J.L.T. v. State
J.L.T. v. State
Opinion of the Court
OPINION
After engaging in criminal mischief as a Class D felony,
We affirm.
The facts most favorable to the judgment show that on March 27, 1997, J.L.T. and three of his friends went to a cemetery in Owen County, knocked over one headstone,
I.
J.L.T. mounts a multi-prong attack challenging the sufficiency of the evidence. He contends for example that the testimony of the State’s chief witness, one of his cohorts, lacked credibility. To underscore the point he directs our attention to comments made by the trial court after both sides had presented closing arguments:
[Wjhat really upsets me about this situation on top of the fact that all of these gravestones got damaged, is that, you kids can’t even do the right thing. You can’t even be brave enough to do the right thing. You can’t stand out there at the graveyard and pay respect to people who went on before you and not damage their graves. You can’t respect someone’s property and not damage some vacant house. And to add insult to injury you can’t even come in here and raise your right hand and tell the truth. And that applies to all three of you.
R. at 312-13 (emphasis added). According to J.L.T., “the juvenile court specifically found that [J.L.T.’s cohort] had lied.” Brief of Appellant at 16. Continuing with the lack of credibility assertion J.L.T. also points to the State’s closing argument in which the deputy prosecutor commented “there is more lying that went on from that stand today than I’ve seen forever.... The fact of the matter is the damage[ ] occurred and it is up to you to evaluate this evidence, but this evidence stinks. It’s terrible.” R. at 308. According to J.L.T., given the prosecutor’s comments, the prosecutor engaged in misconduct by proceeding with a fact-finding hearing rather than dismissing the delinquency petition altogether. He also complains that the only other evidence before the trial court implicating him in the charged offense was the hear
When reviewing a claim challenging the sufficiency of the evidence, our standard of review is well settled. We neither reweigh evidence nor judge witness credibility. Matter of J.L., 599 N.E.2d 208, 212 (Ind.Ct.App. 1992), trans. denied. Rather, we examine only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. Id. If there is substantial evidence to support the conclusion of the trier of fact, we will not set aside the judgment. Id. We reject J.L.T.’s assertion concerning prosecutorial misconduct and the inference that nothing J.L.T.’s cohort had to say was worthy of consideration by the juvenile court. The record is clear that the cemetery sustained substantial damage. It is also clear and undisputed that J.L.T. and his cohorts were present when the damage occurred. Predictably, each of the juveniles attempted to minimize his own involvement while pointing the finger in the other direction. It is in this context that the prosecutor commented the “evidence stinks” and the trial court commented that neither of the juveniles was “tell[ing] the truth.” However, it is precisely within the domain of the trier of fact to sift through conflicting accounts of events. Not only must the fact-finder determine whom to believe, but also what portions of conflicting testimony to believe. Ryle v. State, 549 N.E.2d 81, 83 (Ind.Ct.App. 1990), trans. denied. That is exactly what the trial court did in this case.
In order to prove criminal mischief the State must show that a defendant: (1) recklessly, knowingly, or intentionally (2) damaged a cemetery or a facility used for memorializing the dead, (3) without the consent of the owner. Ind.Code § 35-43-1-2. The offense is ordinarily a Class A misdemeanor. However, it is a Class D felony if the pecuniary loss is between $250.00 and $2,500.00. Id. In this case the juvenile witness, about whom J.L.T. complains, testified among other things that he drove J.L.T. and two other teenagers to the cemetery, that he and J.L.T. knocked over one headstone, and that J.L.T. damaged other headstones. Standing alone this evidence was sufficient to prove elements one and two of a criminal mischief offense. Additional evidence revealed that J.L.T. did not have permission to damage the headstones and that the total loss equaled approximately $14,000.00. The evidence was sufficient to sustain the delinquency judgment.
II.
Next J.L.T. contends he received ineffective assistance of counsel. In support he again complains of the alleged hearsay testimony of the police officer to which trial counsel did not object. He also points to counsel’s closing argument wherein, according to J.L.T., counsel conceded J.L.T.’s guilt. In reviewing a claim of ineffective assistance of counsel, we initially presume that counsel’s representation was within the wide range of reasonable professional assistance. Nordstrom v. State, 627 N.E.2d 1380, 1384 (Ind.Ct.App. 1994), trans. denied. On appeal the defendant has the burden to rebut the presumption of competence with strong and convincing evidence. Clark v. State, 561 N.E.2d 759, 762 (Ind. 1990). In order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate: 1) counsel’s representation was deficient, and 2) the deficient performance so prejudiced the defendant as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Barany v. State, 658 N.E.2d 60, 65 (Ind. 1995), reh’g denied.
Concerning the alleged hearsay, we have already determined that the in-court testimony of J.L.T.’s cohort along with other evidence properly introduced at the hearing was sufficient to sustain the court’s delinquency adjudication. Thus, even assuming for the sake of argument only that trial counsel’s representation was deficient for failing to object to hearsay testimony, J.L.T. cannot demonstrate that the deficient performance so prejudiced him that the was
III.
J.L.T. next asserts that the “fact-finding hearing was unfair because the juvenile court, at the State’s invitation, acted as a second prosecutor when it attempted to use the fact-finding process as an inquisitorial tool to extract a confession from [J.L.T.]” Brief of Appellant at 12. This bald and outrageous assertion, unsupported by the record, is entitled to no evaluation by this court. Suffice it to say a judge is presumed to be unbiased and unprejudiced. Perry v. State, 585 N.E.2d 715, 716 (Ind.Ct.App. 1992). J.L.T. has not shown otherwise here.
IV.
Finally J.L.T. complains the trial court erred in ordering him to pay restitution in the amount of $9,333.00. He argues that because the delinquency adjudication was based upon criminal mischief as a Class D felony, the maximum amount of restitution could not exceed $2,500.00. J.L.T. is mistaken. The pecuniary loss a victim suffers as the result of criminal mischief determines the level of the offense for which the offending party may be charged. However, the level of the offense has no bearing on the amount of restitution the court may impose. An order of restitution is a matter within the trial court’s discretion, and we reverse only upon a showing of abuse of that discretion. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App. 1995), trans. denied. An abuse of discretion occurs when the trial court’s determination is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Matter of L.J.M., 473 N.E.2d 637, 640 (Ind.Ct.App. 1985). Indiana Code § 31-37-19-5 provides that a juvenile court may order a juvenile “to pay restitution if the victim provides reasonable evidence of the victim’s loss, which the child may challenge at the dispositional hearing.” A victim includes a person who is shown to have suffered an injury, harm or loss as a direct and immediate result of the criminal acts of a defendant. Roach v. State, 695 N.E.2d 934, 943 (Ind. 1998). The record shows that Robert Schouse owns the property on which the cemetery is located. At the fact-finding hearing Mr. Schouse testified that based on the cost of a headstone that he had purchased for his wife two years earlier, and based on the destruction of the headstones in the cemetery, he estimated the cost of repair or replacement of the headstones at approximately $14,000.00. J.L.T. did not challenge the amount of the loss either at the fact-finding hearing or the dispositional hearing. Because the evidence revealed that
Judgment affirmed.
. Ind.Code § 35-43-l-2(b).
. Ind.Code§ 31-37-1-2.
.Appellant's petition for oral argument is hereby denied.
. In his reply brief J.L.T. challenges for the first time the subject matter jurisdiction of the juvenile court. Generally, an appellant cannot raise an argument for the first time in a reply brief. Gray v. State, 593 N.E.2d 1188, 1191 (Ind. 1992). However, it appears that the question of subject matter jurisdiction can be raised at any time. See, e.g., Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997) ("Subject matter jurisdiction never can be waived, and can be raised at any step in the appeal process.”). In any event J.L.T.’s argument is premised on the notion that Ind.Code §§ 31-37-13-2 and 31-37-13-5 require the juvenile court to malte a finding for a specific class of felony at the same time the court makes a finding of delinquency. The argument continues that because the juvenile court did not determine that J.L.T.'s act of criminal mischief amounted to a Class D felony until the dispositional hearing, the court "lost the power to find [J.L.T.] delinquent at all." Reply Brief of Appellant at 4 (emphasis in the original). Subject matter jurisdiction refers to the power of the court to hear and adjudicate a particular class of cases. Putnam County Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind.Ct.App. 1993). The issue of subject matter jurisdiction is resolved by determining whether the claim involved falls within the general scope of authority conferred on the court by state constitution or by statute. Id. The relevant statutes in this case provide that the juvenile court has exclusive jurisdiction in proceedings in which a person under eighteen (18) years of age is alleged to have committed an act that would be a criminal offense if committed by an adult. See Ind.Code §§ 31-30-1-1(1) and 31-37-1-2. J.L.T. was under eighteen (18) years of age at the time the delinquency petition was filed, and the allegations therein satisfied the statutory pre-requisites. J.L.T.'s subject matter jurisdiction argument thus fails.
Reference
- Full Case Name
- In re J.L.T., A Child Alleged to be a Delinquent Child. J.L.T., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
- Cited By
- 25 cases
- Status
- Published