Indiana Court Decisions: Aug. 10-23, 2023

7th Circuit Court of Appeals

Published Aug. 9, posted to theindianalawyer.com Aug. 10

United States of America v. Sergio Gamez

22-2278

7th Circuit certifies question of what constitutes ‘arson’ to IN Supreme Court, stays appeal challenging enhanced sentence for felon-in-
possession conviction

The 7th Circuit Court of Appeals is asking the Indiana Supreme Court to provide guidance on what constitutes “arson” under state law.

The federal appellate court posed that question to the state Supreme Court in United States of America v. Sergio Gamez, 22-2278, certifying this question to the justices: “Under Indiana law, need the state prove that the defendant burned property in order to obtain a conviction for arson? Or is it sufficient to prove that the defendant more generally caused damage to property ‘by means of fire, explosive, or destructive device?’”

That question stems from a case that began in August 2019, when police responded to a reported kidnapping at a gas station near Hammond and found Sergio Gamez in possession of a Winchester rifle. At the time, Gamez was on probation for a prior robbery conviction.

Just over a week earlier, Gamez had removed his GPS-tracking ankle bracelet, so a LaPorte County Community Corrections officer filed charges for escape.

Gamez was also charged with being a felon in possession, to which he pleaded guilty.

Three years later at the sentencing hearing, the government pointed to Gamez’s criminal history to support a 15-year minimum sentence under the Armed Career Criminal Act. Gamez had three prior state convictions: two for robbery and one for aiding and abetting arson.

While Gamez didn’t dispute that his two robbery convictions qualified as violent felonies, he disagreed that the conviction for aiding and abetting arson qualified.

The Indiana Northern District Court rejected his position and found him to be an armed career criminal, sentencing him to 15 years.

Gamez challenged the district court’s application of the ACCA enhancement on appeal.

The 7th Circuit first determined that the lower court was right to conclude Gamez’s three prior Indiana felony convictions occurred on different occasions, and that the state’s choice to charge Gamez as an aider and abettor of arson and not a principal does not independently preclude the ACCA enhancement.

“No reasonable jury could have concluded that Gamez’s convictions — robbery in 2009, aiding and abetting arson in 2011, and robbery in 2016 — occurred on the same occasion,” Judge Michael Scudder wrote.

But the court did not reach a conclusion on the question of whether his arson conviction qualified as a violent felony.

Scudder wrote that if Indiana arson is a violent felony within ACCA’s definition, then Gamez’s conviction would qualify for the enhancement even though the state charged him as an aider and abettor and not a principal.

Conversely, “If we adopted Gamez’s view — that aiding and abetting arson under Indiana law does not qualify as a crime of violence for purposes of ACCA’s sentencing enhancement — we would necessarily also conclude that aiding and abetting any crime of violence in Indiana is not a crime of violence,” Scudder added.

That brought the appellate court to the question of whether arson under Indiana law is broader than the generic definition in federal law.

“The question of whether Indiana arson requires a fire or burning is a matter of Indiana law that is essential to resolving Gamez’s appeal,” Scudder wrote. “We therefore respectfully request that the Indiana Supreme Court exercise its discretion to answer” the 7th Circuit’s proposed certified question.

The case was docketed in the Indiana Supreme Court as In the Matter of the Certified Question: United States of America v. Sergio Gamez, 23S-CQ-00220.

The 7th Circuit stayed all proceedings in the case while the state justices consider its question.

Indiana Supreme Court

Aug. 10

In the Matter of the Honorable Jason A. Cichowicz, Judge of the St. Joseph Probate Court

23S-JD-33

Justices say St. Joe probate judge’s misconduct appeared ‘willful’

One week after issuing an order suspending St. Joseph Probate Judge Jason A. Cichowicz for 45 days, the Indiana Supreme Court issued an opinion explaining its rationale, writing that the judge’s misconduct seemed to be “willful.”

The justices handed down a provisional order Aug. 4 announcing Cichowicz’s 45-day suspension effective Sept. 5, without pay but with automatic reinstatement effective Oct. 20. They then issued a six-page opinion Aug. 10 explaining the suspension.

As detailed in a Statement of Circumstances and Conditional Agreement for Discipline, Cichowicz and the Judicial Qualifications Commission agreed that the judge violated Rules 1.2, 1.3, 3.1(C) and 3.8 of the Code of Judicial Conduct in his dealings with a man named Levering Russell Cartwright and his role as trustee of Cartwright’s foundation.

Cichowicz became Cartwright’s power of attorney before taking the bench, then remained in that role after being elected in 2018. He had also become the sole trustee of Cartwright’s foundation before being elected, then used that position to make anonymous donations totaling about $160,000 to fund renovation projects at the county’s juvenile justice center and to purchase vehicles to support the county’s court-appointed special advocate program.

One of the renovation projects and the purchase of the vehicles went through businesses owned by the judge’s father.

In a personal statement filed Aug. 4, Cichowicz underscored the fact that no taxpayer money was expended for the renovations or vehicle purchases. He also said he had done research after his election and determined that it would not be unethical to continue serving as Cartwright’s POA.

According to Cichowicz, it “never occurred to him” that his actions would be considered ethical violations.

For his part, Cartwright penned a letter blasting the disciplinary process and saying Cichowicz had been “bullied.”

In their per curiam opinion, the justices took a different view of the facts.

“Respondent’s misconduct permeated his entire 4-year career as probate judge,” the opinion says. “Further, his act of keeping the source of funds anonymous suggests the misconduct was willful, undermining the integrity of the judiciary.”

The high court compared Cichowicz’s case to Matter of Freese, 123 N.E.3d 683 (Ind. 2019).

“Like some of Respondent’s misconduct, we recognized the judge’s misconduct (in Freese) brought him no personal benefit or gain,” the justices wrote. “But the judge in Freese had a lengthy and distinguished judicial career unblemished by previous discipline, while Respondent’s misconduct began as soon as he assumed judicial office.

“… (T)he personal statement Respondent submitted to this Court stresses he is hopeful his fellow judges will learn from his experience,” the court concluded. “We are as well.”

All justices concurred in In the Matter of the Honorable Jason A. Cichowicz, Judge of the St. Joseph Probate Court, 23S-JD-33.

Court of Appeals of Indiana

Aug. 11

K.W v. State of Indiana

22A-JV-3063

COA upholds admission of gun found on juvenile

A trial court did not err in admitting evidence seized as a result of a stop and pat-down of a juvenile, the Court of Appeals of Indiana has affirmed.

In February of last year, the Lawrence Police Department responded to a call reporting a domestic disturbance. Officer Khalid Brooks arrived to find the woman who made the call claiming her ex-boyfriend, Steven Rodes, had forced his way into her apartment, assaulted her and attempted to prevent her from calling the police. The woman said she had a protective order against Rodes. He also had a warrant out for his arrest.

Brooks canvased the area because he knew the suspect left on foot without a vehicle. He observed a Black male matching the description the woman gave, who was later identified as K.W.

Brooks slowed his police vehicle after he passed K.W., but K.W. quickly crossed the street behind him. Brooks saw him again in a nearby park, sitting at a picnic table in a gazebo.

As Brooks approached, he radioed that he believed he had found Rodes. Brooks yelled “Steven” twice, but K.W. never responded.

Brooks then asked the man for his name, which he gave as K.W. Brooks asked if he had an ID on him, but K.W. said no.

Brooks then asked K.W. to stand up and asked if he had any weapons on him. K.W. said he did, and Brooks removed a gun and magazine from his waistband.

K.W. was arrested, and the state subsequently filed a petition alleging K.W. was a delinquent child for committing an act that if committed by an adult would be Class A misdemeanor carrying a handgun without a license. K.W. remained in his parents’ care while the proceedings were pending.

K.W. filed a motion to suppress the gun and magazine found as part of his arrest. He argued that Brooks’ stop violated his rights against unreasonable search and seizure under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

That same day, the Marion Superior Court held a hearing on K.W.’s motion and denied it. The court then proceeded to a factfinding hearing and ultimately entered a true finding as to dangerous possession of a firearm.

The court held the dispositional hearing and closed the case without ordering any services for K.W. or his family.

The first issue K.W. brought to the appellate court was whether the trial court abused its discretion when it admitted the gun and magazine found on him because Brooks’ investigatory stop and pat-down violated his Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

Starting with the Fourth Amendment, the COA found no violation. The court pointed to the fact that K.W. crossed the street when Brooks drove by and that he matched the description of the man involved in the domestic disturbance.

“Moreover, Officer Brooks had reasonable suspicion to search K.W. for weapons,” Judge Melissa May wrote. “As part of a valid Terry stop, an officer is also entitled to take reasonable steps to ensure his own safety. … This includes conducting ‘a limited search of the individual’s outer clothing for weapons if the officer reasonably believes that the individual is armed and dangerous.’”

The appellate court likewise found no violation of the Indiana Constitution, ruling that “all of the Litchfield factors support the reasonableness of Officer Brooks’s initial Terry stop and pat down of K.W. … .”

The second issue K.W. raised on appeal was whether the trial court abused its discretion when it admitted the gun and magazine found on him because the state did not establish a sufficient chain of custody.

Also rejecting that argument, the COA held, “(T)he trial court did not abuse its discretion when it admitted the gun and magazine found on K.W. because Officer Brooks testified the items were the gun and magazine he retrieved from K.W. on the day of the incident and they were in the same or substantially similar condition as they were the day of the incident,.”

Chief Judge Robert Altice and Judge Peter Foley concurred in K.W. v. State of Indiana, 22A-JV-3063.

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Leon Tyson v. State of Indiana

22A-PC-143

Man’s argument that judge in PCR case will be biased falls short, COA affirms

A man whose motions to change the judge in his post-conviction relief case have been denied failed to demonstrate the judge would be biased against him, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision.

Leon Tyson, who was convicted of murder in 2017, filed a petition for post-conviction relief in 2018. He filed an amended petition in May 2021 in the Elkhart Superior Court.

That month, Tyson also filed a motion for a change of judge pursuant to Post-Conviction Rule 1(4)(b), arguing he was entitled to a new judge because the post-conviction judge had been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998 until 2002.

Tyson also argued the court should grant his motion because it did so for another man, Andrew Royer, who was convicted of murder in 2005.

In 2019, Royer had filed a motion for change of judge. The post-conviction judge, who had issued an order finding that his attorney violated Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion.

The attorney in Royer’s case also represents Tyson. The judge in Royer’s case is also the post-conviction court judge in Tyson’s case.

A new judge granted Royer’s successive petition for post-conviction relief and vacated Royer’s murder conviction based on newly discovered evidence and Brady violations.

The post-conviction court eventually denied Tyson’s motion for a change of judge.

Tyson filed a motion for reconsideration three weeks later, arguing the court misread how Royer’s case showed the court’s inability to be impartial. The post-conviction court denied the motion.

Tyson appealed the denial of his motion, and the Court of Appeals accepted jurisdiction in February 2022.

Then in March 2022, Tyson filed a motion pursuant to Indiana Appellate Rule 37 to stay the appeal and remand the case to the post-conviction court. Tyson claimed he had newly discovered evidence that revealed the post-conviction judge had been married from 1992 until 2003 to someone who was an Elkhart Police Department reserve police officer from 1983 through 1994.

Tyson filed a renewed motion for a change of judge, which the post-conviction court denied without a hearing. The post-conviction court also denied a motion for reconsideration.

On appeal, Tyson argued the post-conviction court erred when it denied his motion for a change of judge.

The Court of Appeals disagreed.

Tyson argued that because the post-conviction court previously found the common attorney in Royer’s case violated a rule of professional conduct, that supports an inference of bias or prejudice against Tyson.

But the Court of Appeals said it found nothing to support that argument, in part because the order against the attorney didn’t mention Tyson.

Tyson also argued the post-conviction court judge’s 1998-2002 tenure as a deputy prosecutor supports an inference of bias or prejudice against him.

But the Court of Appeals disagreed, referencing the 13-year gap between the judge leaving the prosecutor’s office and Tyson being charged.

Lastly, Tyson argued the post-conviction court judge’s 1992-2003 marriage supports an inference of bias or prejudice against him.

But the Court of Appeals disagreed there, too, noting the marriage ended 10 years before Tyson was charged.

“We further note that the post-conviction court has neither expressed an opinion on the merits of Tyson’s case nor attacked his character,” the opinion says. “Accordingly, because we are not left with a definite and firm conviction that a mistake has been made, we conclude that the post-conviction court did not clearly err in denying Tyson’s motion for a change of judge.”

Judge Rudolph Pyle wrote the opinion. Judges Terry Crone and Cale Bradford concurred.

The case is Leon Tyson v. State of Indiana, 22A-PC-143.

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Aug. 14

Marion L. Young v. State of Indiana

22A-CR-2923

Insufficient evidence leads to COA reversal in Vincennes trespass case

A Vincennes police officer was not acting as an agent of a store when he asked a man to leave the store’s property and later arrested him, the Court of Appeals of Indiana ruled in reversing a trial court’s conviction of the man on a misdemeanor trespassing charge.

According to court records, sometime before Nov. 24, 2019, the control division of the Vincennes Police Department received emails stating that Red’s Country Store in Vincennes requested an extra patrol of its property.

On Nov. 24, VPD Capt. Harold Hensley was on patrol and drove by the store. He saw no one there, so he went to a nearby Subway restaurant and spoke with an employee there.

The employee directed Hensley to an individual, later identified as Marion Young, who “was just now walking out from the side of the building.”

Hensley approached Young, but Young refused to provide Hensley with his name, explain why he was there or provide him with any indication that he had an interest in the property.

The VPD captain asked Young to leave the property, but he refused.

Hensley, now assisted by an unknown officer, attempted to take Young into custody. Young resisted, and the police had to take him to the ground to subdue him.

Hensley took Young to jail, where jail staff identified him as Young.

The next day, Hensley spoke with the owner of RCS, Mark Pepmyer, who was unfamiliar with Young and stated that Young had no interest in the RCS property.

On July 27, 2020, the state charged Young with one count of criminal trespass, a Class A misdemeanor.

A bench trial was held on Nov. 10, 2022, in Knox Superior Court. At trial, the state’s only witness was Hensley.

Young’s defense counsel argued that the state failed to prove that the VPD officers were acting as RCS’s agents at the time of the arrest and, therefore, had no authority to ask Young to leave.

The trial court found Young guilty as charged and sentenced him to time served, with credit for 159 actual days served plus 159 days of good-time credit.

Young appealed his conviction, arguing that the state failed to present sufficient evidence to support his conviction for criminal trespass.

The Court of Appeals agreed with Young and reversed his conviction.

Judge Elizabeth Tavitas wrote the opinion for the appellate court.

Tavitas noted that Young attacked the sufficiency of the state’s evidence on several grounds, one of which was that the state failed to prove that Young was asked to leave by RCS or RCS’s agent.

“Young’s refusal amounted to criminal trespass, however, only if the person who asked him to leave was either the owner of the property or the owner’s agent. Young contends that there was insufficient evidence that Captain Hensley was an ‘agent’ of RCS. We agree,” Tavitas wrote.

The appellate court acknowledged that Hensley testified that “they,” presumably RCS, had asked VPD “to act as an agent of the store.”

But Tavitas wrote that the appellate court had held before — citing Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App. 2011) — that the testimony of a police officer, by itself, that he was acting as an agent of the property owner is insufficient to establish that the officer was in fact an agent of the owner.

According to Tavitas, the only other indication that Hensley was acting as an agent of RCS was his testimony that someone from RCS had asked the police to conduct extra patrols of the property and “remove anyone that was not allowed on the property.”

Tavitas wrote that there was simply no evidence presented that established that Hensley or any other VPD officer was an “agent” of RCS as that term is defined by the relevant statute.

“Because there was no evidence that Young was asked to leave RCS property by either the owner of that property, or an agent of that property, the State did not prove one of the essential elements of criminal trespass,” she wrote.

Tavitas acknowledged that the ruling may seem to place an impractical burden on police officers, but the judge added that it was the Indiana General Assembly’s role, not the appellate court’s, to rewrite the criminal trespass statute if it believed it would result in better public policy.

Judges Terry Crone and Elaine Brown concurred.

The case is Marion L. Young v. State of Indiana, 22A-CR-2923.

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Aug. 22

Gareth Sylvester Earl Jones v. State of Indiana

22A-CR-2661

COA upholds convictions, 40-year sentence for man convicted of robbing, beating 85-year-old woman

A man convicted of breaking into an elderly woman’s home and severely beating her could not convince the Court of Appeals of Indiana that his felony convictions or sentence should be overturned.

In December 2019, 85-year-old M.B. lived in an apartment complex for elderly residents in Clarksville, which came equipped with an emergency cord that could be pulled to call for assistance. Her daughter, A.B., lived in a different unit in the apartment complex.

On Dec. 27, M.B. had dinner in her apartment with A.B. and made plans to see her grandchildren the next day, laying out several Christmas bags with gift cards. She then fell asleep in her chair watching TV.

M.B. woke to an attack by a man she didn’t know. The man slammed her head onto the floor and attempted to rip her clothes off.

M.B. was able to pull the emergency cord during the attack. Her neighbors saw the emergency light activated and called the police. The attacker fled at some point.

Emergency responders found M.B. badly injured on her kitchen floor and transported her to the hospital. Meanwhile, Clarksville Police Department officers found her apartment in disarray, including blood on the carpeting and the sliding patio door standing ajar.

Police collected evidence from the apartment that included M.B.’s bloody pajama pants and underwear that were lying on the floor. They also found M.B.’s wallet in the outdoor dumpster, which they swabbed for DNA. Her purse and gift cards for her grandchildren were missing and never recovered.

M.B. was treated for a crushed orbital bone, broken wrist, broken nose and two broken vertebrae. She arrived at the hospital in a robe and a bed sheet, which Capt. Raymond Hall took after interviewing her.

The case went cold for a year after the police were unable to match the DNA found with any suspects. But in 2021, Hall received information that Gareth Sylvester Earl Jones was involved in the attack.

Jones was living in Louisville, Kentucky, but had worked in Clarksville in late 2019 and early 2020. He would often walk past M.B.’s apartment on his way to work.

Hall obtained a warrant to get a DNA sample from Jones, but he couldn’t be located, and the warrant expired.

Hall eventually located Jones, and after informing him of his Miranda rights, he interviewed him. Jones denied being involved in the attack and voluntarily submitted a DNA swab.

The police sent M.B.’s robe and pajama to the State Police Laboratory for DNA testing along with Jones’ DNA sample for comparison. The DNA on the wallet and robe matched Jones’ DNA to an incredibly high degree of mathematical certainty. However, the DNA found on the pajama pants matched Jones’ DNA to a lower degree of certainty.

The state ultimately charged Jones with Level 1 felony burglary resulting in serious bodily injury, Level 2 felony robbery resulting in serious bodily injury, Level 5 felony battery resulting in serious bodily injury and Level 6 felony sexual battery.

At his jury trial, Jones claimed the police conducted a “shoddy investigation,” including failing to properly ensure that the chain of custody of the evidence was maintained and failing to adequately investigate other suspects.

Also, Jones objected to the admission of the bag of clothing taken from M.B. at the hospital. The Clark Circuit Court overruled his objection.

For his part, Jones sought to introduce body camera video from the officers that arrived at the scene, which showed them not wearing gloves walking through the crime scene and commenting on certain items without collecting them. The trial court excluded most of the audio, finding it irrelevant.

The jury found Jones guilty of all counts except sexual battery.

At the sentencing hearing, M.B. testified that the attack left her with post-traumatic stress disorder and that she lived in constant fear. A.B. testified that her mother used to be active for her age, but now lived in pain and fear.

Jones’ mother testified regarding the abuse he suffered from his father as a child. His girlfriend also testified that he was the primary caregiver to their two children and had been a good father.

The trial court found as aggravating the significant and long-term injuries M.B. suffered and her advanced age. It also found as moderately aggravating Jones’ criminal history of two prior misdemeanor theft convictions.

The court found as mitigating the abuse Jones suffered as a child, the hardship incarceration would impose on his children and his lack of substance use.

Ultimately, the aggravators of M.B.’s age and injuries outweighed the mitigating factors.

The trial court vacated the battery conviction and reduced the robbery conviction to a Level 5 felony due to double jeopardy concerns. Jones was then sentenced to an aggregate of 40 years.

On appeal, the first issue Jones brought before the appellate court was whether the trial court abused its discretion by admitting DNA evidence obtained from the victim’s clothing due to the state’s alleged failure to adequately establish the chain or custody.

“Despite his claims to the contrary, Jones can only assert the possibility that the robe was tampered with in the approximately one-hour period before Captain Hall took possession of it. This is not enough to exclude evidence on chain-of-custody grounds,” Judge Elizabeth Tavitas wrote.

The second issue Jones raised was whether the trial court abused its discretion by excluding the audio portion of the police body camera video.

“Here, the video footage from the body cameras was admitted, which showed the actions of the police at M.B.’s apartment, and Jones’s counsel vigorously cross-examined the police about their alleged failures during the investigation. The State’s evidence included the fact that Jones worked in the area of the attack and often walked by M.B.’s apartment on his way to work,” Tavitas wrote. “More importantly, Jones’s DNA was found on the victim’s robe and her wallet. Given this strong evidence of Jones’s guilt, the exclusion of the audio portions of the body camera video was, at most, harmless error.”

Next, Jones challenged whether the state presented sufficient evidence to support his convictions. He noted that M.B. could not identify her attacker.

“Other evidence, however, supports the jury’s conclusion that Jones was M.B.’s assailant,” Tavitas wrote.

The judge continued, “Jones claims that his DNA could have been present due to his job working for UPS. Even if we were to agree that this was possible, precisely how Jones’s DNA ended up on M.B.’s robe and wallet was a question of fact for the jury to determine, and we will not second-guess the jury’s factual determinations on appeal. Jones also worked in the area of M.B.’s apartment and often walked past the apartment complex. Given this evidence, the jury could reasonably conclude that Jones was the person who broke into M.B.’s apartment and attacked her.”

Lastly, Jones questioned whether his aggregate 40-year sentence is inappropriate. The appellate court ruled it is not, noting Jones did not receive the maximum possible sentence.

“In short, Jones has not met his burden on appeal of showing that his forty-year sentence is inappropriate in light of the particularly brutal nature of his offense and his less-than-stellar character,” Tavitas concluded.

The case is Gareth Sylvester Earl Jones v. State of Indiana, 22A-CR-2661.

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Aug. 23

Q.H. v. State of Indiana

23A-JV-326

‘Relatively minor’ juvenile offense didn’t warrant commitment in DOC, COA rules in reversal

A teen’s placement in the Department of Correction for a “relatively minor” juvenile offense was erroneous, the Court of Appeals has ruled, finding a juvenile court did not sufficiently explore less restrictive options.

On Q.H.’s first day at an alternative special education school that he was referred to due to his behavior, he violated the cellphone policy and was removed from the classroom. The 13-year-old spent the next 90 minutes in the hallway pacing, arguing, yelling, throwing chairs and tearing posters from the wall.

Q.H. also cursed and threatened to kill a school staff member and eventually picked up a metal filing tray and swung it at other school staff, including a school security officer. The officer subdued Q.H. and took him to St. Joseph County’s juvenile detention center.

Q.H.’s unemployed mother and several brothers were homeless at the time, and the homeless shelter allowed them to sleep at the facility at night but required them to go elsewhere during the day. His mother could not be located before an emergency detention hearing, so the hearing proceeded without her or Q.H.’s father.

The incident was Q.H.’s first time with the juvenile justice system, and his counsel conceded that continued detention was merited because neither of his parents could take custody of him. After finding probable cause to believe Q.H. committed the alleged acts, the juvenile court ordered him to remain at the juvenile detention center.

The state then petitioned to adjudicate Q.H. as a delinquent for acts that if committed by an adult would be Level 6 felony intimidation and Class B misdemeanor disorderly conduct, battery and criminal recklessness.

A week later at a hearing on the allegations, Q.H. admitted to committing acts of intimidation and battery, and in exchange the state agreed to drop the disorderly conduct and criminal recklessness allegations.

While at the juvenile detention center, Q.H.’s behavior led to 35 incident reports. The reports were mostly threats to hurt himself and others, disrespectful behavior toward detention center staff, failure to follow directions, and clogging the toilet with his clothes. The incidents led to security officers restraining him while he resisted.

At the dispositional hearing, the probation department recommended that Q.H. be committed to the Department of Correction due to his behavior in the juvenile detention center. The St. Joseph Probate Court agreed and committed him to the DOC.

Q.H. argued in his appeal that the juvenile court erred in committing him to the DOC because it was his first experience with the juvenile justice system and his misconduct was relatively minor. He also claimed the dispositional order was improper because the record reflects no investigation of less restrictive options, including residential placement.

The appellate court agreed that the juvenile court’s consideration of sanctions was inadequate.

“First, the pre-dispositional report on which the juvenile court relied did not meet statutory requirements. It failed to evaluate placement options within the context of Q.H.’s needs, including his cognitive and psychological challenges documented in his educational and detention center records,” Judge Leanna Weissmann wrote. “Second, when considering the appropriate sanction, the juvenile court adopted that defective pre-dispositional report and did not broaden its inquiry to include consideration of Q.H.’s cognitive and psychological difficulties. As a result, the trial court’s order committing Q.H. to the DOC did not incorporate the analysis required by Indiana Code § 31-37-18-6.”

The appellate court noted that a forensic clinician at the detention facility concluded that Q.H.’s behavior stemmed from “poor memory retention and lack of coping skills,” and that his threats were more out of frustration rather than genuine harm. An officer also noted that Q.H. “doesn’t know why he gets angry.”

“In other words, Q.H. was judged at the juvenile detention facility largely by his behavior alone, although his behavior seemingly had been linked to his cognitive and emotional difficulties,” Weissmann wrote. “Consistent with that behavior-focused approach, the pre-dispositional report recommended Q.H.’s commitment to DOC due to his poor behavior without considering his need for treatment for cognitive or emotional impairments. The pre-dispositional report therefore violated the applicable version of Indiana Code § 31-37-17-6.1(a)(2).”

The appellate court further found that the lack of investigation into Q.H.’s needs tainted the findings.

“The record does not support the juvenile court’s finding that reasonable efforts have been made to finalize a permanency plan for Q.H.,” Weissmann wrote. “The record shows that Q.H. had an emotional disability and intellectual challenges for which therapeutic care and treatment needs were uninvestigated. Under these circumstances, more was needed than a summary conclusion that a 13-year-old special education student navigating the juvenile justice system for the first time should be committed to the DOC.”

Finally, the COA found no evidence that the juvenile court considered how Q.H.’s unstable home may have affected his behavior and mental state.

Also, Q.H. learned of the department recommending his placement in the DOC the day of the rescheduled dispositional hearing and requested a continuance to allow for further investigation. However, the juvenile court denied the request and proceeded with the hearing.

“Given this record, the juvenile court could not reasonably determine under Indiana Code § 31-37-18-6 that commitment to the DOC was the least restrictive disposition consistent with Q.H.’s best interests and community safety,” Weissmann concluded. “We therefore conclude the court abused its discretion in committing Q.H. at the age of 13 to the DOC for his first and relatively minor juvenile offense. Accordingly, we reverse the juvenile court’s commitment of Q.H. to the DOC and remand for further proceedings consistent with this opinion.”

Judges Patricia Riley and Cale Bradford concurred in Q.H. v. State of Indiana, 23A-JV-326.

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Kyle Budimir v. State of Indiana

23A-CR-17

Man who was told he could leave scene before being searched wins reversal from COA

A man who was told he was free to leave the scene of a traffic stop before being searched and charged with possession of methamphetamine convinced the Court of Appeals of Indiana that his constitutional rights were violated, leading the court to order that his motion to suppress be granted.

In July 21, Kyle Budimir was a passenger in a vehicle that was stopped by police in Monon.

The town marshal called for an officer with a K-9 and, while waiting for an officer with the county sheriff’s department to arrive, told Budimir he could leave.

But Budimir hadn’t left by the time the K-9 officer arrived. That officer instructed Budimir to stay, and a search uncovered meth, drug paraphernalia and marijuana.

Budimir was charged with Level 6 felony possession of meth, Class A misdemeanor possession of paraphernalia with a prior conviction and Class B misdemeanor possession of marijuana.

Budimir moved to suppress the evidence recovered during the search, arguing the search violated the Fourth Amendment to the U.S. Constitution and Article 1, section 11 of the Indiana Constitution.

The White Superior Court denied his motion, and Budimir sought an interlocutory appeal.

The Court of Appeals sided with Budimir, ruling the trial court erred in denying his suppression motion.

“The degree of concern, suspicion, or knowledge that Budimir had engaged in criminal activity was minimal, at best,” the opinion says.

Prior to the K-9 signaling an alert on the car, the Court of Appeals said, there was “no reason whatsoever” to suspect Budimir had engaged in — or would engage in — criminal activity.

The appellate court also ruled the K-9 officer’s instruction to Budimir to “stick around” means the degree of intrusion wasn’t “nonexistent,” as the state had argued.

The K-9 officer “restricted Budimir’s ordinary activities,” the opinion says, including his freedom to leave the scene.

“Finally, the needs of law enforcement to detain Budimir were slight,” the opinion says, citing the first officer who had already assessed the situation and released Budimir from the scene.

“In light of the nonexistent degree of suspicion that Budimir was engaging in criminal activity, the relatively intrusive nature of the encounter, and the minimal needs of law enforcement, we cannot say that the State met its burden in proving that the search and seizure of Budimir was reasonable under the totality of the circumstances,” the Court of Appeals ruled in reversing the trial court’s judgment.

Judge Cale Bradford wrote the opinion in Kyle Budimir v. State of Indiana, 23A-CR-17.•