Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
FILED
Apr 12 2012, 8:47 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH A. GABIG GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.H., )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-1110-JV-533
)
STATE OF INDIANA, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary K. Chavers, Judge Pro Tempore
The Honorable Geoffrey A. Gaither, Magistrate
Cause No. 49D09-1104-JD-989
April 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
D.H. appeals his adjudication as a juvenile delinquent, for committing an act that
would have been Intimidation, as a Class C felony,1 and two acts that would have been
Possession of a Knife on School Property, as Class B misdemeanors,2 if committed by an
adult. We affirm.
Issues
D.H. presents two issues for review:
I. Whether there is sufficient evidence to establish that he committed an
act that would be Intimidation, if committed by an adult; and
II. Whether the juvenile court erroneously ordered payment of an
administrative fee without inquiry into the parents’ ability to pay the
fee.
Facts and Procedural History
On January 3, 2011, twelve-year-old D.H. was a student at Brook Park Elementary
School in Marion County, Indiana. When the teacher left the room, D.H. jumped onto the
chair of another student, G.J. D.H. held a knife to G.J.’s neck and told G.J. to “suck his
dick.” (Tr. 4.) G.J. said “no.” (Tr. 4.) The teacher returned, and D.H. jumped down off the
chair and sat next to G.J. The following day, D.H. pointed a knife at G.J. and asked “are you
scared yet?” (Tr. 6.) G.J. reported the events to her teacher.
On April 26, 2011, the State alleged that D.H. is a juvenile delinquent because he had
1
Ind. Code § 35-45-2-1.
2
Ind. Code § 35-47-5-2.5.
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committed three acts that would be Intimidation, if committed by an adult, and two acts that
would be Possession of a Knife on School Property, if committed by an adult. Two
allegations of Intimidation (those allegedly involving children other than G.J.) were later
dismissed. On August 8, 2011, the juvenile court held a denial hearing and entered true
findings as to the remaining allegations.
A dispositional hearing was conducted on September 12, 2011. The juvenile court
ordered that D.H. be placed on probation. D.H. was ordered to participate in school-based
counseling, refrain from contact with G.J., and write a letter of apology to G.J. After finding
D.H.’s parents to be partially indigent, the juvenile court required the parents’ payment of a
$100 administrative fee. This appeal ensued.
Discussion and Decision
I. Sufficiency of the Evidence
When the State seeks to have a juvenile adjudicated to be a delinquent for committing
an act that would be a crime if committed by an adult, the State must prove each element of
the crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App.
2006), trans. denied. When reviewing a juvenile adjudication, this Court will consider only
the evidence and reasonable inferences supporting the judgment, and will neither reweigh the
evidence nor judge witness credibility. Id. If there is substantial evidence of probative value
from which a reasonable trier of fact could conclude beyond a reasonable doubt that the
juvenile committed the delinquent act, we will affirm the adjudication. Id.
To support a true finding for Intimidation, as alleged, the State was required to
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establish that D.H., while armed with a deadly weapon, communicated a threat to G.J., with
the intent that G.J. engage in conduct against her will. Ind. Code § 35-45-2-1(b)(2). A
“threat” is defined as “an expression by words or action, of an intention to … unlawfully
injure the person threatened[.]” Ind. Code § 35-45-2-1(c)(1).
D.H. does not deny that he held a knife to G.J.’s throat and told her to “suck his dick.”
(Tr. 4.) However, he denies that he actually intended that G.J. perform fellatio. He points to
evidence that there were other students present in the classroom and their teacher was nearby.
He also asserts a lack of evidence that he unzipped his pants or exposed his penis.
Whether a person operated with the requisite intent to force another person to engage
in conduct against her will depends upon the facts and circumstances of the case. Owens v.
State, 659 N.E.2d 466, 474 (Ind. 1995). The Indiana Supreme Court has “adopted an
objective view of whether a communication is a threat.” Id. Whether the speaker intends
that the recipient of communication engage in conduct against her will and whether the
communication, objectively viewed, constitutes a threat are questions for the finder of fact.
Id.
G.J. testified as follows. While the classroom teacher was in the hallway, D.H.
jumped onto G.J.’s chair, held a knife to her throat, and demanded that she “suck his dick.”
(Tr. 4.) This is sufficient evidence to permit the fact-finder to conclude beyond a reasonable
doubt that D.H., while armed with a deadly weapon, communicated a threat to G.J. with
intent that she engage in conduct against her will. D.H.’s suggestion that G.J.’s compliance
was unlikely given the surroundings and D.H.’s lack of exposure merely presents a request to
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reweigh the evidence.
Additionally, we observe that D.H. does not challenge the true findings for possession
of a knife. As such, the State presented sufficient evidence to support the juvenile court’s
adjudication that D.H. is a delinquent child.
II. Administrative Fee
Pursuant to Indiana Code Section 31-40-2-1(a), a juvenile court may order a
delinquent child or the child’s parent to pay probation fees and an administrative fee, subject
to Indiana Code Section 31-40-1-3. Indiana Code Section 31-40-1-3(a) provides that a parent
of a delinquent child will be ordered to pay for services to the child or parents “unless the
court makes a specific finding that the parent or guardian is unable to pay or that justice
would not be served by ordering payment[.]” The juvenile court must inquire into the ability
of the parents of a juvenile delinquent to pay. M.Q.M. v. State, 840 N.E.2d 441, 449 (Ind.
Ct. App. 2006).
D.H. contends that the juvenile court failed to inquire into his parents’ ability to pay
before assessing the $100 administrative fee. We disagree. At the dispositional hearing, the
juvenile court asked each of D.H.’s parents about employment. D.H.’s father responded that
he was unemployed. D.H.’s mother responded that she was employed at a hospital. The
parents advised that they lived in the same home, and had four children. The pre-
dispositional report submitted to the juvenile court indicated that D.H.’s mother earned
income of $1,450 monthly. The family also received $700 per month in food stamps. The
juvenile court obtained adequate information upon which to make its finding of partial
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indigency and assess a $100 fee.
Affirmed.
ROBB, C.J., and MATHIAS, J., concur.
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