FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JANICE E. SMITH STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.R.T., II )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-0206-JV-438
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
The Honorable James Payne, Judge
Cause No. 49D09-0109-JD-003918
February 11, 2003
OPINION - FOR PUBLICATION
SULLIVAN, Judge
J.R.T., II, (“J.R.T.”), a juvenile, appeals the trial court’s finding that
he committed one count of Criminal Mischief, a Class D felony if committed
by an adult,[1] one count of Criminal Mischief, a Class A misdemeanor if
committed by an adult,[2] and four counts of Criminal Mischief, each Class
B misdemeanors if committed by an adult.[3] Upon appeal, J.R.T. presents
two issues for our review, whether the evidence was sufficient to support
the trial court’s adjudication, and whether the trial court erred in
refusing to admit into evidence the results of a polygraph examination.
We affirm.
The facts most favorable to the trial court’s adjudication indicate
that on or about July 30, 2001, J.R.T., along with two other juveniles,
B.B. and C.K., drove around random neighborhoods shooting out car windows
with a BB gun. J.R.T. was arrested on September 10, 2001, and charged with
eleven counts of criminal mischief, crimes of varying degrees if committed
by an adult, for shooting out windows on eleven separate vehicles. At an
initial hearing on September 18, 2001, J.R.T. denied the allegations. A
denial hearing as to the eleven counts of criminal mischief was held on
November 26, 2001. At the conclusion of the State’s presentation of
evidence, J.R.T. moved for counts 2, 4, 9, 10, and 11 to be dismissed for
lack of evidence as to damages. The trial court found that the State had
not met its burden as to those counts and entered not true findings
thereon. J.R.T. also moved for count 3 to be dismissed asserting that the
State failed to prove the correct date on which the damage occurred. The
trial court denied J.R.T.’s motion to dismiss count 3.
In an order issued by the trial court on January 30, 2002, the court
set forth its findings of fact and conclusions of law. The trial court
made true findings as to counts 1, 3, 5, 6, 7, and 8, and acknowledged that
counts 2, 4, 9, 10, and 11 had been dismissed for lack of sufficient
evidence. Following a dispositional hearing on February 25, 2002, the
trial court placed J.R.T. on suspended commitment to the Department of
Correction and placed him on probation. At a subsequent hearing on April
29, 2002, the trial court ordered J.R.T. to pay restitution in the sum of
$1,005, representing the damages established as to five of the cars.
Upon appeal, J.R.T. argues that there was insufficient evidence to
support the trial court’s adjudication. Specifically, J.R.T. asserts that
the trial court failed to base its findings upon the evidence presented at
trial and that the determination that he was delinquent was not based upon
proof beyond a reasonable doubt.[4]
When the State seeks to have a juvenile adjudicated to be a delinquent
for committing an act which 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 (Burns Code Ed. Repl. 1997). See also R.L.H. v.
State, 738 N.E.2d 312, 315 (Ind. Ct. App. 2000). Upon review of a juvenile
adjudication, this court will consider only the evidence and reasonable
inferences supporting the judgment. Moran v. State, 622 N.E.2d 157, 158
(Ind. 1993). We will neither reweigh the evidence nor judge witness
credibility. Id. If there is substantial evidence of probative value from
which a reasonable trier of fact could conclude that the defendant was
guilty beyond a reasonable doubt, we will affirm the adjudication. Id. To
support a true finding that J.R.T. had committed the numerous acts which
would constitute criminal mischief if committed by an adult, the State was
required to prove that J.R.T. (1) recklessly, knowingly, or intentionally;
(2) damaged or defaced the property of another person; (3) without that
person’s consent. See I.C. § 35-43-1-2(a)(1).
J.R.T. first argues that he was not involved in the July 30 incident
and directs our attention to the numerous witnesses who testified in
support of his alibi defense. J.R.T. also asserts that many of the trial
court’s findings are related to a July 27, 2001 incident (“the first
incident”), to which J.R.T. admitted, and thus argues that those findings
do not support the trial court’s adjudication as to the acts of criminal
mischief which occurred on July 30 (“the second incident”).[5] As the
trial court’s findings in this regard are supported by the record, these
arguments amount to mere requests for this court to credit J.R.T.’s alibi
defense. This would require us to reweigh the evidence and judge the
credibility of witnesses, which we will not do.
While we recognize that J.R.T. presented evidence tending to support
his alibi defense, the trial court was under no obligation to credit it.
See Williams v. State, 714 N.E.2d 671, 673 (Ind. Ct. App. 1999) (trier of
fact is entitled to determine which version of the incident to credit).
Here, B.B. testified that on July 30 he and C.K. picked J.R.T. up at his
house and that, at the direction of C.K., they drove around certain
neighborhoods and J.R.T. and C.K. shot out car windows. B.B. further
testified that the BB gun which they used to shoot out the car windows was
purchased several days earlier, i.e. during the first incident to which
J.R.T admits being involved. The State presented sufficient evidence that
on or about July 30, 2001, J.R.T., along with two other juveniles,
recklessly, knowingly, or intentionally, damaged property of others without
their consent by shooting out car windows with a BB gun.
J.R.T. also argues that the State failed to prove “the nexus” between
the victims and the alleged perpetrators. We disagree. Here, the State
established that the three juveniles drove through random neighborhoods
during the early morning hours on or about July 30, 2001 and, using a BB
gun which they had purchased a few days earlier, shot out car windows
without the car owners’ consent. The State also presented evidence from
the victims, who each testified that their car windows were shot out during
the early morning hours on or about July 30, 2001. While no one witnessed
the three juveniles during their mischievous rampage on or about July 30,
2001, a reasonable inference may be drawn from the evidence presented at
trial that J.R.T., along with the two other juveniles, used a BB gun to
shoot out the car windows of those victims who testified.
In a separate sufficiency argument, J.R.T. asserts that the trial
court erred in failing to grant his motion to dismiss count 3. J.R.T.
asserts that the charging information alleged that the damage to a 1999 GMC
van which served as the basis for count 3 occurred on or about July 30, and
that the State’s evidence at trial established that the damage to the van
occurred on July 3.
Here, count 3 of the charging instrument alleged that the act of
criminal mischief occurred “[o]n or about the 30th day of July, 2001.”
Appendix at 27. At the denial hearing, Mike King, a representative of the
victim Edwards Electrical & Mechanical, Incorporated, testified as follows:
“Q: Ok. And in your capacity with Edward’s Electrical & Mechanical
Incorporated, do you ever have company vehicles at your
residence?
A: Yes we do.
Q: Ok. I wanna ask you about some damage that was done on July
3rd, 2001. Was one of the company vehicles damaged on that day?
A: Yes it was.” Transcript at 20.
Mr. King then proceeded, testifying about the damage to the vehicle.
Generally, a variance between the date alleged and the State’s proof
at trial does not mandate acquittal or reversal. R.L.H., 738 N.E.2d at
317. Further, it has been held that time is not an essential element of
the crime of criminal mischief. Id. Where time is not “of the essence of
the offense” the State is not required to prove the precise date alleged in
the information, but need only prove that the crime occurred at any time
within the statutory period of limitations. Id. Thus, notwithstanding the
discrepancy in the dates,[6] the trial court did not err by denying
J.R.T.’s motion to dismiss.
J.R.T. presents one other sufficiency argument which warrants
discussion. As to count 1, the trial court entered a true finding as to
criminal mischief, as a Class D felony if committed by an adult, because
the damage to the vehicle exceeded $2,500. See I.C. § 35-43-1-2(a)(1)(B)
(The offense of criminal mischief is elevated to a Class D felony if “the
pecuniary loss is at least two thousand five hundred dollars ($2,500).”).
At the denial hearing, the testimony of the victim established that the
estimated cost of repairing the damage to a 1989 Ford Probe was $4,275.17.
Upon cross-examination, the victim was questioned as to the value of the
car and answered that she did not know. No other evidence as to the value
of the car was submitted into evidence. The trial court accepted the
testimony as to the estimated cost of repairing the car and therefore
entered a true finding as to count 1, criminal mischief as a Class D
felony.
At a subsequent hearing concerning the amount of restitution J.R.T.
was required to pay to the victims, J.R.T. and the State agreed that the
value of the 1989 Ford Probe was $2,135. The trial court accepted this
amount for purposes of restitution and ordered that J.R.T. pay one-third of
this amount, or $711, as restitution to the victim.
Here, for purposes of restitution, the parties and the court accepted
the value of the car to be less than $2,500. In hindsight, it appears that
if the act of criminal mischief had been committed by an adult, the offense
could not have been elevated to a Class D felony as the pecuniary loss did
not exceed $2,500. Nevertheless, “[a] child commits a delinquent act if,
before becoming eighteen (18) years of age, the child commits an act that
would be an offense if committed by an adult . . . .” Ind. Code § 31-37-1-
2 (Burns Code Ed. Repl. 1997). Thus, even given that the pecuniary loss
was less than $2,500, J.R.T. committed an act which would be an offense if
committed by an adult, that is, criminal mischief as a Class A misdemeanor.
Therefore, the trial court’s true finding that J.R.T. committed the
delinquent act of criminal mischief as a Class D felony is without import.
Finally, J.R.T. claims that the trial court erred in refusing to admit
into evidence the results of a polygraph examination. At the denial
hearing, J.R.T. called as his first witness, Keith Klingler, a forensic
polygraph examiner. The State immediately objected, asserting that Mr.
Klingler’s testimony and any exhibits related thereto were “unreliable
hearsay and therefore, inadmissible.” Transcript at 57. J.R.T. responded
to the objection stating that, while there is a standard to follow for the
admission of polygraph evidence in a criminal proceeding, a juvenile
delinquency proceeding is in the nature of a civil proceeding, and
therefore, that the standard did not apply. In response, the State argued
that the criminal rules of evidence controlled the proceeding and asserted
again that the polygraph evidence was inadmissible hearsay. After
considering the respective arguments, the trial court sustained the State’s
objection, thereby excluding Mr. Klingler’s testimony. J.R.T.’s offer of
proof established that Mr. Klingler, an expert having administered over
5,000 polygraph examinations, administered a polygraph examination to
J.R.T., and that Mr. Klingler would have testified that in his opinion
J.R.T. was telling the truth when, during the polygraph examination, he
denied any connection with the BB gun shootings on July 30, 2001.
Evidence concerning polygraph evidence is generally disfavored and
often referred to as “inherently unreliable.”[7] Nevertheless, admission
of polygraph evidence is permitted where four prerequisites are met: (1)
the prosecution, defendant, and defense counsel must all sign a written
stipulation providing for the defendant’s submission to the examination and
for the subsequent admission at trial of the results; (2) notwithstanding
that stipulation, the admissibility of the test results is at the trial
court’s discretion regarding the examiner’s qualifications and the test
conditions; (3) the opposing party shall have the right to cross-examine
the examiner if his or her graphs or opinions are offered into evidence;
and (4) the jury is instructed that, at most, the examiner’s testimony
tends only to show whether the defendant was being truthful at the time of
the examination, and that it is for the jury to determine the weight and
effect to be given to the examiner’s testimony. Willey v. State, 712
N.E.2d 434, 439 (Ind. 1999).
It would seem to be somewhat of a contradiction to say that polygraph
evidence is “inherently unreliable” and yet hold that a stipulation by the
parties cloaks the polygraph results with sufficient reliability to be
admissible into evidence. This contradiction remains even though the trial
court is afforded discretion to disallow such evidence despite a
stipulation if not satisfied with the qualifications of the examiner or as
to the conditions under with the test was administered. It would appear
that absent a defect as to one or both of those factors the trial court
must admit the polygraph results, thereby conferring “reliability” upon
that otherwise “inherently unreliable” evidence. Perhaps it is more
accurate to state that a party who stipulates to such evidence loses the
right to object to its admissibility. Yet the dilemma then arises as to
how the jury is to be instructed in considering such evidence. Must it be
viewed as any other evidence? Or is it to be given a heightened degree of
scrutiny as to its reliability?
Under the current state of the law, we know only that a defendant is
entitled to a limiting instruction if he requests such. See Sanchez v.
State, 675 N.E.2d 306 (Ind. 1996). The giving of such an instruction would
certainly seem to confer a degree of reliability upon the results of
polygraph examinations and thus seems to greatly dilute the usually phrased
proposition that such results are “inherently unreliable.” Perhaps it is
more accurate to say that polygraph examination results are not favored
with respect to their admissibility, not that they are “inherently
unreliable.”
Notwithstanding the particularized views of this author, we hold that
the trial court did not err in excluding the polygraph evidence. J.R.T.,
citing Sauzer-Johnsen v. Sauzer, 544 N.E.2d 564 (Ind. Ct. App. 1989),
argues that a written stipulation is not required in a juvenile delinquency
proceeding, as such is civil in nature.[8] In Sauzer, the court was
presented with an appeal following an action brought by Husband to revoke
or modify the property division as set forth in a prior dissolution
proceeding. One of Wife’s challenges upon appeal was that it was error for
the trial court to admit her polygraph examinations into evidence, even
though she orally stipulated to their admission during a hearing, because
the trial court “suggested” that she submit to the polygraph examination.
In reciting the standard for admission of polygraph evidence, the court
correctly noted that polygraph examinations are generally inadmissible
absent a valid stipulation between the parties. Id. at 568. The court
went further, acknowledging that in criminal cases, a stipulation must be
in writing and signed by both the defendant and the prosecutor, but stating
that there was no such requirement in civil cases. Id. The court thus
found that Wife’s oral stipulation to the admission of her polygraph
examinations was valid. Id.
While juvenile proceedings are civil in nature, the criminal rules of
evidence are applicable. J.V. v. State, 766 N.E.2d 412, 414 (Ind. Ct. App.
2002), trans. denied. Juvenile delinquency proceedings are thus
distinguishable from ordinary civil cases and, therefore the present case
is distinguishable from Sauzer. Indeed, a child who is alleged to be
delinquent is charged by the State with an act which would be a crime if
committed by an adult. Id. at 414-15. To that end, the criminal standard
of proof remains in that the State must prove the delinquent act beyond a
reasonable doubt to achieve a true finding of delinquency. Id. at 415.
“Put another way, it is the child’s age and not the status, nature or class
of offense that removes the case from our adult criminal system.” Id.
Thus, we conclude that the prerequisites established for the admission of
polygraph evidence in a criminal proceeding, including that stipulations
must be in writing and signed by the prosecutor, defendant, and defense
attorney, are applicable in juvenile delinquency proceedings. As there was
no such stipulation in the present case, the polygraph evidence J.R.T.
sought to present was inadmissible.[9]
The trial court’s judgment is affirmed.
SHARPNACK, J., and KIRSCH, J., concur.
-----------------------
[1] Ind. Code § 35-43-1-2(a) (Burns Code Ed. Supp. 2001).
[2] I.C. § 35-43-1-2(a).
[3] I.C. § 35-43-1-2(a).
[4] In his brief, J.R.T. challenges almost all of the trial court’s
findings, asserting that some of them are irrelevant or unsupported by the
evidence, that others do not stand independently, or that they do not
constitute findings, but rather are restatements of the testimony
presented. Only one of the 19 findings is challenged on the latter
grounds. In any event, that finding was merely cumulative of other
findings. We will not address each and every challenge because, after
reviewing the trial court’s findings and conclusions of law, it is clear
that to address most of J.R.T.’s arguments, we would have to reweigh
evidence and judge the credibility of witnesses. See Moran v. State, 622
N.E.2d 157, 158 (Ind. 1993). As to J.R.T.’s other challenges to the trial
court’s findings and conclusions, the alleged errors do not go to the
material elements of the crime. As an example, J.R.T. challenges the trial
court’s finding and conclusion of law as it relates to count 5 that a “2000
Ford van” was damaged. Appendix at 12. J.R.T. asserts that the victim
testified that his “2000 Ford Windstar” was damaged, and that there was no
testimony that such vehicle was a van. Transcript at 26. Whether or not
such a vehicle is a van is irrelevant. The State proved that there was
damage to the vehicle, that the owner of the vehicle did not consent, and a
reasonable inference can be drawn that J.R.T. recklessly, knowingly, or
intentionally committed the act which resulted in the damage. This is all
that the statute requires. See I.C. § 35-43-1-2.
[5] According to J.R.T., there are two incidents which should be
distinguished. J.R.T. admitted that he committed an act of delinquency,
criminal conversion, a Class A misdemeanor if committed by an adult,
arising out of an incident which occurred on July 27, 2001 (the first
incident). J.R.T. admitted that on July 27, 2001, he, along with B.B.,
C.K., and another juvenile, used a BB gun to shoot out a car window in
order to steal the car stereo. J.R.T. asserts that the July 27 incident is
independent of the July 30 incident which is the subject of this
proceeding. J.R.T. maintains that he was not involved in the July 30
incident.
[6] It could be fairly concluded that the discrepancy was either an
inadvertent slip of the tongue by the prosecutor or a mere scrivener’s
error in transcription.
[7] As recently as in Gray v. State, 758 N.E.2d 519, 522 (Ind. 2001),
our Supreme Court has reiterated that the rule against admissibility is
“because of the inherent unreliability of polygraph examinations.”
[8] J.R.T. also asserts that the hearsay objection proffered by the
State was not a proper objection to the admissibility of polygraph evidence
in a juvenile adjudication as such is a civil proceeding. Further, J.R.T.
asserts that the State only objected on hearsay grounds and did not argue
that a stipulation was required. However, as we have already noted, the
State, in its response to J.R.T.’s argument in support of admissibility,
argued that the criminal rules of evidence apply to juvenile delinquency
cases, thereby incorporating the stipulation requirement.
[9] Moreover, even if we were to agree with J.R.T. that the criminal
standard for admissibility should not apply to juvenile delinquency
proceedings, we would still find no error. Although the Sauzer court held
that a written stipulation was not required in civil cases, it is clear
from the Sauzer opinion that a stipulation, albeit unwritten, was still
required before the polygraph evidence could be admitted. Here, there is
nothing in the record which indicates that there was a stipulation of any
kind, written or oral. Thus, the trial court did not abuse its discretion
in excluding the proffered polygraph evidence.
