MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Jan 13 2017, 9:36 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

X.T.,                                                    January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1605-JV-1126
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Scott Stowers,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1503-JD-409



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017    Page 1 of 7
[1]   X.T. appeals the juvenile court’s finding that he violated a condition of

      probation, arguing that there is insufficient evidence supporting the finding. He

      also argues that the juvenile court erred by ordering him to be removed from his

      home and placed in a secure residential facility following the probation

      violation. Finding sufficient evidence and no error, we affirm.


                                                     Facts
[2]   On April 19, 2015, X.T. admitted to committing an act that would have been

      class A misdemeanor trespass had it been committed by an adult. The juvenile

      court placed him on probation. One of his conditions of probation was that

      X.T. must “not possess or be around or in the presence of anyone possessing

      any gun, rifle, or shotgun[.]” Appellant’s App. Vol. II p. 88.


[3]   While on probation, X.T. tested positive for drug screens on July 16, August 20,

      and September 10, 2015. As a result, on October 28, 2015, the juvenile court

      ordered X.T. to be placed on electronic monitoring until he was able to provide

      two clean drug screens. X.T. failed to comply with electronic monitoring by

      leaving his residence on October 27, October 29, October 31, and November 5,

      2015. X.T. again failed to comply with probation when he was suspended from

      school on February 12 and February 16-19, 2016; when he tested positive for

      drugs on February 5, 9, and 11, 2016; and when he allegedly committed a new

      offense of criminal mischief. At one point when he was detained in March

      2016, X.T. was elevated to Level 1 at the Juvenile Detention Center after it

      received two reports of X.T. being aggressive and threatening his peers.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017   Page 2 of 7
[4]   On March 18, 2016, X.T. was released from electronic monitoring. Four days

      later, on March 22, 2016, the State filed a petition to modify X.T.’s probation

      based on an allegation that he had been in the presence of a firearm within

      hours of his release from electronic monitoring on March 18. Probation Officer

      Cory Brattain had viewed a Facebook Live video that showed X.T. in a garage

      with several of his peers. X.T. appears in the garage at 41 seconds into the

      video and again at 2:08-2:15. At the 3:11 mark, another individual brandished

      a handgun on camera; the person filming the video can be heard saying, “watch

      out bitch, you’ll go to jail.” State’s Ex. 2. X.T. was standing to the right of the

      camera when the handgun was shown and can be seen just outside the garage at

      3:29, 3:43, 4:12, and 6:03. At another point during the video, comments are

      made indicating that one or more members of the group were smoking

      marijuana. On April 8, 2016, a contested hearing was held regarding the

      allegation that X.T. had violated probation by being in the presence of a gun.

      The juvenile court found that X.T. had, in fact, violated probation.


[5]   A dispositional hearing was held on April 29, 2016. The predispositional report

      recommended that X.T. be placed in a secure residential facility based on his

      many probation violations, high risk to reoffend, and association with peers in

      high risk situations involving guns and drugs. Eleven different facilities rejected

      X.T. because of aggressiveness, high risk, and the scope of treatment they were

      able to offer. One facility—Transitions Academy—accepted X.T. and had an

      immediate opening. At the conclusion of the hearing, the juvenile court found

      that remaining in the home would be contrary to X.T.’s welfare. The reasons


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017   Page 3 of 7
      underlying this finding are as follows: the nature of the most recent violation;

      the nature of the probable cause affidavit; X.T.’s lengthy juvenile history

      including prior true findings for burglary, escape, and criminal mischief; and the

      fact that, within hours of being released from electronic monitoring, X.T.

      appeared in a video with peers who were smoking marijuana, brandishing a

      gun, and making threats on social media. Therefore, the juvenile court placed

      X.T. on a suspended commitment to the Department of Correction and ordered

      that he be placed in Transitions Academy. X.T. now appeals.


                                   Discussion and Decision
                                             I. Sufficiency
[6]   First, X.T. argues that there is insufficient evidence supporting the juvenile

      court’s finding that he had violated the condition of his probation requiring him

      to refrain from being in the presence of firearms. A probation hearing is civil in

      nature. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). To support an

      allegation of a probation violation, the State is required to prove that the

      violation occurred by a preponderance of the evidence. C.S. v. State, 817

      N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In considering the sufficiency of the

      evidence, we will neither reweigh the evidence nor assess witness credibility,

      and will affirm if there is substantial evidence of probative value supporting the

      juvenile court’s decision. Id.


[7]   As part of his probation, X.T. was explicitly told that “you shall not possess or

      be around or in the presence of anyone possessing any gun, rifle, or shotgun[.]”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017   Page 4 of 7
      Appellant’s App. Vol. II p. 88. The State offered evidence that, in March 2016,

      X.T. was in a garage with several of his peers during the filming of a Facebook

      Live video. X.T. is seen many times during the video both in and immediately

      outside of the garage. When the handgun was brandished, X.T. was to the

      right of the person filming the video such that X.T. would have been able to see

      the firearm. The probation officer testified that based on his experience and the

      comments of the individuals present, he believed the handgun to be real. We

      find that the juvenile court reasonably inferred from this evidence that X.T. was

      aware of the firearm. It was discussed in his presence and, based on his various

      locations in the video, he was able to see the firearm and hear it being referred

      to by the other people present. Therefore, we find the evidence sufficient to

      support the juvenile court’s finding that X.T. violated his probation.1


                                            II. Disposition
[8]   X.T. also argues that the juvenile court erred by ordering him placed in a

      residential facility. The disposition of a juvenile adjudicated a delinquent child

      is a matter within the sound discretion of the juvenile court. J.S. v. State, 881

      N.E.2d 26, 28 (Ind. Ct. App. 2008). The juvenile court’s discretion is subject to

      the statutory considerations of “the child’s welfare, the community’s safety, and

      the policy of favoring the least-harsh disposition.” J.B. v. State, 849 N.E.2d 714,




      1
        X.T. argues that the probation condition was impermissibly vague because it could arguably encompass an
      individual who was unknowingly in the presence of a firearm. We need not address this argument, however,
      as we find the evidence sufficient to establish that X.T. was knowingly in the presence of the handgun.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017       Page 5 of 7
      717 (Ind. Ct. App. 2006); see also Ind. Code § 31-37-18-6. We will reverse only

      if the juvenile court’s decision is clearly erroneous and against the logic and

      effect of the facts and circumstances before it or the reasonable, probable, and

      actual inferences that can be drawn therefrom. J.S., 881 N.E.2d at 28.


[9]   In this case, X.T.’s lengthy history includes the following incidents:


           Prior true findings for burglary, escape, and criminal mischief.
           Formal probation following the burglary and escape true findings.
           While on probation for the instant adjudication, true findings that X.T.
            had tested positive for drug screens on three occasions and failed to
            comply with electronic monitoring by leaving his residence on four
            occasions.
           While on probation for the instant adjudication, allegations that X.T. had
            violated probation in other ways by being suspended from school for five
            days, testing positive for drugs on three occasions, and committing a new
            offense of criminal mischief.

      At various points during X.T.’s juvenile history, he has received the following

      services: supervised release, electronic monitoring (three times), drug testing,

      substance abuse treatment, cross systems of care coordination services,

      mentoring, case management, therapy/behavioral services, formal probation,

      psychological evaluation, parent-monitored curfew, evening reporting center at

      a boys and girls club, and functional family therapy. The first action X.T. took

      after being removed from electronic monitoring was to hang out with his peers,

      who were smoking marijuana, brandishing a handgun, and making threats on

      live social media.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017   Page 6 of 7
[10]   It is evident that despite the many services and second, third, and fourth

       chances offered to X.T., he has been unable or unwilling to modify his

       behavior. The juvenile court drew a reasonable conclusion that to rehabilitate

       X.T., as well as keep X.T. and the community safe, the best and least restrictive

       option was to place him in a secure residential treatment facility. We find no

       error in the juvenile court’s dispositional order.


[11]   The order of the juvenile court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-JV-1126 | January 13, 2017   Page 7 of 7
