K.F. v. State
| Decision Date | 20 January 2012 |
| Docket Number | No. 49A02–1103–JV–290.,49A02–1103–JV–290. |
| Parties | K.F., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Joel M. Schumm, Indiana University–Appellate Clinic, Robert H. McKinney School of Law, Emily A. Shrock, Certified Legal Intern, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
K.F. appeals her adjudication as a delinquent child for having committed acts that, if committed by an adult, would constitute burglary as a class B felony; 1 theft as a class D felony; 2 and carrying a handgun without a license, a class A misdemeanor.3
We affirm in part, reverse in part, and remand.
1. Whether sufficient evidence supports K.F.'s true findings for burglary, theft, and carrying a handgun without a license.
2. Whether the juvenile court abused its discretion by admitting certain testimony into evidence.
K.F. lived in a house in Marion County with her mother, Erica Lewis (“Mother”), her mother's fiancé, James Delashmit, and her three siblings, who were ages twelve, nine, and seven (“Mother's other children”). On December 1, 2010, thirteen-year-old K.F. ran away from Mother's home. Thereafter, Mother changed the locks to the house and the code for the keypad entry to the garage, and K.F. and Mother's other children did not know the new code to the garage keypad. Mother, however, did not change the code for the alarm system, and K.F. knew the code to the alarm system. Mother also bagged up some of K.F.'s clothes and shoes and put the bag in the garage.
On December 11, 2010, Mother and Delashmit, who both worked a late shift, 5 left the house to go to work and took Mother's other children to a babysitter. When Mother and Delashmit returned to the house early the next morning, they saw that the door to the house had been forced open; the deadbolt was still locked and there was damage to the door frame and jam. Mother also noticed that the garage keypad cover was open but the garage door was still closed. Once in the house, Mother and Delashmit saw that the Christmas tree had been knocked down and the house—with the exception of K.F.'s bedroom that she shared with her sisters—had been ransacked. As they walked around the house, they realized that the following items had been stolen: multiple televisions, including one that had been mounted to the wall; video game systems; computers; DVD players; jewelry; Christmas gifts; four guns; ammunition; hunting knives; and the bag of K.F.'s clothes that was in the garage. Mother checked the caller ID function on her telephone and saw that she had received two phone calls from K.F.'s friend, William, during the time that she and Delashmit were at work. Mother also pressed the redial button and saw that someone had called that same friend's phone number from Mother's phone. Later that day, an investigating police officer, Officer Justin Johnson, went to William's house and found the bag of K.F.'s clothes, which he returned to Mother. The other items taken from Mother's house were never recovered.
On December 27, 2010, the police found K.F. and took her to the police station, where she met in a room alone with Mother before she spoke to police. While in that room with Mother, K.F. admitted to Mother that she went to Mother's house on the day of the burglary to get some of her things but stated that when she arrived at the house, “the door was open” but “nothing [had been] stolen at that time[.]” (Tr. 31).
On December 29, 2010, the State filed a petition alleging that K.F. was a delinquent child for committing the following offenses that would be crimes if committed by an adult: Count 1, burglary as class B felony; Count 2, conspiracy to commit burglary as a class B felony; Count 3, theft as a class D felony; Count 4, carrying a handgun without a license, a class A misdemeanor; and Count 5, dangerous possession of a firearm, a class A misdemeanor.
The juvenile court held a denial hearing on January 24, 2011. During Officer Johnson's direct examination, he recounted what Mother had told him about the burglary and the items missing from the house, and K.F.'s counsel objected based on hearsay. The juvenile court overruled the objection, stating that “it's not hearsay if the declarant [Mother] is available to be cross examined or testify.” (Tr. 5).
Thereafter, during Mother's direct examination, when she started to testify about what K.F. had told her while they were in the room at the police station, K.F. objected to the admission of K.F.'s statement to Mother on the basis that the State had failed to prove that it had met the requirements of Indiana Code section 31–32–5–1, the juvenile waiver statute. The juvenile court overruled K.F.'s objection.
Following the State's presentation of evidence, K.F. moved to dismiss all charges pursuant Indiana Trial Rule 41(B). The State conceded that it “d [id]n't have a whole lot of evidence” for Count 2, the conspiracy to commit burglary allegation, and the juvenile court granted K.F.'s motion to dismiss Count 2. (Tr. 33). The juvenile court then entered true findings on Count 1, 3, and 4, and “[o]n the Court's own motion,” it “close[d] out” Count 5. (Tr. 38). At the disposition hearing, the juvenile court placed K.F. on probation and ordered that she be placed in the care and custody of her grandmother. Additional facts will be provided as necessary.
K.F. argues that the evidence was insufficient to support her true findings for burglary, theft, and carrying a handgun without a license.
When the State seeks to have a juvenile adjudicated as a delinquent child for committing an act which would be a crime if a committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. In reviewing a juvenile adjudication, this court will consider only the evidence and reasonable inferences supporting the judgment and will neither reweigh evidence nor judge the credibility of the witnesses. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude that the juvenile was guilty beyond a reasonable doubt, we will affirm the adjudication.
E.D. v. State, 905 N.E.2d 505, 506–07 (Ind.Ct.App.2009) (internal citations omitted). “Circumstantial evidence is no different than other evidence for this purpose, and standing alone may sufficiently support a conviction.” R.L.H. v. State, 738 N.E.2d 312, 315 (Ind.Ct.App.2000).
K.F. first challenges the sufficiency of the evidence to support her true finding for burglary. The burglary statute, Indiana Code section 35–43–2–1, provides that “[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary[.]” The offense is a class B felony if the building or structure is a dwelling. I.C. § 35–43–2–1. Thus, to support a true finding for burglary as alleged, the State was required to establish that K.F. broke and entered the dwelling of Mother and Delashmit, with intent to commit the felony of theft therein.
K.F. does not directly contest her involvement in the burglary. Instead, she challenges the “of another person” element and argues that the evidence was not sufficient to support her burglary true finding because she cannot burglarize or break and enter her own home. K.F. suggests that the issue “appears to be an issue of first impression in Indiana” and cites to numerous out-of-state cases in support of her argument that the evidence was not sufficient to support a true finding for burglary. K.F.'s Br. at 5.
The “of another person” element contained in the burglary statute has previously been discussed and analyzed by our court. We have explained that “the [b]urglary statute's requirement that the dwelling be that ‘of another person’ is satisfied if the evidence demonstrates that the entry was unauthorized.” Jewell v. State, 672 N.E.2d 417, 426 (Ind.Ct.App.1996) (citing Ellyson v. State, 603 N.E.2d 1369, 1373 (Ind.Ct.App.1992)), trans. denied. “Property is that ‘of another person’ if the other person has a possessory or proprietary interest in it, even if an accused person also has an interest in that property.” Ind.Code § 35–41–1–23. Thus, for purposes of the burglary statute, the “of another person” element is satisfied “if the evidence demonstrates the entry was unauthorized, even if the accused may have had a right to possession of the house co-equal with [another] at the time of the breaking.” Fuller v. State, 875 N.E.2d 326, 332 (Ind.Ct.App.2007) (citing Ellyson, 603 N.E.2d at 1373), trans. denied, superseded by statute on other grounds.
For example, in Fuller, we upheld a burglary conviction where a husband broke and entered the house, which he had previously shared with his estranged wife, while she was in the house. The evidence showed that at the time of the burglary, the husband had not lived in the house for several weeks, no longer had a key that worked, and smashed the glass portion of the door to gain entry into the house. We stated that we had “little hesitation in concluding that [husband's] entry into the house ... was unauthorized.” Fuller, 875 N.E.2d at 333.
Here, the State presented sufficient evidence to show that K.F.'s entry into Mother's home was unauthorized. K.F. ran away from Mother's home on December 1, 2010, and did not keep in contact with Mother. Thereafter, Mother changed the lock on the door, changed the code to the keypad entry on the garage, and packed up K.F.'s clothes and put them in a bag in the garage. Thus, at the time of the burglary on December 11, K.F. had not lived in the house for several weeks, and she no longer had any means of authorized access into the house. Indeed, the evidence reveals that the garage keypad cover was open but the garage door still closed...
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