Collins v. State
| Decision Date | 26 June 1989 |
| Docket Number | No. 85A02-8803-JV-00128,85A02-8803-JV-00128 |
| Citation | 540 N.E.2d 85 |
| Parties | Kristain L. COLLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Alan J. Zimmerman, Wabash, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Kristain L. Collins, not having attained the age of eighteen, was adjudicated a delinquent child, for committing a curfew violation, possession of alcohol, and theft. He appeals.
We affirm.
Collins asserts that jurisdiction did not vest in the juvenile court because preliminary inquiry was not completed prior to the prosecutor's "request for authority to file petition alleging delinquency" and because Collins and his parents were not specifically advised that the preliminary inquiry was being made to assist the prosecutor. Record at 1.
The facts pertinent to the first allegation of jurisdictional error are as follows: On August 5, 1987, the prosecutor filed an affidavit of probable cause with respect to the three allegations of misconduct. Thereafter, but on the same date, he filed a request for authority to file a petition alleging delinquency along with another affidavit of probable cause. The advisement which Collins and his parents signed the following day stated that a preliminary inquiry was being conducted. On August 7, 1989, the court found probable cause and "authorized" the filing of the petition alleging delinquency. Record at 4.
To acquire jurisdiction over the child, the juvenile court must follow several procedural steps according to I.C. 31-6-4-7 (Burns Code Ed. Repl.1987). After receiving information concerning a delinquent act, the prosecutor instructs the intake officer to make a preliminary inquiry to determine if the interests of the public or the child require further action. I.C. 31-6-4-7(a). When the intake officer makes this determination, he sends a written copy of his inquiry report to the prosecutor. I.C. 31-6-4-7(e). The inquiry consists of
Next, the prosecutor or other person representing the State decides whether to file a petition alleging delinquency. After examining the preliminary inquiry and considering probable cause, the court may approve the filing of the petition. I.C. 31-6-4-9 (Burns Code Ed. Repl. 1987). Then, summons is issued for the child and his parents, guardian, custodian or guardian ad litem pursuant to I.C. 31-6-7-4 (Burns Code Ed. Repl. 1987). Strict compliance with these steps is required--"noncompliance with the procedural prerequisites precludes the assumption of jurisdiction over a juvenile." Taylor v. State (1982) Ind., 438 N.E.2d 275, 277, cert. denied (1982) 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998.
To determine whether the preliminary inquiry requirements were met in this case, we must look to cases discussing the prior but nearly identical statute. 1
Ingram v. State (1974) 1st Dist., 160 Ind.App. 188, 310 N.E.2d 903, held insufficient an inquiry where the juvenile court relied upon an affidavit, signed by a law enforcement officer, which specified the factual basis for and the circumstances surrounding the offense. Evidence concerning a juvenile's prior juvenile record, home situation, and schooling is "precisely what the statute requires." Seay v. State (1975) 167 Ind.App. 22, 337 N.E.2d 489, 498, reh. denied (1976) 167 Ind.App. 22, 340 N.E.2d 369. More recent cases also under the prior statute distinguish proceedings concerning delinquent children from those concerning dependent or neglected children. Murphy v. State (1980) 1st Dist. Ind.App., 408 N.E.2d 1311, 1314, held that the "extent or direction of the investigation would necessarily vary with the circumstances particular to each case." Where affidavits were presented and the court took judicial notice of its own record of prior thefts, no preliminary inquiry was necessary. The court reasoned:
"Further social history as might be necessary and desirable in cases of delinquency arising out of sociological problems, cases dealing with runaways, truancy, illegal consumption, promiscuity and the like, would add nothing to the decisional process in a case such as this where the protection of the public from a very dangerous juvenile is the gist of the action."
Murphy, supra, 408 N.E.2d at 1314. Harris v. State (1980) 3d Dist. Ind.App., 398 N.E.2d 1346, 1347, also distinguished between cases involving serious criminal acts and those involving status offenses:
In the present case, the court had before it two affidavits of probable cause prior to approving the petition alleging delinquency. Thus, the prosecutor had informally investigated the facts and circumstances surrounding the alleged theft prior to filing the petition. Arguably, the distinctions between cases concerning delinquent and dependent or neglected children made in Murphy, supra, 408 N.E.2d 1311, and in Harris, supra, 398 N.E.2d 1346, no longer exist because the present statute concerns only delinquent children yet provides for a preliminary inquiry. 2 Nevertheless, we agree with the reasoning applied in Murphy, supra, and Harris, supra. Further social history where the child has committed an adult crime is unnecessary and not required by the statute defining preliminary inquiry. Only "[w]henever practicable" should such information be included. I.C. 31-6-4-7(b).
The second error argued with respect to jurisdiction concerns the following advisement:
"The Probation Department is conducting a preliminary inquiry to assist in determining whether a petition should be filed alleging that said child is a delinquent child." Record at 10.
Because the prosecutor is not the only person who may determine whether to file a petition alleging delinquency, the advisement which was given was not an incorrect statement of the law.
Collins' final argument is that the evidence of theft was insufficient. Indiana Code 35-43-4-2 (Burns Code Ed. Repl. 1985) defines theft as knowingly and intentionally exerting unauthorized control over property of another person with intent to deprive the other person of any part of its value or use. When adjudicating the delinquency of a child who has committed an act such as theft which, but for the child's age, would constitute a crime, the act must be proven beyond a reasonable doubt. Warner v. State (1970) 254 Ind. 209, 258 N.E.2d 860.
Upon review of the evidence, we will neither reweigh...
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