In thе Matter of R.L.H., A Child Alleged to be Delinquent, Appellant-Respondent,
v.
STATE of Indiana, Appellee-Petitioner.
Court of Appeals of Indiana.
*314 Susan K. Carpenter, Public Defender of Indiana, Amy E. Karozos, Deputy Public Defender, Attorneys for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Attorneys for Appellee.
*313 OPINION
BAILEY, Judge
Case Summary
Appellant-Dеfendant R.H. appeals the juvenile court's true findings that he was a delinquent child for committing two acts that would constitute two convictions for Criminal Mischief if committed by an adult.[1] We affirm in part, reverse in part, and remand with instructions.
Issues
R.H. raises two issues on appeal which we restate as follows:
I. Whether there was sufficient еvidence to support the juvenile court's true findings; and,
II. Whether the trial court abused its discretion in ordering R.H. to pay restitution in the amount of $378.50.
Facts/Procedural History
The facts most favorable to the juvenile court's true findings indicate that in May of 1999, two homes under construction and owned by Lux-Klinker Homes, Inc., were damaged. Both homes were located on Lionheart Lane in Lafayette, Indiana. The home located at 1523 Lionheart Lane had approximately ten holes kicked into the finished drywall. The house located at 1514 Lionheart Lane sustained a broken window and three torn screens. The total damages for the two houses equaled $378.50. Deteсtive Bryan Cummins ("Detective Cummins") from the Tippecanoe County Sheriff's Department received information that led him to believe that two ten-year-old boys, R.H. and C.R. were involved in the incident. After further investigation, *315 the Tippecanoe County Deputy Prosecutor filed a Probable Cause Affidavit against R.H. based on Detective Cummins's police report. The juvenile court authorized the filing of a Petition Alleging Delinquency against R.H. and said petition was filed on August 18, 1999. This original Petition Alleging Delinquency, which charged R.H. with two counts of what would be Criminal Mischief if committed by an adult, stated, in Count I, that the damage to the house located at 1514 Lionheart Lane (broken window and torn screens) occurred "[o]n or about May 13, 1999," resulting in a pecuniary loss greater that $250.00 but less than $2,500.00, and, in Count II, that the damage to the house located at 1523 (drywall) was done "[o]n or about May, 1999...." (R. 14-15.) The Petition Alleging Delinquency was later amended on November 3, 1999. In the amended petition, the only significant change was that the damages language was deleted from Count I and added to Count II.
At the fact-finding hearing, C.R. testified that he was with R.H. at the house located at 1523 Lionheart Lane, on or around May 13, 1999, and that he observed R.H. kick approximately ten holes in the house's finished drywall. C.R. further testified that he was surprised when R.H. began kicking the walls and that he tried to stop R.H., but that R.H. just ignored him. C.R. denied being present when the damage was done to the window and screens of the house located at 1514 Lionheart Lane. C.R. did testify, however, that in May of 1999, R.H. told him that he and another youth, R.D., had thrown rocks at the garage of another home under construction on Lionheart Lanе and that either R.H. or R.D. had also thrown a brick through one of the windows of the house. Another youth, P.B. also testified that she had overheard R.H. talking to C.R. at the bus stop about the damages done to the houses on Lionheart.
At the conclusion of the fact-finding hearing, the juvenile court found that the evidence presented аgainst R.H. was credible and ruled that R.H. was a delinquent child for having committed two acts that would constitute Criminal Mischief if committed by an adult. Following a subsequent dispositional hearing held on February 10, 2000, R.H. was ordered to pay restitution of $378.50, representing the total amount of damages done to both houses. This appeal ensuеd.
Discussion and Decision
I. Sufficiency of the Evidence
Standard of Review
Our standard of review regarding sufficiency of the evidence claims is firmly established. When the State seeks to have a juvenile adjudicated to be a delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. IND. CODE § 31-37-14-1; see also Al-Saud v. State,
Argument and Analysis
R.H. argues on appeal that the State failed to present sufficient evidence to prove, beyond a reasonable doubt, that he committed two acts that would constitute *316 Criminal Mischief if done by an adult. Specifically, R.H. claims that with regard to Count I, the State's sole proof that he caused the damage to the house located at 1514 Lionheart Lane was C.R.'s testimony that R.H. told him that either R .H. or R.D. had thrown a brick through the window. Therefore, R.H. concludes that because C.R. couldn't remember which boy was said to have thrown the rock, the State only proved that there was a possibility that R.H. was the person who broke the window and thus the State failed to meet its burden of proof. With regard to Count II, concerning the damage done to the drywall in the house located at 1523 Lionheart Lane, R.H. argues that the State's evidence conclusively showed that the damage done to the house located at 1523 Lionheart Drive was done on May 13, 1999, and that he provided evidence at the fact-finding hearing that he was not at said house with C.R. on May 13, 1999, and therefore could not have committed the charged offense.
A. Count IMere Possibility Or Sufficient Evidence
As stated earlier, circumstantial evidence, standing alone, may sufficiently support a convictiоn. Vest,
The only evidence supporting the juvenile court's true finding regarding Count I is witness testimony from C.R. and P.B. When questioned about the damage done to the house located at 1514 Lionheart Lane, C.R. testified as follows:
Q: Okay. And did you receive any information about the damage to another house out on Lionheart Drive [sic]?
[C.R.]: Yes.
Q: And who told you this?
[C.R.]: [R.D.] and [R.H.].
....
Q: What did [R.H.] say to you?
[C.R.]: He said that himthat-[R.H.] stated to me that himself and [R.D.] was throwing some rockswell tossing some rocks at a garage door then [R.H.] or [R.D.] picked up a brick and threw it through the window.
....
Q: And when [R.H.] was telling you about throwing the brick through the windоw I think you said they both threw a brick
[C.R.]: No
Q: or who threw the brick?
[C.R.]:[R.H.].
Q: [R.H.] threw the brick?
[C.R.]: Or ... (indiscernible)....
(R. 87, 89.) Immediately following this exchange, on cross-examination, defense counsel questioned C.R. as follows:
Q: [C.R.], didn't you say [R.H.] or [R.D.] threw a brick through the window?
[C.R.]: Yes.
Q: Okay so you're not sure if it was [R.H.] or [R.D.]?
A: No.
(R. 89.) P.B. also testified regarding the damage done to the homes on Lionheart Lane. P.B. testified as follows:
Q: Let me direct your attention to the month of May 1999. Were you aware that some houses had been damaged over at Lionheart Drive [sic]?
[P.B.]: Yes.
....
Q: Okay. And did there come a time in May of 1999 when you *317 overheard [R.H.] talking about that damage done to those houses?
[P.B.]: Yes[.] [W]e were at the bus stop and he was talking to [C.R.] saying he had been over to the houses.
....
Q: And what do you recall him saying?
[P.B.]: I don't recall any exact words.
Q: Okay, but that he had been over to the houses?
[P.B.]: Yes.
Q: Do you recall him saying anything about doing anything at the houses?
[P.B.]: Mmm ... no.
....
Q: Is there anything else that you recall about that?
[P.B.]: Yes, the question that you asked me before ... the answer is yes but I don't recall what they were saying exactly. They were talking about the damage but I don't know what they exactly were saying.
(R. 93-96.) We agree with R.H. that this evidence, standing alone, simply is not enough to support a reasonable inference that R .H. committed the offense allеged in Count I beyond a reasonable doubt. While this circumstantial evidence certainly shows that R.H. had visited the location in question during the relevant time period and further throws a degree of suspicion upon R.H., we must emphasize that a judgment based on suspicion and opportunity alone may not support a conviction.
B. Count IIVariance Between Information and Evidence Produced at Trial
Generally, variance between the date alleged and the State's proof at trial does not mandate acquittal or reversal. Sangsland v. State,
Time is not an essential element of the crime of Criminal Mischief. See IND.CODE § 35-43-1-2; see also Aikens v. State,
Here, the State's Amended Petition Alleging Delinquency stated that the damage done to the house located at 1523 Lionheart Lane was done "on or about May, 19 99." (R. 28.) At trial, C.R. testified as follows:
Q: And let me direct your attention back to ... oh about May 1999 probably in the time period of about May 13th of that year. Were you a friend of [R.H.] at that time?
[C.R.]: Yes.
....
Q: And were you awaredid you know about a group of houses under construction over on Liоnheart Lane?
[C.R.]: Yes.
Q: And that's pretty close to where you lived at that point?
[C.R.]: Yes.
Q: Let me ask you again, let me direct your attention back to that time frame in May of 1999. Did you and [R.H.] happen to be in one of those houses?
*318 [C.R.]: Yes.
Q: Okay. And what happened when you were in one of those houses?
[C.R.]: Well at first we went in, then we looked around downstairs for a while. Then we went upstairs and [R.H.] started kicking in the walls.
Q: Who started?
[C.R.]: [R.H.].
....
Q: [I]s that all that happened?
[C.R.]: No. then he
Q: Well go ahead and continue I won't interrupt you.
[C.R.]: finished kicking in the wаlls upstairs then he headed downstairs and started kicking in some walls.
....
Q: And when you went into that house did you have permission to be in there?
[C.R.]: No.
....
Q: Do you know how many holes he might have kicked?
....
[C.R.]: About ten.
....
Q: And so when you say ten is that the total holes upstairs? Or is that the total of both upstairs and downstairs?
[C.R.]: Upstairs and downstairs.
(R. 84-87.) (Emphasis added.) Despite R.H.'s arguments to the contrary, our review of the foregoing exchange leаves us convinced that the evidence is unclear as to whether the incident occurred specifically on May 13, 1999, or rather some other date in May of 1999. Regardless of this uncertainty, however, the evidence was consistent with the time frame set forth in the State's Amended Petition Alleging Delinquency, which, in Count II, stated that thе acts occurred "on or about May, 1999[.]" (R. 28.) (Emphasis added.) Moreover, R.H.'s arguments that he had an alibi for the date of May 13, 1999, and that he presented witness testimony that verified that he could not have been at the scene of the crime on May 13, 1999, amount to nothing more than an invitation for this Court to reweigh the evidence, and this we may nоt do. The juvenile court chose to believe C.R., and to disbelieve R.H.'s witnesses. We further note that R.H. failed to file an alibi defense pursuant to Indiana Code section 35-36-4-1. Thus, the trial court should have excluded all alibi evidence presented by R.H., other than his own testimony. See Palmer v. State,
The State of Indiana is not required to specify the exact date or the exact time of day of an offense if the evidence available to the State does not permit such a statement of specific time or sрecific date. McNeely v. State,
Here, the State never restricted itself to an exact date in its Amended Petition Alleging Dеlinquency, nor was it required to do so. The date alleged and proved at trial pertaining to the offense charged in Count II, a class A misdemeanor, was in accordance with the allegations set forth in the charging instrument. Moreover, the evidence shows that the offense, whether committed specifically оn May 13, 1999, or some other day in May of 1999, fell within the two-year statute of limitations for this offense. See IND.CODE § 35-41-4-2. Finally, R.H. has failed to demonstrate that he was misled in the preparation of his defense or that he was subjected to double jeopardy because of the alleged variance. Based on the foregoing, we find no errоr. Cf. Ricketts v. State,
II. Restitution
Finally, we address R.H.'s contention that the trial court erred in ordering him to pay the full amount of damages dоne to both houses on Lionheart Lane.
Standard of Review
An order of restitution is a matter within the trial court's discretion, and we reverse only upon a showing of abuse of that discretion. J.P.B. v. State,
Argument and Analysis
The State presented evidence regarding the total damages to both houses as follows:
Repairs to Drywall (1523 Lionheart Lane) $ 268.00
Repairs to Broken window and Sash (1514
Lionheart Lane) $ 70.50
Replacement of Three Screens (1514
Lionheart Lane) $ 40.00
________
Total Damages $ 378.50
R.H. did not challenge the amount of the total loss sustained by Lux-Klinker Homes, Inc., either at the fact-finding hearing or at the dispositional hearing. However, because we have found that there was insufficient evidence to support R.H.'s true finding regarding Count I, the portion of the trial court's restitution order related to the damages done to the housе located at 1514 Lionheart Lane may not stand. Cf. Polen v. State,
Conclusion
The juvenile court's true finding as to Count I is reversed; however, the court's true finding as to Count II is affirmed.
*320 Additionally, this cause is remanded with instructions that the juvenile court modify its restitution order in accordance with this opinion.
Affirmed in part, reversed in part, and remanded with instructions.
RILEY, J., and BARNES, J., concur.
NOTES
Notes
[1] IND.CODE § 35-43-1-2.