MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Oct 02 2019, 8:49 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.H.,                                                    October 2, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-2608
        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.
                                                         49D09-1807-JD-861



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019                    Page 1 of 11
                               Case Summary and Issues
[1]   The juvenile court adjudicated J.H. a delinquent child for actions which, if

      committed by an adult, would constitute criminal recklessness, a Level 6 felony,

      and criminal mischief, a Class B misdemeanor. The juvenile court placed J.H

      on probation and discharged him to the custody of the Department of Child

      Services (“DCS”) for placement at Gibault Children’s Services (“Gibault”).

      J.H. challenges his adjudication raising two issues for our review: 1) whether

      the State presented sufficient evidence to support the true finding for criminal

      recklessness, and 2) whether the trial court abused its discretion in admitting

      hearsay testimony. Concluding the State presented sufficient evidence for

      criminal recklessness, and the juvenile court did not abuse its discretion in

      admitting hearsay testimony, we affirm.



                            Facts and Procedural History
[2]   The facts most favorable to the juvenile court’s judgment are that Jeremy Huffer

      (“Father”) is the biological father of J.H., born September 4, 2003. On July 27,

      2018, J.H. asked Father if he could visit some friends. Father denied his request

      and, as a result, J.H. became “out of control at the house.” Transcript of

      Evidence, Volume II at 9. J.H. engaged in unruly behavior: he attempted to

      grab Father’s money and cell phone while Father was talking with J.H.’s

      probation officer on the phone; he threw spittoon on Father; he destroyed

      Father’s scooter and air conditioner; and he sprayed Father with a water hose.



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 2 of 11
      Father called the police. Officers arrived and de-escalated the situation but left

      without taking further action.


[3]   Subsequently, a similar scenario occurred. J.H. became aggressive with Father

      by throwing and destroying furniture. J.H then went outside, retrieved a blow

      torch and reentered the home. J.H. stood “[a] foot” away from Father holding

      the blow torch. Tr., Vol. II at 18. Father testified, “[J.H.] said…he would burn

      me with it or [J.H.] would burn me up with it.” Id. at 17. Father and J.H.

      testified that the blow torch was not lit. See Id. at 17, 43. J.M., who is the

      daughter of Father’s girlfriend testified the blow torch was lit; J.H. did not

      object or conduct a cross-examination on this assertion. See Id. at 26-27. Father

      tried to smack the blow torch out of J.H.’s hand. J.M. called the police because

      she was afraid. Officers arrived on the scene, but could not locate J.H. A nearby

      neighbor informed officers that J.H. was hiding under her tarp, where officers

      arrested J.H.


[4]   On July 30, the State filed a delinquency petition alleging J.H. had committed

      acts that would constitute criminal recklessness, a Level 6 felony, and criminal

      mischief, a Class B misdemeanor, if committed by an adult.1 On August 23,

      2018, the juvenile court held a fact-finding hearing. Reporting Officer Cory

      Drum testified to her investigation of the incident. On cross-examination, J.H.




      1
        The State also alleged that J.H. committed domestic battery and battery resulting in bodily injury, both
      Class A misdemeanors. See Appellant’s Appendix, Volume II at 24-25. The juvenile court entered a not-true
      finding as to these allegations. See Id. at 58.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019                Page 3 of 11
      showed Officer Drum her probable cause affidavit and asked if she included in

      her report “any threat” made by J.H. against Father. Tr., Vol. II at 34. Officer

      Drum testified that she did not. Id. On re-direct examination, J.H. objected on

      grounds of hearsay when the State, referring to the probable cause affidavit,

      asked Officer Drum, “And what was the order of the events in regards to the

      blow torch?” Id. The juvenile court overruled the objection essentially reasoning

      that the officer was testifying to what she wrote. The State then asked, “What

      was the order, according to what you wrote?” Id. at 36. Officer Drum answered

      that Father


              had been hit by a fan or a chair and then his son came at him
              with a blow torch and he told me that it was lit and . . . he told
              him not to take another step and then [J.H] took another step and
              then that is when he grabbed the belt to defend himself[.]


      Id. The juvenile court entered a true finding against J.H. for criminal

      recklessness, a Level 6 felony, and criminal mischief, a Class B misdemeanor, if

      committed by an adult. The juvenile court released J.H. to the care and custody

      of DCS for placement at Gibault and ordered J.H. to complete the plan of care

      and rehabilitation treatment at Gibault. J.H. now appeals.



                                 Discussion and Decision
                                   I. Criminal Recklessness
[5]   J.H. contends there is insufficient evidence to support his true finding of

      criminal recklessness. Specifically, he argues the State failed to show the blow

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 4 of 11
      torch was a deadly weapon and that J.H. placed Father at substantial risk of

      bodily injury. See Brief of the Appellant at 14.


[6]   When reviewing claims for insufficient evidence in a juvenile delinquency

      adjudication, we neither reweigh the evidence nor judge witness credibility, and

      we only consider the evidence and reasonable inferences favorable to the

      judgment. B.R. v. State, 823 N.E.2d 301, 306 (Ind. Ct. App. 2005). We will

      affirm the adjudication unless no reasonable fact-finder could find the elements

      of the crime proven beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Evidence is sufficient if an inference may be reasonably drawn

      from it to support the judgment. Id. at 147.


[7]   To adjudicate J.H. a delinquent child for committing criminal recklessness as a

      Level 6 felony, the State needed to prove beyond a reasonable doubt that he

      recklessly, knowingly, or intentionally performed an act that created a

      substantial risk of bodily injury to Father, and he committed such act while

      armed with a deadly weapon. Ind. Code § 35-42-2-2.


[8]   J.H. challenges his criminal recklessness conviction by asserting that he did not

      use a deadly weapon and that it did not create a substantial risk of bodily harm

      to Father. “Deadly weapon” is defined as:


              (1) a loaded or unloaded firearm,


              (2) a destructive device, weapon, device, taser, or electronic stun
                  weapon, equipment, chemical substance, or other material
                  that in the manner it:

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 5 of 11
                  (A) is used;


                  (B) could ordinarily be used; or


                  (C) is intended to be used;


              is readily capable of causing serious bodily injury.


      Ind. Code § 35-31.5-2-86. In determining whether an instrument is a deadly

      weapon, we look to the capacity of the object to inflict serious bodily injury

      under the factual circumstances of the case. Phelps v. State, 669 N.E.2d 1062,

      1063 (Ind. Ct. App. 1996) (emphasis added).


[9]   Here, the State presented sufficient evidence to support the true finding for

      criminal recklessness. During their confrontation, J.H. retrieved a blow torch

      and approached Father with it. Father testified that J.H. stood “[a] foot” away

      from him holding the blow torch and J.H said, “he would burn me with it.” Tr.,

      Vol. II at 17-18. Our review reveals that there is conflicting testimony by J.H.,

      Father, and J.M. whether the blow torch was lit or not. J.H. argues that the

      only two people involved in the confrontation testified that the blow torch was

      not lit, and we should not consider J.M’s testimony that it was lit. See Br. of the

      Appellant at 16. But this argument is, essentially, a request that this court assess

      witness credibility and reweigh the evidence in his favor, which is the role of the

      fact-finder, not the role of this court. See B.R., 823 N.E.2d at 306. Even if the

      blow torch was not lit, it could have ordinarily been used if J.H. turned the gas

      knob and pushed a button to ignite it. Based on this, the blow torch would

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 6 of 11
       constitute a deadly weapon that was capable of inflicting serious bodily injury

       to Father regardless of whether it was lit or not. The evidence most favorable to

       the judgment is that J.H. used the blow torch, which is considered a deadly

       weapon within the meaning of the statute. See id. Given the circumstances of

       this case, a reasonable fact-finder could conclude that J.H. intended to cause

       harm to Father and therefore, there is sufficient evidence to adjudicate J.H. as a

       delinquent for criminal recklessness.


                                   II. Admission of Hearsay
[10]   Next, J.H. argues the juvenile court abused its discretion by permitting Officer

       Drum to testify regarding the substance of her probable cause affidavit that was

       inadmissible under Indiana Rules of Evidence 803(8)(B)(i). Specifically, he

       argues the admission of Officer Drum’s testimony was prejudicial because her

       affidavit contained statements by Father inconsistent with his testimony at the

       fact-finding hearing. The State maintains that even if Officer Drum’s testimony

       were inadmissible, it is harmless error. We agree.


[11]   The admission of evidence is a matter left to the sound discretion of the juvenile

       court, and a reviewing court will reverse only upon an abuse of discretion.

       B.K.C. v. State, 781 N.E.2d 1157, 1162 (Ind. Ct. App. 2003). Although the rules

       of evidence do not apply to preliminary juvenile proceedings, they do apply to

       fact-finding hearings in juvenile delinquency proceedings. See N.L. v. State, 989

       N.E.2d 773, 779 (Ind. 2013). We consider all facts and circumstances

       surrounding the trial court’s decision to determine whether it is “clearly against


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 7 of 11
       the logic and effect” of what those facts and circumstances dictate. Satterfield v.

       State, 33 N.E.3d 344, 352 (Ind. 2015). However, if a trial court abused its

       discretion by admitting the challenged evidence, we will only reverse for that

       error if the error is inconsistent with substantial justice or if a substantial right of

       the party is affected. Allen v. State, 994 N.E.2d 316, 319 (Ind. Ct. App. 2013).


[12]   Here, J.H. conducted a cross-examination of Officer Drum at the fact-finding

       hearing, where she testified to her investigation of the event. J.H. showed

       Officer Drum her affidavit and asked if she included “any threat” in her report,

       which she affirmed that she did not. On re-direct, Officer Drum testified, over

       objection, to the substance of her affidavit that indicated J.H. went after Father

       with a blow torch that was lit. See Tr., Vol. II at 36. We acknowledge that

       investigative reports by police officers and other law enforcement personal,

       except when offered by an accused in a criminal case are not an exception to

       the hearsay rule. See Ind. Evid. R. 803(8)(B)(i). But based on our review, Officer

       Drum’s testimony on re-direct did not implicate the initial hearsay inquiry, that

       is, whether an out of court statement is offered for the truth of the matter

       asserted. See Ind. Evid. R. 801(c)(2). The State contends Officer Drum’s

       testimony was not hearsay because it was not offered for its truth, but rather to

       rebut J.H.’s suggestion that Father had not reported a threat. We agree that the

       reference to her affidavit merely clarified a similar question that J.H. asked on

       cross-examination. Indiana courts have long recognized that otherwise

       inadmissible evidence may become admissible if a party opens the door to

       questioning on that evidence in order to correct a deceptively incomplete


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 8 of 11
       disclosure. Valdez v. State, 56 N.E.3d 1244, 1249 (Ind. Ct. App. 2016), trans.

       denied. Because J.H. opened the door to questioning about Officer Drum’s

       failure to include the presence of a threat in her affidavit, the State was

       permitted to elicit Officer Drum’s reference to the otherwise inadmissible

       evidence to correct this “false or misleading impression” that could have been

       left on the juvenile court. Id. Officer Drum’s affidavit implicitly demonstrates

       that a threat was present when J.H. approached Father with a blow torch. The

       main purpose for the reference to her affidavit was to simply correct any

       incomplete disclosure that J.H. presented to the juvenile court that Father had

       not reported a threat. Thus, the juvenile court did not abuse its discretion in

       allowing Officer Drum to testify to the contents of her affidavit.


                                         III. Harmless Error
[13]   Even if Officer Drum’s testimony was inadmissible, we conclude that any error

       was harmless. This court will not reverse for an “erroneous admission of

       hearsay . . . unless it prejudices the defendant’s substantial rights.” Blount v.

       State, 22 N.E.3d 559, 564 (Ind. 2014). To determine whether an evidentiary

       error was prejudicial, we assess the probable impact the evidence had upon the

       trier of fact in light of all of the other evidence that was properly presented. Id.

       If this court is satisfied the conviction, or, in a juvenile case, true finding, is

       supported by substantial independent evidence of guilt that there is little

       likelihood the challenged evidence contributed to the conviction or true finding,

       then the error is harmless. R.W. v. State, 975 N.E.2d 407, 412 (Ind. Ct. App.

       2012), trans. denied. J.H. argues that this evidence significantly prejudiced him

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 9 of 11
       solely because both him and Father testified at the hearing that the tool was

       unlit. Specifically, he contends whether the blow torch was lit is a critical point.

       We reject this contention because we have already determined above that a

       blow torch is a deadly weapon regardless of it being lit or not.


[14]   Still, regardless of whether Officer Drum’s reference to her affidavit was

       inadmissible, the evidence was merely cumulative of other evidence presented

       by the State. Everything stated in her affidavit had already been admitted into

       evidence through prior witnesses. Both J.H. and Father testified that an

       altercation clearly occurred between the two and that J.H. had a blow torch

       near Father. In addition, J.M. testified and corroborated the sequence of events

       regarding the blow torch, which J.H. did not object to or conduct a cross-

       examination on. So, this court is satisfied that J.H.’s adjudication is supported

       by independent evidence of guilt and, as a result, any error in the admission of

       Officer Drum’s testimony regarding her affidavit was harmless and reversal is

       not required. See Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994).


[15]   In sum, J.H. would certainly be adjudicated for the act of criminal recklessness

       without Officer Drum’s re-direct testimony; thus, we cannot say the juvenile

       court abused its discretion when it permitted Officer Drum to testify from her

       affidavit.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 10 of 11
                                               Conclusion
[16]   The State presented sufficient evidence to support a true finding for criminal

       recklessness, and the juvenile court did not abuse its discretion in admitting

       hearsay testimony. Therefore, we affirm J.H.’s delinquency adjudication.


[17]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2608 | October 2, 2019   Page 11 of 11
