MORYL v. DEPARTMENT
905 N.E.2d 1041
Court of Appeals of Indiana.
May 9, 2013.
There are no provisions suggesting that a proposed complaint is considered filed with the Department—an administrative agency—when it is deposited with a third-party commercial carrier. And contrary to Moryl‘s argument that the statutes are ambiguous regarding the use of a third-party carrier,
We note that our Supreme Court has made it clear that the trial rules do not govern the operations of administrative agencies, or even conditions precedent to the judicial review of administrative decisions:
Each of the several administrative agencies is a creature of the Legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.
Clary v. Nat‘l Friction Prods., 259 Ind. 581, 584-85, 290 N.E.2d 53, 55 (1972).
In light of the above, while Trial Rule 5 and Appellate Rule 23 permit pleadings, motions, and other papers that are sent by a third-party carrier to be deemed filed on the date of deposit with the carrier, these rules to not apply to proposed complaints filed with the Department, an administrative agency. And because
In sum, we conclude that Moryl did not file her medical malpractice complaint within the applicable two-year statute of limitations. Thus, we affirm the trial court‘s grant of summary judgment in the appellees’ favor.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
G.H., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
No. 49A02-1207-JV-532.
Court of Appeals of Indiana.
May 9, 2013.
Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
VAIDIK, Judge.
Case Summary
G.H. appeals the trial court‘s true finding for what would be Class D felony criminal gang activity if committed by an adult. He argues that there is insufficient evidence to support his adjudication. We conclude that the State failed to prove that G.H. had a specific intent to further a gang‘s criminal goals, which is necessary to sustain an adjudication for criminal gang activity. We reverse.
Facts and Procedural History
In December 2010, fourteen-year-old V.A. met a male friend to attend a party. Before going to the party, the two boys met another group of teenagers, including fourteen-year-old G.H., at G.H.‘s house. In total, about twenty juveniles gathered at G.H.‘s house.
A.M., one of the boys at G.H.‘s house, left for a short time. When A.M. returned, he walked up to V.A. and pulled back his coat to reveal a sawed-off shotgun. Tr. p. 21. V.A. decided to leave G.H.‘s house and began walking home. A group of people followed him, including G.H. People began suggesting that G.H. and V.A. should fight. V.A. told G.H., “I‘m not going to fight you, I‘m just going to cut out[.]” Id. at 23. G.H. began taunting V.A., and another boy struck V.A. in the head with a glass bottle. The group swarmed V.A. and began kicking and punching him. One of V.A.‘s friends intervened and helped him up, and the two boys ran away. However, the group pursued them, and when they caught V.A., the battery continued. Eventually, a bruised and bleeding V.A. escaped the group.
While running from the group, V.A. encountered his sixteen-year-old brother, J.A. Despite the battery, V.A. and J.A. decided to go to another party. When G.H., A.M., and the other boys who had attacked V.A. showed up at that party, J.A. told his brother to leave. V.A. left but later returned, afraid for his older brother‘s safety. When the party ended around 1:00 a.m., the boys set off for home.
As they walked, the brothers heard nearby shouts of “skoo woo” and “Drop ‘Em Squad.” Id. at 35, 89. V.A. knew that Drop ‘Em Squad was a gang because he used to be a member of it. Id. at 35. V.A. and J.A. walked faster, but G.H., A.M., and some other boys blocked them at the end of an alley. A.M. asked V.A. and J.A. if they wanted to fight. J.A. said he did not want to fight, and the brothers took off running.
The brothers made it home safely, where their mother examined V.A. V.A. had a bloody nose, blood on his clothes, a footprint on his back, and a bump on his head. Id. at 93, 102. When V.A.‘s mother looked out her window, she saw a crowd of boys. She called the police and reported the incident.
At the hearing, V.A. testified about the incident and G.H.‘s gang involvement. When asked if he knew whether G.H. was a member of Drop ‘Em Squad, V.A. responded “no, not really.”1 Id. at 38. He also testified that there were no gang calls during the first incident, but after the party, when the boys blocked him and J.A. at the end of the alley, the boys were yelling “skoo woo” and “Drop ‘Em Squad.” Id. at 46. J.A. recalled things differently; he testified that G.H. was with the other boys in the alley confrontation, but did not yell “skoo woo” or “Drop ‘Em Squad.” Id. at 89. J.A. said that all of the boys involved in the battery, including G.H., were members of Drop ‘Em Squad, and that he had once heard G.H. say he was a gang member, although J.A. did not say when he heard G.H. say this. Id. at 90. J.A. also said he believed all the boys were gang members at the time of the incident because “they were all hanging out together.” Id. at 91.
No witness could link any physical evidence of gang activity to G.H. Indianapolis Metropolitan Police Department Detective Miguel Roa, a member of the IMPD‘s Criminal Gang Unit, testified that gang members frequently called out “skoo woo,” followed by a gang name, as a way of identifying themselves as members of that gang. Id. at 111. He also testified that Drop ‘Em Squad is a confirmed east-side gang. Id. at 110, 129-30. Detective Roa said that he searched G.H.‘s home but found no evidence of gang affiliation. Id. at 132-36. At the conclusion of the fact-finding hearing, the trial court took the matter under advisement.
In June 2012, the trial court entered a true finding on the Class D felony criminal gang activity and Class A misdemeanor battery allegations. The court entered not true findings on the Class C felony criminal gang intimidation, Class C felony stalking, and Class C felony intimidation allegations. G.H. was placed on probation. G.H. now appeals the Class D felony criminal gang activity true finding only.2
Discussion and Decision
G.H. argues that there is insufficient evidence to support the trial court‘s true finding that he committed criminal gang activity. G.H. does not dispute that Drop ‘Em Squad is a criminal gang. However, he contends that the State failed to prove that he was an active gang member, that he knew anything about the gang‘s criminal advocacy, and that the battery he committed had any link to alleged gang membership.
When the State seeks to have a juvenile adjudicated as a delinquent for committing an act that would be a crime if committed by an adult, the State must
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued membership;
the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery ([
Ind. Code § 35-42-2-1 ]).
A person who knowingly or intentionally actively participates in a criminal gang commits criminal gang activity, a Class D felony.
There is negligible evidence that G.H. was a member of Drop ‘Em Squad. V.A. could not say that G.H. was a member of the gang. J.A. testified that G.H. said he was in a gang, but he did not say when G.H. said this. Though both V.A. and J.A. testified that G.H. was with the group of boys who blocked their path at the end of an alley, the brothers gave contradictory testimony about whether G.H. yelled “skoo woo” or “Drop ‘Em Squad.” And Detective Roa testified that he found no evidence of G.H.‘s gang affiliation. At best, this evidence shows that G.H. was a gang member at some point in time, which is insufficient. See Ferrell v. State, 746 N.E.2d 48, 51 (Ind.2001) (The State‘s case “consisted only of evidence that Ferrell, at some point, was a member of a gang that commits criminal offenses. That is not enough.“).
The State argues that G.H. and the other boys were gang members at the time of the incident because J.A. testified that they hung out together. This guilt-by-association argument is circular and unpersuasive. At trial, the State was attempting to prove that G.H., A.M., and another boy had all engaged in criminal gang activity. Now, the State relies on J.A.‘s testimony to argue that G.H. is a gang member because he spent time with other gang members. But the State was attempting to prove at the same time that these other supposed gang members were, in fact, gang members. The guilt-by-association argument does not establish active gang membership in this context.
However, even if the evidence established G.H.‘s active gang membership, we would still conclude that the evidence is insufficient to sustain G.H.‘s adjudication because there is no evidence that G.H. had the specific intent to further Drop ‘Em Squad‘s criminal goals by battering V.A.
The battery allegation against G.H. stemmed from the fight that occurred outside G.H.‘s house early in the evening. After seeing that another boy had a
This evidence does not show a nexus between V.A.‘s battery and Drop ‘Em Squad‘s criminal goals.3 There was no mention of the gang at the time of the battery and no claim that the purpose of the battery was retribution by Drop ‘Em Squad, initiation into Drop ‘Em Squad, or to fulfill any other criminal goal of the gang. The only mention of Drop ‘Em Squad came later in the evening, in the alley confrontation, and no allegations against G.H. arose from that incident.
Because the State failed to prove that G.H. had a specific intent to further Drop ‘Em Squad‘s criminal goals, his adjudication for criminal gang activity must be reversed.
Reversed.
KIRSCH, J., and PYLE, J., concur.
Joseph MATHENY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A04-1207-CR-347.
Court of Appeals of Indiana.
May 13, 2013.