’s multiple true findings constitute double jeopardy.

      Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017                      Page 4 of 11
      holding true findings for both rape and child molesting from a single act of

      nonconsensual intercourse violated the prohibition against double jeopardy.

      D.B., 842 N.E.2d at 404.


[8]   In H.M., this court again addressed the question posed by the State: whether

      double jeopardy principles apply to juvenile delinquency proceedings where

      multiple true findings result in a single delinquency adjudication. H.M., 892

      N.E.2d at 680. There, H.M. committed battery upon the victim and attempted

      to steal her necklace. The juvenile court entered true findings for both battery

      and attempted theft. H.M. appealed, arguing the multiple true findings violated

      Indiana’s prohibition against double jeopardy.


[9]   On appeal, the State argued “there [could] be no double jeopardy violation . . .

      because ‘the double jeopardy prohibition against multiple punishments in the

      same case do[es] not apply to juvenile delinquency proceedings in which there

      is only one finding of delinquency and one disposition.’” Id. at 681. We

      disagreed with the State’s position and noted that multiple true findings may be

      used by a trial court to enhance penal consequences in subsequent criminal

      proceedings. Given the significance of a defendant’s criminal history, we held

      “double jeopardy principles attach where a juvenile faces multiple charges

      under a single adjudication.” Id. at 682. Therefore, double jeopardy principles

      apply to this proceeding and we decline the State’s invitation to revisit D.B. and

      H.M.




      Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 5 of 11
[10]   As to D.J.’s argument concerning the juvenile court’s true findings for criminal

       confinement and armed robbery, the State concedes, and we agree, the true

       findings are in violation of Indiana’s constitutional prohibition against double

       jeopardy. The analysis of double jeopardy claims under the Indiana

       Constitution is governed by Richardson v. State, 717 N.E.2d 32 (Ind. 1999), in

       which our supreme court described two tests, the statutory elements test and the

       actual evidence test. Wieland v. State, 736 N.E.2d 1198, 1204 (Ind. 2000). Two

       offenses are the “same offense” in violation of Article 1, Section 14 of our

       constitution if, “with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to convict, the essential elements of one

       challenged offense also establish the essential elements of another challenged

       offense.” Id. (quoting Richardson, 717 N.E.2d 32) (emphasis omitted). D.J.

       confines his argument to the actual evidence test.


[11]   Under the actual evidence test, the evidence presented at trial is examined to

       determine whether each challenged offense was established by separate and

       distinct facts. Vanzandt v. State, 731 N.E.2d 450, 455 (Ind. Ct. App. 2002), trans.

       denied. To show that two challenged offenses constitute the same offense under

       the actual evidence test, a defendant must show a reasonable possibility that the

       evidentiary facts used by the fact finder to establish the essential elements of one

       offense may also have been used to establish the essential elements of a second

       challenged offense. Wieland, 736 N.E.2d at 1204. In determining the facts used

       by the fact-finder to establish the elements of each offense, it is appropriate to




       Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 6 of 11
       consider the charging information, jury instructions, and arguments of counsel.

       Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008).


[12]   In Vanzandt v. State, we determined that the defendant’s robbery and criminal

       confinement convictions violated the prohibition against double jeopardy. The

       evidence in Vanzandt revealed that the defendant, while armed with a gun,

       ordered the victims to lie on the floor while the defendant took money from a

       cash register and then fled in one victim’s car. 731 N.E.2d at 455. We

       concluded that compelling the victims to lie on the floor was not separate and

       apart from the force used to effectuate the robbery. Id. Because the defendant

       demonstrated there was a reasonable possibility that the jury used the same

       evidentiary facts to establish criminal confinement of the victim as it did the

       robbery of that same victim, we held that conviction for both violated the

       Indiana Double Jeopardy Clause and, therefore, vacated the conviction for

       criminal confinement. Id. at 456.


[13]   Here, the evidence reveals the Children were playing games on their cell phones

       in the stairwell. While they were playing, four juveniles, including D.J.,

       entered the apartment building from both entrances. D.J. checked upstairs to

       see if anyone was around. One of the four juveniles then pulled out a gun and

       robbed both R.R. and D.M. Following the robbery, the juveniles fled the

       apartment building. Based on this evidence, we conclude there is a reasonable

       possibility the juvenile court used the same evidentiary facts to convict D.J. of

       armed robbery and criminal confinement. See Polk v. State, 783 N.E.2d 1253,

       1259 (Ind. Ct. App. 2003) (finding that the defendant’s robbery and criminal

       Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 7 of 11
       confinement convictions violated the prohibition against double jeopardy

       because only one confrontation occurred which resulted in the taking of the

       victim’s property, and the confinement was not greater than that necessary to

       accomplish the robbery), trans. denied.2


[14]   A reviewing court may remedy a double jeopardy violation “by reducing either

       conviction to a less serious form of the same offense if doing so will eliminate

       the violation. If it will not, one of the convictions must be vacated.”

       Richardson, 717 N.E.2d at 54 (citation omitted). The reviewing court will make

       this determination itself, “being mindful of the penal consequences that the trial

       court found appropriate.” Id. Because the confinement here was not greater

       than necessary to effectuate the armed robbery, there is no less serious form to

       reduce the offenses to. As to which finding should be vacated to remedy the

       violation, we note the juvenile court committed D.J. to the Indiana Department

       of Correction. Indiana Code section 31-37-19-9(b) permits the juvenile court to

       order wardship of a delinquent who has committed armed robbery to the

       Department of Correction. Therefore, we permit the juvenile court’s

       disposition to stand and reverse D.J.’s two adjudications for criminal

       confinement.




       2
        We note R.R. and D.M. both testified there were two other friends with them in the stairwell. The
       confinement of the other two children could have supported the two true findings of criminal confinement.
       However, the charging information specifically lists R.R. and D.M. as the victims of both the armed robbery
       and criminal confinement charges, and R.R. and D.M. were the only victims to testify at the bench trial. See
       Appellant’s Appendix at 20-21. Consequently, we accept the State’s concession the true findings violate the
       prohibition against double jeopardy.

       Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017                     Page 8 of 11
                               II. Sufficiency of the Evidence
[15]   D.J. also argues the State failed to present sufficient evidence that he acted as

       an accomplice. Our standard of review for sufficiency of the evidence claims is

       well settled:


               When the sufficiency of the evidence to support a conviction is
               challenged, we neither reweigh the evidence nor judge the
               credibility of the witnesses, and we affirm if there is substantial
               evidence of probative value supporting each element of the crime
               from which a reasonable trier of fact could have found the
               defendant guilty beyond a reasonable doubt. It is the job of the
               fact-finder to determine whether the evidence in a particular case
               sufficiently proves each element of an offense, and we consider
               conflicting evidence most favorably to the trial court’s ruling.


       Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005) (internal citations and

       quotation omitted).


[16]   D.J. was convicted of armed robbery and criminal confinement pursuant to a

       theory of accomplice liability. Indiana’s accomplice liability statute provides

       that a “person who knowingly or intentionally aids, induces, or causes another

       person to commit an offense commits that offense . . . .” Ind. Code § 35-41-2-4.

       Moreover, in determining whether a person aided another in the commission of

       a crime, our supreme court has considered the following four factors: (1)

       presence at the scene of the crime; (2) companionship with another engaged in

       criminal activity; (3) failure to oppose the crime; and (4) a defendant’s conduct

       before, during, and after the occurrence of the crime. Garland v. State, 788

       N.E.2d 425, 431 (Ind. 2003).

       Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 9 of 11
[17]   Here, the State presented evidence D.J. was present during the commission of

       the crime with the three other juveniles and that D.J. did not oppose the crime,

       but willingly participated in it. When ordered to do so, D.J. acted as a scout to

       check if anyone was around. The other juvenile then pointed a weapon at R.R.

       and D.M. and stole their phones. The juveniles fled together. The police

       officer who later detained D.J. found him walking with the three other juveniles

       a short distance from the scene of the crime. This is sufficient evidence to find

       D.J. acted as an accomplice. D.J.’s argument that we now credit his testimony

       that he was apparently deceived into walking with the juveniles or that he was

       in the wrong place at the wrong time is a request to reassess witness credibility,

       which we cannot do. Wright, 828 N.E.2d at 905-06.



                                               Conclusion
[18]   The State presented sufficient evidence to support the juvenile court’s

       adjudication of D.J. as a delinquent child for committing armed robbery.

       However, D.J.’s adjudication as a delinquent child for committing criminal

       confinement violates the state constitutional prohibition against double

       jeopardy. Accordingly, we affirm the juvenile court’s true findings for armed

       robbery, reverse the juvenile court’s true findings for criminal confinement, and

       remand to the juvenile court to vacate the true findings of criminal

       confinement.


[19]   Affirmed in part, reversed in part, and remanded.



       Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 10 of 11
Riley, J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 49A05-1704-JV-673 | November 30, 2017   Page 11 of 11
