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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Sep 21 2009, 9:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARSHELLE DAWKINS BROADWELL Wooden & McLaughlin, LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
K. J., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0903-JV-260

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-0810-JD-3244

September 21, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary K.J. appeals his adjudication as a delinquent child for committing what would be Class C felony attempted burglary if committed by an adult. Specifically, he contends that the State did not prove that when he attempted to break and enter a clothing store, he did so with the intent to commit theft. In accordance with Freshwater v. State, 853 N.E.2d 941 (Ind. 2006), there is no evidence that K.J. was near or approaching anything valuable in store. In addition, the time at and method by which K.J. attempted to enter the store suggest nothing more than that he attempted to break in, and he could have done so for any number of reasons that did not include theft. We therefore reverse K.J.'s adjudication for attempted burglary. Because K.J. does not challenge his other

adjudications for criminal mischief and resisting law enforcement, we affirm them. Facts and Procedural History At 3:37 a.m. on October 15, 2008, Indianapolis Metropolitan Police Department Officers Brian Anders and David Spurgeon were dispatched to an alarm triggered at Davis Jean and Fashion, a store located at the end of a seven-store shopping center on West Washington Street in Indianapolis. Upon arrival, the officers observed K.J. and another juvenile running on the roof of the shopping center. The two juveniles then jumped off the roof at the lowest point of the building, at which point Officer Anders ordered them to stop. The juveniles attempted to flee from Officer Anders but were cornered in by police cars arriving on the scene. Officers Anders and Spurgeon then handcuffed the juveniles.

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After handcuffing the juveniles, the officers inspected the inside of Davis Jean and Fashion and the roof of the building. While nothing appeared to be out of place inside the store, one of the roof vents above the store was damaged and another roof vent was damaged and removed. Tr. p. 14; Ex. 1, 2 (roof vent damaged and removed), 3 (roof vent damaged but not removed). Underneath the roof vent that had been removed, the officers noticed fresh footprints on a walk board that was located three feet below the roof in the attic space. The officers also found puddles of saliva on the roof and cement blocks scattered across the roof. Thereafter, the State filed a petition alleging that K.J. was a delinquent child for committing what would be Class C felony attempted burglary, Class A misdemeanor criminal mischief, and Class A misdemeanor resisting law enforcement if committed by an adult. A denial hearing was then held. During closing argument, defense counsel argued: With regard to the attempted burglary, even if we were to, hypothetically, I believe that the boys were on top of [the store] and even if we hypothetically, were to agree that they had kicked around the vents or whatever, burglary doesn't just require that someone have trespassed. It requires that there be an actual . . . breaking and entrance, and in an attempt to commit a felony therein. What we have at best, what the, what the prosecutor has at best, with regard to their case, well they've got children running, they've got the kids on the roof. They, at best, they would have some criminal mischief. There is nothing to indicate that whoever did this, had any intention of doing a felony, if indeed there was even an intention of going in. Tr. p. 49-50. After some discussion between the parties and trial court about the lack of comparison done on the footprints found in the attic space, defense counsel continued: What we don't have here under any circumstances, regardless of how we wanna shape everything else out, we don't have intention at all. We don't 3

have the slightest. I mean everybody knows that when people go into a building, some of them have legitimate intentions to commit arson or steal something. Others go in . . . . We've had cases before where . . . . I've had cases where the kids have gone in and broken up some furniture but didn't rise to the level of felony [in] terms of cost. Have, you know, messed up the walls. One case where the kids went in and played cards, it was just a weird little case. There was a residential entry in those sorts of situations, but there was not a burglary. In this sort of situation, the best thing you've got is a, is a trespass. . . . But we don't have a burglary because there's no evidence of intent to commit a felony therein and so I would ask the Court to find my client, [K.J.], not true as to the attempted burglary. Id. at 51-52. The trial court concluded: All right. Well the Court having heard the evidence in this matter and the testimony presented, I think this . . . . Well, I think the evidence here has shown that this is a, a classic circumstantial evidence case. With respect certainly to count 1 [attempted burglary]. Not so much circumstantial as to, as to counts 1 [sic] and 2, and not so much circumstantial as, as to count 3. An[] abbreviated review of the testimony will show that there was [an] alarm that went off about 3:30 in the morning. Officer[s] Anders and Spurgeon arrived about 3:38 and discovered that [K.J.] and [the other juvenile] were on top of the roof. Further testimony was that the alarm went off in the western part of the store where the vent was located. I think that a reasonable inference is that the, the damage that was done to the roof was caused by the individuals that were on the roof and that was testified to directive [sic] as to [K.J.] and [the other juvenile]. Accordingly, I'm going to enter a true finding as to count 1, count 2, and count 3. Id. at 54. Following the dispositional hearing, the trial court placed K.J. on a suspended commitment to the Department of Correction with several conditions. K.J. now appeals. Discussion and Decision K.J. raises one issue on appeal. Specifically, he contends that the evidence is insufficient to support the trial court's delinquency finding for attempted burglary because the State failed to prove that when he attempted to break and enter Davis Jean and Fashion, he did so with the intent to commit theft. When the State seeks to have a 4

juvenile adjudicated as a delinquent child for committing an act that would be a crime if a committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App. 2006), trans. denied. When reviewing a juvenile adjudication, this Court will consider only the

evidence and reasonable inferences supporting the judgment and will neither reweigh evidence nor judge the credibility of the witnesses. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could conclude that the juvenile was guilty beyond a reasonable doubt, we will affirm the adjudication. Id. In order to find K.J. to be a delinquent child for committing Class C felony attempted burglary, the State must have proved that K.J. took a substantial step toward breaking and entering Davis Jean and Fashion with intent to commit a felony in it, to wit: theft. Ind. Code

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