JRT v. State

• Decision Date: 11 February 2003
• Docket Number: No. 49A02-0206-JV-438.,49A02-0206-JV-438.
• Citation: 783 N.E.2d 300
• Parties: J.R.T., II, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

783 N.E.2d 300

J.R.T., II, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-0206-JV-438.

Court of Appeals of Indiana.

February 11, 2003.

Janice E. Smith, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

J.R.T., II, ("J.R.T."), a juvenile, appeals the trial court's finding that he committed one count of Criminal Mischief, a Class D felony if committed by an adult,¹ one count of Criminal Mischief, a Class A misdemeanor if committed by an adult,² and four counts of Criminal Mischief, each Class B misdemeanors if committed by an adult.³ Upon appeal, J.R.T. presents two issues for our review, whether the evidence was sufficient to support the trial court's adjudication, and whether the trial court erred in refusing to admit into evidence the results of a polygraph examination.

We affirm.

The facts most favorable to the trial court's adjudication indicate that on or about July 30, 2001, J.R.T., along with two other juveniles, B.B. and C.K., drove around random neighborhoods shooting out car windows with a BB gun. J.R.T. was arrested on September 10, 2001, and charged with eleven counts of criminal mischief, crimes of varying degrees if committed by an adult, for shooting out windows on eleven separate vehicles. At an initial hearing on September 18, 2001, J.R.T. denied the allegations. A denial hearing as to the eleven counts of criminal mischief was held on November 26, 2001. At the conclusion of the State's presentation of evidence, J.R.T. moved for counts 2, 4, 9, 10, and 11 to be dismissed for lack of evidence as to damages. The trial court found that the State had not met its burden as to those counts and entered not true findings thereon. J.R.T. also moved for count 3 to be dismissed asserting that the State failed to prove the correct date on which the damage occurred. The trial court denied J.R.T.'s motion to dismiss count 3.

In an order issued by the trial court on January 30, 2002, the court set forth its findings of fact and conclusions of law. The trial court made true findings as to counts 1, 3, 5, 6, 7, and 8, and acknowledged that counts 2, 4, 9, 10, and 11 had been dismissed for lack of sufficient evidence. Following a dispositional hearing on February 25, 2002, the trial court placed J.R.T. on suspended commitment to the Department of Correction and placed him on probation. At a subsequent hearing on April 29, 2002, the trial court ordered J.R.T. to pay restitution in the sum of $1,005, representing the damages established as to five of the cars.

Upon appeal, J.R.T. argues that there was insufficient evidence to support the trial court's adjudication. Specifically, J.R.T. asserts that the trial court failed to base its findings upon the evidence presented at trial and that the determination that he was delinquent was not based upon proof beyond a reasonable doubt.⁴

When the State seeks to have a juvenile adjudicated to be a delinquent for committing an act which would be a crime if committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. Ind.Code § 31-37-14-1 (Burns Code Ed. Repl.1997). See also R.L.H. v. State, 738 N.E.2d 312, 315 (Ind. Ct.App.2000)

. Upon review of a juvenile adjudication, this court will consider only the evidence and reasonable inferences supporting the judgment. Moran v. State, 622 N.E.2d 157, 158 (Ind.1993). We will neither reweigh the evidence nor judge witness credibility. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt, we will affirm the adjudication. Id. To support a true finding that J.R.T. had committed the numerous acts which would constitute criminal mischief if committed by an adult, the State was required to prove that J.R.T.(1) recklessly, knowingly, or intentionally; (2) damaged or defaced the property of another person; (3) without that person's consent. See I.C. § 35-43-1-2(a)(1).

J.R.T. first argues that he was not involved in the July 30 incident and directs our attention to the numerous witnesses who testified in support of his alibi defense. J.R.T. also asserts that many of the trial court's findings are related to a July 27, 2001 incident ("the first incident"), to which J.R.T. admitted, and thus argues that those findings do not support the trial court's adjudication as to the acts of criminal mischief which occurred on July 30 ("the second incident").⁵ As the trial court's findings in this regard are supported by the record, these arguments amount to mere requests for this court to credit J.R.T.'s alibi defense. This would require us to reweigh the evidence and judge the credibility of witnesses, which we will not do.

While we recognize that J.R.T. presented evidence tending to support his alibi defense, the trial court was under no obligation to credit it. See Williams v. State, 714 N.E.2d 671, 673 (Ind.Ct.App.1999)

(trier of fact is entitled to determine which version of the incident to credit). Here, B.B. testified that on July 30 he and C.K. picked J.R.T. up at his house and that, at the direction of C.K., they drove around certain neighborhoods and J.R.T. and C.K. shot out car windows. B.B. further testified that the BB gun which they used to shoot out the car windows was purchased several days earlier, i.e. during the first incident to which J.R.T admits being involved. The State presented sufficient evidence that on or about July 30, 2001, J.R.T., along with two other juveniles, recklessly, knowingly, or intentionally, damaged property of others without their consent by shooting out car windows with a BB gun.

J.R.T. also argues that the State failed to prove "the nexus" between the victims and the alleged perpetrators. We disagree. Here, the State established that the three juveniles drove through random neighborhoods during the early morning hours on or about July 30, 2001 and, using a BB gun which they had purchased a few days earlier, shot out car windows without the car owners' consent. The State also presented evidence from the victims, who each testified that their car windows were shot out during the early morning hours on or about July 30, 2001. While no one witnessed the three juveniles during their mischievous rampage on or about July 30, 2001, a reasonable inference may be drawn from the evidence presented at trial that J.R.T., along with the two other juveniles, used a BB gun to shoot out the car windows of those victims who testified.

In a separate sufficiency argument, J.R.T. asserts that the trial court erred in failing to grant his motion to dismiss count 3. J.R.T. asserts that the charging information alleged that the damage to a 1999 GMC van which served as the basis for count 3 occurred on or about July 30, and that the State's evidence at trial established that the damage to the van occurred on July 3.

Here, count 3 of the charging instrument alleged that the act of criminal mischief occurred "[o]n or about the 30th day of July, 2001." Appendix at 27. At the denial hearing, Mike King, a representative of the victim Edwards Electrical & Mechanical, Incorporated, testified as follows:

"Q: Ok. And in your capacity with Edward's Electrical & Mechanical Incorporated, do you ever have company vehicles at your residence?

A: Yes we do.

Q: Ok. I wanna ask you about some damage that was done on July 3rd, 2001. Was one of the company vehicles damaged on that day?

A: Yes it was." Transcript at 20.

Mr. King then proceeded, testifying about the damage to the vehicle.

Generally, a variance between the date alleged and the State's proof at trial does not mandate acquittal or reversal. R.L.H., 738 N.E.2d at 317. Further, it has been held that time is not an essential element of the crime of criminal mischief. Id. Where time is not "of the essence of the offense" the State is not required to prove the precise date alleged in the information, but need only prove that the crime occurred at any time within the statutory period of limitations. Id. Thus, notwithstanding the discrepancy in the dates,⁶ the trial court did not err by denying J.R.T.'s motion to dismiss.

J.R.T. presents one other sufficiency argument which warrants discussion. As to count 1, the trial court entered a true finding as to criminal mischief, as a Class D felony if committed by an adult, because the damage to the vehicle exceeded $2,500. See I.C. § 35-43-1-2(a)(1)(B) (The offense of criminal mischief is elevated to a Class D felony if "the pecuniary loss is at least two thousand five hundred dollars ($2,500)."). At the denial hearing, the testimony of the victim established that the estimated cost of repairing the damage to a 1989 Ford Probe was $4,275.17. Upon cross-examination, the victim was questioned as to the value of the car and answered that she did not know. No other evidence as to the value of the car was submitted into evidence. The trial court accepted the testimony as to the estimated cost of repairing the car and therefore entered a true finding as to count 1, criminal mischief as a Class D felony.

At a subsequent hearing concerning the amount of restitution J.R.T. was required to pay to the victims, J.R.T. and the State agreed that the value of the 1989 Ford Probe was $2,135. The trial court accepted this amount for purposes of restitution and ordered that J.R.T. pay one-third of this amount, or $711, as restitution to the victim.

Here, for purposes of restitution, the parties and the court accepted the value of the car to be less than $2,500. In hindsight, it appears that if the act of criminal mischief had been committed by an adult, the offense could not have been elevated to a Class D felony as the pecuniary loss did not exceed $2,500. Nevertheless, "[a] child commits a delinquent act if, before becoming...