Opinion
24A-JV-366
08-22-2024
Attorney for Appellant Nancy A. McCaslin McCaslin & McCaslin Elkhart, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge The Honorable Elizabeth A. Bellin, Magistrate Trial Court Cause No. 20C01-2306-JD-217
Attorney for Appellant Nancy A. McCaslin McCaslin & McCaslin Elkhart, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General
Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] K.J. appeals his juvenile adjudication for Level 4 felony burglary, arguing the trial court erred in admitting some evidence, the evidence is insufficient to support his adjudication, and the trial court erred in not issuing a body attachment for a witness. We affirm.
Facts and Procedural History
[¶2] In January 2023, ten-year-old K.J. and his twelve-year-old brother L.J. lived with their mother in the same trailer park as Amber Susaraba and her two minor children. On the evening of January 18, Amber and her son were watching TV in her bedroom when they heard a commotion on the other side of the trailer. Amber's son went to investigate and returned to tell his mother that his bedroom window was open, his large TV had been knocked over, and his PlayStation 5 and favorite Orbeez toy were missing. Amber confirmed that her son's PlayStation and Orbeez toy as well as a small TV from her daughter's bedroom were missing. She went outside and, suspecting that kids were involved, shouted, "[I]t's a PlayStation 5, we can track it you dumba**es . . . I'm going to have to call the police." Tr. Vol. II p. 25.
[¶3] A few minutes later, L.J. and K.J. ran up to Amber and told her that they had seen three teenagers running with her TV and PlayStation toward the corner of the trailer park. Amber instructed L.J. and K.J. to follow them, and her son joined them. Meanwhile, Amber walked to a nearby trailer where E.W., another kid in the trailer park, lived. Amber suspected that E.W. was involved because he had stolen from the family before. When Amber accused E.W. of stealing the items, he told her that L.J. and K.J. had done so.
[¶4] At about the same time, L.J., K.J., and Amber's son returned with the TV from Amber's daughter's room (which was now broken). L.J. and K.J. said the teenagers they had seen running dropped the TV. Amber called the police.
[¶5] The next day, L.J. and K.J.'s mother drove them to Amber's house, and L.J. and K.J. "both apologized" for their behavior and told Amber that they would try to get the PlayStation and Orbeez toy back. Id. at 44.
[¶6] The State filed petitions alleging that L.J. and K.J. were juvenile delinquents for committing what would be Level 4 felony burglary if committed by an adult. The parties asked the trial court to join the fact-finding hearings for L.J. and K.J., which the court granted. The fact-finding hearing was held over several days. On the first day, September 22, 2023, Amber testified as detailed above. She also testified more about the day after the burglary, when L.J. and K.J.'s mother drove them to her house to apologize. When the State asked Amber about her conversation with L.J. and K.J. that day, the following exchange occurred:
Q . . . [D]id [L.J. or K.J.] say something to you that led you to better understand what happened that night?
A Yes. Pretty much it -- [K.J.] didn't really --
Q Okay. Sit tight for me.
A Sorry.
Q Which boy first started this conversation?
A [L.J.] did most of the talking.
Q Okay. And what is it that [L.J.] said?
A That it was all --
[K.J.'s ATTORNEY]: Your Honor, I -
THE COURT: Hang on one second....
[K.J.'s ATTORNEY]: It sounds like, um, my client did not make any of these statements or very few, so, I'm going to object on my client's behalf to hearsay.
THE COURT: It would be party-opponent .... How would it not be? You have a right to cross-examine --
[K.J.'s ATTORNEY]: If my client said something -
THE COURT: -- as to the veracity of it, but.
[K.J.'s ATTORNEY]: Certainly. If my client said something, that would be party-opponent, but if the codefendant said something, that's --
THE COURT: I will overrule the objection as that [is] something that can be explored on cross-examination.
Please proceed.Id. at 40-41. Amber went on to testify that L.J. told her that he, K.J., E.W., and E.W.'s older brother "were all involved" and that L.J. and K.J. were the "lookouts" for E.W. and his brother. Id. at 42. During cross-examination, K.J.'s attorney asked Amber if K.J. had talked "at all" when L.J. told her that he and K.J. were involved, and Amber answered, "Mostly he just backed up [L.J.]. He didn't talk a whole lot, he just basically backed up [L.J.]." Id. at 54.
[¶7] E.W.'s sister testified next. She said that on the night of the burglary, she was home with E.W. when L.J. and K.J. knocked on their door. E.W. answered the door. The porch light was on, and E.W.'s sister could see that K.J. and L.J. were carrying a TV and PlayStation. L.J. and K.J. talked to E.W. for several minutes before leaving with the items.
[¶8] E.W. then testified that L.J. and K.J. came to his house on the night of the burglary with a TV, PlayStation, and Orbeez toy. He maintained that he had nothing to do with stealing the items but acknowledged that he was near Amber's trailer when they did so. At this point, K.J.'s attorney asked the trial court to read E.W. his Fifth Amendment rights, which the court did. After acknowledging his rights, E.W. testified that he saw L.J. and K.J. enter Amber's trailer through a window. Id. at 82. The court stopped the questioning so that it could appoint counsel for E.W. and continued the fact-finding hearing to October 18. The court also ordered the parties and the witnesses, including Amber, to appear on October 18.
[¶9] On October 18, L.J., K.J., and most of the witnesses, including Amber, did not appear. The trial court issued body attachments for L.J. and K.J. but decided not to issue body attachments for the witnesses since a whole "slew" of them didn't appear. Id. at 97. The body attachments were served on L.J. and K.J., and they were taken to the juvenile-detention center. On October 20, L.J. and K.J. appeared in court to address their failures to appear. The court released them from detention, continued the fact-finding hearing to December 1, and ordered L.J., K.J., and their mother to appear on the new date.
[¶10] On December 1, L.J., K.J., and their mother appeared. Amber, however, did not. K.J.'s attorney, who claimed there were "possibly some . . . strong reasons" to recall Amber as a witness, asked the trial court to issue a body attachment for Amber, but the court denied the request:
The problem I see here . . . is that [Amber] was not made aware of the December 1 evidentiary hearing date, and I don't see that a new subpoena was issued for today's date for [Amber].Id. at 107, 109.
[¶11] The hearing then picked up where it left off on September 22, with E.W. on the stand (his appointed attorney was in the courtroom). E.W. testified that on the night of the burglary, L.J. and K.J. came to his house and told him that they planned to break into Amber's trailer and take some items. L.J. and K.J. left, but E.W. followed them because he wanted to see if they would follow through with their plan. According to E.W., he stood a few trailers down from Amber's as he watched either L.J. or K.J. (he couldn't tell which one because it was dark) climb into the window and pass items out the window to the other one. He then returned home. E.W. said that a few minutes later, L.J. and K.J. knocked on his door and showed him the TV, PlayStation, and Orbeez toy. E.W. denied that he was a lookout.
[¶12] After the hearing, the trial court adjudicated L.J. and K.J. juvenile delinquents for committing what would be Level 4 felony burglary if committed by an adult. In its findings, the court acknowledged that E.W. "was less than honest about his knowledge of what happened, as [he] neglected to tell Amber . . . that he was also involved ...." Appellant's App. Vol. II p. 76. The court found that although "E.W.'s testimony lacks credibility with respect to his culpability, [he] testified unequivocally at both hearings that [L.J.] and [K.J.] took items from Amber['s] home by entering a window and removing items." Id. at 77.
[¶13] Following a dispositional hearing, the court placed K.J. on probation.
[¶14] K.J. now appeals.
Discussion and Decision
I. Any error in the admission of Amber's testimony that L.J. told her both he and K.J. were involved in the burglary was harmless
[¶15] K.J. first contends the trial court erred in admitting Amber's testimony that L.J. told her the day after the burglary that he and K.J. were involved in the burglary. Challenges to the admission of evidence are ordinarily reviewed for an abuse of discretion. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).
[¶16] Specifically, K.J. asserts that Amber's testimony contains hearsay. "Hearsay" is a statement that "(1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). "Hearsay is not admissible unless these rules or other law provides otherwise." Evid. R. 802. Under Evidence Rule 801(d)(2)(A), a statement is not hearsay if it is offered against an opposing party and "was made by the party in an individual or representative capacity." K.J. argues that because Amber testified about what L.J.-and not he-said, he did not "ma[k]e" the statement as required by Evidence Rule 801(d)(2)(A).
[¶17] The State responds the trial court did not err in admitting Amber's testimony because "the record does not affirmatively exclude the possibility" that Amber's testimony included statements also made by K.J. Appellee's Br. p. 18. There is some support in the record for the State's argument that K.J. also told Amber that he was involved in the burglary. During cross-examination, K.J.'s attorney asked Amber if K.J. had talked "at all" when L.J. told her that he and K.J. were involved in the burglary. Amber answered, "Mostly he just backed up [L.J.]. He didn't talk a whole lot, he just basically backed up [L.J.]."
[¶18] But even assuming the trial court erred in admitting the statement under Evidence Rule 801(d)(2)(A), the error is harmless. "An error is harmless 'where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.'" Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (quoting Ind. Appellate Rule 66(A)), reh'g denied, cert. denied. Under the "probable impact" test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence, the error's probable impact undermines confidence in the outcome of the proceeding below. Id. Error in the admission of evidence is harmless if we are satisfied the conviction is supported by substantial independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the judgment. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh'g denied.
[¶19] There is substantial evidence of guilt beyond Amber's testimony that L.J. told her he and K.J. were involved in the burglary. After Amber discovered that someone had entered her trailer through a window and taken a TV, PlayStation, and Orbeez toy, she went outside to yell at the thief. Minutes later, L.J. and K.J. ran up to Amber and told her that they had seen three teenagers running away with her things. L.J. and K.J. left to follow the alleged teenagers and returned shortly thereafter with her TV, which they claimed the teenagers had dropped. In addition, E.W. testified that he saw L.J. and K.J. break into Amber's trailer and remove items through the window and that L.J. and K.J. later showed him the items. Although the trial court found that E.W.'s testimony "lack[ed] credibility with respect to his culpability," it highlighted that he testified "unequivocally" at both hearings that L.J. and K.J. broke into Amber's trailer and removed items through the window. E.W.'s sister also testified that on the night of the burglary, L.J. and K.J. knocked on their door to talk to her brother and were carrying a TV and PlayStation. Finally, Amber testified that the day after the burglary, L.J. and K.J.'s mother drove them to her house, and L.J. and K.J. "both apologized" for their behavior and told her that they would try to get the PlayStation and Orbeez toy back. Considering this substantial independent evidence of guilt, any error in admitting Amber's testimony that L.J. told her both he and K.J. were involved in the burglary is harmless.
K.J. also argues the trial court committed fundamental error in allowing the State to ask Amber some leading questions. The State responds that the questions K.J. cites aren't leading questions at all but rather attempts by the State to steer Amber away from giving hearsay responses and to summarize her long answers. That said, even assuming there was error, K.J. has not met the high burden of proving fundamental error given the evidence just discussed above. See Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) ("Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible."), reh'g denied.
II. The evidence is sufficient to support K.J.'s juvenile adjudication for burglary
[¶20] K.J. next contends the evidence is insufficient to support his juvenile adjudication for Level 4 felony burglary. In reviewing the sufficiency of the evidence for a juvenile adjudication, we neither reweigh the evidence nor judge the credibility of the witnesses. K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006). Rather, we look only to the evidence most favorable to the trial court's judgment and the reasonable inferences to be drawn from that evidence. Id. We affirm if there is substantial probative evidence to support the adjudication. Id.
[¶21] To prove that K.J. committed an act of Level 4 felony burglary, the State had to show that he knowingly broke and entered Amber's trailer with the intent to commit theft. Even disregarding Amber's testimony that L.J. told her both he and K.J. were involved in the burglary, for the reasons discussed above, we find that there is substantial probative evidence to support that K.J. committed an act of burglary. Although K.J. makes arguments about inconsistencies in E.W.'s testimony and his credibility, these are merely requests for us to reweigh the evidence and judge witness credibility, which we don't do. See id. This is especially so here, where the trial court specifically found that E.W. was credible as to L.J. and K.J.'s involvement in the burglary. The evidence is sufficient to support K.J.'s juvenile adjudication.
For example, K.J. notes that at one point E.W. testified that L.J. and K.J. entered Amber's trailer through a window; however, E.W. later testified that either L.J. or K.J. climbed into the window and passed items out the window to the other one. The trial court's finding on this point states, "E.W. watched as [L.J.] and [K.J.] approached Amber[']s window to her home, climbed into the home, took items, and left." Appellant's App. Vol. II. p. 77. But as the State highlights, there would be "responsibility" for K.J. under either scenario. Appellee's Br. p. 14.
III. The trial court did not err in not issuing a body attachment for Amber
[¶22] Finally, K.J. contends the trial court erred in not issuing a body attachment for Amber when she did not appear at the December 1 fact-finding hearing. As K.J. notes, once a witness is served with a subpoena, the witness is under court order to appear and cannot be unilaterally dismissed without permission from the court that issued the subpoena. See Montgomery v. State, 804 N.E.2d 1217, 1222 n.6 (Ind.Ct.App. 2004), trans. denied.
[¶23] Here, it is undisputed that Amber was subpoenaed for the fact-finding hearing on September 22, see Appellant's App. Vol. II p. 43, that she appeared and testified at that hearing, and that at the end of that hearing the trial court ordered her to appear on October 18. When Amber did not appear on October 18, the trial court issued body attachments for L.J. and K.J. but not for any of the witnesses since most didn't show up. The court set a new date for December 1. While technically Amber was still subject to the original subpoena, she did not know about the December 1 date and therefore, as the trial court explained, can't be faulted for not appearing that day. Accordingly, the trial court did not err in not issuing a body attachment for Amber.
[¶24] Affirmed.
Weissmann, J., and Foley, J., concur.