J.L., Matter of

• Decision Date: 02 September 1992
• Docket Number: No. 71A04-9203-JV-92,71A04-9203-JV-92
• Citation: 599 N.E.2d 208
• Parties: In the Matter of J.L., a Child Alleged to be a Delinquent Child. J.L., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 208

599 N.E.2d 208

In the Matter of J.L., a Child Alleged to be a Delinquent Child.

J.L., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.

No. 71A04-9203-JV-92.

Court of Appeals of Indiana,

Fourth District.

Sept. 2, 1992.

Transfer Denied Dec. 17, 1992.

Louis L. Hegyi, South Bend, for appellant-respondent.

Linley E. Pearson, Atty. Gen. of Indiana and Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee-petitioner.

CONOVER, Judge.

J.L., age 13, appeals a trial court judgment finding him delinquent because he would have been guilty of possession of cocaine, a class D felony, and dealing in cocaine, a class B felony, if tried as an adult. IND. CODE 35-48-4-6; IC 35-48-4-1(a); and IC 35-41-2-4.

We reverse.

J.L. presents two issues for our review:

1. whether the trial court erred in admitting testimony of the informant's statement; and

2. whether the trial court erred in entering an order on both possession of cocaine and dealing in cocaine convictions.

The St. Joseph County Police Department Narcotics Division was involved in an undercover investigation near a South Bend apartment complex. On October 4, 1991, at 1:30 p.m., Officer Gerald Woltman and a confidential informant parked in an unmarked police car on a nearby street. The informant told Officer Woltman he thought he could purchase crack cocaine from the two males seated in the blue car twenty feet in front of them. Officer Robert Hammer and several other officers were conducting surveillance from another car located approximately fifty to seventy-five feet up the street.

Officer Woltman searched the informant to ensure he possessed no weapons or contraband and gave him five twenty dollar bills with recorded serial numbers in order to make the purchase. The confidential informant walked to the driver's side of the blue car, spoke, and returned approximately a minute later with five individual packets of cocaine.

Once the informant was back in Officer Woltman's car, the blue car drove off. Officer Hammer and the other officers in the surveillance car followed it. A mile and a half away from the scene, they stopped the car. After the officers removed the driver and passenger from the car, they found $615 in cash, including the five marked twenty dollar bills, under the driver's seat. Also under the driver's seat, they discovered nineteen individually wrapped packages of cocaine concealed in the false bottom of a Coca Cola can. The officers later identified the driver of the car as Noel Stewart and the passenger as J.L.

Subsequently, the prosecuting attorney filed a delinquency petition with the probate court charging J.L. with possession of cocaine and dealing in cocaine. At a November 12, 1991, hearing, the trial court found the charges true and adjudged J.L. a delinquent. The court ordered J.L., age thirteen, detained at the Parkview Juvenile Center. J.L. appeals.

J.L. contends the trial court committed reversible error by admitting the testimony of Officer Woltman concerning statements by the confidential informant, who was not in court. ¹ At trial, Officer Woltman testified the informant said he exchanged the $100 with the driver. Then the passenger, after opening a Coca Cola can with a false bottom located on his side of the car, handed the driver five packets of crack cocaine. J.L. objected to the statements as hearsay. The State offered no grounds to bring the proffered hearsay within an exception to the hearsay rule. J.L. claims he was prejudiced because the hearsay statements of the informant were introduced to prove the matter asserted and without that testimony the State failed to present evidence to establish he handled cocaine or facilitated its sale.

IC 31-6-7-1(a) specifically provides in cases where a child is alleged to be a delinquent child, the procedures governing criminal trials apply if not covered by the juvenile code. The State must prove the commission of a delinquent act beyond a reasonable doubt. IC 31-6-7-13.

In delinquency proceedings, the child has the right to confront and cross-examine witnesses. IC 31-6-3-1. Hearsay is an out-of-court statement offered to prove the truth of the facts asserted therein and rests on the credibility of a declarant who is not in court and is unavailable for cross-examination. Miller v. State (1991), Ind., 575 N.E.2d 272, 274. Unless proffered hearsay evidence falls within one of the exceptions to the hearsay rule, it is inadmissible as evidence. Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865, 869. The admission of hearsay which impairs or prejudices the substantial rights of the accused constitutes reversible error. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759, 761.

The State concedes the informant's statements were inadmissible to prove J.L. handled the can and passed it to Stewart. However, it argues it was not reversible error because substantial evidence was presented to prove J.L.'s guilt beyond a reasonable doubt. In the alternative, the State argues the statements were not hearsay because they could have been considered to explain the course of the police officers' investigation. It cites Johnston v. State (1988), Ind., 530 N.E.2d 1179, for the proposition such out-of-court statements are not hearsay.

The State also asserts that generally in a proceeding tried to the bench we presume its decision rests solely on the basis of relevant and probative evidence. Coleman v. State (1990), Ind., 558 N.E.2d 1059, 1062, reh. denied, cert. denied (1991), --- U.S. ----, 111 S.Ct. 2912, 115 L.Ed.2d 1075. Furthermore, harm from evidentiary error is lessened if not completely annulled when the trial is before the court sitting without a jury. Roop v. State (1991), Ind.App., 571 N.E.2d 568, 570, reh. denied, trans. denied.

After reviewing the record, we find the evidence had no bearing on the officers' course of action. Presuming the trial court did not improperly consider the testimony for the truth of the matter, we turn to the record to determine whether without the informant's statement other evidence established the crimes of possession and dealing cocaine upon which the delinquency judgment rests.

In this review we are not permitted to reweigh the evidence or judge the credibility of the witnesses. We consider only that evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Humphries v. State (1991), Ind.App., 568 N.E.2d 1033, 1035. Substantive evidence of probative value, such as is necessary to support a conviction, has qualities of directness and freedom from uncertainty. Short v. State (1991), Ind.App., 564 N.E.2d 553, 557. Evidence which only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Id.

In the charging information, the State charged J.L. as an accomplice for aiding, inducing or causing an offense pursuant to IC 35-41-2-4. An accomplice is equally as guilty as the principal. In order to be guilty as an accessory, one must intend by his own actions to cause or facilitate the commission of the crime by the principal offender. Fortson v. State (1979), 270 Ind. 289, 385 N.E.2d 429, 432, reh. denied. However, it is not necessary for a defendant to have committed every element of a crime personally to be convicted as accomplice. Jones v. State (1989), Ind., 536 N.E.2d 267, 270, reh. denied.

Mere presence at the scene of the crime, with nothing more, is insufficient to sustain a conviction for participation in the crime. Other circumstances tending to show participation in the crime besides the accused's presence at the scene are needed to sustain a conviction. Menefee v. State (1987), Ind., 514 N.E.2d 1057, 1059. Such circumstances may include a defendant's failure to oppose the crime, his companionship with others engaged in the crime, and the defendant's course of conduct before, during and after the crime. Greenlee v. State (1985), Ind.App., 477 N.E.2d 917, 920.

The State is required to prove J.L. knowingly or intentionally assisted, aided, or caused the crime of possession of cocaine. IC 35-48-4-6; IC 35-41-2-4. A conviction for possession of cocaine may rest upon either actual possession or constructive possession if the defendant does not have physical possession of the cocaine. Frierson v. State (1991), Ind.App., 572 N.E.2d 536, 538, trans. denied. Possession need not be exclusive and the substance can be possessed jointly by a person and another without a showing that the person had actual physical control. Corrao v. State (1972), 154 Ind.App. 525, 290 N.E.2d 484, 487.

A defendant's mere presence where drugs are located or his association with persons who possess drugs is not alone sufficient to support a finding of constructive possession. Lewis v. State (1985), Ind.App., 482 N.E.2d...