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
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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.
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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.
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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.
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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
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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:
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(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
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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
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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
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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
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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.
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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.
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