J.S. v. State

• Decision Date: 21 March 2006
• Docket Number: No. 49A02-0506-JV-478.,49A02-0506-JV-478.
• Citation: 843 N.E.2d 1013
• Parties: J.S., Appellant-Respondent, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

843 N.E.2d 1013

J.S., Appellant-Respondent, v. STATE of Indiana, Appellee.

No. 49A02-0506-JV-478.

Court of Appeals of Indiana.

March 21, 2006.

Katherine A. Cornelius, Marion County Public Defender Agency, Appellate Division, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, J.S., was adjudicated a delinquent child for committing Resisting Law Enforcement as a Class A misdemeanor¹ if committed by an adult, and Disorderly Conduct as a Class B misdemeanor² if committed by an adult. Following a dispositional hearing, the juvenile court placed J.S. on probation and entered a parental participation order. Upon appeal, J.S. claims that there was insufficient evidence to support her adjudication for either resisting law enforcement or disorderly conduct, and that the court erred in ordering a parental participation order.

We affirm in part and reverse in part.

On November 10, 2004, Officer Antonio Hairston was stationed as a school police officer at Northwest High School when he observed J.S.,³ who was in a crowded hallway, grabbing a boy's hair and "smacking him with an open hand" three times across his face. Tr. at 11. Officer Hairston testified that he "assume[ed] that it could have been a fight" and intervened by grabbing J.S. by the upper arm and attempting to separate her from the students in the hall. Tr. at 11. According to Officer Hairston, J.S. tried to "pull[] away" and "jerk[] away" from him, telling him to get away from her, to get his hands off of her, and not to touch her. Tr. at 11. Officer Hairston testified that after his efforts to remove J.S. from the hallway failed, he attempted to place J.S. under arrest and put her in handcuffs. This, too, was made difficult by J.S.'s continuing efforts to pull away from Officer Hairston. According to Officer Hairston, at one point, J.S. positioned herself and her hands next to a recessed bathroom doorway in the hall such that he needed the assistance of Officer April Swhear to handcuff her. J.S. sustained an abrasion to her upper left shoulder area in the incident.

Officer Swhear testified that when she came upon the scene she observed Officer Hairston struggling to handcuff J.S. and that J.S. was "flailing her arms," "squirming her body," and "making it impossible for him to hold her hands." Tr. at 20. According to Officer Swhear, J.S.'s arms were "swinging in any direction." Tr. at 21. Officer Swhear assisted Officer Hairston by placing J.S.'s arm behind her back.

J.S. testified that she did grab a boy by his hair and hit him in the face, but that she was doing this in a playful manner as a response to his hitting her on her bottom moments before. J.S. testified that she tried multiple times to tell Officer Hairston that the two of them were "just playing," not fighting, but that Officer Hairston would not listen to her. Tr. at 41.

Cynthia Crayton, a classmate of J.S.'s who witnessed the incident, testified that J.S. was hit on her bottom by a boy before she hit him back. Crayton also testified that J.S. "yank[ed]" herself from Officer Hairston as he grabbed her arm and was trying to get ahold of her. Tr. at 26.

Daneesha George, also a classmate of J.S.'s, testified that she too observed a boy "grab[]" J.S.'s bottom, prompting J.S. to hit him, all of which George testified was "playing." Tr. at 29. George testified that J.S., who was saying, "[W]e was just playing," pulled away from Officer Hairston, but did not "yank away," in an attempt to free her arm. Tr. at 30. According to George, Officer Hairston "slammed" J.S. up against the wall and placed her in handcuffs. Tr. at 30.

On November 12, 2004, the State charged J.S. with resisting law enforcement and disorderly conduct. At the close of the February 23, 2005 denial hearing, the court adjudicated J.S. delinquent based upon resisting law enforcement and disorderly conduct if committed by an adult. On March 17, 2005, Probation Officer Shannon Shinn filed a petition seeking parental participation of J.S.'s mother, Doris Gilbert. Following an April 6, 2005 dispositional hearing, the court released J.S. under the supervision of the probation department,⁴ provided for several conditions of probation, and entered a parental participation order.

Upon appeal, J.S. argues the evidence was insufficient to establish either disorderly conduct or resisting law enforcement. In making this argument, J.S. claims that the officer's mistaken belief about J.S.'s flirtatious behavior is not evidence of fighting to support an adjudication for disorderly conduct, and that J.S. did not use the strong, powerful or violent means to evade a law enforcement official necessary to support the resisting law enforcement adjudication.

When the State seeks to have a juvenile adjudicated to be a delinquent for committing an act which would be a crime if committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. J.R.T. v. State, 783 N.E.2d 300, 302 (Ind.Ct.App. 2003), trans. denied. Upon review of a juvenile adjudication, this court will consider only the evidence and reasonable inferences supporting the judgment. Id. We will neither reweigh the evidence nor judge witness credibility. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt, we will affirm the adjudication. Id.

Indiana Code § 35-45-1-3 provides, in pertinent part, that "[a] person who recklessly, knowingly, or intentionally. . . engages in fighting or in tumultuous conduct . . . commits disorderly conduct." J.S.'s charge for disorderly conduct specified that she was "fighting at school." Appendix at 8. A "fight," which is not statutorily defined, is described as a "[h]ostile encounter; either physical or verbal in nature." BLACK'S LAW DICTIONARY 565 (5th ed.1979). In entering a true finding based upon the crime of disorderly conduct, the trial court found, "[T]he only issue is whether or not what the respondent did . . . to [the boy] constitutes fighting or not. [I]n her testimony she hit him two or three times [which in] this court[']s opinion [is] fighting." Tr. at 47.

We are not convinced that the evidence demonstrates beyond a reasonable doubt that J.S. was "fighting" and thus committed disorderly conduct. The court appeared to find that the mere act of hitting constitutes "fighting" per se, negating the requisite element of hostility necessary for the finding of "fighting." There was scant evidence in the record that J.S.'s actions were hostile. The only evidence presented by the State tending to establish this element was Officer Hairston's testimony that he "assume[ed] that it could have been a fight." Tr. at 11. We do not believe that an officer's assumption about an individual's actions, without more, establishes her motivations beyond a reasonable doubt. Certainly there are numerous situations, such as the one argued in this case, in which the acts of hitting and hair pulling are very plausibly not acts of hostility.

Further, there was a great deal of evidence in the record that J.S.'s actions were, in fact, not hostile. J.S. and both of her witnesses, Crayton and George, testified that J.S. and the boy were "playing," and that her actions were in response to the boy's hitting her on the bottom. Tr. at 25, 29, 42. No evidence besides Officer Hairston's assumption to the contrary contradicted their accounts. Given the lack of evidence from the hearing to establish that J.S. was acting with hostility toward the boy,⁵ and was therefore "fighting" with him as charged, we conclude there was insufficient evidence to support the disorderly conduct adjudication.⁶

J.S. further argues that there was insufficient evidence to support her adjudication based upon resisting law enforcement. In arguing that there was insufficient evidence of resisting law enforcement, J.S. claims that resistance to an officer's conduct must be forceful under Indiana law and that J.S.'s conduct did not rise to this level of resistance. Appellant's Brief at 12-13. Under Indiana Code § 35-44-3-3, a person commits the crime of resisting law enforcement if she knowingly or intentionally "forcibly resists, obstructs, or interferes with a law enforcement officer" who is engaged in the execution of his duties.

Evidence at trial included Officer Hairston's testimony that J.S. "pulled" and "jerked" away from him; Officer Swhear's testimony that J.S. was "flailing her arms," "squirming her body," and "making it impossible for [Officer Hairston] to hold her hands"; Crayton's testimony that J.S. "yanked away" from Officer Hairston; and George's testimony that J.S. "pulled away" from Officer Hairston. Tr. at 11, 20, 25, 30. We have previously interpreted Indiana Code § 35-44-3-3 as not requiring the application of an "overly strict definition of `forcibly resist.'" Johnson v. State, 833 N.E.2d 516, 519 (Ind.Ct.App.2005) (affirming a conviction for resisting law enforcement where defendant turned and pushed away from arresting officers and "`stiffened up'" when they attempted to place him into a transport vehicle). Given the evidence that J.S. flailed her arms, pulled, jerked, and yanked away from Officer Hairston, we conclude there was sufficient evidence to uphold J.S.'s adjudication based upon the crime of resisting law enforcement.⁷ See id.

J.S. further claims upon appeal that the trial court erred in entering a parental participation order. The State argues that most of the statutory requirements for such an order were met but concedes that "it does not appear from the record that the parents were ever advised of their right to contest or dispute an order making them financially responsible for certain costs." Appellees's Brief at 8 n. 1. The State further concedes that such a failure has previously been...