Gast v. State

• Decision Date: 26 April 1977
• Docket Number: No. 3--1275A293,3--1275A293
• Citation: 361 N.E.2d 934,173 Ind.App. 1
• Parties: Jeffrey GAST, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 934

361 N.E.2d 934

173 Ind.App. 1

Jeffrey GAST, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--1275A293.

Court of Appeals of Indiana, Third District.

April 26, 1977.

Rehearing Denied June 2, 1977.

Hawk P. C. Kautz, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

GARRARD, Judge.

A delinquency petition was filed against seventeen year old Jeffrey Allen Gast. On the same day a petition to waive juvenile jurisdiction was filed. Hearing was held pursuant to the version of IC 1971, 31--5--7--14 existing prior to the 1975 amendments. Waiver was ordered, and Gast appeals challenging the sufficiency of the findings and the evidence to support them. We reverse.

At the hearing the state established that there was prosecutive merit for the alleged act of delinquency, delivery of a controlled substance. However, neither prosecutive merit nor appellant's age are sufficient to support a waiver without more. Atkins v. State (1972), 259 Ind. 596, 290 N.E.2d 441.

The evidence introduced disclosed that Gast had unlawfully delivered .02 gr. of phencyclidine, a controlled substance, to an undercover policeman. Viewed from the point of view favoring the state, the balance of the evidence disclosed the following about Gast. He had no history of trouble with either police or school authorities. He was successfully attending high school and was employed by Sears after school in a job he had held for some 14 months. The probation officer and his parents believed he could be adequately dealt with in the juvenile system. While there was general testimony to the effect that drug abuse was a problem in Porter County, there was no evidence of Gast's participation other than the incident in question. ¹ There was no evidence as to the nature of and effects of phencyclidine, except that it was referred to as an animal tranquilizer. There was no evidence regarding Gast's motivations for his action. The evidence disclosed that the police officer had gone to a residence suspected by police of being used in connection with controlled substances. Gast appeared at the residence about 9:15 p.m. and the transfer which formed the basis of the charge ensued. There was no evidence as to whether Gast had been to that residence before.

At the conclusion of the hearing, the court entered the following finding and granted waiver:

'The Court after hearing the testimony finds that it has jurisdiction over the juvenile and the matter before it. The Court also finds that because of the seriousness of the alleged activity, the Juvenile could not be dealt with adequately through the juvenile system. Further the Court finds that the matter before it has prosecutive merit, and, all facts considered, the general welfare of society requires that the State's request for waiver of this Court's jurisdiction be granted.'

We find in this case that neither the findings nor the evidence are sufficient to overcome the statutory presumption favoring disposition within the juvenile system. See, Atkins, supra.

There was no evidence of any repetitive pattern in Gast's conduct either in terms of prior offenses or other demonstrations of an antisocial attitude. Nor was there any evidence amplifying the serousness of the particular offense beyond that indicating he was willing to transfer for five dollars .02 gr. of a controlled...