                                                                           FILED
                                                                       Dec 26 2019, 5:36 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joel M. Schumm                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Ellen H. Meilaender
                                                           Evan M. Comer
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

K.C.G.,                                                    December 26, 2019
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           19A-JV-978
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marilyn Moores,
Appellee-Petitioner                                        Judge
                                                           The Honorable Geoffrey Gaither,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49D09-1811-JD-1368
                                                           49D09-1901-JD-88



May, Judge.




Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019                           Page 1 of 11
[1]   K.C.G. appeals his adjudication as a delinquent for committing Class A

      misdemeanor dangerous possession of a firearm. 1 He presents two arguments

      for our review, which we restate as:


                 1. Whether, based on the plain language of the juvenile
                 delinquency statute pursuant to which the State alleged K.C.G.
                 was a delinquent, any juvenile could be adjudicated a delinquent
                 for committing Class A misdemeanor dangerous possession of a
                 firearm; and


                 2. Whether the State presented sufficient evidence to support
                 finding K.C.G. committed Class A misdemeanor dangerous
                 possession of a firearm.


      We affirm.



                                Facts and Procedural History
[2]   In January 2019, sixteen-year-old K.C.G. was on probation after his earlier

      adjudication as a delinquent for acts that, if committed by an adult, would be

      Class B misdemeanor possession of marijuana 2 and Class B misdemeanor

      leaving the scene of an accident. 3 As a condition of his probation, K.C.G. was

      ordered to: (1) not associate with D.S., the other juvenile involved in the earlier

      delinquent acts; (2) participate in the Day Reporting program; and (3) “not




      1
          Ind. Code § 35-47-10-5(a).
      2
          Ind. Code § 35-48-4-11(a).
      3
          Ind. Code § 9-26-1-1.1(b).


      Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019       Page 2 of 11
      possess or be around anyone in possession of a gun, rifle, shotgun, or other

      dangerous weapon, including ammunition or look-alike weapons.” (State’s Ex.

      1.)


[3]   On January 24, 2019, the probation department received a report that K.C.G.

      had threatened to bring either a bomb or a gun to the Day Reporting Center.

      Based on that report, the probation department conducted a search of K.C.G.’s

      home. In K.C.G.’s bedroom, the probation officer and a police officer found a

      .30-30 Marlin rifle on the floor. The rifle was partially covered by a shirt. The

      stock of the rifle was missing, and no ammunition was present. K.C.G. told the

      officers that D.S. had left the rifle at K.C.G.’s house prior to K.C.G.’s

      placement on probation. K.C.G. and his mother told the officers that she and

      K.C.G. believed the rifle was a BB gun. K.C.G.’s mother told officers that she

      had taken the rifle from K.C.G. but that he had retrieved it and brought it back

      to his bedroom.


[4]   On January 25, 2019, the State filed a delinquency petition alleging K.C.G.

      committed Class A misdemeanor dangerous possession of a firearm. On

      February 6, 2019, the State filed a petition for modification of K.C.G.’s

      probation based in part on the dangerous possession allegation. K.C.G. denied

      all allegations and, on February 25, 2019, the juvenile court held a fact-finding

      hearing on the matter. The juvenile court subsequently entered a true finding of

      delinquency for committing Class A misdemeanor dangerous possession of a

      firearm, and it granted the State’s request to modify K.C.G.’s probation. On



      Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019        Page 3 of 11
      April 1, 2019, the juvenile court placed K.C.G. on a suspended commitment to

      the Department of Correction.



                                 Discussion and Decision                           4




                                      1. Statutory Interpretation
[5]   Our standard of review for issues involving statutory interpretation is well-

      settled:


              A question of statutory interpretation is a matter of law. In such
              interpretation, the express language of the statute and the rules of
              statutory interpretation apply. We will examine the statute as a
              whole, and avoid excessive reliance on a strict literal meaning or
              the selective reading of words. Where the language of the statute
              is clear and unambiguous, there is nothing to construe.
              However, where the language is susceptible to more than one
              reasonable interpretation, the statute must be construed to give
              effect to the legislature’s intent. The legislature is presumed to
              have intended the language used in the statute to be applied
              logically and not to bring about an absurd or unjust result. Thus,
              we must keep in mind the objective and purpose of the law as
              well as the effect and repercussions of such a construction.


      Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. When

      interpreting the language of a statute, “[w]ords and phrases shall be taken in

      their plain, or ordinary and usual, sense.” Ind. Code § 1-1-4-1(1).




      4
        We held oral argument in this case on November 25, 2019, at Tipton High School. We thank the school for
      its hospitality and counsel for their arguments.

      Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019                         Page 4 of 11
[6]   Here, we are asked to interpret two seemingly inconsistent statutes. When we

      are asked to perform such an analysis,


              before applying any other rule of statutory construction, we
              “should attempt to give effect to both [statutes] and must attempt
              to harmonize any inconsistencies or conflicts....” Moryl [v.
              Ransone,] 4 N.E.3d [1133,] 1137 [(Ind. 2014)] (citations omitted)
              (emphasis in original). If the two statutes are incompatible with
              one another, the most recent amendment controls and operates
              to repeal the earlier provision. Id. But “such implied repeal
              should be recognized only when a later act is so repugnant to an
              earlier one as to render them irreconcilable, and a construction
              which will permit both laws to stand will be adopted if at all
              possible.” Id. (internal quotation omitted).


      Rodriguez v. State, 129 N.E.3d 789, 796 (Ind. 2019).


[7]   On appeal, K.C.G. argues that he cannot be adjudicated as a delinquent for

      dangerous possession of a firearm because juvenile delinquency adjudications

      require that a child commit a delinquent act that “would be an offense if

      committed by an adult.” Ind. Code § 31-37-1-2. However, Class A

      misdemeanor dangerous possession of a firearm is a crime that cannot be

      committed by an adult, as the defining statute states: “A child who knowingly,

      intentionally, or recklessly possesses for any purpose other than the purpose

      described in section 1 5 of this chapter commits dangerous possession of a




      5
       Indiana Code section 35-47-10-1 provides a number of situations under which a child cannot be found to
      have committed Class A misdemeanor possession of a firearm, including use of the firearm for hunting, at a
      shooting range, or with a parent’s permission. The parties do not argue K.C.G. possessed a firearm under
      any of these conditions.

      Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019                           Page 5 of 11
      firearm, a Class A misdemeanor.” Ind. Code § 35-47-10-5(a) (footnote and

      emphasis added). Thus, K.C.G. argues based on the plain language of the

      relevant statutes, he cannot be adjudicated a delinquent for committing Class A

      misdemeanor dangerous possession of a firearm.


[8]   A decade ago, a panel of our court addressed this same issue in C.C. v. State, 907

      N.E.2d 556 (Ind. Ct. App. 2009). In C.C., our court examined whether a

      juvenile court committed fundamental error by exercising jurisdiction over a

      delinquency petition filed pursuant to Indiana Code section 31-37-1-2, which

      requires that a juvenile be adjudicated for an act that would be an offense if

      committed by an adult, when the alleged criminal act, as defined in Indiana

      Code section 35-47-10-5, was not a crime for which an adult could be charged .

      Id. at 558-9. The court reviewed the plain language of Indiana Code section 31-

      30-1-1, which confers original jurisdiction on the juvenile court and states, in

      relevant part, that a juvenile court has jurisdiction over:


              (1) Proceedings in which a child, including a child of divorced
              parents, is alleged to be a delinquent child under IC 31-37.


                                                     *****


              (8) Proceedings in which a child less than sixteen (16) years of
              age is alleged to have committed an act that would be a
              misdemeanor traffic offense if committed by an adult.


              (9) Proceedings in which a child is alleged to have committed an
              act that would be an offense under IC 9-30-5 if committed by an
              adult.

      Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019       Page 6 of 11
                                                      *****


               (14) Other proceedings specified by law.


       Based on the plain language of Indiana Code section 31-30-1-1, the court

       determined C.C.’s case was an instance in which the juvenile court had original

       jurisdiction as set forth in Indiana Code section 31-30-1-1(14) over “other

       proceedings specified by law.” C.C., 907 N.E.2d at 559.


[9]    Further, the court stated:


               From a common sense standpoint, if we were to follow C.C.’s
               reasoning to its illogical conclusion, his misdemeanor violation
               of the firearm statute would not fall within the jurisdiction of
               either the juvenile court or the adult criminal court and thus
               would go unpunished. We do not think this was the legislature’s
               intent. As the State points out, “[i]t is a rule of statutory
               interpretation that courts will not presume the legislature
               intended to do a useless thing or to enact a statute that is a
               nullity.” N. Indiana Bank and Trust Co. v. State Bd. Of Finance, 457
               N.E.2d 527, 532 (Ind. 1983).


       Id.


[10]   As we are not bound by horizontal stare decisis, see, e.g., Smith v. State, 21

       N.E.3d 121, 126 (Ind. Ct. App. 2014), K.C.G. urges us to follow language from

       J.R. v. State, wherein our Indiana Supreme Court expressed concern whether

       “dangerous possession of a firearm can serve as the basis for a delinquency

       petition.” 100 N.E.3d 256, 257 n.1 (Ind. 2018). However, J.R. did not

       challenge the validity of his adjudication as a delinquent for Class A

       Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019       Page 7 of 11
       misdemeanor dangerous possession of a firearm. Instead, he argued he was

       subjected to double jeopardy and the police search was unconstitutional. Id. at

       257. As such, the language to which K.C.G. points is dicta, and does not

       require us to reach the result he requests. See, e.g., Koske v. Townsend Eng’g Co.,

       551 N.E.2d 437, 443 (Ind. 1990) (“[S]tatements not necessary in the

       determination of the issues presented are obiter dictum. They are not binding and

       do not become the law.”) (emphasis in original).


[11]   We presume “the legislature intended for the statutory language to be applied in

       a logical manner consistent with the statute’s underlying policy and goals.”

       State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). Here, the alleged

       conflict between Indiana Code section 35-47-10-5(a) and Indiana Code section

       31-37-1-2 was resolved ten years ago. See C.C., 907 N.E.2d at 559 (holding no

       conflict between statutes based on legislative intent). If C.C. had been an

       incorrect interpretation of the Legislature’s intent, the Indiana State Legislature

       could have remedied the situation by passing a new statute in the intervening

       years. 6 This leads us to conclude the Indiana State Legislature’s intent is

       evident – those under the age of eighteen may be adjudicated delinquents for

       offenses that would be crimes if committed by adults and for crimes that can be

       committed only by those under eighteen, and the language in Indiana Code

       section 31-3-1-2 does not preclude the enforcement of Indiana Code section 35-




       6
         Similarly, our Indiana Supreme Court’s footnote in J.R., written over a year ago, could have also prompted
       the legislature to consider any incongruity between the statutes, and again it chose not to do so.

       Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019                            Page 8 of 11
       47-10-5(a). See Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind. 2013) (“the

       failure of the Legislature to change a statute after a line of decisions . . . giving

       the statute a certain construction, amounts to an acquiescence by the

       Legislature in the construction given by the court”) (quoting Miller v. Mayberry,

       506 N.E.2d 7, 11 (Ind. 1987), superseded by statute on other grounds).


                                   2. Sufficiency of the Evidence
[12]   On review of a juvenile adjudication, we apply the same sufficiency standard

       used in criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App.

       2001). We do not reweigh the evidence or judge the credibility of witnesses.

       D.R. v. State, 729 N.E.2d 597, 599 (Ind. Ct. App. 2000). Instead we look only

       to the evidence of probative value and the reasonable inferences that support

       the determination. Id.


[13]   To prove K.C.G. committed Class A misdemeanor dangerous possession of a

       firearm, the State had to prove K.C.G., who is under eighteen years old,

       “knowingly, intentionally, or recklessly possess[ed] a firearm for any purpose

       other than a purpose described in section 1 of this chapter[.]” Ind. Code § 35-

       47-10-5(a). K.C.G. argues the State did not prove he intended to possess a

       firearm because: (1) he did not know it was a real firearm, and (2) he was

       unable to return the firearm to its owner, D.S., because he was prohibited from

       contacting D.S. as a condition of his previously-imposed probation.


[14]   K.C.G. contends the State did not prove even the lowest level of culpability –

       recklessness, which requires his possession to be “in plain, conscious, and

       Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019         Page 9 of 11
       unjustifiable disregard of harm that might result and the disregard involves a

       substantial deviation from acceptable standards of conduct.” Ind. Code § 35-

       41-2-2(c). He claims this level of culpability was not demonstrated because: (1)

       K.C.G. and his mother believed the item was a BB gun; (2) the item was

       “laying around there. Like it was any toy[,]” (Tr. Vol. II at 64); (3) the item was

       in plain sight in K.C.G.’s bedroom and not concealed; (4) the item was not

       loaded and there was no ammunition; and (5) upon the item’s discovery,

       K.C.G. volunteered that D.S. had brought it to the home and that he intended

       to return the item to D.S. when the conditions of his probation were over.


[15]   K.C.G.’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See D.R., 729 N.E.2d at 599

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).

       The State presented evidence a firearm was found in K.C.G.’s bedroom

       partially concealed by a shirt after K.C.G. told officers there were no weapons

       in his room. K.C.G.’s mother told officers that she knew K.C.G. had the

       firearm, she had taken it from him, and he had retrieved it from her bedroom

       and placed it in his bedroom, where it was found. 7 Based on the evidence most

       favorable to the adjudication, the State presented sufficient evidence to support

       K.C.G.’s adjudication for Class A misdemeanor dangerous possession of a




       7
        Further, K.C.G.’s argument that he thought it was permissible for him to possess the gun because he did
       not know the gun was real rings hollow. He was prohibited from having weapons or look-alike weapons as a
       condition of his probation. See Allen v. State, 453 N.E.2d 1011, 1013 (Ind. 1983) (trial “court had no duty to
       believe defendant's self-serving statements[.]”).

       Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019                            Page 10 of 11
       firearm. See Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004) (affirming

       Gall’s conviction of Class A misdemeanor possession of a firearm based on

       evidence that Gall was sixteen years old when he possessed a firearm that he

       did not have permission to possess), trans. denied.



                                                Conclusion
[16]   Following our established holding in C.C., we conclude a juvenile may be

       adjudicated for Class A misdemeanor dangerous possession of a firearm despite

       the fact that it is not a crime that can be committed by an adult as required by

       the juvenile adjudication statute. Additionally, the State presented sufficient

       evidence to support K.C.G.’s adjudication for Class A misdemeanor dangerous

       possession of a firearm. Accordingly, we affirm.


[17]   Affirmed.


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




       Court of Appeals of Indiana | Opinion 19A-JV-978 | December 26, 2019    Page 11 of 11
