MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 25 2019, 10:35 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
David L. Joley Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
S.C., July 25, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-JV-3045
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Andrea R. Trevino,
Appellee-Petitioner. Judge
The Honorable Carolyn S. Foley,
Magistrate
Trial Court Cause No.
02D07-1808-JD-914
Najam, Judge.
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Statement of the Case
[1] S.C. appeals the juvenile court’s adjudication of him as a delinquent on one
count of battery, as a Class B misdemeanor when committed by an adult, and
the court’s award of guardianship over him to the Department of Correction.
S.C. raises three issues for our review, which we revise and restate as follows:
1. Whether the juvenile court abused its discretion when it admitted
as evidence the victim’s show-up identification of S.C.
2. Whether the juvenile court violated S.C.’s due process rights when
it did not advise him of his of right to appeal the court’s
dispositional order.
3. Whether the juvenile court abused its discretion when it awarded
guardianship over him to the Department of Correction.
[2] We affirm.
Facts and Procedural History
[3] At approximately 9:30 p.m. on August 19, 2018, Timothy Oberley, Jr. was
walking from his house to a gas station to get some snacks. While walking,
Oberley observed four young black men, later identified as S.C., J.M, J.W., and
T.H., walking toward him. Oberley noticed that S.C. was wearing a dark red t-
shirt, that J.M. was wearing a blue “soccer style zip-up jacket,” and that J.W.
was wearing a tie-dyed shirt. Tr. Vol. II at 43. Oberley did not notice what
T.H. was wearing. As Oberley walked by the group, J.M. made a comment to
him. Oberley thought they were “just trying to start something,” so he ignored
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them and kept walking. Id. at 41. On his way home from the gas station,
Oberley again saw the same four people. As Oberley walked by the group the
second time, S.C. made a comment to him. Oberley again did not respond but
kept walking. Oberley then noticed that the four individuals were following
him.
[4] At one point, Oberley stopped walking, and he set his phone on the ground in
order to light a cigarette. J.M. then grabbed Oberley’s cell phone. Oberley
asked for his phone back, but the group walked away. Oberley followed them
down an alley. The individuals stopped walking, and Oberley again asked for
his phone back. J.M. held the phone out for Oberley to take. But “right when
[Oberley] went to grab it,” J.M. “socked [him] in the face and dropped [him] to
the ground.” Id. at 42. At that point, S.C. and J.W. “joined in” and started
hitting Oberley in the chest. Id. After Oberley heard one of the individuals
suggest searching his pockets, he stood up, “pushed [his] way out,” and made
his way back to the gas station. Id. at 43. Oberley then borrowed a phone to
call the police. The whole incident took “a minute or two.” Id. at 46
[5] Officer Alvin Davis with the Fort Wayne Police Department (“FWPD”)
received a dispatch from 9-1-1 shortly after 9:30 p.m. Dispatch advised officers
that there had been a report of a “strong armed robbery” and that the suspects
were four black males. Id. at 8. Dispatch further advised officers that one
suspect was in a red shirt, one was in a blue zip-up shirt, and one was in a tie-
dyed shirt. Approximately ten minutes after he had received the dispatch,
Officer Davis arrived at the scene, and he began to check the area for the
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suspects. Officer Davis observed four individuals “matching the exact clothing
descriptions” Oberley had given to the officers. Id. at 9. Officer Davis then
detained the four males and informed other officers in the area that he had
located possible suspects.
[6] Approximately twenty-three minutes after Oberley had called 9-1-1, FWPD
Officer Brock Hassenzahl transported Oberley to the suspects’ location in order
to conduct a show-up identification. After they had arrived, Officer Hassenzahl
parked his police car, illuminated his spotlight, and aimed it toward the
sidewalk near where Officer Davis was standing with S.C., J.M., J.W., and
T.H. Officer Hassenzhal then exited his vehicle, and Oberley remained inside.
At that point, Officer Davis walked the subjects one at a time, unrestrained, to
the illuminated portion of the sidewalk. After Officer Davis had walked each
subject into the spotlight, Officer Hassenzahl asked Oberley if he recognized the
individuals. Oberley was able to positively identify S.C., J.M, and J.W.
Oberley was “completely certain” that those three individuals had attacked
him. Id. at 53. However, even though “all signs pointed toward” the fourth
individual having been involved, Oberley “couldn’t identify him.” Id.
[7] On September 4, the State filed a petition alleging that S.C. was a delinquent.
In that report, the State asserted that S.C. had committed battery, as a Class B
misdemeanor when committed by an adult. On October 26, the juvenile court
held a hearing on the State’s petition. During the hearing, the court admitted
evidence of Oberley’s show-up identification of S.C. over S.C.’s objection. The
State also presented Oberley’s testimony as evidence. During his testimony,
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Oberley identified S.C. as one of the four individuals who had attacked him.
Oberley was “[o]ne hundred percent certain” about his identification of S.C.
Id. at 54. At the conclusion of the hearing, the juvenile court adjudicated S.C. a
delinquent.
[8] The court then held a dispositional hearing on November 28. Prior to the start
of the hearing, S.C. and his parents watched a video that informed S.C. of his
rights. After S.C. and his parents stated that they had no questions regarding
the video, the court proceeded with the hearing. At the beginning of the
hearing, the juvenile court admitted as evidence S.C.’s predispositional report, a
placement board staffing report, and a report from the Allen County Juvenile
Center (“ACJC”) where S.C. had been detained.
[9] The predispositional report outlined S.C.’s legal history, which includes eight
prior delinquency referrals. As a result of previous referrals, S.C. served a term
on probation in 2016, which term ended after S.C. had violated his
dispositional order. Additionally, S.C. was placed in the ACJC from January
12, through March 17, 2017, when he was released to an electronic monitoring
program. S.C. was in that program until June 7, when he absconded. Further,
S.C. was incarcerated in the Department of Correction from July 24 through
May 7, 2018. And S.C. was again placed in the ACJC from May 30 until July
24. The predispositional report also identified S.C. as having a high risk to
reoffend. The report recommended that guardianship over S.C. be awarded to
the Department of Correction so that he would have a “structured and
supervised environment.” Id. at 98.
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[10] The placement board staffing report indicated that S.C. had had his first
delinquency referral at the age of twelve, he has had past unsuccessful terms on
probation, he has problems with substance abuse, he is a “[d]anger to Self
and/or Community,” he continues to engage in risky or dangerous behaviors,
he is physically aggressive, and he was on parole at the time of the current
offense. Id. at 65. Based on those factors, a majority of the placement board
recommended that guardianship over S.C. be awarded to the Department of
Correction. Further, the ACJC report indicated that, between the dates of
September 24 and November 15, 2018, S.C. received three disciplinary reports,
including one for “riotous behavior.” Id. at 68.
[11] At the end of the hearing, the juvenile court stated:
The Court does find that [S.C.], who is sixteen years of age, is
before the Court on what is designated as case thirteen. This
does appear to be his ninth delinquency referral before the
Court. . . . So the Court does therefore find that [S.C.] does have
an extensive history of delinquent behavior before the Court. I’ll
note that formal probation supervision began for him in August
of 2016 and it looks like he has been the recipient of services
fairly consistently since that point in time, although it looks like
there’s some . . . brief stoppages here and there, most notably in
2017 with absconding from the probation supervision, and it
looks like that was for about a month and a half. I do find that
[S.C.] has been given opportunities to alter his behaviors. He has
been supervised at the formal level as well . . . , including the
Electronic Monitoring Program. As, and as already noted, he
does have a prior commitment to the Indiana Department of
Correction[]. This report is pretty clear that [S.C.] remains in
need of rehabilitation, does need to learn logical and natural
consequences of his delinquent behavior. . . . I do find that
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probation services have been exhausted. While I understand the
recommendation for the defense as to placement, statutorily
speaking, placement is not even on the table at this point. The
Psychological Test Report did not recommend, placement board
did not recommend, and as a result, I do not have discretion, as
I, I think the defense is aware, to simply order placement, unless
such placement is a private placement through the family. The
Department of Child Services will not pay for placement unless
it’s been recommended by a mental health professional. So that
is not an option. At this point, I don’t see that we have any other
options at this point in time.
Tr. Vol. IV at 17-18. Accordingly, the juvenile court found that “detention is
essential to protect the child and community” and awarded guardianship over
S.C. to the Department of Correction. Appellant’s App. Vol. II at 102. This
appeal ensued.
Discussion and Decision
Issue One: Show-Up Identification
[12] S.C. first contends that the trial court abused its discretion when it admitted
evidence of the show-up identification of him by Oberley. “[T]he admission of
evidence is within the sound discretion of the trial court, and we review the trial
court’s decision only for an abuse of that discretion.” Rasnick v. State, 2 N.E.3d
17, 23 (Ind. Ct. App. 2013). “The trial court abuses its discretion only if its
decision is clearly against the logic and effect of the facts and circumstances
before the court, or if the court misinterprets the law.” Id.
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[13] On appeal, S.C. asserts that the trial court abused its discretion when it
admitted evidence of the show-up identification because that identification was
unduly suggestive. Specifically, S.C. contends that the show-up identification
was unduly suggestive because “four young juveniles were one by one walked
in front of the complaining party via a spotlight,” and because the only
description of him Oberley had given to the officers was of “a young black man
wearing a reddish shirt.” Appellant’s Br. at 12, 14. And S.C. contends that the
admission of that evidence violated his rights under the Fourteenth
Amendment to the United States Constitution.
[14] This Court previously addressed a similar argument in N.W.W. v. State, 878
N.E.2d 506 (Ind. Ct. App. 2007), trans. denied. In that case, N.W.W. robbed a
female at gunpoint. The victim “got a good look at the face of the gunman[.]”
Id. at 507. The gunman then fled, and the victim called the police. The police
responded and located N.W.W. Id. at 508. The officers then brought the
victim to N.W.W.’s location, and she positively identified him as the gunman.
Id. Thereafter, the State filed a petition alleging that N.W.W. had committed
robbery, as a Class B felony if committed by an adult. Id. At a hearing, the
victim again “unequivocally identified N.W.W. as the person who had robbed
her.” Id. The trial court entered a true finding on the State’s robbery allegation.
[15] On appeal, N.W.W. “raised several arguments regarding the constitutionality
of the of show-up identification.” Id. at 509. However, this Court determined
that it “need not address” N.W.W.’s arguments regarding the show-up
identification because the victim had identified N.W.W. in open court as the
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person who had robbed her. This court noted that, “‘where a witness had an
opportunity to observe the perpetrator during the crime, a basis for in-court
identification exists, independent of the propriety of pre-trial identification.’”
Id. (quoting Adkins v. State, 703 N.E.2d 182, 185 (Ind. Ct. App. 1998)). Because
N.W.W. did not challenge the sufficiency of the basis for the victim’s
unequivocal in-court identification of him as the person who had robbed her,
we held that the evidence regarding the show-up identification was merely
cumulative of the in-court identification. Id. And the erroneous admission of
evidence that is merely cumulative of other evidence in the record is not
reversible error. Id.
[16] Here, we agree with the State that the trial court did not abuse its discretion
when it admitted evidence of the show-up identification because that
identification was not unduly suggestive. However, even if we assumed for the
sake of argument that the show-up identification was improper, S.C. still cannot
show that the court committed reversible error when it admitted that evidence.
Oberley was able to observe S.C. as one of the four individuals who had
attacked him in the alley. Then, at the fact-finding hearing on the State’s
petition, Oberley again identified S.C. as one of his attackers with “[o]ne
hundred percent” certainty. Tr. Vol. II at 54. But S.C. does not challenge the
sufficiency of the basis for Oberley’s in-court identification of him.
Accordingly, the show-up identification evidence was merely cumulative of
Oberley’s in-court identification of S.C. S.C. has therefore not shown that any
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error in the admission of the show-up identification was reversible error. See
N.W.W., 878 N.E.2d at 509.
Issue Two: Due Process
[17] S.C. next contends that the juvenile court violated his due process rights. As
our Supreme Court has stated, a “juvenile charged with delinquency is entitled
to have the court apply those common law jurisprudential principles which
experience and reason have shown are necessary to give the accused the essence
of a fair trial.” In re K.G., 808 N.E.2d 631, 635 (Ind. 2004). As a general rule,
the standard for determining what due process requires in a particular juvenile
proceeding is “fundamental fairness.” D.M. v. State, 108 N.E.3d 393, 395 (Ind.
Ct. App. 2018). On appeal, S.C. specifically asserts that the juvenile court
violated his due process rights when it did not advise him of his right to appeal
the court’s dispositional order.
[18] However, while S.C. contends that the juvenile court failed to advise him of his
right to appeal the dispositional order, S.C. has not presented any evidence to
support that assertion. The record demonstrates that, prior to the start of the
dispositional hearing, S.C. and his parents watched a video that advised S.C. of
his rights. But S.C. has not provided a copy or a transcript of that video on
appeal. Accordingly, we agree with the State that “it is possible that the video
contained an advisement of S.C.’s appellate rights.” Appellee’s Br. at 10. In
any event, even if the juvenile court did not advise S.C. of his right to appeal,
S.C. has not demonstrated that he suffered any harm due to the alleged error as
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he timely appealed the court’s dispositional order. Therefore, S.C. has not met
his burden on appeal to demonstrate any reversible error on this issue.
Issue Three: Guardianship over S.C.
[19] Finally, S.C. challenges the juvenile court’s order that he be placed in the
wardship of the Department of Correction. As the Indiana Supreme Court has
explained:
The specific disposition of a delinquent is within the juvenile
court’s discretion, to be guided by the following considerations:
the safety of the community, the best interests of the child, the
least restrictive alternative, family autonomy and life, freedom of
the child, and the freedom and participation of the parent,
guardian, or custodian. We reverse only for an abuse of
discretion, namely a decision that is clearly against the logic and
effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn
therefrom.
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (citations and quotation marks
omitted). S.C. asserts that the juvenile court abused its discretion when it
awarded guardianship over him to the Department of Correction because there
was a less restrictive option available, namely, a private facility. And S.C.
contends that the only reason the juvenile court did not place him in a private
facility was due to financial concerns, which he asserts “cannot be a means for
a finding that is not the least restrictive setting for the child.” Appellant’s Br. at
18.
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[20] But we cannot say that the juvenile court abused its discretion when it awarded
guardianship over S.C. to the Department of Correction. At only sixteen years
old, S.C. has already had many contacts with the juvenile court. Due to
previous referrals, S.C. has been placed on probation, on electronic monitoring,
in the ACJC, and in the Department of Correction. He has previously violated
the terms of his probation, and he has absconded from electronic monitoring.
But despite those previous attempts to correct his behavior, S.C. continues to
commit delinquent acts. Indeed, S.C. committed the instant offense only four
weeks after he had been released from the ACJC and while he was on parole for
a prior offense. In addition, the placement board recommended that S.C. be
placed in the Department of Correction because he is a danger to himself and
his community. And, while awaiting his dispositional hearing for the instant
offense at the ACJC, S.C. received several disciplinary referrals, including one
for riotous behavior. We also note that the predispositional report assessed S.C.
as having a high risk of reoffending. As such, we cannot say that the trial court
abused its discretion when it determined that less-restrictive options than
placement with the Department of Correction would not be successful.
[21] We acknowledge that one reason the juvenile court declined to place S.C. in a
private facility was due to the financial restrictions of both the State and S.C.
However, as discussed above, it is clear that that was not the only factor the
court considered. Rather, the juvenile court considered S.C.’s history of
delinquent behavior, the recommendation of the placement board, and the
ACJC report, all of which indicated that S.C. continues to engage in delinquent
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behavior despite previous attempts at probation, electronic monitoring, and a
commitment to the Department of Correction. Based on all of those factors,
the juvenile court concluded that the detention of S.C. “is essential to protect
the child or community and is in the child’s best interests.” Appellant’s. App.
Vol. II at 102. Accordingly, the trial court did not abuse its discretion when it
declined to place S.C. in a private facility and when it awarded guardianship
over S.C. to the Department of Correction.
Conclusion
[22] In sum, the trial court did not abuse its discretion when it admitted as evidence
the show-up identification of S.C. because that evidence was cumulative of
Oberley’s in-court identification of S.C. Further, S.C. has not met his burden
on appeal to demonstrate that the juvenile court violated S.C.’s right to due
process. And the juvenile court did not abuse its discretion when it awarded
guardianship over S.C. to the Department of Correction. Accordingly, we
affirm the juvenile court’s judgment.
[23] Affirmed.
Baker, J., and Robb, J., concur.
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