Matter of J.S., a Child Alleged to be Delinquent v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Feb 16 2017, 6:16 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan W. Tanselle Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matter of J.S., a Child Alleged to February 16, 2017
be Delinquent, Court of Appeals Case No.
32A01-1606-JV-1480
Appellant-Defendant,
Appeal from the Hendricks Superior
v. Court.
The Honorable Karen M. Love,
Judge.
State of Indiana, Cause No. 32D03-1604-JD-104
Appellee-Plaintiff.
Darden, Senior Judge
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Statement of the Case
[1] J.S. brings this interlocutory appeal from the juvenile court’s order waiving his
case to a court with jurisdiction of the charges if committed by an adult. We
affirm.
Issues
[2] J.S. presents the following two issues for our review:
I. Whether the juvenile court abused its discretion by
waiving J.S.’s case to adult court after finding that J.S. is
beyond rehabilitation under the juvenile justice system.
II. Whether the juvenile court abused its discretion by failing
to enter specific findings to support its conclusion that
waiver was appropriate as being in the best interests of the
safety and welfare of the community.
Facts and Procedural History
[3] J.S. was adopted by his parents. It appears that J.S. started to abuse drugs at an
early age and he was in sixth or seventh grade when he first purchased a
controlled substance at school. He was adjudicated a delinquent for that
offense and placed on probation. After violating the terms thereof, his
probationary period was extended by three months. J.S.’s significant substance
abuse issues continued. At the age of fifteen, J.S. was sent to an in-patient
treatment facility, but he continued to abuse illicit substances after leaving that
facility.
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[4] J.S. has refused to live at home with his parents. In particular, he has a strained
relationship with his mother, frequently yelling, screaming, and cursing at her.
While living at home, he would lock himself in his room and refuse to answer
her requests to know where he was going and with whom. J.S. also refused to
honor his father’s rules. J.S.’s parents enrolled J.S. in counseling services, but
withdrew him after approximately six to eight months, seeing little to no
improvement in their opinion.
[5] J.S. also refused to attend school and dropped out at the age of sixteen. He was
denied re-entry into regular high school due to his poor attitude about school.
Instead he enrolled and completed GED classes but failed to take the required
test to receive his required GED degree. He also refused to maintain
employment. He has had employment at various places, the longest of which
lasted two or three months. J.S. also squandered attempts by others to help him
improve and change his behavior for the better. J.S. lived with a teacher who
offered to tutor him, but moved out after a week because he was not satisfied
there. After that, J.S. moved in with a young man who attended church with
J.S.’s family. Although the man hoped to serve as a good influence, he had to
evict J.S. for his failure to cooperate and pay rent. J.S. then moved in with a
friend he knew from one of his previous jobs but left there after a short period of
time. J.S. then began living in a motel.
[6] J.S. has been diagnosed with ADHD and was prescribed medication for that
condition. J.S. refuses to take the medication.
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[7] In early 2016, Hendricks County experienced an increase or rash of bank
robberies. J.S., who was seventeen, but just four months shy of his eighteenth
birthday at the time, watched news coverage of the first robberies and thought
he recognized the perpetrator as his friend, Kyle Rhoades. J.S. was even more
sure his suspicion was correct when he saw Rhoades with a backpack full of
money shortly thereafter. Instead of reporting his suspicions to someone in law
enforcement, J.S. sought out Rhoades for information on how he could get
involved in committing bank robberies.
[8] On March 23, 2016, Jelisa Argue reported for work at the PNC Bank in
Clayton, Indiana at 8:30 a.m. On that particular day, Argue was the teller at
the drive up window and Shannon Herzog was the other teller. During the
afternoon, business slowed and the two began to complete some required online
training. At 2:30 p.m., two people, later identified as J.S. and his juvenile
girlfriend, J.D., entered the bank. Argue had heard someone enter the bank
and left her drive-up-window post.
[9] J.S. was wearing a black toboggan cap, shiny aviator sunglasses, a white shirt,
and a Mardi Gras bead necklace. He had gone to great effort to draw a fake
tattoo on the side of his neck in order to avoid identification. J.S. placed a note
on the counter, pointing toward it when Argue greeted him. Argue read the
note which read as follows:
This is not a game. I want $20,000 cash. Don’t move and give
me everything. If you do what I say everything will be fine. No
dye packs. Thanks
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Tr. pp. 38-39; State’s Ex. 1.
[10] Argue pushed an alarm that she was carrying in her pocket. J.S. then told her
not to move. Argue explained that she would have to move because she needed
to go to her till (drawer) to retrieve the money. From her till she retrieved what
is known as bait money. Bait money is kept in a separate compartment of the
till, which, if retrieved, sets off another alarm. The serial numbers of the bait
money are recorded. Argue gave J.S. $2,030.00. J.S. asked her if that was all
the money she had. After Argue replied that it was, J.S. stared at her for a few
moments before he and his girlfriend left the bank.
[11] Argue later testified that although the incident lasted only a few minutes, she
felt it lasted forever. She was scared and nervous because she was uncertain
whether J.S. had a weapon. Herzog later testified that she was scared to death
and felt very vulnerable because from her position she could not see whether
J.S. had a gun and she just happened to see J.D., who was obscured by the
counter, at the last moment. After J.S. and his girlfriend left the bank, Argue
told Herzog that they had been robbed. They locked the doors of the bank and
pulled the alarm. J.S. and J.D. fled the bank, discarding the outer layer of their
clothes to evade identification and capture.
[12] Later, J.S. and Rhoades together decided to rob another bank. They agreed
that J.S. would case the bank before Rhoades robbed it. On April 4, 2016, Julie
Peters was working as the head teller at First National Bank in Plainfield,
Indiana. At around 4:30 p.m., J.S. approached Peters’ window and asked
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questions about how to transfer an account from Chase Bank to First National.
Peters explained the procedures and handed a brochure to J.S., who replied,
“cool,” and walked away. Tr. pp. 56, 58. As J.S. was leaving, he passed
Rhoades in the lobby. J.S. walked to a parked car where J.D. and her two
siblings, who were approximately five and two years of age at the time and
seated in their booster and car seats, waited for him.
[13] Rhoades was wearing a sweatshirt, hat, and dark sunglasses. As Rhoades
began to pull a piece of paper from his pocket, Peters simultaneously pushed an
alarm to alert police. The note read: “I want all of your money—I want your
money you f***ing bitch. I want all of it.” Id. at 59. Peters pulled money from
her till and laid $2,100 on the counter. Rhoades took the money and left the
bank.
[14] Officers received leads about three potential suspects in the robberies. A vehicle
matching the description of a getaway vehicle was placed under surveillance.
J.S. was in a Kia Soul when officers initiated a traffic stop of it on April 5, 2016.
After speaking with his parents about his rights, J.S. admitted to his
involvement in two of the four robberies and while doing so implicated
Rhoades and J.D. as other participants in some of the four robberies.
[15] On April 8, 2016, the juvenile court authorized the filing of a delinquency
petition alleging that J.S. had committed two felonies, one count of Level 5
felony robbery if committed by an adult, and one count of Level 5 felony
conspiracy to commit robbery. On April 11, 2016, the State filed a motion to
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waive jurisdiction to adult court and requested a hearing on the motion. The
hearing was held on April 21, 2016, after which the juvenile court took the
matter under advisement. On April 27, 2016, the juvenile court issued findings
and conclusions thereon, ordering that J.S.’s charges be waived into a court
with adult jurisdiction. Subsequently, the juvenile court certified its order for
interlocutory appeal. This Court granted the motion on July 22, 2016, and J.S.
now appeals.
Discussion and Decision
[16] In general, juvenile courts have exclusive original jurisdiction over juvenile
delinquency proceedings. Ind. Code § 31-30-1-1 (2012). Under certain
circumstances, however, juvenile courts may waive this exclusive original
jurisdiction. Waiver of jurisdiction is for the offense charged and all included
offenses and is accomplished by an order of the juvenile court waiving the case
to adult court. Ind. Code § 31-30-3-1 (1997). The order must include specific
findings of fact to support the order. Ind. Code § 31-30-3-10 (1997).
[17] One of the waiver statutes provides that after the State files its motion
requesting waiver, and after a full investigation and hearing, the juvenile court
may waive jurisdiction upon the finding that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to
acts against the person than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even
though less serious;
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(2) the child was at least fourteen (14) years of age when the act
charged was allegedly committed;
(3) there is probable cause to believe that the child committed the
act;
(4) the child is beyond rehabilitation under the juvenile justice
system; and
(5) it is in the best interests of the safety and welfare of the
community that the child stand trial as an adult.
Ind. Code § 31-30-3-2 (2008).
[18] Here, J.S. specifically challenges the sufficiency of the evidence supporting the
juvenile court’s findings under subsections 4 and 5.
[19] Upon appellate review of claims alleging insufficient evidence to support
waiver, we will not weigh the evidence or judge the credibility of witnesses.
S.W.E. v. State, 563 N.E.2d 1318, 1322 (Ind. Ct. App. 1990). We look only to
the evidence most favorable to the State and reasonable inferences to be drawn
therefrom, considering both the record of the waiver hearing and the reasons
given by the court. Id.
[20] Unlike criminal proceedings, juvenile proceedings are civil in nature and the
burden is on the State to establish by a preponderance of the evidence that
juvenile jurisdiction should be waived. Phelps v. State, 969 N.E.2d 1009, 1016
(Ind. Ct. App. 2012), trans. denied. We review the juvenile court’s decision to
waive exclusive original jurisdiction for an abuse of discretion. Id. The juvenile
court is entitled to give the evidence before it whatever weight it deems
appropriate. Id.
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I. Beyond Rehabilitation
[21] The determination of whether a juvenile is beyond rehabilitation of the juvenile
justice system is fact sensitive and can vary widely from individual to individual
and circumstance to circumstance. Jordan v. State, 62 N.E.3d 401, 405 (Ind. Ct.
App. 2016) (citing Hall v. State, 870 N.E.2d 449, 457 (Ind. Ct. App. 2007), trans.
denied), trans. denied.
[22] J.S.’s challenge to this finding amounts to an invitation for this Court to
reweigh the evidence. The juvenile court found that J.S. admitted to
committing a bank robbery and to casing another bank for Rhoades to aid him
in his efforts to rob it. J.S.’s probation officer testified that in her experience
supervising juvenile offenders, and considering the gravity of J.S.’s offenses—
leaving bank tellers fearful that they would not only be robbed, but could face
being shot—there were no juvenile services that would help rehabilitate J.S.
This was so, she testified, especially since J.S. would turn eighteen years of age
within months. She also cited J.S.’s issues with obeying rules at home,
dropping out of school, and failing to follow through with his GED test. J.S.
failed to cooperate and/or take advantage of offers of help from others who
were willing to serve as role models, instead seeking out help in new criminal
ventures. Additionally, the record reveals that J.S. has not been able to
maintain employment for any significant period of time and has been involved
in illicit drug use. We cannot say that the juvenile court abused its discretion by
making this finding in support of waiver.
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II. Community Safety and Welfare
[23] Next, J.S. argues that the juvenile court abused its discretion by failing to make
specific findings in support of this conclusion. However, upon review of the
findings as a whole, there is sufficient evidence to support this conclusion.
[24] J.S. had a prior adjudication as a delinquent. He started abusing drugs at a very
early age and purchased controlled substances while at school and violated the
conditions of his probation. Rather than learning from that experience, he
continued to abuse illicit drugs. Later while watching television news reports of
increased bank robberies in the community and being able to determine the
identity of the perpetrator, J.S. sought out that person as a mentor to teach him
how to commit similar crimes. In one robbery, J.S. frightened two tellers at the
PNC Bank in Clayton, Indiana, demanding that they give him money. He even
went so far as to enlist the help of his juvenile girlfriend in the commission of
his criminal activity. In another incident, he allowed his girlfriend and her two
extremely young siblings to wait for him in a car outside the First National
Bank while he cased it for Rhoades, who then robbed the bank. We find that
there are sufficient, specific findings to support this conclusion.
[25] For argument’s sake, assuming, without deciding, even had the waiver order
not contained particular, spelled-out facts justifying waiver, that does not
invalidate the waiver order. Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994).
Specific facts need not be recited in the order if the record clearly contains
sufficient facts for the court to find that the waiver is appropriate under the
circumstances. Id.
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[26] In review, it is undisputed that J.S., who had experience with the juvenile
system, recognized a friend on television as a person who was a suspect in a
bank robbery. Instead of contacting law enforcement, J.S. sought out that
friend to learn how he could also commit similar crimes. Afterwards, he went
to WalMart to purchase items of clothing and other paraphernalia to disguise
himself. Subsequently, he personally placed two tellers at a community bank in
fear for their safety when he robbed the bank in Clayton, Indiana. Also, he
enlisted the assistance of his juvenile girlfriend in his criminal activity. After
the first robbery, he conspired with his mentor, Rhoades, to commit yet another
robbery. While he was casing the bank, he allowed his girlfriend, and her two
extremely young siblings to wait outside in the car for him. According to J.S.,
after the robbery, they were then going to take J.D.’s siblings to school. At the
time of the incident, J.S. did not know if Rhoades was armed when he entered
the bank.
[27] J.S.’s argument that his parents were willing to have him return to their home
under their guidance and structure is an attempt to persuade us to reweigh the
evidence. His argument that his parents would provide home-based counseling
and GPS monitoring for him is not enough. Evidence shows that for years he
has failed to follow the guidance of his parents, to show respect for their home,
and has refused to take medication that was prescribed by doctors. Those
efforts to provide a structured environment proved unsuccessful in the past and
the court was well within its discretion to reject them.
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Conclusion
[28] The trial court did not abuse its discretion when it waived jurisdiction. There
was sufficient evidence for the court to find that J.S. is beyond rehabilitation
under the juvenile justice system and that it is in the best interests of the safety
and welfare of the community that J.S. stand trial as an adult.
[29] In light of the foregoing, the juvenile court’s waiver order is affirmed.
[30] Affirmed.
Najam, J., and Bradford, J., concur.
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