Shepard v. State, No. 1178S274

Docket NºNo. 1178S274
Citation273 Ind. 295, 404 N.E.2d 1
Case DateMay 07, 1980
CourtSupreme Court of Indiana

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404 N.E.2d 1
273 Ind. 295
Richard SHEPARD, Appellant,
v.
STATE of Indiana, Appellee.
No. 1178S274.
Supreme Court of Indiana.
May 7, 1980.

[273 Ind. 296]

Page 2

Dennis R. Majewski, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga and Richard Albert Alford, Deputy Attys. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

By way of explanation of references that will be made to the record in this opinion, we note that we are considering two consolidated appeals of Richard Shepard based on the same offenses, but involving different issues. Appellant Shepard was under eighteen years of age at the time of these offenses and was first charged in the juvenile court division of the Vigo Circuit Court with having committed acts which would be criminal if committed by an adult, to-wit: rape, robbery and burglary. The Honorable Arnold H. Brames presided over [273 Ind. 297] the juvenile court at that time. Judge Brames waived appellant from juvenile court to stand trial as an adult in Vigo Circuit Court. Shepard appealed this ruling to the Court of Appeals in Cause No. 1-1078 A 35. In the meantime, appellant was tried to a jury in the Vigo Circuit Court before the Honorable Hugh D. McQuillan. He was found guilty of rape, Ind.Code § 35-42-4-1 (Burns 1979 Repl.), for which he was sentenced to thirty years, and robbery, § 35-42-5-1, for which he was given a term of ten years. He then prosecuted an appeal to this Court from these two convictions. These two appeals were subsequently consolidated in this Court under Cause No. 1178 S 274, and we shall consider the issues raised in both cases.

On the evening of February 25, 1978, W. K. was in the kitchen of her home, near the back door, doing some general household chores. Her husband, E. K., was in another part of the home. The back door, which was locked at the time, was suddenly broken and forced open. Two youths, brandishing pistols, faced Mrs. K. After Mr. K. was summoned to the kitchen, the two youths tied the couple's hands and robbed them of money and personal items. One of the participants, Brian Martin, took Mr. K. upstairs, leaving Mrs. K. and appellant downstairs. Appellant Shepard then raped Mrs. K.

On his appeal from the waiver from the juvenile court, appellant claims: (1) that the findings and judgment of the juvenile court effectively shifted the burden of

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proof from the State to the defendant; and (2) that the juvenile court's waiver of jurisdiction over appellant was not supported by sufficient evidence. We will first consider these issues, because an improper waiver of jurisdiction by the juvenile court would void any subsequent adult criminal action. See, e. g. Blythe v. State, (1978) Ind., 373 N.E.2d 1098.

I.

As part of the final order waiving Shepard from juvenile jurisdiction, the trial court made fifteen findings. Number fifteen stated "that there has been no evidence to show that it would be in the best interests of said minor child to remain within the statutory juvenile system." Record of Juvenile Proceedings at 69. It is appellant's contention that this finding by the juvenile court indicated [273 Ind. 298] that he had shifted the burden of proof to appellant to show that it would be in his best interest to remain within the juvenile system. He interprets the law to favor disposition in the juvenile setting. He also asserts there is a presumption that it is in the best interest of the child to remain within the juvenile system, with the burden upon the State to overcome this presumption. See, e. g., Gregory v. State, (1979) Ind., 386 N.E.2d 675; Atkins v. State, (1972) 259 Ind. 596, 290 N.E.2d 441; Gast v. State, (1977) Ind.App., 361 N.E.2d 934. While we agree with appellant's interpretation of the law, we do not agree with his conclusion as to the effect of the juvenile court's order in this case.

The juvenile waiver statute, Ind.Code § 31-5-7-14 (Burns 1979 Supp.), provides that the juvenile judge may waive jurisdiction over a child over fourteen years of age if the court finds:

"(T)hat there is probable cause to believe that the case has specific prosecutive merit, that the child is beyond rehabilitation under the regular statutory juvenile system, that it is in the best interest of public welfare and security he stand trial as an adult, and that the act charged is either:

(1) Heinous or of an aggravated character (greater weight being given to offenses against the person than to offenses against property); or

(2) Part of a repetitive pattern of acts, even though less serious in nature."

The juvenile referee here found that appellant Shepard was fifteen years of age, that the case had prosecutive merit, and that the crimes charged were crimes against persons. Facts were presented which indicated appellant had committed acts which would constitute rape and robbery if committed by an adult. In finding number thirteen, the court found that the crimes charged were of an aggravated nature, and further that the crimes were indicative of a repetitive pattern of offenses, as shown by the previous social history entered into evidence. In finding number fourteen, the court stated:

"The court further finds that said minor child is beyond the scope of rehabilitation within the regular statutory juvenile system and that the Vigo Circuit Court Juvenile Division has exhausted its resources with respect to said minor child in that said minor has [273 Ind. 299] previously been disposed of, such dispositions being commitment to the H. Ralph Johnston Regional Youth Community, Indiana Boys School, Rockville Training Center, and there is testimony herein that there are no available private institutions capable of holding said minor child in custody and/or rehabilitating said minor child and, if convicted in juvenile court, probation would not be an alternative remedy for said minor child, and therefore it is in the best interest of public welfare and public security for said minor child not to remain within the regular statutory juvenile system and said minor child should be waived to Vigo Circuit Court and/or Vigo Superior Court to stand trial therein as if he were an adult."

Record of Juvenile Proceedings at 69. Clearly, the court found from the evidence presented that all of the criteria for waiver provided for in § 35-5-7-14 were present. The court made these findings based on the evidence presented. In light of all of this

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evidence, finding number fifteen merely contained a statement that the court found no evidence to the contrary. When examining the total judgment of the court, finding number fifteen did not have the effect of shifting the burden of proof to appellant. See Gregory v. State, supra.

II...

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24 practice notes
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...658 (photographs of men with beards included in display where perpetrator described as "clean-shaven"); Shepard v. State, (1980) Ind., 404 N.E.2d 1 (six-photograph array included only two subjects with light complexions and clean-shaven faces); Himes v. State, (1980) Ind., 403 N.E.2d 1377 (......
  • State v. Matei, 110,003
    • United States
    • Court of Appeals of Kansas
    • January 2, 2015
    ...with victim through church group was insufficient basis for juror's removal in predatory-criminal-sexual-assault case); Shepard v. State, 273 Ind. 295, 303–04, 404 N.E.2d 1 (1980) (finding jury impartial despite one juror who knew victim from church because relationship was so casual and re......
  • Partlow v. State, No. 182S28
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1983
    ...present. Lewis v. State, (1972) 259 Ind. 431, 439, 288 N.E.2d 138, 143; see also Chandler, supra; Shepard v. State, (1980) Ind., 404 N.E.2d 1. At the police station, the defendant and his mother both agreed that he could talk to the police without his mother's presence and this was done. We......
  • State v. Harless, No. 15006
    • United States
    • Supreme Court of West Virginia
    • December 18, 1981
    ...United States v. Fitzpatrick, 437 F.2d 19 (2nd Cir. 1970); Conyers v. United States, 309 A.2d 309 (D.C.App.1973); Sheppard v. State, 404 N.E.2d 1 (Ind.1980); Com. v. Napolitano, 393 N.E.2d 338 (Mass.1979); State v. Wettstein, 28 Utah 2d 295, 501 P.2d 1084 (1972); cf., People v. Thornton, 62......
  • Request a trial to view additional results
24 cases
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...658 (photographs of men with beards included in display where perpetrator described as "clean-shaven"); Shepard v. State, (1980) Ind., 404 N.E.2d 1 (six-photograph array included only two subjects with light complexions and clean-shaven faces); Himes v. State, (1980) Ind., 403 N.E.2d 1377 (......
  • State v. Matei, 110,003
    • United States
    • Court of Appeals of Kansas
    • January 2, 2015
    ...with victim through church group was insufficient basis for juror's removal in predatory-criminal-sexual-assault case); Shepard v. State, 273 Ind. 295, 303–04, 404 N.E.2d 1 (1980) (finding jury impartial despite one juror who knew victim from church because relationship was so casual and re......
  • Partlow v. State, No. 182S28
    • United States
    • Indiana Supreme Court of Indiana
    • September 22, 1983
    ...present. Lewis v. State, (1972) 259 Ind. 431, 439, 288 N.E.2d 138, 143; see also Chandler, supra; Shepard v. State, (1980) Ind., 404 N.E.2d 1. At the police station, the defendant and his mother both agreed that he could talk to the police without his mother's presence and this was done. We......
  • State v. Harless, No. 15006
    • United States
    • Supreme Court of West Virginia
    • December 18, 1981
    ...United States v. Fitzpatrick, 437 F.2d 19 (2nd Cir. 1970); Conyers v. United States, 309 A.2d 309 (D.C.App.1973); Sheppard v. State, 404 N.E.2d 1 (Ind.1980); Com. v. Napolitano, 393 N.E.2d 338 (Mass.1979); State v. Wettstein, 28 Utah 2d 295, 501 P.2d 1084 (1972); cf., People v. Thornton, 62......
  • Request a trial to view additional results

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