A.Y. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 23 2019, 11:02 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 Karen M. Heard Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

A.Y., April 23, 2019 Appellant-Respondent, Court of Appeals Case No. 18A-JV-2668 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Renee A. Cain, Appellee-Plaintiff, Magistrate Trial Court Cause No. 82D04-1808-JD-1596

Tavitas, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019 Page 1 of 9

Case Summary [1] A.Y. appeals his adjudication as a delinquent for an act that would be

considered attempted armed robbery if committed by an adult, a Level 3 felony.

We affirm.

Issues [2] A.Y. raises two issues, which we restate as:

I. Whether the evidence is sufficient to sustain A.Y.’s adjudication as a delinquent for an act that would be considered attempted armed robbery if committed by an adult, a Level 3 felony.

II. Whether the juvenile court erred by committing A.Y. to the Department of Correction.

Facts [3] On August 10, 2018, A.Y.’s friend sent a message to Giles Thomas on

Facebook asking if he had marijuana for sale. Thomas’ Facebook name is

“Mob Jay.” Tr. Vol. II p. 47. Thomas responded that he did have some

marijuana for sale and asked who wanted to buy it. A.Y.’s friend said, “He’s

gonna inbox you.” Id. at 42. Fourteen-year-old A.Y. then sent Thomas a

message asking to buy a “zip” of marijuana, which is half an ounce. Id. They

later arranged to meet at a church near “Boeke and Riverside.” Id. at 43. The

church was also near a Circle K gas station. [4] That evening, A.Y. arrived at the residence of Chloe Redfield and asked for a

ride “down the road” to pick up clothes from “Mob.” Id. at 12. Redfield was Court of Appeals of Indiana | Memorandum Decision 18A-JV-2668 | April 23, 2019 Page 2 of 9

giving her daughter a bath and told A.Y. that, if he could walk there, she could

pick him up. A.Y. said he was walking toward the gas station at the “corner of

Riverside and Boeke,” which was four or five blocks from Redfield’s residence.

Id. at 13. [5] Thomas took his loaded handgun with him. Thomas met with A.Y. and

another person unknown to Thomas at the church’s parking lot. Thomas

showed A.Y. the marijuana and asked to see the money. Instead of money,

A.Y. pulled out what Thomas thought was a handgun and said, “Give me

everything.” Id. at 44. Thomas acted like he was reaching for the marijuana

and, instead, pulled out his handgun. Thomas then shot A.Y. in the stomach.

A.Y.’s friend ran away, and Thomas drove off. [6] Redfield went to the gas station to pick up A.Y. When she arrived, she heard a

gunshot and saw A.Y. running, holding his stomach, and yelling for help.

Redfield went to help A.Y. and called 911. Officers later discovered a realistic-

looking BB gun and a shell casing behind the church. Thomas was arrested that

evening, and a police detective read the Facebook messages between Thomas

and A.Y. [7] The State filed a petition alleging that A.Y. was a delinquent child for

committing acts that would be considered: (1) armed robbery if committed by

an adult, a Level 3 felony; and (2) robbery if committed by an adult, a Level 5

felony. On October 1, 2018, the State filed an amended petition to allege A.Y.

committed acts that would be considered: (1) attempted armed robbery if

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committed by an adult, a Level 3 felony; and (2) attempted robbery if

committed by an adult, a Level 5 felony. [8] After a hearing, the juvenile court found that A.Y. committed acts that would

be attempted armed robbery if committed by an adult, a Level 3 felony. The

State moved to dismiss the Level 5 felony allegation, which the juvenile court

granted. The juvenile court then committed A.Y. to the Department of

Correction (“DOC”). A.Y. now appeals.

Analysis I. Sufficiency of the Evidence

[9] A.Y. challenges the sufficiency of the evidence to support his adjudication as a

delinquent for an act that would be considered attempted armed robbery if

committed by an adult, a Level 3 felony. “When reviewing the sufficiency of

the evidence in a juvenile adjudication, we do not reweigh the evidence or

judge witness credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018).

“We consider only the evidence favorable to the judgment and the reasonable

inferences supporting it.” Id. “We will affirm a juvenile-delinquency

adjudication if a reasonable trier of fact could conclude the defendant was guilty

beyond a reasonable doubt.” Id. [10] The offense of attempted armed robbery, a Level 3 felony, is governed by

Indiana Code Section 35-42-5-1 and Indiana Code Section 35-41-5-1. The State

was required to prove that A.Y. knowingly or intentionally engaged in conduct

constituting a substantial step toward taking “property from another person or

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from the presence of another person . . . by using or threatening the use of force

on any person . . . while armed with a deadly weapon.” Ind. Code § 35-42-5-

1(a); Ind. Code § 35-41-5-1(a). [11] According to A.Y., no evidence was presented that he threatened to rob

Thomas except for Thomas’ testimony. A.Y. argues no video of the meeting

exists, and there were no witnesses to the meeting. A.Y. also contends that no

physical evidence linked the BB gun to A.Y. Finally, A.Y. points out that the

Facebook messages could not be retrieved. [12] A.Y.’s argument is merely a request that we reweigh the evidence and judge the

credibility of the witnesses, which we cannot do. Thomas’s credibility was

within the province of the juvenile court to decide. The State points out that

A.Y. does not argue Thomas’ testimony was incredibly dubious. Although

Thomas may not have been a “model witness” due to his history of dealing

drugs, we cannot reassess his credibility. Reed v. State, 748 N.E.2d 381, 395

(Ind. 2001). “[T]he uncorroborated testimony of one witness is sufficient to

sustain a conviction on appeal . . . .” Id. at 396. Similarly, the lack of physical

evidence tying A.Y. to the offense was a matter for the juvenile court to weigh. [13] The State presented sufficient evidence that A.Y. arranged a drug transaction

with Thomas in the church parking lot and that A.Y. pointed a realistic-looking

BB gun at Thomas while demanding the marijuana. We have held that “BB

guns can be considered deadly weapons within the statute.” Merriweather v.

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State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002). The State presented sufficient

evidence to sustain A.Y.’s adjudication.

II. Disposition

[14] A.Y. also argues that the juvenile court erred by committing A.Y. to the DOC.

“The juvenile court has discretion in choosing the disposition for a juvenile

adjudicated delinquent.” D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct. App. 2011)

(citing L.L. v. State, 774 N.E.2d 554, 556 (Ind. Ct. App. 2002), trans. denied).

“The discretion is subject to the statutory considerations of the welfare of the

child, the safety of the community, and the policy of favoring the least harsh

disposition.” Id. “We may overturn [A.Y.’s] disposition order only if the court

abused its discretion.” Id. “An abuse of discretion occurs when the juvenile

court’s judgment is clearly against the logic and effect of the facts and

circumstances before it, or the reasonable, probable, and actual deductions to be

drawn therefrom.” Id. [15] Indiana Code Section 31-37-18-6 states:

If consistent with the safety of the community and the best interest of the child, the juvenile court shall enter a dispositional decree that:

(1) is:

(A)in the least restrictive (most family like) and most appropriate setting available; and

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(B) close to the parents’ home, consistent with the best interest and special needs of the child;

(2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian; and

(5) provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian.

“[T]he statute requires placement in the least restrictive setting only ‘[i]f

consistent with the safety of the community and the best interest of the child.’”

J.S. v. State, 881 N.E.2d 26, 29 (Ind. Ct. App. 2008) (quoting I.C. § 31-37-18-6).

“Thus, the statute recognizes that in certain situations the best interest of the

child is better served by a more restrictive placement.” Id. [16] According to A.Y., the juvenile court should have committed A.Y. to a less

restrictive setting. A.Y. argues that: (1) his adjudication history is limited; (2)

he has been placed in special education services at school; (3) he has been

diagnosed with ADHD; (4) he suffered severe injuries as a result of the gunshot

wound; and (5) the juvenile court did not consider other placement alternatives. [17] A.Y.’s juvenile criminal history, although limited, has escalated. A.Y. was

referred to the juvenile court in September 2015 and October 2017 for

disorderly conduct. In both cases, A.Y. was lectured and released. A.Y. was

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then adjudicated in February 2018 for two counts of criminal mischief. He was

placed on probation, and a motion to modify was filed in March 2018 because

A.Y. left home. A.Y. was placed at Hillcrest and released to his mother in

April 2018. His mother reported that A.Y. was missing in May 2018. A.Y.

then committed this offense of attempted armed robbery in August 2018. After

A.Y. was released from the hospital due to his gunshot wound, he was placed

at Southwest Indiana Regional Youth Village (“SIRYV”). There, he was

verbally aggressive to staff, participated in the assault of another youth while

the youth was sleeping, and was caught making gang signs. [18] The probation department recommended that A.Y. be committed to the DOC

“due to the seriousness of the offense and the juvenile being a risk to the

community.” Tr. Vol. II p. 71. The juvenile court noted A.Y.’s “slight juvenile

history” but focused on A.Y.’s severe, armed offense and continued violent and

aggressive behavior at SIRYV. The juvenile court concluded that A.Y.

“presents as a danger to others [and] himself.” Id. at 76. As a result, the

juvenile court determined that the “only place” appropriate for A.Y. was the

DOC. Id. [19] Although A.Y. requests that we conclude that the juvenile court abused its

discretion by placing him in the DOC because a less restrictive option was

available, there are times when commitment to the DOC is in the best interest

of the juvenile and society. D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App.

2005). Given A.Y.’s escalating criminal offenses, the seriousness of his current

offense, and his continued aggressive behavior at SIRYV, this is one of those

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times. We cannot say that the juvenile court abused its discretion in

committing A.Y. to the DOC.

Conclusion [20] The evidence is sufficient to sustain A.Y.’s adjudication, and the juvenile court

did not abuse its discretion by committing A.Y. to the DOC. We affirm. [21] Affirmed.

Crone, J., and Bradford, J., concur.

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