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C.H. v. State

Court of Appeals of Indiana

August 29, 2014

C.H., Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 1087

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Geoffrey Gaither, Magistrate. Cause No. 49D09-1306-JD-1818.

ATTORNEY FOR APPELLANT: DEBORAH MARKISOHN, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ANDREW FALK, Deputy Attorney General, Indianapolis, Indiana.

PYLE, Judge. FRIEDLANDER, J., and MATHIAS, J., concur.

OPINION

Page 1088

PYLE, Judge

STATEMENT OF THE CASE

C.H. appeals his two adjudications as a delinquent child for having committed acts that, if committed by an adult, would constitute criminal trespass as a Class A misdemeanor,[1]

Page 1089

and unlawful entry of a motor vehicle as a Class B misdemeanor.[2] First, C.H. argues that the juvenile court should have excluded an officer's identification testimony from evidence pursuant to the fruit of the poisonous tree doctrine of the exclusionary rule. Additionally, C.H. argues that his two adjudications violated the actual evidence test of Indiana's Double Jeopardy Clause. Lastly, C.H. appeals the juvenile court's dispositional order requiring him to pay restitution.

First, because the officer had reasonable suspicion and his actions were reasonable under the totality of the circumstances, we conclude that C.H.'s federal and state constitutional rights were not violated and that the identification testimony was properly admitted into evidence. In regard to C.H.'s double jeopardy claim, we conclude there is a reasonable possibility that the State used the same evidence to support both adjudications, and we remand to the juvenile court to vacate C.H.'s adjudication with the less severe penal consequence. Lastly, because C.H. did not object to any aspect of restitution and invited any error that may have occurred with the restitution order, we will not review his restitution challenge.

We affirm in part, reverse in part, and remand.

ISSUES

1. Whether the juvenile court abused its discretion by admitting an officer's identification testimony into evidence.
2. Whether C.H.'s adjudications for criminal trespass and unlawful entry of a motor vehicle violate Indiana's Double Jeopardy Clause.
3. Whether the juvenile court abused its discretion by ordering C.H. to pay restitution.

FACTS

On June 20, 2013, Felipa Xique-Juarez (" Felipa" ) was working from 3 p.m. to 9 p.m. That day, Felipa lost the keys to her white 1995 Honda Accord, and she did not give anyone else permission to drive her car. When Felipa finished work that evening, her car was gone, and she called the police to report that it had been stolen.

On June 21, 2013, Officer Havis Harris (" Officer Harris" ) was on duty working the third shift and patrolling for the stolen white Honda. Around midnight, Officer Harris observed a white Honda that matched the description of the stolen vehicle. After Officer Harris began to follow the white Honda, the vehicle turned into a Marathon gas station located on 4200 North Franklin Road. When Officer Harris began approaching the rear of the white Honda, she observed " three (3) to four (4) subjects bail[ ] out of the vehicle." (Tr. 9). Additionally, Officer Harris observed the white Honda's driver walk to the rear of the building and saw the passengers run away from the gas station " initially north then east behind a yard." (Tr. 9). Next, Officer Harris notified dispatch that she " had three (3) to four (4) black males take off running[,]" and she informed dispatch of the suspects' direction of travel. (Tr. 9). Following Officer Harris' communication with dispatch, she examined the white Honda and " ran the VIN which came back as a stolen vehicle." (Tr. 10).

Officer James Blythe (" Officer Blythe" ), who was on patrol in a marked squad car " very close to the area[,]" heard Officer Harris' call regarding " three (3) subjects

Page 1090

run[ing] from a vehicle from the 42nd Street/Franklin [R]oad area[.]" (Tr. 38). Officer Blythe then " went to the first street east of that area which [was] Arbor Crest and tried to set up a perimeter." (Tr. 38). " [W]ithin five (5) minutes" of Officer Harris' radio call, (Tr. 45), Officer Blythe, who was parked in a driveway, " saw two (2) subjects walk behind [his] vehicle and[,] . . . they was [sic] watching [him] watching them." (Tr. 39). The two males matched the general description and direction of travel given by Officer Harris. Officer Blythe then " pulled out of the driveway and stopped them." (Tr. 39). One of these individuals was fourteen-year-old C.H.

After Officer Blythe stopped C.H. and the other individual, Officer Blythe took their names and dates of birth and ran their information through the Juvenile Center " to see if they had anything outstanding[.]" (Tr. 43). Officer Blythe then " waited for Officer Harris to come to the scene so she could identify" the two individuals as the ...


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