FILED
Nov 30 2017, 8:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Houdek Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.J., November 30, 2017
Appellant-Respondent, Court of Appeals Case No.
49A05-1704-JV-673
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn Moores,
Appellee-Petitioner. Judge
The Honorable Gary Chavers,
Magistrate
Trial Court Cause No.
49D09-1701-JD-6
Robb, Judge.
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Case Summary and Issues
[1] The juvenile court adjudicated D.J. a delinquent child for committing two
counts of armed robbery and two counts of criminal confinement, all Level 3
felonies if committed by an adult. D.J. appeals his adjudication, raising two
issues for our review: 1) whether his convictions for armed robbery and
criminal confinement violate Indiana’s constitutional prohibition against double
jeopardy; and 2) whether the State presented sufficient evidence to support
D.J.’s adjudication as a delinquent child. We conclude there is sufficient
evidence to support the juvenile court’s true findings D.J. committed armed
robbery. We further conclude the juvenile court’s true findings of criminal
confinement violate the Double Jeopardy Clause of the Indiana Constitution.
Accordingly, we affirm D.J.’s adjudication as a delinquent for armed robbery
but reverse D.J.’s criminal confinement adjudications and remand to the
juvenile court with instructions to vacate the true findings of criminal
confinement.
Facts and Procedural History
[2] On January 1, 2017, twelve-year-old R.R. and his family visited his
grandmother at her apartment in Speedway, Indiana. Instead of playing cards
with the adults, R.R., his twelve-year-old cousin D.M., and two friends
(“Children”) played outside for a while. Eventually, the Children resorted to
loitering in the stairwell of the apartment building playing games on their cell
phones.
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[3] As the Children played on their phones in the stairwell, two juveniles, one of
whom was later identified as D.J., entered through the front door of the
apartment building. A few seconds later, two other juveniles entered through
the back door of the apartment building. One of the juveniles who entered
through the back door instructed D.J. to check upstairs to see if anyone was
around. D.J. followed his orders and informed him there was no one upstairs.
That juvenile then told the Children, “I need your money [and] your phones
. . . .” Transcript, Volume II at 14. R.R. responded he could not give him the
phone because it belonged to his father, at which point the juvenile pulled out a
gun and placed it on R.R.’s chest. R.R. complied and gave him the cell phone.
He also pointed the gun at D.M.’s head and chest and took his phone. The four
juveniles then fled from the apartment building.
[4] The Children immediately ran upstairs to tell their parents what had happened.
R.R.’s father went to search for the juveniles and encountered D.J. and the
three other juveniles at a gas station a short distance away. When the police
arrived, they detained D.J., determined he was unarmed, and released him.
Shortly thereafter, R.R. and D.M. arrived and identified D.J., who was then
placed under arrest.
[5] The State filed a delinquency petition alleging D.J. committed two counts of
armed robbery and two counts of criminal confinement, all Level 3 felonies if
committed by an adult. At the fact-finding hearing, D.J. testified and
acknowledged he was present during the robbery but denied taking part in it.
He testified he was visiting his female cousin who lived in the apartment
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complex and had been walking to McDonald’s when his cousin’s boyfriend
asked him to come with him into the stairwell. He further testified he did not
know the two juveniles who committed the robbery. The juvenile court found
the allegations to be true and adjudicated D.J. a delinquent child. D.J. now
appeals.
Discussion and Decision
I. Double Jeopardy
[6] D.J. first argues the juvenile court’s true findings of armed robbery and criminal
confinement violate Indiana’s constitutional prohibition against double
jeopardy. The State responds alleging double jeopardy does not apply to
multiple true findings in delinquency proceedings because there is only a single
delinquency adjudication.1
[7] The argument offered by the State has been previously addressed by this court
in D.B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006) and H.M. v. State, 892
N.E.2d 679, 680 (Ind. Ct. App. 2008), trans. denied. In D.B., a juvenile was
charged with rape and child molesting for a single act of nonconsensual
intercourse and the juvenile court made true findings on both charges. On
appeal, this court vacated the juvenile court’s true finding of child molesting,
1
The State otherwise concedes that, if double jeopardy applies to delinquency adjudications, the juvenile
court’s multiple true findings constitute double jeopardy.
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holding true findings for both rape and child molesting from a single act of
nonconsensual intercourse violated the prohibition against double jeopardy.
D.B., 842 N.E.2d at 404.
[8] In H.M., this court again addressed the question posed by the State: whether
double jeopardy principles apply to juvenile delinquency proceedings where
multiple true findings result in a single delinquency adjudication. H.M., 892
N.E.2d at 680. There, H.M. committed battery upon the victim and attempted
to steal her necklace. The juvenile court entered true findings for both battery
and attempted theft. H.M. appealed, arguing the multiple true findings violated
Indiana’s prohibition against double jeopardy.
[9] On appeal, the State argued “there [could] be no double jeopardy violation . . .
because ‘the double jeopardy prohibition against multiple punishments in the
same case do[es] not apply to juvenile delinquency proceedings in which there
is only one finding of delinquency and one disposition.’” Id. at 681. We
disagreed with the State’s position and noted that multiple true findings may be
used by a trial court to enhance penal consequences in subsequent criminal
proceedings. Given the significance of a defendant’s criminal history, we held
“double jeopardy principles attach where a juvenile faces multiple charges
under a single adjudication.” Id. at 682. Therefore, double jeopardy principles
apply to this proceeding and we decline the State’s invitation to revisit D.B. and
H.M.
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[10] As to D.J.’s argument concerning the juvenile court’s true findings for criminal
confinement and armed robbery, the State concedes, and we agree, the true
findings are in violation of Indiana’s constitutional prohibition against double
jeopardy. The analysis of double jeopardy claims under the Indiana
Constitution is governed by Richardson v. State, 717 N.E.2d 32 (Ind. 1999), in
which our supreme court described two tests, the statutory elements test and the
actual evidence test. Wieland v. State, 736 N.E.2d 1198, 1204 (Ind. 2000). Two
offenses are the “same offense” in violation of Article 1, Section 14 of our
constitution if, “with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged
offense.” Id. (quoting Richardson, 717 N.E.2d 32) (emphasis omitted). D.J.
confines his argument to the actual evidence test.
[11] Under the actual evidence test, the evidence presented at trial is examined to
determine whether each challenged offense was established by separate and
distinct facts. Vanzandt v. State, 731 N.E.2d 450, 455 (Ind. Ct. App. 2002), trans.
denied. To show that two challenged offenses constitute the same offense under
the actual evidence test, a defendant must show a reasonable possibility that the
evidentiary facts used by the fact finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a second
challenged offense. Wieland, 736 N.E.2d at 1204. In determining the facts used
by the fact-finder to establish the elements of each offense, it is appropriate to
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consider the charging information, jury instructions, and arguments of counsel.
Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008).
[12] In Vanzandt v. State, we determined that the defendant’s robbery and criminal
confinement convictions violated the prohibition against double jeopardy. The
evidence in Vanzandt revealed that the defendant, while armed with a gun,
ordered the victims to lie on the floor while the defendant took money from a
cash register and then fled in one victim’s car. 731 N.E.2d at 455. We
concluded that compelling the victims to lie on the floor was not separate and
apart from the force used to effectuate the robbery. Id. Because the defendant
demonstrated there was a reasonable possibility that the jury used the same
evidentiary facts to establish criminal confinement of the victim as it did the
robbery of that same victim, we held that conviction for both violated the
Indiana Double Jeopardy Clause and, therefore, vacated the conviction for
criminal confinement. Id. at 456.
[13] Here, the evidence reveals the Children were playing games on their cell phones
in the stairwell. While they were playing, four juveniles, including D.J.,
entered the apartment building from both entrances. D.J. checked upstairs to
see if anyone was around. One of the four juveniles then pulled out a gun and
robbed both R.R. and D.M. Following the robbery, the juveniles fled the
apartment building. Based on this evidence, we conclude there is a reasonable
possibility the juvenile court used the same evidentiary facts to convict D.J. of
armed robbery and criminal confinement. See Polk v. State, 783 N.E.2d 1253,
1259 (Ind. Ct. App. 2003) (finding that the defendant’s robbery and criminal
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confinement convictions violated the prohibition against double jeopardy
because only one confrontation occurred which resulted in the taking of the
victim’s property, and the confinement was not greater than that necessary to
accomplish the robbery), trans. denied.2
[14] A reviewing court may remedy a double jeopardy violation “by reducing either
conviction to a less serious form of the same offense if doing so will eliminate
the violation. If it will not, one of the convictions must be vacated.”
Richardson, 717 N.E.2d at 54 (citation omitted). The reviewing court will make
this determination itself, “being mindful of the penal consequences that the trial
court found appropriate.” Id. Because the confinement here was not greater
than necessary to effectuate the armed robbery, there is no less serious form to
reduce the offenses to. As to which finding should be vacated to remedy the
violation, we note the juvenile court committed D.J. to the Indiana Department
of Correction. Indiana Code section 31-37-19-9(b) permits the juvenile court to
order wardship of a delinquent who has committed armed robbery to the
Department of Correction. Therefore, we permit the juvenile court’s
disposition to stand and reverse D.J.’s two adjudications for criminal
confinement.
2
We note R.R. and D.M. both testified there were two other friends with them in the stairwell. The
confinement of the other two children could have supported the two true findings of criminal confinement.
However, the charging information specifically lists R.R. and D.M. as the victims of both the armed robbery
and criminal confinement charges, and R.R. and D.M. were the only victims to testify at the bench trial. See
Appellant’s Appendix at 20-21. Consequently, we accept the State’s concession the true findings violate the
prohibition against double jeopardy.
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II. Sufficiency of the Evidence
[15] D.J. also argues the State failed to present sufficient evidence that he acted as
an accomplice. Our standard of review for sufficiency of the evidence claims is
well settled:
When the sufficiency of the evidence to support a conviction is
challenged, we neither reweigh the evidence nor judge the
credibility of the witnesses, and we affirm if there is substantial
evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. It is the job of the
fact-finder to determine whether the evidence in a particular case
sufficiently proves each element of an offense, and we consider
conflicting evidence most favorably to the trial court’s ruling.
Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005) (internal citations and
quotation omitted).
[16] D.J. was convicted of armed robbery and criminal confinement pursuant to a
theory of accomplice liability. Indiana’s accomplice liability statute provides
that a “person who knowingly or intentionally aids, induces, or causes another
person to commit an offense commits that offense . . . .” Ind. Code § 35-41-2-4.
Moreover, in determining whether a person aided another in the commission of
a crime, our supreme court has considered the following four factors: (1)
presence at the scene of the crime; (2) companionship with another engaged in
criminal activity; (3) failure to oppose the crime; and (4) a defendant’s conduct
before, during, and after the occurrence of the crime. Garland v. State, 788
N.E.2d 425, 431 (Ind. 2003).
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[17] Here, the State presented evidence D.J. was present during the commission of
the crime with the three other juveniles and that D.J. did not oppose the crime,
but willingly participated in it. When ordered to do so, D.J. acted as a scout to
check if anyone was around. The other juvenile then pointed a weapon at R.R.
and D.M. and stole their phones. The juveniles fled together. The police
officer who later detained D.J. found him walking with the three other juveniles
a short distance from the scene of the crime. This is sufficient evidence to find
D.J. acted as an accomplice. D.J.’s argument that we now credit his testimony
that he was apparently deceived into walking with the juveniles or that he was
in the wrong place at the wrong time is a request to reassess witness credibility,
which we cannot do. Wright, 828 N.E.2d at 905-06.
Conclusion
[18] The State presented sufficient evidence to support the juvenile court’s
adjudication of D.J. as a delinquent child for committing armed robbery.
However, D.J.’s adjudication as a delinquent child for committing criminal
confinement violates the state constitutional prohibition against double
jeopardy. Accordingly, we affirm the juvenile court’s true findings for armed
robbery, reverse the juvenile court’s true findings for criminal confinement, and
remand to the juvenile court to vacate the true findings of criminal
confinement.
[19] Affirmed in part, reversed in part, and remanded.
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Riley, J., and Pyle, J., concur.
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D.J. v. State of Indiana
Combined Opinion