C.H. v. State
| Decision Date | 29 August 2014 |
| Docket Number | No. 49A02–1310–JV–904.,49A02–1310–JV–904. |
| Citation | 15 N.E.3d 1086 |
| Parties | C.H., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Deborah Markisohn, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
C.H. appeals his two adjudications as a delinquent child for having committed acts that, if committed by an adult, would constitute criminal trespass as a Class A misdemeanor, 1 and unlawful entry of a motor vehicle as a Class B misdemeanor.2 First, C.H. argues that the juvenile court should have excluded an officer's identification testimony from evidence pursuant to the fruit of the poisonous tree doctrine of the exclusionary rule. Additionally, C.H. argues that his two adjudications violated the actual evidence test of Indiana's Double Jeopardy Clause. Lastly, C.H. appeals the juvenile court's dispositional order requiring him to pay restitution.
First, because the officer had reasonable suspicion and his actions were reasonable under the totality of the circumstances, we conclude that C.H.'s federal and state constitutional rights were not violated and that the identification testimony was properly admitted into evidence. In regard to C.H.'s double jeopardy claim, we conclude there is a reasonable possibility that the State used the same evidence to support both adjudications, and we remand to the juvenile court to vacate C.H.'s adjudication with the less severe penal consequence. Lastly, because C.H. did not object to any aspect of restitution and invited any error that may have occurred with the restitution order, we will not review his restitution challenge.
We affirm in part, reverse in part, and remand.
On June 20, 2013, Felipa Xique–Juarez ("Felipa") was working from 3 p.m. to 9 p.m. That day, Felipa lost the keys to her white 1995 Honda Accord, and she did not give anyone else permission to drive her car. When Felipa finished work that evening, her car was gone, and she called the police to report that it had been stolen.
On June 21, 2013, Officer Havis Harris ("Officer Harris") was on duty working the third shift and patrolling for the stolen white Honda. Around midnight, Officer Harris observed a white Honda that matched the description of the stolen vehicle. After Officer Harris began to follow the white Honda, the vehicle turned into a Marathon gas station located on 4200 North Franklin Road. When Officer Harris began approaching the rear of the white Honda, she observed "three (3) to four (4) subjects bail[ ] out of the vehicle." ( Tr. 9 ). Additionally, Officer Harris observed the white Honda's driver walk to the rear of the building and saw the passengers run away from the gas station "initially north then east behind a yard." ( Tr. 9 ). Next, Officer Harris notified dispatch that she "had three (3) to four (4) black males take off running[,]" and she informed dispatch of the suspects' direction of travel. ( Tr. 9 ). Following Officer Harris' communication with dispatch, she examined the white Honda and "ran the VIN which came back as a stolen vehicle." ( Tr. 10 ).
Officer James Blythe ("Officer Blythe"), who was on patrol in a marked squad car "very close to the area[,]" heard Officer Harris' call regarding "three (3) subjects run[ing] from a vehicle from the 42nd Street/Franklin [R]oad area[.]" ( Tr. 38 ). Officer Blythe then "went to the first street east of that area which [was] Arbor Crest and tried to set up a perimeter." ( Tr. 38 ). "[W]ithin five (5) minutes" of Officer Harris' radio call, ( Tr. 45 ), Officer Blythe, who was parked in a driveway, "saw two (2) subjects walk behind [his] vehicle and[,] ... they was [sic] watching [him] watching them." ( Tr. 39 ). The two males matched the general description and direction of travel given by Officer Harris. Officer Blythe then "pulled out of the driveway and stopped them." ( Tr. 39 ). One of these individuals was fourteen-year-old C.H.
After Officer Blythe stopped C.H. and the other individual, Officer Blythe took their names and dates of birth and ran their information through the Juvenile Center "to see if they had anything outstanding[.]" ( Tr. 43 ). Officer Blythe then "waited for Officer Harris to come to the scene so she could identify" the two individuals as the suspects who "had ran [sic] from her, from the vehicle." ( Tr. 44 ).
Officer Harris then "went to Sergeant Blythe's location, which was "maybe a block over[.]" ( Tr. 10 ). Officer Harris "[o]bserved the subjects ... asked ... why they were out so late, how old they were." ( Tr. 17.) Officer Harris then went back to the Marathon gas station to view its surveillance video.
When Officer Harris watched Marathon's video footage, she saw four black males, three of whom ran from the vehicle and the driver who walked away. She also saw that "two (2) of the gentlemen that was [sic] in the video matched the description of the two (2) that Sergeant Blythe had stopped just a street over." ( Tr. 20 ). Specifically, she saw that one of the suspects was "wearing a black and white striped shirt with black shorts" and the "other was wearing a black zip up jacket[.]" ( Tr. 20 ).
While driving back to Officer Blythe's location, Officer Harris radioed ahead to tell him that "the video footage matched the description of the two (2) gentlemen there on the scene." ( Tr. 31 ). When Officer Harris arrived at the scene, she arrested C.H. and the other individual.
On June 28, 2013, the State filed a petition alleging that C.H. was a delinquent child for committing the following offenses that would be crimes if committed by an adult: Count 1, criminal trespass as a Class A misdemeanor; and Count 2, unlawful entry of motor vehicle as a Class B misdemeanor. At the time of these alleged offenses, C.H. had been on probation for one month for adjudications of Class A misdemeanor criminal trespass and Class C misdemeanor operating a vehicle without a license ("May 2013 Adjudications").3
On September 11, 2013, the juvenile court held a denial hearing. During Officer Harris' direct examination, C.H. objected to the officer's identification testimony. Additionally, C.H. argued that Officer Blythe violated his rights under the Fourth Amendment of the United States Constitution and Article One, Section Eleven of the Indiana Constitution by stopping him and that, as a result, the juvenile court should have excluded Officer Harris' identification testimony from evidence as fruit of the poisonous tree. Furthermore, during closing arguments, C.H. argued that the State's charges against him violated the actual evidence test of Indiana's Double Jeopardy Clause. The juvenile court entered a true finding on both allegations without acknowledging C.H.'s double jeopardy claim.
On October 4, 2013, the juvenile court held a disposition hearing. The probation department prepared a pre-dispositional report ("PDR") in preparation for the hearing. The PDR indicated that C.H. had not started his restitution work program from his prior probation order entered as part of his May 2013 Adjudications. In the PDR, the probation department recommended, in regard to this case, that C.H. be placed on a suspended commitment, pay restitution to Felipa, not have any contact with Felipa, and adhere to a parent-monitored 9 p.m. curfew. Additionally, the probation department recommended that C.H. be ordered to complete all prior probation orders, including paying Mary Coleman $500 restitution. During the disposition hearing, the State echoed the recommendations of the probation department and specified that the requested amount of restitution to Felipa was $500 "through the Restitution Work program." ( Tr. 55 ).4
In response, C.H.'s attorney stated, ( Tr. 55 – 56 ). C.H.'s attorney then challenged the recommendations for a suspended commitment and curfew. C.H. did not make any challenges to the recommendation to pay restitution or to the specific amount sought.
The juvenile court placed C.H. on a suspended commitment and, as conditions of probation, ordered C.H. to: not have any contact with Felipa; pay restitution of $500 to Felipa; participate in a Restitution Work program; and adhere to a 9:00 p.m. curfew. The juvenile court also ordered C.H. to complete all prior court orders from his May 2013 Adjudications, including paying Mary Coleman $500 restitution. C.H. now appeals. We will provide additional facts as necessary.
C.H. argues that the juvenile court abused its discretion by admitting Officer Harris' identification testimony into evidence. Specifically, C.H. contends that the police violated his rights under the Fourth Amendment of the United States Constitution5 and Article 1, Section 11 of the Indiana Constitution6 when the police conducted a Terry stop and that, as a result, the juvenile court should have excluded Officer Harris' testimony from evidence as fruit of the poisonous tree.
The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind.2012), reh'g denied. We afford these decisions great deference...
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...restitution order where Mitchell agreed to pay counseling expenses up to a certain dollar amount). See also C.H. v. State, 15 N.E.3d 1086, 1096–97 (Ind.Ct .App.2014) (following Mitchell and finding invited error despite defendant's fundamental error argument, while acknowledging the contrar......