Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Kelly Starling

Marion County Public Defender Agency 

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

A.W.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner

February 11, 2020

Court of Appeals Case No.

19A-JV-1792

Appeal from the Marion Superior 

Court

The Honorable Marilyn A. 

Moores, Judge

The Honorable Geoffrey A. 

Gaither, Magistrate

Trial Court Cause No.

49D09-1902-JD-146

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 2 of 12

Case Summary

[1] Sixteen-year-old A.W. was adjudicated delinquent for conduct amounting to 

level 5 felony robbery if committed by an adult. He now appeals, claiming that 

the trial court erred in granting the State’s oral motion for continuance and in 

ordering his placement in the Indiana Department of Correction (“DOC”). We 

affirm.

Facts and Procedural History

[2] A.W. was born in November 2002. At age three, he lost his father, who was 

killed in a police shooting. He was raised by his mother, with assistance from 

his grandparents. By age sixteen, he had accumulated ten delinquency 

referrals, some of which involved multiple allegations of delinquent behavior. 

A.W.’s referrals began at age twelve, when he was adjudicated delinquent for 

truancy. At ages fourteen and fifteen, he had two true findings for conduct 

amounting to level 5 felony battery resulting in bodily injury to a public safety 

officer, one for level 6 felony receiving stolen auto parts, one for level 6 felony 

escape, and one for class A misdemeanor battery resulting in bodily injury, all if 

committed by an adult. At age sixteen, he faced three different referrals that 

ultimately resulted in four true findings, one for conduct amounting to level 6

felony escape, one for conduct amounting to level 6 felony resisting law 

enforcement, one for conduct amounting to class C misdemeanor operating a 

motor vehicle without ever receiving a license, all if committed by an adult, and 

the present cause, which resulted in a true finding for conduct amounting to 

level 5 felony robbery if committed by an adult. 
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[3] The facts underlying A.W.’s true finding for robbery are as follows. On 

December 16, 2018, Jasmine Burch pushed her eighty-year-old, wheelchairbound mother, Janja Jordan, into an Indianapolis discount store. When the 

two were between the double entrance doors, an assailant later identified as 

A.W. grabbed the elderly Jordan’s purse, which she had on her lap, clutched in 

her left hand. A.W. ran out the front entrance, and Burch chased him outside. 

A.W. eventually dropped the purse as well as a cell phone. Police obtained a 

search warrant for the phone and ascertained that it belonged to A.W.’s

mother. Jordan suffered injury to her left hand, on which she had recently had 

surgery. Burch positively identified A.W. from a photo array, and A.W. was 

taken into custody.

[4] The State charged A.W. with a delinquent act that would amount to level 5 

felony robbery if committed by an adult. A.W. was released on electronic 

monitoring on February 12, 2019. Two weeks later, he removed his electronic 

monitoring device, and his whereabouts were unknown. He eventually was 

apprehended, detained, and charged in another cause (“Cause 215”) with a 

delinquent act amounting to level 6 felony escape if committed by an adult. 

The trial court set a factfinding hearing for May 23, 2019, for the current cause, 

Cause 215, and a third cause (“Cause 467”).1

1

 Cause 467 involved five alleged acts of delinquency against A.W., three of which were dismissed and two 

of which resulted in true findings: one for conduct amounting to level 6 felony resisting law enforcement and 

the other for conduct amounting to class C misdemeanor operating a motor vehicle without ever having 

received a license, if committed by an adult. 
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[5] On May 23, the State requested a continuance in the current cause and Cause 

467. Cause 215 was litigated that day and resulted in a true finding against 

A.W. for escape. The State’s oral request for continuance in the current cause

was due to the absence of Jordan, the victim. The State explained that Jordan 

had notified the prosecutor’s office the day before that she would not be able to 

attend the factfinding hearing because her husband had been diagnosed with 

cancer. The prosecutor stated that she believed that she could procure Jordan’s 

attendance with a continuance of about a week. A.W. objected, requested that 

the court require the State to submit its motion in writing as required by statute, 

and requested a discharge. The trial court did not order the State to submit a 

written motion and instead granted its motion for continuance. At the June 25, 

2019 factfinding hearing in the current cause, A.W. renewed his request for 

discharge, and the prosecutor explained in greater detail the circumstances that 

precipitated Jordan’s absence from the May 23 hearing. The trial court denied 

A.W.’s motion for discharge, conducted the hearing, and entered a true finding

for conduct amounting to level 5 felony robbery if committed by an adult.

[6] The trial court conducted a dispositional hearing and, due largely to A.W.’s 

lengthy history of true findings and of violating less restrictive placements,

placed A.W. in the DOC until age twenty-one, with a recommendation of a sixmonth term. A.W. now appeals. Additional facts will be provided as 

necessary.
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Discussion and Decision

Section 1 – We find no reversible error in the trial court’s 

grant of the State’s oral motion for continuance.

[7] A.W. contends that the trial court committed reversible error in granting the 

State’s oral motion for continuance. Rulings on non-statutory motions for 

continuance lie within the trial court’s discretion and will be reversed only for 

an abuse of that discretion and resulting prejudice. Barber v. State, 911 N.E.2d 

641, 645-46 (Ind. Ct. App. 2009). Where, as here, a statute governs the grant or 

denial of a continuance, we apply a de novo standard, interpreting the language

of the statute. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).

[8] Indiana Code Section 31-37-11-8 governs circumstances in which a juvenile 

seeks discharge and the State seeks a continuance due to the absence of a 

witness:

(a) If a child moves for discharge, the prosecuting attorney may 

move for a continuance of the factfinding hearing or waiver 

hearing because of the absence of a witness if the prosecuting 

attorney makes an official statement:

(1) setting forth the name and address of the witness if known;

(2) indicating the probability of procuring the witness’s testimony 

within a reasonable time;

(3) showing that the absence of the witness has not been procured 

by the act of the prosecuting attorney;
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(4) stating the facts to which the prosecuting attorney believes the 

witness will testify and the prosecuting attorney’s belief that the 

facts are true; and

(5) stating that the prosecuting attorney is unable to prove the 

facts specified under subdivision (4) through the use of any other 

witness whose testimony may be as readily procured.

(b) Upon the child’s request, the court shall order that the 

prosecuting attorney’s motion and official statement be made in 

writing. 

(Emphasis added.) 

[9] The highlighted portion of the statute indicates that its language is mandatory 

rather than discretionary. See Taylor v. State, 7 N.E.3d 362, 365 (Ind. Ct. App. 

2014) (“It is well settled that the use of the word ‘shall’ is construed as 

‘mandatory language creating a statutory right to a particular outcome after 

certain conditions are met.’”) (quoting Alden v. State, 983 N.E.2d 186, 189 (Ind. 

Ct. App. 2013), trans. denied). A.W. objected to the State’s oral motion to 

continue, requested a discharge, and requested that the court order the State to 

submit the motion in writing. The trial court was required by statute to order 

the State to submit its motion in writing and erred when it failed to do so. 

[10] The State contends that any error in this regard is harmless. Harmless error is 

error that does not affect the substantial rights of a party. Camm v. State, 908 

N.E.2d 215, 225 (Ind. 2009). The May 23 factfinding hearing involved three 

separate causes against A.W. The present cause and Cause 467 were continued 
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1792 | February 11, 2020 Page 7 of 12

as a result of the State’s oral motion. The remaining cause, Cause 215, was 

heard that day and resulted in a true finding for escape. Having been found 

true, A.W. was detained in that cause, not as a result of the continuance in the 

present cause or Cause 467. 

[11] Moreover, the continued factfinding hearing was ultimately commenced within 

the statutorily prescribed period. See Ind. Code § 31-37-11-9 (requiring court to 

commence continued factfinding hearing within ninety days; court shall 

discharge the juvenile if it does not do so within ninety days). Here, the 

prosecutor verbally requested a continuance due to Jordan’s absence at the 

beginning of the May 23 factfinding hearing. At that time, the prosecutor 

indicated her belief that she could secure Jordan’s attendance with a 

continuance of about one week. The hearing ultimately was commenced thirtythree days after the grant of the continuance, well within the statutory limit.

Additionally, we note that of the five items of information that must be 

included in a written motion for continuance, per Indiana Code Section 31-37-

11-8(a), Jordan’s address appears to be the only one missing from the 

prosecutor’s oral motion. A.W. was well aware of Jordan’s identity and has 

not demonstrated prejudice regarding the lack of a written motion containing 

her address. The prosecutor’s explanation that the elderly Jordan had notified

her by phone the previous day she would not be able to attend the factfinding 

hearing because her husband had been diagnosed with cancer is sufficient to 

show that the prosecutor did not procure Jordan’s absence. The prosecutor also 

indicated that she believed that she could secure Jordan’s participation within a 
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reasonable time. In short, A.W. has failed to demonstrate prejudice resulting 

from the trial court’s failure to order the State to submit its continuance motion 

in writing. As such, the error was harmless. 

Section 2 – The trial court acted within its discretion in 

ordering A.W.’s placement in the DOC.

[12] A.W. also asserts that the trial court abused its discretion in ordering his 

placement in the DOC. The disposition of a juvenile adjudicated a delinquent 

is a matter committed to the trial court’s discretion, subject to the statutory 

considerations of the child’s welfare, community safety, and the policy favoring 

the least harsh disposition. J.S. v. State, 110 N.E.3d 1173, 1175 (Ind. Ct. App. 

2018), trans. denied (2019). We review a trial court’s disposition for an abuse of 

discretion, which occurs if the decision is clearly against the logic and effect of 

the facts and circumstances before it or the reasonable inferences that may be 

drawn therefrom. Id. In determining whether a trial court has abused its 

discretion, we neither reweigh evidence nor judge witness credibility. Id.

[13] The crux of A.W.’s argument is that the trial court chose the harshest 

placement option when less restrictive alternatives were available. Juvenile 

court proceedings are civil, not criminal, in nature. Id. “[T]he goal of the 

juvenile process is rehabilitation so that the youth will not become a criminal as 

an adult.” Id. at 1175-76 (quoting R.H. v. State, 937 N.E.2d 386, 388 (Ind. Ct. 

App. 2010)). Thus, juvenile courts have a variety of placement choices. 

Indiana Code Section 31-37-18-6 reads, 
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If consistent with the safety of the community and the best 

interest of the child, the juvenile court shall enter a dispositional 

decree that:

(1) is:

(A) in the least restrictive (most family like) and most appropriate 

setting available; and

(B) close to the parents’ home, consistent with the best interest 

and special needs of the child;

(2) least interferes with family autonomy;

(3) is least disruptive of family life;

(4) imposes the least restraint on the freedom of the child and the 

child’s parent, guardian, or custodian; and

(5) provides a reasonable opportunity for participation by the 

child’s parent, guardian, or custodian.

[14] Indiana Code Section 31-37-18-9(a) requires the trial court to state its reasons 

for the disposition chosen. This involves the trial court’s issuance of written 

findings and conclusions concerning the child’s care, treatment, rehabilitation, 

or placement; parental participation in the plan; efforts made to prevent the 

child’s removal from the parent; family services offered; and the court’s reasons 

for its disposition. Ind. Code § 31-37-18-9(a)(1)-(5). 
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[15] Here, the trial court’s findings indicate its consideration of the statutory factors 

and its reasons for ordering A.W.’s placement in the DOC. For example, by 

age sixteen, A.W. had accumulated ten delinquency referrals, the recitation of 

which comprises a significant portion of the dispositional order. The nature of 

his delinquent conduct has been serious and sometimes violent. For example, 

his record includes two true findings for conduct amounting to level 5 felony 

battery with injury to a public safety official if committed by an adult. He has 

four true findings for conduct amounting to a level 6 felony if committed by an 

adult, i.e., resisting law enforcement, receiving stolen property, and escape, and 

two for misdemeanor level conduct. Most of his previous dispositions were 

modified due to his commission of each new offense. He had two additional 

causes pending in addition to the current delinquency petition, and those causes 

resulted in two felony true findings and one misdemeanor true finding. The 

trial court emphasized that less restrictive placements of home care and 

placement outside the home at Youth Outlook and Options had already been 

tried and had proven unsuccessful. Appealed Order at 4-5; see also Tr. Vol. 2 at 

115 (court’s emphasis at dispositional hearing that DOC was only option not 

yet tried and DOC would provide structure, security, separation, and 

programming). 

[16] A.W. points to his high level of family support as evidence that he deserves 

another chance at community and structured home placement. Our review of 

the record leaves no doubt as to his family’s strong support. At the 

dispositional hearing, various family members pled for mercy on A.W.’s behalf
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and testified concerning their love and support for him throughout his 

childhood, with particular emphasis on his father’s death when he was just 

three years old. However, the number and recent escalation of A.W.’s 

delinquency referrals indicate that the family’s efforts, well-meaning though 

they are, have failed to produce more positive results for A.W. 

[17] A.W. also relies on psychologist Dr. Jim L. Dalton’s report as support for a less 

restrictive placement. Dr. Dalton reported that A.W.’s mental status and 

presentation had improved since his previous evaluation in 2017. Respondent’s 

Ex. B. However, Dr. Dalton ultimately found that A.W. was an “increasing 

delinquency risk,” had a longstanding “penchant toward elopement,” and 

presents “some danger to others as he has been willing to violate the rights of 

others for his own personal gain.” Id. Dr. Dalton explained that because A.W. 

“appears to present risks to the community, it is difficult to support another try 

at community-based services. Especially given the increase in antisocial interest 

and trajectory for this young man.” Id. He ultimately concluded that the 

“updated assessment findings would support commitment to the [DOC].” Id. 

[18] Simply put, the trial court did not choose the most restrictive placement in a 

vacuum, but rather made a measured decision representing “the least restrictive 

and most appropriate setting” based on A.W.’s history, community safety, and 

A.W.’s best interest. Appealed Order at 4. Based on the foregoing, we 

conclude that the trial court acted within its discretion in ordering A.W.’s 

placement in the DOC. Accordingly, we affirm.
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[19] Affirmed. 

May, J., and Pyle, J., concur.