A.W. v. State

229 N.E.3d 1060

A.W., Appellant (Respondent below),

v.STATE of Indiana, Appellee (Petitioner below).

Supreme Court Case No. 23S-JV-40

Supreme Court of Indiana.

Argued: May 4, 2023

Filed March 12, 2024

Appeal from the Marion Superior Court, No. 49D09-2107-JD-5869, The Honorable Geoffrey A. Gaither, Judge, The Honorable Duane E. Merchant, Magistrate

ATTORNEY FOR APPELLANT: Lisa M. Johnson, Brownsburg, Indiana

ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, 22A-JV-150

Massa, Justice.

Does Indiana double jeopardy law apply to a juvenile in possession of a firearm with a novel Glock switch feature that turns it into a machine gun?¹ We know that "[c]onfusion over double jeopardy is not new." Richardson ?. State, 717 N.E.2d 32, 59 (Ind. 1999) (Boehm, J., concurring in result). More than three years ago, this Court in Wadle ?. State, 151 N.E.3d 227 (Ind. 2020), attempted to clarify double jeopardy by overturning the constitutional tests announced in Richardson, which itself sought to institute a "single comprehensive rule" that combined a "statutory elements" test with an "actual evidence" test for resolving "substantive" double jeopardy claims; in other words, claims based on multiple punishments for the same act in a single proceeding, not multiple trials. Wadle, 151 N.E.3d at 240-41. But Richardson ultimately proved to be unworkable in practice—in part, because it presented an "either/or" option for courts to apply one test over another. Id. at 241. This reflected a checkered form of "double jeopardy double talk," see Akhil Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1807 (1997), that engendered "a patchwork of conflicting precedent and inconsistent standards," Wadle, 151 N.E.3d at 235. In response, Wadle introduced a three-part test focused on statutory interpretation. Id. at 248. Courts have since wrestled with applying the Wadle framework, and at times have misapplied its instructions by resurrecting a version of the "actual evidence" test from Richardson—first in dicta, see Phillips ?. State, 174 N.E.3d 635, 646–47 (Ind. Ct. App. 2021), which then became part of a published decision, see Harris ?. State, 186 N.E.3d 604, 611-12 (Ind. Ct. App. 2022). We disapprove any opinion that relies on this principle and reiterate the Wadle test for resolving substantive double jeopardy claims, albeit with a small but crucial adjustment at Step 2, where courts will now construe ambiguities from charging instruments in favor of defendants.

But first, we have a case to resolve. A.W. challenges his multiple juvenile adjudications for possession of a machine gun, a Level 5 felony if committed by an adult, and dangerous possession of a firearm, a Class A misdemeanor.² We reach three conclusions about these adjudications. First, we find that A.W.’s exclusive possession of a handgun—one with a Glock switch attached, which transformed the semiautomatic gun into a fully-automatic one—coupled with his abrupt flight, supports the finding that he "knowingly or intentionally" possessed a machine gun in violation of Indiana Code section 35-47-5-8. Second, we clarify that while Article 1, Section 14 of the Indiana Constitution could apply in juvenile proceedings, constitutional avoidance counsels against deciding that issue today. Third, we hold that possession of a dangerous firearm is a "lesser-included" offense of possession of a machine gun, and thus violated A.W.’s right to be free from substantive double jeopardy under Wadle.

Accordingly, we affirm the sufficiency of the evidence, but reverse the adjudication that A.W. committed dangerous possession of a firearm.

Facts and Procedural History

A.W., a seventeen-year-old, fled on foot from a traffic stop for speeding. While A.W. ran, officers noticed a gun in his hand. Indianapolis police officer Scott Highland ordered A.W. to get on the ground several times, but he continued to run. A.W. tripped, and as he started to fall to the ground, he threw the gun away.

Officer Highland arrested A.W., and, during a pat down search, found a phone and a "large sum of money" in his pockets. Tr. at 11. The other officer at the scene, Sergeant Kyle Hodges, recovered the gun—a nine millimeter Glock 17 handgun with a 30-round extended magazine and a laser pointer. Officer Highland noticed the Glock was "essentially" the same as his own firearm, except something was "different" about this Glock, as it had a modifying device attached. Id. at 12.

The State filed a delinquency petition against A.W., alleging that he had committed acts which, if committed by an adult, amount to three Class A misdemeanors: (1) carrying a handgun without a license, (2) resisting law enforcement, and (3) criminal mischief. The State also alleged that A.W. committed (4) dangerous possession of a firearm, a Class A misdemeanor applying to mere possession of a firearm by a juvenile. A fellow officer assigned to work with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives task force, discovered the device attached to the weapon was a "Glock switch," which transforms the weapon "from a semiautomatic to an automatic handgun," id. at 21, and explained that these modifications have "been around for a few years" and that "we’re seeing more and more of them," id. at 28, 30.

With this information, the State amended its delinquency petition to add another count—possession of a machine gun, a Level 5 felony if committed by an adult. After a factfinding hearing, the juvenile court concluded that A.W. committed each of the offenses as alleged in the amended petition and thus entered separate juvenile adjudications for each offense. The trial court placed A.W. on probation and released him to his father’s custody. A.W. appealed.

In a published opinion, the Court of Appeals unanimously affirmed the sufficiency of the evidence but reversed in a 2-1 decision on substantive double jeopardy grounds. A.W. ?. State, 192 N.E.3d 227, 232 (Ind. Ct. App. 2022), vacated. First, the panel concluded that A.W.’s exclusive possession of the Glock as modified was sufficient evidence that he "knowingly or intentionally" possessed a machine gun in violation of Indiana Code section 35-47-5-8. Id. at 231. Second, the majority held that (1) dangerous possession of a firearm and (2) possession of a machine gun—as charged and proven at A.W.’s hearing— violated substantive double jeopardy under Wadle, because the "same firearm was the means used to commit both offenses," thus making them factually included offenses. Id. at 232. The majority reversed the juvenile court’s adjudication that A.W. committed dangerous possession of a firearm. Id. A dissenting opinion, however, concluded that the two offenses were not factually included because while the charges overlap in that A.W. possessed a firearm, they do not amount to multiple punishment because "one requires proof that he had the status of a minor" and the other requires proof that he "possessed a machine gun, which no person may lawfully possess, minor or not." Id. at 233 (Bradford, C.J., concurring in part, dissenting in part).

A.W. sought transfer on the sufficiency of the evidence issue, and the State submitted a brief in response. The State also filed its own transfer petition solely on the double jeopardy question. A.W. did not respond.

We granted transfer, 205 N.E.3d 190 (Ind. 2023), thus vacating the appellate opinion, Ind. Appellate Rule 58(A).

Standards of Review

[1, 2] This challenge to the trial court’s multiple juvenile adjudications has two layers of review. First, A.W.’s sufficiency of the evidence argument "implicate[s] a deferential standard of review." Carmack ?. State, 200 N.E.3d 452, 459 (Ind. 2023) (cleaned up). When reviewing sufficiency claims in the special context of a juvenile adjudication, such as here, "we do not reweigh the evidence or judge witness credibility," but appraise "only the evidence favorable to the judgment and the reasonable inferences supporting it." B.T.E. ?. State, 108 N.E.3d 322, 326 (Ind. 2018) (citing K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006)). We will affirm a juvenile adjudication "if a reasonable trier of fact could conclude that the [respondent] was guilty beyond a reasonable doubt." Id. (citing Moran ?. State, 622 N.E.2d 157, 159 (Ind. 1993)). And second, A.W.’s double jeopardy challenge—(1) whether Article 1, Section 14 of the Indiana Constitution applies in juvenile proceedings; and (2) whether his multiple adjudications violated his right to be free from substantive double jeopardy—involves controlling questions of law that we review de novo. Wadle, 151 N.E.3d at 237; Powell ?. State, 151 N.E.3d 256, 262 (Ind. 2020).

Discussion and Decision

I. A.W.’s exclusive possession of the firearm, which contained a Glock switch feature, was sufficient evidence that he "knowingly or intentionally" possessed a machine gun.

[3] A.W. challenges the sufficiency of the evidence to sustain the juvenile court’s adjudication of possession of a machine gun. He argues that he did not know the Glock switch converted the firearm from a semiautomatic weapon to a machine gun, and therefore his "mere possession" of this feature was insufficient evidence to establish his mens rea. A.W. Pet. to Trans. at 6. The trial court considered the facts and found that A.W. "knowingly or intentionally" possessed a modified machine gun. Tr. at 60.

The statutory mens rea requirement imposes the following burden on the State: in order to prove that A.W. committed the machine gun offense, it must show that he "knowingly or intentionally own[ed] or possesse[d] a machine gun …" I.C. § 35-47-5-8. A.W. admits the evidence established exclusive possession but claims the State could not show beyond a reasonable doubt that he knew the Glock switch feature attached to the slide converted the Glock to a machine gun. We...