ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sarah L. Nagy Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
K.C. Norwalk
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
J.M.
Respondent-Appellant, )
)
v. ) 49S02-9809-JV-489
)
STATE OF INDIANA, )
Petitioner-Appellee. )
________________________________________________
APPEAL FROM MARION SUPERIOR COURT, JUVENILE DIV.
The Honorable James W. Payne, Judge
Cause No. 49D09-9704-JD-1587
_________________________________________________
On Petition To Transfer
March 31, 2000
DICKSON, Justice
Respondent-Appellant J.M. appeals from his adjudication as a
delinquent child for committing theft,[1] a class D felony if committed by
an adult, and criminal trespass,[2] a class A misdemeanor if committed by
an adult. The Court of Appeals found the evidence sufficient to support
the trial court’s determination that J.M. committed theft and criminal
trespass but reversed, believing that the juvenile court’s rights
advisement was not adequately shown by the record. J.M. v. State, 691
N.E.2d 1331 (Ind. Ct. App. 1998). We granted the State’s petition to
transfer.
J.M. contends that the trial court should be reversed because he was
not properly advised of his rights as required by statute. At both the
time of the incidents for which the juvenile was charged as a delinquent
and the time of the hearing in his case, the Indiana Code required:
The juvenile court shall inform the child and his parent, guardian, or
custodian, if that person is present, of:
(1) the nature of the allegations against the child;
(2) the child’s right to:
(A) be represented by counsel;
(B) have a speedy trial;
(C) confront witnesses against him;
(D) cross-examine witnesses against him;
(E) obtain witnesses or tangible evidence by compulsory
process;
(F) introduce evidence on his own behalf;
(G) refrain from testifying against himself; and
(H) have the state prove that he committed the delinquent
act charged beyond a reasonable doubt;
(3) the possibility of waiver to a court having criminal
jurisdiction; and
(4) the dispositional alternatives available to the juvenile
court if the child is adjudicated a delinquent child.
Ind. Code § 31-6-4-13(e) (Supp. 1996).[3]
At the initial hearing, the trial court noted the filing of the
advisement of rights to the child and the advisement of rights to parents.
The record contains the trial court’s written “Advisement of Rights” signed
by J.M.’s mother. After advising J.M. of the alleged delinquent acts, the
trial court ascertained “that the child understands the nature of the
allegations” and then stated:
The court further having advised the child and his parents of the
child’s constitutional and statutory rights now finds that such rights
are understood. The court further ascertains that the child and
parents understand the dispositions available to the Court and
obligations of the parent if the matters alleged are found true.
Record at 16. Noting that the child advised the court that he desired the
assistance of an attorney, the trial court appointed counsel. At the
ensuing evidentiary hearing, J.M.’s attorney cross-examined witnesses,
subpoenaed witnesses, and presented witness testimony.
J.M. has not established that the trial court failed to provide the
statutory advisement or that he suffered any prejudice from any alleged
advisement failure. Reversal of the trial court is not warranted on this
issue.
The Court of Appeals rejected J.M.’s contention that the evidence was
insufficient to prove either theft or criminal trespass. We agree and
summarily affirm the Court of Appeals on this issue. Ind. Appellate Rule
11(B)(3).
J.M. contends that he was erroneously found to have committed criminal
trespass as a lesser included offense of burglary. The State’s petition
alleging delinquency charged that J.M. committed burglary, a class B felony
when committed by an adult, and theft, a class D felony when committed by
an adult. Following the evidentiary hearing, the judge's magistrate found
that J.M. committed only criminal trespass, a class A misdemeanor when
committed by an adult, and theft, a class D felony when committed by an
adult. The State then petitioned the trial judge to review and revise the
magistrate’s decision and to find that J.M. committed class B felony
residential burglary, as charged, instead of finding a lesser included
offense of criminal trespass. The trial judge reviewed and denied the
State’s request, expressly approving and ordering the magistrate's
recommendations. J.M. contends that his adjudication as a delinquent must
be reversed as a matter of law because criminal trespass is not a lesser
included offense of burglary as charged in this case.
The State’s burglary allegation charged that “said child did knowingly
or intentionally break and enter the building or structure of Marvin Parks,
which building or structure was a residence, located at [address], with the
intent to commit a felony there, that is: theft.” Record at 12. A person
commits criminal trespass when he (1) knowingly or intentionally enters the
dwelling of another, (2) without the other person’s consent, (3) not having
a contractual interest in the property. Ind. Code § 35-43-2-2(a)(5). J.M.
argues that the burglary charge does not allege the lack of the owner’s
consent or the lack of J.M.’s contractual interest. The State concedes
that it did not specifically allege that respondent committed the entry
“without consent,” but urges that a person who “breaks and enters the
dwelling of another with the intent to commit a felony does so without
consent.” Brief of Appellee at 7.
A fact-finder may find the commission of a lesser included offense if
the lesser offense is inherently or factually included in the charged
greater offense. See Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995).
The State and J.M. agree that criminal trespass is not inherently included
in the offense of burglary, but J.M. argues that it is not factually
included because its elements are not alleged in the charging instrument.
We find that by charging that J.M. did knowingly or intentionally
“break and enter” the residence of another person, the State sufficiently
alleged facts constituting criminal trespass to support the finding of the
magistrate and the judgment of the trial court.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-43-4-2 (1993).
[2] Ind. Code § 35-43-2-2 (Supp. 1996).
[3] Indiana Code section 31-6 was subsequently repealed. P.L.1-1997,
§ 157. On July 1, 1997, new code sections defining a juvenile=s rights in
a juvenile court proceeding became effective. Ind. Code § 31-32.