from the Marion Superior Court The Honorable Marilyn A.
Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate
Trial Court Cause No. 49D09-1602-JD-181
ATTORNEY FOR APPELLANT Hilary Bowe Ricks Indianapolis,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana George P. Sherman Deputy Attorney General
[¶1] S.M., a teenaged girl, was
adjudicated a delinquent child for helping H.J., a teenaged
boy, steal Lashawn Rogers's ("Rogers") car. She
appeals from the true finding in Marion Superior Court that
she committed what would be Level 6 felony theft and Class A
misdemeanor criminal trespass if done by an adult. Because
the true finding was supported by sufficient evidence, we
and Procedural Posture
Shortly before 5:00 p.m. on December 6, 2015, Rogers pulled
her car into a gas station near the intersection of 38th
Street and Oxford Street in Indianapolis to buy some cookies
for her granddaughter. As she pulled up to the gas station,
she saw two teenagers, a boy and a girl, standing near her
parking space. Rogers eyed the pair warily, expecting they
intended to ask her for money. Leaving the car running and
taking only her electronic key fob with her, Rogers got out
of the car and told the pair she did not have any money to
give them. Rogers left her personal cell phone, her laptop
computer, her purse, and other items in the running car, and
locked it with the key fob.
As she made her way past the pair, Rogers tripped over the
concrete parking curb at the head of the parking space and
dropped what she had in her hands, including the key fob. The
boy offered his assistance. Embarrassed, Rogers picked
herself up and thanked the boy for his help. She hurriedly
picked up everything she had dropped except, by inadvertence,
the key fob, and went inside the gas station.
Cookies in hand, Rogers left the gas station only to watch
her car back out of the parking space and pull out of the gas
station parking lot. She saw the boy in the driver's seat
and the girl in the passenger's. "Are you
serious?" Rogers yelped in exasperation. Tr. p. 16.
"Bring my truck back!" Id. She ran to the
street and flagged a passing driver. The driver offered to
call 911 but declined Rogers's invitation to pursue the
thieves. Seeing her car turn south down a side street from
38th, Rogers ran to the intersection of 38th and the side
street, but the thieves and her car were gone. Rogers
returned to the gas station and called 911 herself. Sometime
later, after a second call to 911, police arrived and assured
Rogers they would do what they could.
A few days later, Rogers had deactivated her stolen cell
phone and was activating a new one. When the new phone synced
with Rogers's cloud storage account, she noticed that ten
or twenty pictures she had not seen before had been
downloaded to the new phone. Together the pictures showed six
or seven teenaged boys and two or three teenaged girls. Among
them, Rogers identified the boy and girl from the gas
station. Rogers concluded that the thieves had been using her
old cell phone to take pictures of themselves and their
friends, and the pictures had been automatically uploaded to
her cloud storage account from the old phone before it was
Rogers printed out two pictures, one of the boy with two
friends and one of the girl by herself, Ex. Vol., State's
Exs. 1-2, and started asking friends and family around the
city whether they knew either of the teenagers. Family
members with children attending Lawrence Central High School
identified the pair as students at that school. Rogers
presented her findings to the police, whose investigation had
not proceeded very far, or had not yet begun.
Detective Kevin Kern ("Kern") of the Indianapolis
Metropolitan Police Department was assigned to Rogers's
case on December 15, 2015, more than a week after the theft.
The gas station at 38th and Oxford was known by police to
retain its security camera footage for only three days before
taping over it, so no help came from that quarter. Kern's
first step was to speak with Rogers, who told him she had
already identified the two thieves as students at Lawrence
Central and gave him the pictures from her new phone.
Kern went to the school. It is impossible to say what Kern
did there or with whom he spoke, because Kern would later
contradict himself and other evidence multiple times on the
witness stand in recounting his investigation.
Compare Tr. p. 63 (Kern spoke with teacher of H.J.
and S.M.) with Tr. p. 132 (Kern did not speak with
teacher of H.J. and S.M.). In any event, whether by
Rogers's efforts, Appellant's App. p. 25 (Kern's
probable cause affidavit), or by Kern's, Tr. p. 40
(Kern's trial testimony), the boy in the picture was
identified as H.J., and the girl as S.M.
On December 22, 2015, Kern spoke with S.M. and her mother at
their home. S.M. denied any involvement in the theft. Mother
and daughter directed Kern to an alibi witness, D.G., a
school friend of S.M.'s. Kern called D.G. one morning,
recording the interview without D.G.'s knowledge or
consent. D.G. would later testify that December 6 was her
mother's birthday, and that D.G., S.M., and a third
school friend spent a long weekend in one another's
constant, uninterrupted company from Saturday, December 5,
through Monday, December 7. The girls took a picture of
themselves time-stamped a little before 3:00 P.M. on December
5, the day before the theft. Ex. Vol., Resp't's Ex.
CC. Kern would later testify that D.G. ...