MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Sep 05 2018, 8:49 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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of S.L.,                                   September 5, 2018
a Child Alleged to be a                                  Court of Appeals Case No.
Delinquent Child,                                        18A-JV-1017
Appellant-Respondent,                                    Appeal from the Lawrence Circuit
                                                         Court
        v.                                               The Honorable Andrea K.
                                                         McCord, Judge
State of Indiana,                                        Trial Court Cause No.
Appellee-Petitioner                                      47C01-1710-JD-463




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018                 Page 1 of 9
[1]   S.L. appeals the juvenile court’s order adjudicating her a delinquent child for

      committing an act that would have been Level 6 Felony Intimidation 1 had it

      been committed by an adult. She argues that the evidence is insufficient to

      support the adjudication. S.L. also challenges the juvenile court’s decision to

      place her in the Department of Correction (DOC), contending that it was not

      the least harsh disposition available. Finding sufficient evidence and no

      dispositional error, we affirm.


                                                     Facts
[2]   On August 24, 2017, sixteen-year-old S.L. and sixteen-year-old J.M. were

      students attending the same high school. That afternoon, J.M. and S.L. rode

      the bus home together. S.L. confronted J.M. and told her to stop sending text

      messages to S.L.’s boyfriend. S.L. told J.M. that she would “cut [her] double

      chin off,” that she would “murder” her, and that she would meet J.M. at her

      first period class. Tr. Vol. II p. 27-29. S.L. was “very stern” and was not

      laughing. Id.


[3]   J.M. later called her mother and was so hysterical that her mother could not

      understand her. She was very upset, afraid, and angry, and threatened to kill

      herself. As a result of the incident, J.M. developed anxiety, high blood

      pressure, and depression. She was afraid to ride the bus after S.L. threatened

      her, went to the office every day at school to avoid being in class with S.L., and




      1
          Ind. Code § 35-45-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 2 of 9
      frequently vomited and was unable to remain in class. J.M. withdrew from

      school a few weeks later.


[4]   On October 5, 2017, the State filed a petition alleging that S.L. was a delinquent

      child for committing an act that would have been Level 6 felony intimidation

      had it been committed by an adult. An evidentiary hearing took place on

      February 12, 2018; at the close of the hearing, the juvenile court adjudicated

      S.L. delinquent. On March 29, 2018, the juvenile court conducted a

      dispositional hearing and committed S.L. to the DOC. S.L. now appeals.


                                   Discussion and Decision
                                              I. Sufficiency
[5]   S.L. first argues that the evidence is insufficient to support the delinquency

      adjudication. When the State petitions for a juvenile to be adjudicated

      delinquent for committing an act that would be a crime if committed by an

      adult, the State must prove every element of that offense beyond a reasonable

      doubt. E.B. v. State, 89 N.E.3d 1087, 1090 (Ind. Ct. App. 2017). On review of a

      delinquency adjudication, we neither reweigh the evidence nor assess witness

      credibility; instead, we will consider only the evidence most favorable to the

      judgment and the reasonable inferences that may be drawn therefrom. Id. We

      will affirm unless no reasonable factfinder could have found the elements of the

      offense proved beyond a reasonable doubt. D.P. v. State, 80 N.E.3d 913, 915

      (Ind. Ct. App. 2017).



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 3 of 9
[6]   To support its delinquency petition in this case, the State was required to prove

      beyond a reasonable doubt that S.L. communicated a threat to J.M. with the

      intent to place J.M. in fear of retaliation for a prior lawful act and that the threat

      was to commit a forcible felony. I.C. § 35-45-2-1.


[7]   A “threat” is, among other things, “[a]n expression, by words or action, of an

      intention to . . . unlawfully injure the person threatened or another person, or

      damage property.” Id. Whether a statement is a threat is an objective question

      for the factfinder. E.B., 89 N.E.3d at 1091. A defendant’s intent may be proved

      by circumstantial evidence alone, and knowledge and intent may be inferred

      from the facts and circumstances of each case. Id. Our Supreme Court has held

      that whether a statement constitutes a “true threat” depends on two necessary

      elements: that the speaker intended her communication to place her target in

      fear for her safety, and that the communication was likely to actually cause

      such fear in a reasonable person similarly situated to the target. Brewington v.

      State, 7 N.E.3d 946, 963-64 (Ind. 2014) (also explaining that assessing true

      threats is a highly fact-sensitive inquiry).


[8]   Here, S.L. confronted J.M. in an angry, stern manner and told her to stop

      sending text messages to S.L.’s boyfriend. S.L. threatened to “cut [J.M.’s]

      double chin off” and said she would “murder” her. Tr. Vol. II p. 27-29. S.L.

      also told J.M. that she would meet her at her first period class, which J.M.

      understood to mean that S.L. was going to try to “beat [her] up or something.”

      Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 4 of 9
[9]    We find that a reasonable factfinder could conclude that S.L.’s statements to

       J.M. amounted to a true threat. S.L. described with specificity what she would

       do to J.M. and when she was going to do it. Taken in context, the evidence

       established beyond a reasonable doubt that S.L. intended her comments to

       place J.M. in fear for her safety. We also find that a reasonable factfinder could

       conclude that a reasonable person similarly situated to J.M. would actually be

       placed in fear by the comments. We easily accept that an average sixteen-year-

       old would be frightened by the specific threats made by S.L., particularly when

       the threats included an explanation of when they would be carried out.


[10]   We likewise find that a reasonable factfinder could conclude that S.L.’s threats

       were made in retaliation for a prior lawful act—the act of J.M. texting with

       S.L.’s boyfriend. S.L. argues that the threat was intended to stop J.M. from

       texting him again rather than to retaliate for the prior texts. We find Roar v.

       State, 54 N.E.3d 1001 (Ind. 2016), to be instructive. In that case, our Supreme

       Court adopted the relevant portion of this Court’s opinion. Roar v. State, 52

       N.E.3d 940 (Ind. Ct. App. 2016), trans. granted, vacated, aff’d and adopted in

       relevant part by id. In Roar, the defendant’s sister rented an apartment that was

       managed by Tracey Olive. One day, Roar saw Olive place an eviction notice

       on his sister’s apartment door. He removed the notice and began yelling at

       Olive, calling her “a bitch and then told [her] that if [she] came back on the

       property [] he’d kill [her].” Id. at 942. Roar argued that his threat was made

       with the intent to prevent Olive from returning to the property in the future

       rather than to place her in fear of retaliation for her prior lawful act of placing


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 5 of 9
       the eviction notice on the apartment door. This Court disagreed, holding as

       follows:


               Mere use of conditional language in the course of
               communicating a threat does not vitiate the statute’s application
               when the factual predicate for the threat was a prior lawful act of
               the victim. Stated another way, the language a defendant uses in
               communicating a threat may be relevant to the fact-finder’s
               assessment of the defendant’s intent, but the language used is not
               the only relevant consideration.


       Id. at 943.


[11]   Here, S.L. knew who J.M. was and knew that she had been texting S.L.’s

       boyfriend. The factfinder was free to conclude, considering this evidence, that

       S.L.’s threats were in direct response to J.M.’s lawful behavior of texting with

       S.L.’s boyfriend. As in Roar, S.L. asks us to reweigh the evidence on appeal by

       giving exclusive weight to the precise language she used when threatening J.M.

       while simultaneously discrediting all other evidence. We will not reweigh the

       evidence on appeal. We echo the Roar Court’s conclusion that the juvenile

       court “was capable of discerning whether intimidation occurred where, as here,

       there is a clear nexus between the prior lawful act and the threat.” Id. at 944.

       The evidence plainly demonstrated, first, that S.L. communicated a threat to

       J.M., and, second, that she did so with the intent to place her in fear of

       retaliation for a prior lawful act. Accordingly, we affirm the delinquency

       adjudication.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 6 of 9
                                      II. Dispositional Order
[12]   S.L. next argues that the trial court erred by ordering that she be committed to

       the DOC. Our Supreme Court has explained that


               [t]he specific disposition of a delinquent is within the juvenile
               court’s discretion, to be guided by the following considerations:
               the safety of the community, the best interests of the child, the
               least restrictive alternative, family autonomy and life, freedom of
               the child, and the freedom and participation of the parent,
               guardian, or custodian.


       K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006); see also Ind. Code § 31-37-18-6.

       We will reverse only if the juvenile court’s order is against the logic and effect of

       the facts and circumstances before it, or the reasonable, probable, and actual

       deductions that may be drawn therefrom. K.S., 849 N.E.2d at 544. Juvenile

       courts are accorded wide latitude and great flexibility in their dealings with

       juveniles. J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008).


[13]   S.L. correctly notes that Indiana Code section 31-37-18-6 requires the juvenile

       court to place the child in the least restrictive setting, but only if that placement

       is “consistent with the safety of the community and the best interest of the

       child.” In other words, the statute recognizes that in certain situations, the

       child’s best interest—as well as the community’s—is better served by a more

       restrictive placement. K.A. v. State, 775 N.E.2d 382, 386-87 (Ind. Ct. App.

       2002); see also D.P. v. State, 783 N.E.2d 767, 770 (Ind. 2003) (acknowledging

       that placement with the DOC may still be appropriate even if less restrictive

       alternatives are available).

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 7 of 9
[14]   In this case, S.L. has had many chances to reform her behavior with less

       restrictive alternatives than placement with the DOC.


           • In July 2016, S.L. began receiving home-based services after she was
             reported for habitual disobedience of her parent. Charges were refiled in
             September 2016 with a preliminary report of being a runaway. She was
             adjudicated a delinquent in December 2016, ordered to be on supervised
             probation, and ordered to participate in the juvenile problem-solving
             court.
           • S.L. began participating with the problem-solving court in March 2017.
             On March 21, 2017, she was sanctioned for violating the participation
             agreement by associating with a negative peer group, violating curfew,
             failing to attend school, and failing to attend required treatment and
             programming.
           • In April 2017, S.L. was again sanctioned for failing to complete an
             assignment for her case plan objectives.
           • In May 2017, she was sanctioned for tardiness at school.
           • In June 2017, S.L. was again sanctioned for associating with a negative
             peer group.
           • In August 2017, S.L. was arrested for the instant intimidation offense.
           • In September 2017, she was sanctioned for failing to report for a drug
             screen and was moved back to the first phase of the program.
           • In October, November, and December 2017, S.L. was repeatedly
             sanctioned for failure to attend school, poor academic performance,
             inappropriate behavior, failure to attend required treatment, submitting a
             positive drug screen, and lying about her substance use.
           • Shortly thereafter, S.L. was terminated from the problem-solving court
             program and from probation.

       The problem-solving court is the most intensive program in Lawrence County

       short of incarceration. As S.L.’s current probation officer and case manager

       testified, “[t]here is nothing else we have that’s more than what we already did

       with her.” Tr. Vol. II p. 73. S.L.’s current and previous probation officers


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018   Page 8 of 9
       recommended placement with the DOC because there were no other services

       available that she had not already tried and failed. 2


[15]   S.L. notes that there was evidence tending to show that she had made positive

       strides in the weeks leading up to the dispositional hearing. Indeed, there was

       testimony that she was working toward her GED, was more helpful at home,

       and was behaving in a more controlled and mature manner. This amounts,

       however, to a request that we reweigh the evidence, which we may not do. The

       evidence establishes that S.L. has been afforded many opportunities to reform

       her behavior and that she has failed to take advantage of those opportunities.

       Indeed, she even committed the instant offense while still participating with the

       problem-solving court for her previous one. There were simply no viable

       options left aside from commitment to the DOC. Therefore, we find that the

       juvenile court did not err by ordering that S.L. be committed to the DOC.


[16]   The judgment of the juvenile court is affirmed.


       May, J., and Robb, J., concur.




       2
         There was also evidence that S.L. was part of a Child in Need of Services case and that her mother was also
       repeatedly sanctioned for failing to abide by the problem-solving court agreement for failing to properly
       supervise S.L. Based on these facts, S.L.’s probation officer concluded that S.L. was at a high risk to reoffend
       if left in the care of her mother.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1017 | September 5, 2018                   Page 9 of 9
