MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Feb 08 2019, 8:58 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

S. S.,                                                    February 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-JV-1161
         v.                                               Appeal from the Madison Circuit
                                                          Court
                                                          The Honorable G. George Pancol,
State of Indiana,                                         Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          48C02-1611-JD-329



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019                    Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, S.S., brings an interlocutory appeal of the juvenile court’s

      waiver of his cause to adult court.


[2]   We affirm.


                                                    ISSUE
[3]   S.S. presents this court with one issue on appeal, which we restate as: Whether

      the juvenile court abused its discretion by waiving S.S. into adult court, finding

      that he is beyond rehabilitation in the juvenile justice system and that it is in the

      best interest of the safety and the welfare of the community to try S.S. as an

      adult.


                      FACTS AND PROCEDURAL HISTORY
[4]   On November 1, 2016, sixteen-year-old S.S. escaped from his court-ordered

      placement at Lutherwood, a secure residential facility in Indianapolis, by

      overpowering staff members and stealing the keys. Together with his brother

      and another juvenile, S.S. subsequently stole a rental car from Hertz Car rental

      and drove the vehicle to Anderson, Indiana where he picked up other female

      juveniles and smoked marijuana. Around 12:15 a.m. on November 3, 2016, a

      uniformed police officer in a marked vehicle attempted to conduct a traffic stop

      of the rental car, but as soon as the vehicle came to a stop, S.S. and the other

      boys fled from the officer on foot.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 2 of 11
[5]   Twelve days later, on November 15, 2016, at approximately 12:46 a.m., police

      officers were dispatched to Crack Shot Guns in Anderson on a report of an

      individual on the roof of the gun store. When a state police officer arrived at

      the store, three juveniles—S.S., his brother, and a third juvenile—fled from the

      gun store carrying duffel bags. Despite the officer’s command for the juveniles

      to stop, they jumped a fence and continued running. S.S. was caught shortly

      afterwards, hiding in the trees.


[6]   On November 22, 2016, the juvenile court authorized the filing of a

      delinquency petition, in which the State alleged that S.S. committed attempted

      burglary, a Level 5 felony if committed by an adult; resisting law enforcement,

      a Class A misdemeanor if committed by an adult; and a curfew violation

      relating to the incident at the gun store. On November 29, 2016, the juvenile

      court authorized the State to file a second delinquency petition, alleging that

      S.S. committed auto theft, a Level 6 felony if committed by an adult; resisting

      law enforcement, a Class A misdemeanor if committed by an adult; and

      unauthorized entry of a motor vehicle, a Class B misdemeanor if committed by

      an adult. Two weeks later, on December 15, 2016, the State filed a motion to

      waive jurisdiction to adult court.


[7]   At the juvenile court waiver hearing, S.S. stipulated to the probable cause on

      the auto theft, resisting law enforcement, and unauthorized entry of a motor

      vehicle. The juvenile court found probable cause on the attempted burglary

      charge. According to S.S.’s probation report, which the juvenile court

      considered in reaching its determination, S.S., between the ages of thirteen and

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 3 of 11
      fourteen, had been adjudicated a delinquent child for seven delinquent acts:

      burglary, a Level 5 felony if committed by an adult; two charges of dangerous

      possession of a firearm, Level 5 felonies if committed by an adult; theft of a

      firearm, a Level 6 felony if committed by an adult; two charges of theft, as Class

      A misdemeanors if committed by an adult; and leaving the home without the

      permission of a parent or guardian. S.S. violated the terms of his probation in

      five of the seven prior delinquency findings.


[8]   S.S. was first arrested by police officers when he was thirteen years old, on

      October 11, 2014, for criminal trespass, a Class A misdemeanor if committed

      by an adult. He was offered an informal adjustment, which included an

      apology letter and community service work. S.S. failed to complete these

      requirements due to a new arrest, leaving home without the permission of a

      parent on November 1, 2014. A month and a half later, on December 14, 2014,

      S.S. was arrested again and was alleged to have committed acts which, if

      committed by an adult, would be Level 5 burglary, Level 6 felony theft of a

      firearm, a Class A misdemeanor carrying a handgun without a license, and

      Level 5 felony dangerous possession of a firearm. S.S. was adjudicated a

      delinquent child on these charges. He was ordered to formal probation and was

      required to complete community service work, write an apology letter, and

      complete the Thinking for a Change Program—an evidence-based, cognitive

      behavioral program to change criminal thinking.


[9]   On January 20, 2015, six days after the disposition of these delinquency

      charges, S.S. was arrested again, alleged to have committed the adult equivalent

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 4 of 11
       of Level 6 felony theft of a firearm, Level 3 felony conspiracy to commit armed

       robbery, and Level 5 felony dangerous possession of a firearm. The juvenile

       court entered a true finding for the Level 5 felony, and dismissed the remaining

       allegations.


[10]   Less than a month after the disposition of S.S.’s third felony case, on February

       6, 2015, S.S. was arrested again and was alleged to have committed battery

       resulting in bodily injury, a Class A misdemeanor if committed by an adult. In

       March 2015, S.S. was placed in the Evening Reporting Program and was

       ordered to complete Project Hope, a faith-based mentoring program. Although

       S.S. participated in the programs, he was arrested again on July 25, 2015,

       alleged to have committed an act that would have been a Class A misdemeanor

       theft, if committed by an adult. The juvenile court returned a true finding on

       September 4, 2015. Nevertheless, prior to this true finding, on August 21, 2015,

       S.S. was arrested for the seventh time in a year and was alleged to have

       committed theft and false informing, respectively a Class A misdemeanor and a

       Class B misdemeanor if committed by an adult. The juvenile court entered a

       true finding for Class A misdemeanor theft on October 16, 2015. That same

       day, S.S. was placed at Rite of Passage, a juvenile residential facility.


[11]   During S.S’s eight-month placement, “he did not make any significant progress,

       was non-compliant with medication management, gave his medication away

       and went AWOL three times.” (Appellant’s App. Vol. II, p. 43). As a result,

       S.S. was moved to the secure unit at Lutherwood from which he absconded on



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 5 of 11
       November 1, 2016 after overpowering staff and stealing the keys, and before

       committing the instant offenses.


[12]   Since S.S. came in contact with the juvenile justice system, he has been offered

       informal adjustment, formal probation, pre-trial house arrest and electronic

       monitoring, residential placement at Rite of Passage, and secure residential

       placement at Lutherwood. He has been detained six times in the Madison

       County Youth Secure Detention Unit, ordered to attend the Evening Reporting

       Program, complete community service, and write apology letters. He was

       provided with behavioral health services, counseling, and placement in

       Thinking for a Change and Project Hope.


[13]   During the waiver hearing, S.S.’s probation officer thought it “not likely” that

       there were other programs left to offer S.S. based on his history. She explained

       that the Youth Opportunity Center was not an option because it would not

       accept S.S. but also noted that S.S. had not yet been committed to the Indiana

       Department of Correction. At the conclusion of the hearing, the juvenile court

       entered findings, waiving S.S. into adult court.


[14]   On January 10, 2018, the trial court granted S.S.’s request to file a belated

       interlocutory appeal. After filing a request with this court, we accepted S.S.’s

       interlocutory appeal on June 15, 2018. Additional facts will be provided as

       necessary.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 6 of 11
                               DISCUSSION AND DECISION
[15]   S.S. contends that the juvenile court abused its discretion by waiving him to

       adult court after finding that he is beyond rehabilitation in the juvenile justice

       system and that it is in the best interest of the safety and welfare of the

       community to try him as an adult.


[16]   Upon appellate review of claims alleging insufficient evidence to support

       waiver, we will not weigh the evidence or judge the credibility of witnesses.

       S.W.E. v. State, 563 N.E.2d 1318, 1322 (Ind. Ct. App. 1990). We look only to

       the evidence most favorable to the State and reasonable inferences to be drawn

       therefrom, considering both the record of the waiver hearing and the reasons

       given by the court. Id.


[17]   Unlike criminal proceedings, juvenile proceedings are civil in nature, and the

       burden is on the State to establish by a preponderance of the evidence that

       juvenile jurisdiction should not be waived. Phelps v. State, 969 N.E.2d 1009,

       1016 (Ind. Ct. App. 2012), trans. denied. We review the juvenile court’s decision

       to waive exclusive original jurisdiction for an abuse of discretion. Id. The

       juvenile court is entitled to give the evidence before it whatever weight it deems

       appropriate. Id.


[18]   In general, juvenile courts have exclusive original jurisdiction over juvenile

       delinquency proceedings. Ind. Code § 31-30-1-1. Under certain circumstances,

       however, juvenile courts may waive this exclusive original jurisdiction. Waiver

       of jurisdiction is for the offense charged and all included offenses and is

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 7 of 11
       accomplished by an order of the juvenile court waiving the case to adult court.

       I.C. § 31-30-3-1. The order must include specific findings of fact to support the

       order. I.C. § 31-30-3-10.


[19]   One of the waiver statutes provides that after the State files its motion

       requesting waiver, and after a full investigation and hearing, the juvenile court

       may waive jurisdiction upon a finding that:


               (1) The child is charged with an act that is a felony:


               (A) That is heinous or aggravated, with greater weight given to
                  acts against the person than to acts against property; or


               (B) That is part of a repetitive pattern of delinquent acts, even
                  though less serious;


               (2) The child was at least fourteen (14) years of age when the act
                   charged was allegedly committed;


               (3) There is probable cause to believe that the child committed
                   the act;


               (4) The child is beyond rehabilitation under the juvenile justice
                   system; and


               (5) It is in the best interests of the safety and welfare of the
                   community that the child stand trial as an adult.


       I.C. § 31-30-3-2. S.S. concedes that he was over fourteen years of age, that he

       was facing allegations of felony acts that are part of a repetitive pattern of


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 8 of 11
       delinquent acts, even though some of his prior delinquent acts were less serious,

       and there was probable cause to believe he committed the instant charges. S.S.

       specifically challenges the sufficiency of the evidence supporting the juvenile

       court’s findings under subsections 4 and 5.


                                            I. Beyond Rehabilitation


[20]   The determination of whether a juvenile is beyond rehabilitation of the juvenile

       justice system is fact sensitive and can vary widely from individual to individual

       and circumstance to circumstance. Jordan v. State, 62 N.E.3d 401, 405 (Ind. Ct.

       App. 2016) (citing Hall v. State, 870 N.E.2d 449, 457 (Ind. Ct. App. 2007), trans.

       denied), trans. denied. Turning to the evidence, we note that, between the ages of

       thirteen and fourteen, S.S. was adjudicated a delinquent child for seven

       offenses, four of which were acts that would have been felonies, if committed

       by an adult: Level 5 felony burglary, two charges of Level 5 felony dangerous

       possession of a firearm, Level 6 felony theft of a firearm, two charges of Class A

       misdemeanor theft, and leaving home without the permission of a parent or

       guardian. As a result of S.S.’s repeated violations of the law, he was offered an

       informal adjustment, formal probation, pre-trial house arrest and electronic

       monitoring, residential placement at Rite of Passage, secure residential

       placement at Lutherwood, detained in the Madison County Youth Secure

       Detention Unit, ordered to the Evening Reporting Program, ordered to

       complete community service, and ordered to write apology letters. S.S. was

       also provided behavioral health services and other counseling services.



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 9 of 11
[21]   None of these rehabilitative services curbed S.S.’s determination to engage in

       unlawful behavior. Although S.S. did successfully complete the Thinking for a

       Change and Project Hope programs, shortly after completing the programs he

       resumed his criminal behavior. S.S. has made no progress since; to the

       contrary, his behavior escalated to overpowering staff and absconding from a

       secure residential facility to commit the instant allegations. After receiving two

       years of rehabilitative programming through the juvenile justice system, the

       evidence overwhelmingly shows that S.S. has no interest in adhering to the

       rules or in reforming his delinquent ways. Accordingly, we conclude that the

       juvenile court properly found that S.S. is beyond the reach of the juvenile justice

       system based on S.S.’s escalating pattern of delinquent behavior, in defiance of

       the rehabilitation opportunities afforded to him. See Jonaitis v. State, 437 N.E.2d

       140, 143-44 (Ind. Ct. App. 1982) (“It is not necessary for the trial court to

       recount all possible alternative juvenile dispositions available to it before

       concluding that none are appropriate.”).


                                      II. Community Safety and Welfare


[22]   S.S.’s repetitive pattern of delinquent acts are particularly troubling because of

       the involvement of firearms. S.S. was adjudicated a delinquent child for, if

       committed by an adult, level 5 felony dangerous possession of a firearm on two

       occasions and for Level 6 felony theft of a firearm, before the instant offense of

       attempted burglary of Crack Shot Guns, a gun store. S.S.’s other adjudications

       involve violence directed at persons, as evidenced by true findings of resisting

       law enforcement, as well as evidence of assault of Lutherwood staff.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 10 of 11
       Accordingly, S.S.’s conduct shows a propensity to direct force at premises and

       people, combined with an alarming desire to acquire firearms to continue his

       pattern of unlawful acts.


[23]   Overall, there have been a myriad of efforts to help S.S. to adjust his behavior—

       all to no avail. Rather, to the contrary, instead of rehabilitating himself, S.S. is

       determined to continue his unlawful behavior, regardless of the consequences.

       We find that there is sufficient evidence to support the juvenile court’s

       conclusion that it is in the best interests of the safety and welfare of the

       community to waive S.S. to adult court.


                                             CONCLUSION
[24]   Based on the foregoing, we hold that the juvenile court did not abuse its

       discretion by waiving S.S. into adult court.


[25]   Affirmed.


[26]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1161 | February 8, 2019   Page 11 of 11
