AEB v. State
| Citation | 756 N.E.2d 536 |
| Decision Date | 03 October 2001 |
| Docket Number | No. 49A02-0105-JV-262.,49A02-0105-JV-262. |
| Parties | A.E.B., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner. |
| Court | Court of Appeals of Indiana |
Katherine A. Cornelius, Marion County Public Defenders Office, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A.E.B. challenges her adjudication of delinquency for Criminal Trespass as a Class D felony.1 A.E.B. contends that the juvenile court erred when it allowed the State to amend the charging information on the day of her hearing and the State failed to present sufficient evidence to establish that she committed criminal trespass. A.E.B. also contends that the juvenile court erred when it imposed a parental participation order without a petition being filed and when it imposed fees without conducting an indigency hearing.
We find that by failing to ask for a continuance after her objection was overruled, A.E.B. waived the issue concerning the State's amendment of the pleading. We also find that there is sufficient evidence to show that she committed criminal trespass. However, we find that the juvenile court did not have proper jurisdiction to issue a parental participation order without a petition first being filed. We also find that the court erred when it ordered A.E.B. to pay costs. Therefore, we affirm in part, reverse in part, and remand with instructions to hold an indigency hearing.
The facts most favorable to the judgment show that on October 23, 2000, A.E.B. received a suspension for five days from Indianapolis Public School (IPS) # 110, Julian Coleman Middle School, with a recommendation for expulsion. At the time A.E.B. received this October suspension, the school did not allow her to immediately leave the school premises. A.E.B. was 14 years old and lived two miles from Coleman Middle School. Because there is no mid-day bus service from the Coleman Middle School, the school does not allow a suspended student to leave the building until the end of the school day unless a parent is contacted to pick up the student. The school sent a notice regarding the suspension to her father, I.V. Brown.
While A.E.B.'s suspension only ran until November 1, Assistant Principal Claritha Tookes informed A.E.B. to stay out of school until she heard from the IPS's downtown office regarding her expulsion. When a student is recommended for expulsion, the proper paperwork is forwarded to IPS's downtown office. The downtown office then appoints a hearing officer within five days and the student is notified of the hearing time. Despite Tookes's instruction to stay out of the school until receiving notice from the downtown office, A.E.B. returned to Coleman Middle School after the conclusion of her five-day October suspension.
On November 17, 2000, A.E.B. was again suspended pending expulsion, and the school sent another notice to Brown. According to the November Notice of Suspension from School Attendance Pending Further Proceedings for Expulsion, A.E.B. Exhibits P.1. On November 28, Brown sent A.E.B. back to school.
Once at school, A.E.B. went to several classrooms and verbally insulted the teachers. Police Officer Averitte Sheroan, who was assigned to Coleman Middle School, confronted A.E.B., told her that she was not supposed to be in the school building, and escorted her to the school's office to determine if she was actually on suspension. A.E.B. became loud and refused to be quiet after Officer Sheroan asked her to stop. After conferring with the principal, Officer Sheroan told A.E.B. to leave the school building or she would be arrested for trespassing and disorderly conduct. A.E.B. refused to leave unless she was able to talk to her nephew who also attended the school. Officer Sheroan then arrested her and placed her in handcuffs. It was only after she was arrested that A.E.B. asked to call her father.
On January 3, 2001, the State filed a petition alleging that A.E.B. was a delinquent child for committing the acts of Criminal Trespass as a Class D felony if committed by an adult and Disorderly Conduct as a Class B misdemeanor if committed by an adult.2 The court held the fact-finding hearing on March 16, 2001. On the day of the hearing, the State amended the petition over A.E.B.'s objection to include Criminal Trespass that results from "refusing to leave after being told to do so." Tr. P.1-2. The court found A.E.B. to be a delinquent child for having committed both offenses. On April 16, 2001, the court issued a suspended commitment to the Department of Corrections, ordered A.E.B. to complete 40 hours of community service, ordered her to pay probation fees and a $50 public defender fee, and waived docket fees if A.E.B. received C's or above on her next report card. The court also issued a parental participation order for Brown. This appeal then ensued.
On appeal, A.E.B. raises four arguments. First, she argues that the juvenile court erred by allowing the State to amend the charging information on the day of her hearing. Next, she claims that State failed to present sufficient evidence to establish that she committed criminal trespass. A.E.B. also asserts that the juvenile court erred when it imposed a parental participation order without a petition being filed. Finally, A.E.B. argues that the court erred when it ordered her to pay costs without holding an indigency hearing. We address each argument in turn.
First, A.E.B. claims that the court erred by allowing the State to amend the delinquency petition on the day of hearing. The original language on the petition alleged that A.E.B. committed Criminal Trespass as a Class D felony when she "not having a contractual interest in the property did knowingly or intentionally enter the real property of IPS School # 110... after having been denied entry by school administrators." Appellant's App. P.10. On the day of A.E.B.'s hearing, the State amended, over A.E.B.'s objection, the petition to include criminal trespass that results from "refusing to leave after being told to do so." Appellant's App. P.10. A.E.B. alleges that this was a substantive amendment that changed the defenses that may have been available to her.
We find that A.E.B. has waived this issue for appeal. While A.E.B. objected to the amendment at the time the State proposed it, she did not ask for a continuance after the amendment was granted. Once a defendant's objection has been overruled, she should request a continuance. Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind.1996). Failure to request a continuance after objecting to an amendment to the charges, results in waiver of that issue for appeal. Id. A.E.B. had the opportunity to request a continuance after she objected to the amendment and chose not to pursue that course. Therefore, A.E.B. has waived this issue for appeal.
A.E.B. challenges the sufficiency of the evidence supporting her adjudication of delinquency for an act which, had it been committed by an adult, would have constituted Criminal Trespass as a Class D felony. Specifically, A.E.B. alleges there was insufficient evidence to prove that she did not have a contractual interest in the property because she was a student at the school. A.E.B. also alleges that she lacked the requisite criminal intent because she was unable to leave the school after she was asked to leave the school property. When the State seeks to have a juvenile adjudicated to be delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt. Al-Saud v. State, 658 N.E.2d 907, 908 (Ind.1995). Upon review, we apply the same sufficiency standard used in criminal cases. Id. at 909. When reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. D.R. v. State, 729 N.E.2d 597, 599 (Ind.Ct.App.2000). Instead we look only to the evidence of probative value and the reasonable inferences that support the determination. Id.
A person commits Criminal Trespass when (1) not having a contractual interest in the property, (2) she knowingly and intentionally refuses to leave the real property of another person, (3) after having been asked to leave by the other person or that person's agent. Ind.Code § 35-43-2-2(a)(2); Woods v. State, 703 N.E.2d 1115, 1117 (Ind.Ct.App.1998). The offense is a Class D felony if it is committed on school property. I.C. § 35-43-2-2(a).
A.E.B. insists that she could not have committed criminal trespass because as a student at Coleman Middle School she had a contractual interest in the property. We have held that a "contractual interest" as it is used in the criminal trespass statute, refers to the right to be present on another's property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing. See Woods, 703 N.E.2d at 1117
. A.E.B. maintains that the education clause found in Article 8, Section 1 of the Indiana Constitution,3 coupled with Indiana's compulsory school attendance law4 provides her with a contractual interest in the school property. Even assuming that A.E.B.'s claim is correct, we find that A.E.B. violated whatever contract existed when she interfered with the educational activities at Coleman Middle School to the point where she committed the crime of disorderly conduct.
According to Officer Sheroan's testimony, before A.E.B. was asked to leave the school building, she was going from classroom to classroom, disrupting the...
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