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A dangerous-possession-of-a-firearm delinquency adjudication has been overturned on double jeopardy grounds, but the Court of Appeals of Indiana also upheld the juvenile’s criminal recklessness adjudication.
In 2022, minors D.M. dated A.G. for about three months, but the relationship ended with A.G. blocking D.M.’s number. A.G. was pregnant with D.M.’s child.
In the past, A.G. had dated M.V., a childhood friend of D.M.’s.
In August 2022, A.G. was at Nasit Mercado’s apartment with M.V., H.M. and several others. H.M. texted D.M. that she was at Mercado’s home and told him they had been talking about him attempting to “shoot up the crib.”
D.M. responded that he had a gun with him. H.M. asked him not to shoot at the home because her child was there.
D.M. asked who all was at the apartment, specifically asking about M.V. H.M. said M.V. wasn’t there because she didn’t want any drama.
D.M. later messaged H.M. that “just watch nobody gon know my next move,” and “this G2 ‘bout to catch three bodies.” “G2” referred to the model of gun, and the messages included a photograph of a Taurus G2c 9 mm handgun.
H.M. believed that A.G. and M.V. needed to leave the apartment to avoid an altercation with D.M. Mercado asked them to leave and had his friend, Melanie Hernadez, give them a ride home.
But as Hernandez backed up her car, gunshots were fired, and she saw “muzzle flashes” coming from behind her car and felt something hit the car. She quickly drove away and later saw bullet holes in her car that weren’t there before.
While investigating the shooting, police found six 9 mm cartridge cases on the ground of the parking lot of a Village Pantry that was located close to Mercado’s apartment. Security footage showed an individual shooting toward Mercado’s apartment complex but could not be identified.
A day later, Lafayette Police Department officer James Jarrett received a call from dispatch advising him to arrest D.M. In a footnote, the appellate court noted it’s not clear whether Jarrett was advised based on the shooting or for separate reasons.
D.M. was last seen at the football stadium at Jefferson High School, so Jarrett went there and recognized D.M. in line at a concession stand. Jarrett arrested D.M. and performed a search, which uncovered a loaded Taurus G2C 9 mm handgun in D.M.’s pocket.
Forensic testing confirmed the gun found on D.M. was the same one that fired the cartridge cases found in the Village Pantry parking lot the day prior.
The state alleged D.M. was a delinquent child for committing possession of a firearm on school property, a Level 6 felony if committed by an adult, and dangerous possession of a firearm, a Class A misdemeanor.
In September 2022, in a different case number, the state alleged D.M. was a delinquent child for committing attempted aggravated battery, a Level 3 felony if committed by an adult, and criminal recklessness, a Level 6 felony if committed by an adult.
All four allegations were heard together, and the Tippecanoe Superior Court adjudicated D.M. delinquent on all allegations except attempted aggravated battery. The trial court granted wardship of D.M. to the Indiana Department of Correction.
D.M. appealed, arguing first that the adjudications for possession of a firearm on school property and dangerous possession of a firearm constitute double jeopardy.
The appellate court agreed, ordering the trial court on remand to vacate the dangerous possession adjudication.
But the COA rejected D.M.’s argument that there was insufficient evidence to support the criminal reckless adjudication.
“Here, the State presented evidence that D.M. sent threatening messages to people at Mercado’s apartment, including his ex-girlfriend, A.G., on the evening of August 4 and/or the early morning of August 5,” Judge Elizabeth Tavitas wrote. “… And the next day, D.M. was found in possession of the gun that matched the casing found at the Village Pantry.
“We find this evidence sufficient to support D.M.’s adjudication for criminal recklessness,” Tavitas wrote. “D.M.’s assertions to the contrary are simply requests that we reweigh the evidence and judge witness credibility, which we cannot do.”
Judge Dana Kenworthy concurred while Judge L. Mark Bailey concurred in result.
In a separate opinion, Bailey said he disagreed with Footnote 3, which said, “We do not consider the facts adduced at trial when determining whether offenses are included as charged; rather, under (Wadle v. State, 151 N.E.3d 227 (Ind. 2020)), we look solely to the charging information.”
“… I do not believe that Wadle … precludes consideration of the facts adduced at trial when determining whether one charged offense is included in another charged offense,” Bailey wrote. “As noted by the majority of the Court of Appeals panels who have addressed the issue since Wadle, when one offense, as ‘charged and tried,’ is factually included in the other, it is an included offense under the second step of the Wadle double jeopardy analysis. … Thus, we look not only at the language of the charging information, but also the facts that must be proven at trial to determine whether one offense is included in the other, either inherently or as charged.
“… And the facts that had to be proven at trial for each delinquent act were that D.M. was a minor in possession of the same firearm on the same date,” he continued. “Therefore, one offense, as charged and tried, was factually included in the other.”
The case is D.M. v. State of Indiana, 23A-JV-395.
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