MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Jan 24 2019, 10:14 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert Austin Rowlett
                                                          Angela Sanchez
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.M.,                                                     January 24, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-1631
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Petitioner.                                      Marilyn A. Moores, Judge
                                                          The Honorable
                                                          Gary Chavers, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1801-JD-111



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019                  Page 1 of 14
[1]   C.M. appeals his placement with the Indiana Department of Correction (“the

      DOC”) following the modification of his disposition after he admitted to

      dangerous possession of a firearm,1 which would be a Class A misdemeanor if

      committed by an adult. C.M. raises the following issue for our review:

      whether the juvenile court abused its discretion when it ordered his placement

      in the DOC because he asserts the placement was contrary to the probation

      department’s recommendation and that it was not the least restrictive

      placement.


[2]   We affirm.


                                     Facts and Procedural History
[3]   In the overnight hours of December 1 and 2, 2017, C.M., who was sixteen at

      the time, was with three friends, two juveniles and one adult, William Martin

      (“Martin”). Appellant’s App. Vol. II at 20, 23. At some point, the group decided

      to “car hop” by breaking into vehicles and stealing things from inside the

      vehicles. Id. at 20-21. The four got into Martin’s vehicle and proceeded to

      drive to a neighborhood in Johnson County. Id. at 23. While in the vehicle,

      the group smoked marijuana. Id. at 19-20, 24.


[4]   The group then broke into several vehicles and stole some items from the

      vehicles, including two firearms, a .40 caliber handgun and a 9-millimeter




      1
          See Ind. Code § 35-47-10-5(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 2 of 14
      handgun. Id. at 20-21. They eventually came upon a locked truck, inside of

      which Martin saw an unattended iPhone. Id. at 21. Martin wanted to steal the

      iPhone, so he attempted to break the truck’s window with a brick but was not

      able to do so. Id. He returned to the vehicle and retrieved one of the handguns.

      Id. Martin fired two shots into the window of the truck and succeeded in

      breaking it. Id. at 21, 22. Martin grabbed the iPhone, and the group attempted

      to flee the area. Id. at 21.


[5]   A resident of the neighborhood, Kerri Edwards (“Edwards”) was awake and

      heard the gunshots. Id. at 22. Edwards went to her window and observed the

      group as they walked down the road but did not recognize any of them as living

      in the area. Id. She called the police, reported the gunfire, and provided the

      police with a description of some of the group members and of the vehicle. Id.

      Officer Merriman of the Johnson County Sheriff’s Office responded to the call,

      and upon entering the neighborhood, the officer observed a vehicle matching

      Edwards’s description trying to leave the neighborhood. Id. at 19. Officer

      Merriman noticed that the vehicle did not have a license plate light, so he

      turned on his lights and attempted to initiate a traffic stop of the vehicle. Id.

      The vehicle did not immediately stop, but instead, continued down the road at

      a slow speed. Id. During this time, Officer Merriman observed a lot of furtive

      movement inside the vehicle. Id. Because the group realized that they were

      about to be pulled over, they quickly placed the handguns and a bag of

      marijuana inside the glovebox. Id. at 20. Officer Merriman called for back-up,

      and Deputy Ian McLaughlin responded to the call. Id. at 22.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 3 of 14
[6]   Officer Merriman and Deputy McLaughlin initiated a high risk stop based on

      the furtive movements observed, the vehicle matching the description of a

      report of shots being fired, and the fact that the vehicle did not immediately

      stop. Id. at 19. When the occupants of the vehicle were removed, Officer

      Merriman noticed a strong odor of marijuana coming from the passengers and

      from the vehicle itself. Id. at 19-20. When C.M. was arrested, Officer

      Merriman observed an empty black holster on his person. Id. at 20. Officer

      Merriman searched the vehicle to locate the source of the marijuana smell, and

      among other items, he found the bag of marijuana, several marijuana joints,

      miscellaneous tools, a vehicle jack, and two firearms, the loaded 9-millimeter

      handgun and the unloaded .40 caliber handgun. Id. The officers also found a

      car battery and a speaker box with speakers and an amplifier in the truck. Id.

      Both handguns were later confirmed to have been stolen. Id.


[7]   Because Martin was an adult, he was transported to the Johnson County Jail.

      The minors, including C.M., were taken to the Johnson County Sheriff’s Office

      so they could be interviewed with their parents. Id. At that time, C.M.’s

      mother was unable to come to the Sheriff’s Office, and C.M.’s father was at

      work. Id. at 21. One of the other minor occupants of the vehicle stated in his

      interview that C.M. had been holding the unloaded .40 caliber handgun. Id. at

      20-21. Both of the other minor occupants told the police in separate interviews

      that the only reason the group was in the neighborhood that night was to “car

      hop” by breaking into vehicles and stealing their contents. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 4 of 14
[8]    On December 12, 2017, the State charged C.M. with dangerous possession of a

       firearm, which would be a Class A misdemeanor if committed by an adult. Id.

       at 35-36. While C.M. was detained under this charge, he was cited for two

       different infraction incidents, one for possession of contraband in the form of

       corn chips in his room and one for refusing to work on assigned classwork; he

       received seven hours of lockdown for the two incidents. Id. at 67-68. On

       December 28, 2017, C.M. admitted the allegation that he possessed a firearm,

       and the case was transferred to Marion County, where C.M. resides, for

       disposition.


[9]    The juvenile court held a detention hearing on January 24, 2018, at which time

       it “strongly considered commitment to the [DOC] at that time,” but decided to

       place C.M. on formal probation with a suspended commitment to the DOC.

       Tr. Vol. II at 10; Appellant’s App. Vol. gabriella73@example.net. In the dispositional decree, the

       juvenile court ordered C.M. released to the custody of his mother, placed him

       on GPS monitoring, and required him to engage in services with the Cross

       Systems Care Coordination program and the Project Life program. Appellant’s

       App. Vol. gabriella73@example.net. C.M. was also ordered to enroll in an education program

       and submit to drug screenings. Id. On April 9, 2018, C.M. was removed from

       GPS monitoring. Appellant’s App. Vol. gabriella73@example.net.


[10]   Within only a few months of being released from detention, the probation

       department filed a petition for modification of dispositional decrees and alleged

       that C.M. violated his probation by testing positive for marijuana on April 24,

       2018, May 3, 2018, and May 15, 2018. Appellant’s App. Vol. gabriella73@example.net. The

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 5 of 14
       petition also alleged that C.M. violated his probation by failing to meet with

       court-ordered specialists on three separate occasions in May 2018. Id. The

       petition contained allegations that C.M. and his mother also failed to fully

       engage with the services provided by Cross Systems Care, instead preferring to

       “handle issues by [themselves].” Id. Additionally, it was alleged that C.M.

       reported that “he does not need help from anybody and he knows and

       understands everything.” Id. C.M.’s probation officer recommended that C.M.

       be again released to his mother on GPS monitoring pending a further hearing.

       Id. at 40.


[11]   The juvenile court issued an order for C.M.’s immediate arrest and set the

       matter for a pretrial hearing on June 11, 2018. Appellant’s App. Vol. gabriella73@example.net. At

       the pretrial hearing, C.M. admitted to the allegations of testing positive for

       marijuana on three occasions. Supp. Tr. Vol. gabriella73@example.net. Counsel for both C.M.

       and the State indicated to the juvenile court that they had reached an agreement

       consistent with the probation officer’s recommendation. Id. at 4. The juvenile

       court rejected the agreement based on the nature of C.M.’s underlying offense

       which was “a handgun violation,” his prior criminal history, and because he

       was determined to be a “high risk” to reoffend under the Indiana Youth

       Assessment Tool. Id. The juvenile court set a modification hearing for June

       18, 2018, to allow counsel for C.M. time to prepare a Community Release Plan.

       Id. at 7-8.


[12]   At the modification hearing, the juvenile court heard arguments from both

       parties and testimony from several of C.M.’s service providers, his probation

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 6 of 14
       officer, his mother, and himself. Tr. Vol. gabriella73@example.net. C.M.’s history indicated

       that, around age eleven, he began hanging out with other youth in the

       neighborhood and developed negative behavior such as arguing with his mother

       and an increased refusal to comply with rules and routines. Appellant’s App. Vol.

       gabriella73@example.net. Between the ages of eleven and thirteen, C.M. began smoking

       marijuana, and at times, would smoke marijuana daily. Id. at 94, 101. At the

       age of twelve, C.M. expressed a desire to kill himself, and his mother took him

       to see a psychologist and psychiatrist. Id. at 93. C.M. was prescribed

       medication, which he refused to take; his mother attempted to take C.M. to his

       appointments with therapists, but he would avoid the appointments and hide

       from his mother by leaving the house. Id. at 93-94.


[13]   Since 2014, C.M. had been arrested and/or adjudicated delinquent for six

       different charges. Appellant’s App. Vol. gabriella73@example.net. In 2014, when he was thirteen,

       C.M. was arrested and charged with leaving home without permission and

       resisting law enforcement, which would be a Class A misdemeanor if

       committed by an adult. Id. at 8. He was placed on GPS monitoring. Id. The

       same year, C.M. was charged with armed robbery, theft, possession of a

       controlled substance, criminal recklessness, and carrying a handgun without a

       license, for which he admitted committing the lesser charge of robbery, which

       would be a Level 5 felony if committed by an adult. Id at 7. He was again

       placed on GPS monitoring. Id. In 2016, at age fourteen, C.M. was found to

       have committed battery, which would be a Class B misdemeanor if committed

       by an adult and was placed on probation and required to complete the Cross

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 7 of 14
       Systems Care program, which he did complete. Id. In 2017, C.M. was arrested

       and charged with several offenses, including domestic battery and leaving home

       without permission of a parent, all of which were found not true except for

       leaving home without permission of a parent, for which C.M. was given a

       warning and released. Id.


[14]   In reference to a psychological evaluation of C.M., his mother stated that he

       acted secretive and defensive whenever she would ask about his friends or when

       she would walk into the room when his friends were at their home. Appellant’s

       App. Vol. gabriella73@example.net. C.M.’s mother also stated that she had difficulty disciplining

       C.M. and that he would frequently argue with her. Id. at 90. He struggled to

       comply with discipline, such as being grounded, and when given such

       consequences, he would just leave the house. Id. C.M.’s mother characterized

       him as “defiant, disrespectful, argumentative, and openly oppositional towards

       his parents.” Id. at 91. C.M. had also often interfered with his mother’s

       parenting decisions with siblings, and instead of allowing her to discipline them,

       C.M. would do so on his own, including hiding or selling their possessions. Id.

       C.M.’s mother reported finding empty alcohol bottles in C.M.’s bedroom, and

       he was suspected to have experimented with illicit drugs in 2017 when he took

       a “pill” that resulted in his vomiting and requiring transportation to a hospital.

       Id. at 101.


[15]   At the conclusion of the modification hearing, the juvenile court noted C.M.’s

       six previous incidents with the juvenile correction system and that “this young

       man has had so many opportunities.” Tr. Vol. gabriella73@example.net. The juvenile court

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 8 of 14
       considered C.M.’s history of criminal conduct, his lack of engagement in Cross

       Systems Care services and with other service providers, his positive drug

       screens, and his “high risk” to reoffend per the Indiana Youth Assessment Tool.

       Id. at 10. The juvenile court ordered C.M. to be placed in the DOC for a period

       of one year, finding that such placement was the “least restrictive alternative

       consistent with public safety and [the] best interest of the child.” Id. at 11.

       C.M. filed a motion for reconsideration, which was denied by the juvenile

       court. C.M. now appeals.


                                      Discussion and Decision
[16]   C.M. argues that the juvenile court abused its discretion when it ordered him to

       be placed in the DOC because it was not the least restrictive means to

       accomplish his rehabilitation. He contends that the plan proposed by the

       probation department, consisting of GPS monitoring with strict adherence to

       the Community Release Plan, was less restrictive than placement in the DOC

       and most consistent with Indiana Code section 31-37-18-6. C.M. further asserts

       that the juvenile court did not make a specific finding that “community safety

       required sending [him] to [the] DOC” and that the record showed that “for the

       most part, [he] responded well to interventions far short of DOC commitment.”

       Appellant’s Br. at 18, 19. He maintains that there was a range of placements

       available to the juvenile court that would have been less harsh than

       commitment to the DOC and that his placement in the DOC was contrary to

       the logic and effect of the facts before the juvenile court.



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 9 of 14
[17]   “A juvenile court is accorded ‘wide latitude’ and ‘great flexibility’ in its dealings

       with juveniles.” J.T. v. State, 111 N.E.3d 1019, 1026 (Ind. Ct. App. 2018)

       (citing J.S. v. State, 881 N.E.2d 26, 28 (Ind. Ct. App. 2008)). The choice of a

       specific disposition of a juvenile adjudicated a delinquent child is a matter

       within the sound discretion of the juvenile court and will only be reversed if

       there has been an abuse of that discretion. Id. “The juvenile court’s discretion

       in determining a disposition is subject to the statutory considerations of the

       welfare of the child, the safety of the community, and the policy of favoring the

       least-harsh disposition.” Id. An abuse of discretion occurs when the juvenile

       court’s action is clearly erroneous and against the logic and effect of the facts

       and circumstances before it. Id.


[18]   The goal of the juvenile process is rehabilitation rather than punishment. Id.

       “‘Accordingly, juvenile courts have a variety of placement choices for juveniles

       who have delinquency problems, none of which are considered sentences.’” Id.

       (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. App. 2010)). Indiana

       Code section 31-37-18-6(1)(A) provides that “[i]f consistent with the safety of

       the community and the best interest of the child, the juvenile court shall enter a

       dispositional decree that is in the least restrictive (most family like) and most

       appropriate setting available.” “[T]he statute recognizes that in certain

       situations the best interest of the child is better served by a more restrictive

       placement.” J.S., 881 N.E.2d at 29 (citing K.A. v. State, 775 N.E.2d 382, 387

       (Ind. Ct. App. 2002), trans. denied). The law requires only that the disposition

       selected be the least restrictive disposition that is “consistent with the safety of

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 10 of 14
       the community and the best interest of the child.” J.T., 111 N.E.3d at 1026

       (citing D.S. v. State, 829 N.E.2d 1081, 1085 (Ind. Ct. App. 2005)).


[19]   At the time of disposition in this case, C.M. was seventeen years old and had

       been involved in the juvenile justice system since he was thirteen years old. His

       delinquency history included true findings for robbery, which would have been

       a Level 5 felony if committed by an adult; battery, which would have been a

       Class B misdemeanor if committed by an adult; and dangerous possession of a

       firearm, which would have been a Class A misdemeanor if committed by an

       adult. Appellant’s App. Vol. gabriella73@example.net. Over the course of the four years since

       C.M. entered the juvenile court system at thirteen years old, several other

       allegations were rejected, dismissed, or not filed, including allegations of

       resisting law enforcement, leaving home without permission of a parent, armed

       robbery, theft, possession of a controlled substance, criminal recklessness,

       carrying a handgun without a license, and domestic battery. Id. C.M. had been

       on probation three times and GPS monitoring twice in the last four years. Id.

       In the few weeks between his initial hearing and detention hearing, C.M. was

       involved in two incidents in the juvenile detention center, in which he failed to

       follow the rules and policies. Appellant’s App. Vol. gabriella73@example.net. He admitted to

       testing positive for marijuana three times within months of being released from

       detention on the instant allegation, and the record showed that he had been

       consuming marijuana since he was thirteen years old and at times did so daily.

       Appellant’s App. Vol. III at 94, 101; Supp. Tr. Vol. gabriella73@example.net. The record also

       demonstrated that C.M. resisted his mother’s discipline and would interfere


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 11 of 14
       with her disciplining of his siblings, which caused his mother increased stress

       and health problems and marital discord between his parents. Appellant’s App.

       Vol. gabriella73@example.net. Additionally, although he had responded well to GPS

       monitoring in the past, C.M. reverted to his past bad behavior when he was

       released from the monitoring, which was evidenced by the fact that he was

       released from GPS monitoring on April 9, 2018 and tested positive for

       marijuana three times within only a few weeks. Id. at 109; Appellant’s App. Vol.

       gabriella73@example.net.


[20]   C.M. asserts that the GPS monitoring proposed by the probation department

       was the least restrictive disposition or that other least restrictive alternatives

       other than the DOC placement existed. Just because a less restrictive

       alternative exists, however, does not mean that the juvenile court must follow

       it. D.C. v. State, 935 N.E.2d 290, 292 (Ind. Ct. App. 2010) (“[T]he availability

       of a less restrictive alternative does not mean the juvenile court was required to

       order that placement.”), trans. granted on other grounds. Indiana Code section 31-

       37-18-6 provides that the trial court is only required to consider the least

       restrictive placement if that placement comports with the safety needs of the

       community and the child’s best interests. See J.B. v. State, 849 N.E.2d 714, 717-

       18 (Ind. Ct. App. 2006) (concluding that the trial court did not abuse its

       discretion when it committed the juvenile to the DOC because the less-

       restrictive placement suggested by him would have fallen short of meeting the

       community’s safety needs), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 12 of 14
[21]   Here, the juvenile court specifically stated that placement in a juvenile

       correctional facility through the DOC was warranted because previous services,

       such as Cross System Care, had been tried numerous times and that C.M. had

       failed to engage well in the services. Tr. Vol. gabriella73@example.net. The juvenile court also

       noted the fact that C.M.’s underlying offense involved a handgun and that this

       offense was his second gun-related offense, which demonstrated his willingness

       to violate the rights of others. Id. The juvenile court further considered C.M.’s

       lengthy history with the juvenile justice system and took notice of the many

       opportunities C.M. had been offered to change his behavior. Id. It also took

       into consideration that C.M. was shown to be at a high risk to reoffend by the

       Indiana Youth Assessment Tool. Id.


[22]   In mentioning the seriousness of C.M.’s underlying offense and past offense

       and his high risk to reoffend, the juvenile court considered his danger to the

       safety of the community. We have previously found that the seriousness of an

       offense and the likelihood of re-offense allow for commitment to the DOC. See,

       e.g., D.C., 935 N.E.2d at 293 (“Given the serious nature of D.C.’s offense and

       the likelihood that he will reoffend, this is clearly a situation in which

       commitment to a less restrictive environment than DOC is not in the best

       interest of D.C. or of the community.”). Further, the juvenile court’s finding

       that C.M. had been offered many community-based services in the past, which

       had failed to curb his delinquent behavior, showed that such services were no

       longer in C.M.’s best interest.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 13 of 14
[23]   We, therefore, conclude that it was reasonable for the juvenile court to find that

       the many services and opportunities offered to C.M. had not been successful

       and that he posed a danger to both himself and to the community. Because of

       the serious nature of C.M.’s underlying offense, the volume of his criminal

       history, his failure to engage in and benefit from past services offered, and the

       likelihood that he will reoffend, we find that the juvenile court was within its

       discretion to conclude that commitment to a less restrictive environment than

       the DOC was not in the best interest of C.M. or consistent with the safety of the

       community. The juvenile court did not abuse its discretion when it ordered

       C.M.’s placement in the DOC.


[24]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1631 | January 24, 2019   Page 14 of 14
