MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 17 2019, 8:54 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Troy D. Warner Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
South Bend, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
T.F., July 17, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-JV-2562
v. Appeal from the St. Joseph Probate
Court
State of Indiana, The Honorable James C. Stewart
Appellee-Plaintiff. Brown, Magistrate
Trial Court Cause No.
71J01-1806-JD-166
Pyle, Judge.
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Statement of the Case
[1] T.F. was adjudicated a delinquent child with a true finding for Class A
misdemeanor dangerous possession of a firearm. 1 T.F. argues that there was
insufficient evidence to support his true finding and that the probate court
abused its discretion by committing him to the Department of Correction
(“DOC”). Concluding that there was sufficient evidence and the probate court
did not abuse its discretion, we affirm the trial court.
[2] We affirm.
Issues
1. Whether the State presented sufficient evidence to sustain T.F.’s true
finding for dangerous possession of a firearm.
2. Whether the probate court abused its discretion by committing T.F. to
the DOC.
Facts
[3] On June 8, 2018, Officer Hunter Miller (“Officer Miller”) with the South Bend
Police Department initiated a traffic stop of a vehicle with a false license plate.
The vehicle had five occupants: the driver, a front-seat passenger, and three
individuals in the backseat. After the vehicle had stopped, two of the
individuals from the backseat exited the left rear passenger door and fled on
1
IND. CODE § 35-47-10-5.
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foot. T.F. exited the vehicle from the right rear passenger door and was ordered
to stop by Officer Miller. Officer Miller had observed T.F. sitting in the
backseat behind the front passenger seat and did not observe any of the
occupants attempt to crawl over each other prior to exiting the vehicle.
[4] After all parties had been detained, Officer Miller approached the vehicle and
observed a rifle and a handgun in plain view in the backseat. The rifle was
leaning against the seat which T.F. had previously occupied and the handgun
was located on the seat. Ammunition for the rifle was also observed on the
floor where T.F. had been sitting.
[5] The State filed a petition alleging that T.F. was a delinquent child for
committing the crime of Class A misdemeanor dangerous possession of a
firearm. On August 24, 2018, the probate court held a fact-finding hearing on
the delinquency petition. Several officers from the South Bend Police
Department, including Officer Miller, testified to the facts above. In addition to
the testimony of the officers, the State also introduced into evidence
photographs depicting the location of the firearms in the backseat. After the
presentation of evidence, the probate court entered a true finding against T.F.
for dangerous possession of a firearm.
[6] On September 24, 2018, the court held a disposition hearing. The Probation
Department recommended the court commit T.F. to the DOC because
“probation, home detention, placement, [and] day reporting” had all failed “to
get [T.F.] to make the right choices.” (Tr. 62). The Probation Department
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further explained that T.F. had “been out [of residential placement] for two
months when he was involved in the new offense that is pending disposition
today.” (Tr. 62). The court found that “[i]t is in the best interests of the child to
be removed from the home environment and [that] remaining in the home
would be contrary to the health and welfare of the child because: [T.F.’s]
actions pose [a] danger to self and others[ ]” and awarded wardship of T.F. to
the DOC. (App. Vol. 2 at 16). T.F. now appeals.
Decision
[7] T.F. argues that: (1) there was insufficient evidence to support his true finding;
and (2) the probate court abused its discretion by committing him to the DOC.
We address each of his contentions in turn.
1. Sufficiency of Evidence
[8] T.F. first contends that the evidence was insufficient to support his true finding.
A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §
31-37-14-1. When reviewing a challenge to the sufficiency of evidence
supporting a true finding, “we do not reweigh the evidence or judge witness
credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e
consider only the evidence favorable to the judgment and the reasonable
inferences supporting it.” Id. We will affirm the judgment so long as there is
“substantial evidence of probative value . . . from which a reasonable fact finder
could conclude beyond a reasonable doubt” that the juvenile engaged in the
unlawful conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008).
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[9] T.F. challenges the sufficiency of the evidence of constructive possession.
INDIANA CODE § 35-47-10-5(a) provides, in pertinent part, that “[a] child who
knowingly, intentionally, or recklessly possesses a firearm . . . commits
dangerous possession of a firearm, a Class A misdemeanor.” To satisfy these
elements, the State must prove the defendant had either actual or constructive
possession of the firearms. Negash v. State, 113 N.E.3d 1281, 1291 (Ind. Ct.
App. 2018). Actual possession occurs when a person has direct physical control
over an item, whereas constructive possession occurs when a person has the
intent and the capability to maintain dominion and control over the item. Id.
Specifically, T.F. contends that there was “insufficient [evidence] to prove
dominion and control sufficient for [a] dangerous possession of a firearm” true
finding. (T.F.’s Br. 8).
[10] To fulfill the intent element of constructive possession, the State must
demonstrate the defendant’s knowledge of the presence of the contraband.
Griffin v. State, 945 N.E.2d 781, 784 (Ind. Ct. App. 2011). In cases where the
accused has exclusive possession of the premises in which the contraband is
found, an inference is permitted that he knew of the presence of the contraband
and was capable of controlling it. Id. Where the control is non-exclusive, as
was the case here, knowledge may be inferred from evidence of additional
circumstances indicating the defendant’s knowledge of the presence of the
firearm. Causey v. State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004). These
additional circumstances may include: (1) incriminating statements made by
the defendant; (2) attempted flight or furtive gestures; (3) proximity of the
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firearm to the defendant; (4) location of the firearm within the defendant’s plain
view; and (5) the mingling of a firearm with other items owned by the
defendant. Deshazier v. State, 877 N.E.2d 200, 206 (Ind. Ct. App. 2007), trans.
denied. To fulfill the capability requirement of constructive possession, the State
must demonstrate that the defendant had the ability to reduce the firearm to his
personal possession. K.F. v. State, 961 N.E.2d 501, 510 (Ind. Ct. App. 2012),
trans. denied.
[11] Our review of the record reveals that there were a total of five individuals in the
vehicle: the driver, front passenger, and three in the backseat. Two of the
backseat occupants fled out of the left rear passenger door, and T.F. exited the
right rear passenger door when he was ordered to stop by Officer Miller. After
all parties had been detained, Officer Miller observed, in plain view, two
firearms in the seat that was previously occupied by T.F. A rifle was leaning
against T.F.’s seat and a handgun was on top of his seat. Additionally,
ammunition was on the floor. This evidence sufficiently supports the probate
court’s finding that T.F. had constructive possession of the firearms because he
had the intent and capability to exercise dominion and control over both
firearms. The State presented sufficient evidence to support T.F.’s true finding
beyond a reasonable doubt.
2. DOC Commitment
[12] T.F. asserts that the probate court abused its discretion by committing him to
the DOC. He argues that his commitment “was a punitive decision based upon
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T.F.’s presence in the [vehicle] that day and the size of the rifle found by police
in the back seat.” (T.F.’s Br. 10). We note that “the purpose of the juvenile
process is vastly different from the criminal justice system.” R.H. v. State, 937
N.E.2d 386, 388 (Ind. Ct. App. 2010). Specifically, the goal of juvenile
proceedings is “rehabilitation so that the youth will not become a criminal as an
adult.” Id. (emphasis in original). To facilitate this goal, courts have a number
of options available for juvenile placement: “from a private home in the
community, a licensed foster home, a local juvenile detention center, to State
institutions[.]” Jordan v. State, 512 N.E.2d 407, 408 (Ind. 1987), reh’g denied.
[13] To assist juvenile courts in selecting amongst available placement alternatives,
the Indiana Legislature has provided guidance regarding the option selected for
any particular child:
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
(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.
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IND. CODE § 31-37-18-6. Within those parameters, a juvenile court has
discretion in choosing the disposition appropriate for each juvenile delinquent.
D.E. v. State, 962 N.E.2d 94, 96 (Ind. Ct. App. 2011). We review a court’s
disposition for an abuse of discretion. Id. at 97. An abuse of discretion occurs
if the court’s decision 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.
[14] Here, a representative from the Probation Department testified at the
disposition hearing that “probation, home detention, placement, [and] day
reporting” had all failed “to get [T.F.] to make the right choices.” (Tr. 62).
Further, the representative testified that within two months of release from a
residential placement facility, T.F. had been charged with the present offense.
It is clear from the disposition hearing transcript that the probate court, after
reviewing the ineffectiveness of numerous less-restrictive alternatives afforded
to T.F., determined that making T.F. a ward of the DOC would be in his best
interest. In light of T.F.’s failure to modify his behavior in response to prior
services and placements, the probate court did not abuse its discretion by
committing him to the DOC. See, e.g., D.E., 962 N.E.2d at 97 (concluding that
there was no abuse of discretion in placement of juvenile at DOC where less-
restrictive dispositions had been unsuccessful). Accordingly, we affirm the
court’s commitment of T.F. to the DOC.
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[15] Affirmed.
Riley, J., and Bailey, J., concur.
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T.F. v. State of Indiana (mem. dec.)
Combined Opinion