                                                          FILED
                                                        Aug 22 2012, 10:41 am
FOR PUBLICATION
                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

STEVEN KNECHT                                GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                   Attorney General of Indiana
Lafayette, Indiana

                                             BRIAN REITZ
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                             IN THE
                   COURT OF APPEALS OF INDIANA
RYAN E. BEAN,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 91A02-1109-CR-906
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                    APPEAL FROM THE CARROLL CIRCUIT COURT
                         The Honorable Donald E. Currie, Judge
                             Cause No. 08C01-1009-FA-2

                    APPEAL FROM THE WHITE SUPERIOR COURT
                        The Honorable Robert B. Mrzlack, Judge
                            Cause No. 91D01-1012-FA-157


                                   August 22, 2012

                             OPINION - FOR PUBLICATION
BARNES, Judge
                                          Case Summary

       In this consolidated appeal, Ryan Bean appeals his convictions for two counts of

Class A felony child molesting. We reverse and remand.

                                                Issue

       The dispositive issue we address is whether the two trial courts properly

introduced into evidence Bean’s confession to police.1

                                                Facts

       On September 23, 2010, at about 2:30 p.m., detectives from Carroll and White

Counties went to Bean’s residence in Lafayette, wanting to speak with him about

allegations made by his daughter, H.B., and his niece, M.S., that he had molested them in

both counties.      The detectives found Bean at home and told him that they were

investigating possession of child pornography.             Bean consented to a search of his

computer and also agreed to accompany the detectives to the Lafayette Police Station to

talk about the child pornography allegations and “something else . . . .” Suppression Tr.

p. 38. An officer drove Bean to the station. He was not placed in handcuffs or told he

was under arrest.

       Bean was taken into a room at the station at 4:22 p.m., according to the time stamp

on the video recording of his interrogation. Initially, Bean was asked basic identifying

information. The discussion then moved to pornography that he had been downloading

on his computer, including possible child pornography that Bean claimed he had not
1
 Given our resolution of this issue, we need not address Bean’s argument regarding an unpreserved claim
of improper vouching testimony and his claims of sentencing error.
                                                  2
intended to download. At approximately 5:00 p.m., a detective made a point of showing

Bean that the door to the room he was in was unlocked and that he could leave the

building if he wanted to. Bean then said, “Do I need a lawyer?” App. p. 218. The

detective then informed Bean of his Miranda rights, showed him a waiver of rights form

that listed those rights, and specifically pointed out to Bean, “you’ll understand that

somewhere in here it also says that you can stop talking to me anytime you want.” Id. at

219. Bean signed the waiver of rights form at 5:10 p.m. and continued speaking with the

detectives.

       After continuing to discuss pornography, a detective told Bean he wanted to

“switch gears a little bit” and talk about his daughter, H.B., namely that she had accused

Bean of having molested her. Id. at 236. Bean professed to be shocked at this allegation

and denied having had any sexual contact with H.B. At approximately 5:50 p.m., after

repeated denials of having molested H.B., the detectives told Bean they were leaving the

room for a little while.    Bean said, “Can I leave yet?” and one of the detectives

responded, “Well, if you want to leave—that’s—you can leave at any time. Is that—you

understood—but we’d like to come back and talk to you for a second. Okay? All right.”

Id. at 243. Bean agreed to stay.

       Very soon thereafter, one of the detectives returned to the room and began

vigorously questioning Bean regarding allegations by his niece, M.S., that Bean had

molested her. The detective told Bean repeatedly that he believed M.S. had told the truth

and asked Bean to be honest. Bean continued denying any molestation occurred but did

                                            3
admit that M.S. might have once accidentally seen him masturbating to internet

pornography. Bean eventually began crying and said, after repeated questioning by the

detective, “Ah, apparently I put my finger in her vagina.”          Id. at 262.    Almost

immediately thereafter, however, he said, “I’m making this up because I don’t know.”

Id. at 263.

       At 6:21 p.m., Bean said, “I mean the only thing else I can say is I want a lawyer so

that way, you know, I don’t have to worry about—you know—saying I don’t know for

the fifty-millionth time.” Id. at 264. The detective initially sat in silence while Bean

continued talking and crying without admitting that he molested either H.B. or M.S.

After a few minutes, the detective said, “Well, Ryan, without knowing what you did

because you’re not telling me what you did—you made the comment—I want a lawyer.

You know, do you want a lawyer or do you wanna tell me what you did so we know what

help to get [M.S.]. I’m, I’m confused right now. You tell me.” Id. A few minutes later,

after repeated questioning by the detective as to whether he wanted a lawyer or to keep

talking, Bean said, “And I told you—I, I want this to be done with.” Id. at 265. Still, the

detective continued asking Bean whether he truly wanted a lawyer or to “get it cleared

up?” Id. Bean said, “I do wanna get it cleared up,” by which he meant he wanted the

detectives to believe his denials. Id. at 266. Again, the detective asked if Bean really

wanted a lawyer, and Bean said, referring to the waiver of rights form, “I mean it says in

there I can stop talking . . . .” Id. Bean repeatedly said he did not know if he wanted to

continue talking, but he eventually did so with both detectives in the room.

                                             4
       Bean continued to deny for some time that he ever molested either H.B. or M.S. in

the face of repeated aggressive questioning by one of the detectives. At one point Bean

said, “And I need you guys to be honest with me. If I do say that I did all this kinda stuff,

you gonna take me to jail?” Id. at 270. Neither of the detectives gave a straightforward

response to this question, instead saying, “you knew that right after it happened, you

knew that if somebody ever found out about it, there would be consequences. Right?”

Id. at 271.

       Finally, at approximately 7:00 p.m., Bean began confessing that he had molested

H.B.   He stated that on one occasion, he was masturbating while viewing internet

pornography when she came downstairs and saw him, and he asked her to put her mouth

on his penis.    He also described a second occasion when he purportedly saw her

masturbating, then decided to rub his penis on her bottom while he felt her vagina. Bean

also eventually stated with respect to M.S. that on one occasion, he kissed her while she

rubbed his penis and he rubbed her vagina. After writing a letter apologizing to H.S. (but

not explicitly stating that he had molested her), Bean was arrested at approximately 9:30

p.m.

       The State charged Bean in Carroll County with three counts of Class A felony

child molesting of H.B. It also charged him in White County with one count of Class A

felony child molesting and one count of Class C felony child molesting with respect to

M.S. and one count of Class A felony child molesting of H.B. In White County, the trial

court granted Bean’s motion to sever the charges related to M.S. from the charge related

                                             5
to H.B. In each of Bean’s two jury trials regarding H.B., he filed motions to suppress his

September 23, 2010, confession to police, which were denied by both trial courts. Bean

renewed his objection to the confession at both trials. Bean was convicted in Carroll

County of one count of Class A felony child molesting but acquitted of the other two

counts, and he was convicted in White County of the one count of Class A felony child

molesting related to H.B. Bean now appeals both convictions in this consolidated appeal.

The outcome of Bean’s trial regarding M.S., or even whether there was such a trial, is not

before us.

                                             Analysis

       Bean challenges the admission into evidence of his confession to police. Bean

preserved his claim of error on this point through pretrial motions to suppress and trial

objections. Our review of rulings for the admissibility of evidence is essentially the same

regardless of whether the challenge is made through a pretrial motion to suppress or by

trial objection. Jackson v. State, 890 N.E.2d 11, 15 (Ind. Ct. App. 2008). In either case,

we will not reweigh the evidence and will consider conflicting evidence in a light most

favorable to the trial court’s ruling. Id. We must also, however, consider any undisputed

evidence that is favorable to the defendant. Id. Furthermore, when a defendant preserves

a claim of evidentiary error by contemporaneous trial objection,2 we may consider

foundational evidence introduced at trial in conjunction with any evidence from a

suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State,
2
 A motion to suppress alone is insufficient to preserve a claim of error. Neukam v. State, 934 N.E.2d
198, 201 (Ind. Ct. App. 2010).
                                                 6
825 N.E.2d 420, 247 (Ind. Ct. App. 2005). In the present case, there is no conflict

between the evidence presented at the motion to suppress hearings and the trial evidence

regarding Bean’s confession, and that evidence is undisputed as to what occurred.

      Bean asserts that his confession should have been suppressed because it was

obtained after he had invoked his Fifth Amendment right to counsel, as protected by

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The purpose of Miranda and

the warnings it prescribes are to protect a suspect’s Fifth Amendment privilege against

self-incrimination “‘by placing reasonable limitations on police interrogations.’”

Hendricks v. State, 897 N.E.2d 1208, 1214 (Ind. Ct. App. 2008) (quoting Sauerherber v.

State, 698 N.E.2d 796, 801 (Ind. 1998)). A person who is to be subjected to custodial

interrogation by law enforcement must be informed, per Miranda, of the right to remain

silent and to an attorney. State v. Hicks, 882 N.E.2d 238, 241 (Ind. Ct. App. 2008). If a

person in custody unequivocally invokes his right to counsel, police must immediately

and “‘scrupulously’” honor that request and cease all further interrogation, unless the

suspect initiates further communication with the police. Carr v. State, 934 N.E.2d 1096,

1106 (Ind. 2010) (quoting Miranda, 384 U.S. at 479, 86 S. Ct. at 1630).              The

requirements of Miranda apply only in the context of custodial interrogations “because

they are meant to overcome the inherently coercive and police dominated atmosphere” of

such interrogations. Collins v. State, 873 N.E.2d 149, 155 (Ind. Ct. App. 2007), trans.

denied.



                                           7
       The State contends that even if Bean made an unequivocal request for counsel, a

point it does not concede, the police were not required to honor that request because he

was not in custody at the time he made the request. If a person is not in custody, police

are not required to honor a request for counsel and cease questioning. Kelley, 825

N.E.2d at 430. To be “in custody,” a suspect need not be placed under formal arrest.

Morris v. State, 871 N.E.2d 1011, 1016 (Ind. Ct. App. 2007), trans. denied. “Rather, a

person is in custody if a reasonable person under the same circumstances would have

believed that he or she was under arrest or not free to resist the entreaties of the police.”

Id. We apply a totality of the circumstances test in determining whether a suspect was in

custody, and “the mere fact that a person is not placed in handcuffs or otherwise

physically restrained by the police does not necessarily mean a person is not in custody.”

Id. at 1018. Conversely, the fact that an interrogation takes place at a police station or

other “coercive environment” does not necessarily mean the suspect is in custody. See

Luna v. State, 788 N.E.2d 832, 834 (Ind. 2003).

       The Seventh Circuit has compiled the following helpful list of factors commonly

considered by courts in determining whether a person was in custody for purposes of

Miranda: whether and to what extent the person has been made aware that he is free to

refrain from answering questions; whether there has been prolonged, coercive, and

accusatory questioning, or whether police have employed subterfuge in order to induce

self-incrimination; the degree of police control over the environment in which the

interrogation takes place, and in particular whether the suspect’s freedom of movement is

                                             8
physically restrained or otherwise significantly curtailed; and whether the suspect could

reasonably believe that he has the right to interrupt prolonged questioning by leaving the

scene. Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996), cert. denied. Ultimately, the

question of custody is an objective test based upon how a reasonable person in the

suspect’s shoes would understand the situation and not upon the subjective views or

beliefs of the interrogating officers and suspect. Loving v. State, 647 N.E.2d 1123, 1125

(Ind. 1995).

       Another factor present in this case is that Bean was advised of his Miranda rights

well before he confessed. We recognize that some courts have held that the reading of

Miranda rights to a suspect has no impact on a determination of whether the suspect was

in custody for purposes of invoking those rights. See, e.g., United States v. Charles, 738

F.2d 686, 693 n.6 (5th Cir. 1984) (holding that “the precaution of giving a suspect

Miranda warnings in a noncustodial setting does not either transform that setting into, or

‘help [] produce,’ a custodial interrogation for Miranda purposes”) (quoting United States

v. Lewis, 556 F.2d 446, 449 (6th Cir. 1977), cert. denied), overruled on other grounds by

United States v. Crawford, 52 F.3d 1303, 1307 n.4 (5th Cir. 1995). The Fourth Circuit

has held that the reading of Miranda warnings does not “by itself create custody,”

because “[i]t would convert admirable precautionary measures on the part of officers into

an investigatory obstruction.” Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985).

However, the Davis court left open the possibility that there could be “circumstances



                                            9
where a clash of wills over a suspect’s desire to remain silent would create custody

through overbearing police behavior.” Id. at 172 n.1.

        By contrast, the Seventh Circuit has said that “in the context of a prolonged

detention where there is persistent, accusatory questioning by several officers, the fact

that the police observed certain formalities of a custodial arrest,” such as the reading of

the Miranda warnings, “does provide some support for an inference that [a suspect is] in

custody for purposes of Miranda.” Sprosty, 79 F.3d at 642.3 Similarly, the Tenth Circuit

has held, “Although giving a Miranda warning does not, in and of itself, convert an

otherwise non-custodial interview into a custodial interrogation, it is a factor to be

considered by the court.” United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir. 1998),

cert. denied. The Bautista court explained:

                If the authorities are free to tell a suspect that he has the right
                to appointed counsel, but could, while continuing to
                interrogate him, refuse to provide such counsel on the
                grounds that the suspect was not actually in custody, the
                suspect would be led to believe that no request for counsel
                would be honored. “The coercive effect of continued
                interrogation would thus be greatly increased because the
                suspect would believe that the police ‘promises’ to provide
                the suspect’s constitutional rights were untrustworthy, and
                that the police would continue to violate those rights as they
                wished, regardless of assurances to the contrary.” We do not
                suggest that a person can invoke his Miranda rights
                anticipatorily in any situation, i.e., in a context other than
                custodial interrogation . . . . However, law enforcement
                officers are not free to give the Miranda warning and then

3
 The Sprosty court held that the suspect was in fact in custody at the time of his interrogation by police,
based in part (but not exclusively) on the fact that Miranda warnings had been read to him, but held there
was insufficient evidence for habeas corpus purposes that the suspect had invoked his right to counsel.
Sprosty, 79 F.3d at 643.
                                                    10
               blatantly ignore a suspect’s attempt to invoke any right
               thereunder.

Bautista, 145 F.3d at 1150-51 (quoting Tukes v. Dugger, 911 F.2d 508, 516 n.11 (11th

Cir. 1990), cert. denied).

       We find ourselves in agreement with the view of the Seventh, Tenth, and Eleventh

Circuits. That is, we would agree that although the giving of Miranda warnings should

not automatically render a suspect “in custody,” neither should the giving of such

warnings be irrelevant in that analysis. In fact, it is unclear to us what purpose the

reading of Miranda rights to a suspect should serve, if police did not intend to honor an

invocation of those rights. One such possible purpose would be to encourage a suspect to

incriminate him- or herself by providing a false sense of security that such rights existed,

only to have the rug pulled out from underneath them when an attempt to invoke those

rights is ignored.4 This would turn Miranda on its head and potentially eviscerate its core

purpose of ameliorating the coercive nature of a police dominated atmosphere. See

Collins, 873 N.E.2d at 155. Moreover, it is unclear what a suspect could be told, after he

or she had already been read the Miranda warnings in the context of an adversarial

interrogation in a police-dominated atmosphere but police ignored an earlier invocation

of those rights. We strongly suspect that a re-reading of those warnings in such a




4
  It is unclear to us that the meaningless giving of Miranda warnings when police will not honor an
invocation of rights is an “admirable precautionary measure[],” as stated by the Fourth Circuit. We are
not sure “precautionary” is the correct or apt word.

                                                  11
situation, once a suspect was “truly” in custody, would be largely ineffective to protect

the suspect’s Fifth Amendment rights.

       In Luna, our supreme court addressed a scenario in which a suspect drove himself

to a police station at an officer’s request to discuss molestation allegations that had been

made against him. The suspect was told that he did not have to talk to the police, that he

was not under arrest, and that he was free to leave at any time. Within about one hour’s

time, the suspect admitted to molesting the child and was then permitted to leave the

station.   On appeal, a majority of this court reversed the defendant’s molestation

conviction, holding he was “in custody” when he confessed and erroneously was not

informed of his Miranda rights before he did so. Luna v. State, No. 79A02-0201-CR-33

(Ind. Ct. App. Sept. 17, 2002). Our supreme court granted transfer and affirmed the

conviction, stating, “a person who goes voluntarily for a police interview, receives

assurances that he is not under arrest, and leaves after the interview is complete has not

been taken into ‘custody’ by virtue of an energetic interrogation so as to necessitate

Miranda warnings.” Luna, 788 N.E.2d at 834 (citing Oregon v. Mathiason, 429 U.S. 492,

97 S. Ct. 711 (1977)). The Luna court also quoted from the dissent of the author of this

opinion: “‘I believe the proof is in the pudding here,’” meaning the police had kept their

word that the defendant would be free to leave after making his statement. Id. at 833

(quoting Luna, No. 79A02-0201-CR-33, slip op. at 8 (Barnes, J., dissenting)). See also

Faris v. State, 901 N.E.2d 1123, 1126-27 (Ind. Ct. App. 2009) (holding mentally disabled

suspect was not in custody where he voluntarily went to police station with mother, total

                                            12
interview lasted approximately two hours, and he was allowed to go home after

confessing to molesting his daughter), trans. denied.

       By contrast, we held that a child battery suspect in Morris was in custody when

she finally made a confession and improperly was not advised of her Miranda rights. The

suspect voluntarily went to the police station to give a statement regarding the death of a

child she had been babysitting. She was initially informed that she was not under arrest,

had no obligation to be there, and could leave at any time. She first was interviewed by

one officer, denied any wrongdoing, and asked to leave. While she was starting to walk

home and still in the police station parking lot, a different officer approached her and

asked her to talk some more, and she agreed. After again denying wrongdoing, the

suspect went to the police station lobby to wait for two other people to complete their

interviews on the same topic. While waiting, a third officer approached the suspect and

asked her to talk some more, and she agreed. During this third interview, conducted

about four to five hours after first arriving at the station, the suspect confessed to having

battered the child. It was only after this confession that the suspect was read her Miranda

rights. We held that as of the third interview, the suspect was effectively in custody

because “a reasonable person in [the suspect’s] position would not have felt free to resist

the entreaties of the police at that time.” Morris, 871 N.E.2d at 1018.

       This case falls in between Luna and Morris on the “in custody” spectrum. After

considering all the facts and circumstances of this case, we conclude Bean was in custody

when he finally confessed to having molested H.B., even if he was not formally arrested

                                             13
at that time and even if he had technically been told he was free to leave the station at any

time and to not talk to police.

       First, neither Bean nor an acquaintance of his drove him to the station—a police

officer did. By itself, this does not establish that Bean was in custody, but it would have

complicated his efforts to leave the station if he did not want to continue talking to police.

This is unlike the situation in Luna, where the suspect appears to have agreed to transport

himself to the police station at a pre-agreed time and was able to transport himself away

from the station thereafter.

       Second, the officers who spoke to Bean at his residence did not tell him the real

reason they wanted to speak with him. Instead, they led him to believe he was under

investigation for child pornography. Although that is a serious crime, it was only after

Bean had been at the station for about an hour and a half that he was told of the real

reason for the interrogation—an accusation by his daughter and niece that he had

molested them. Such accusations were dramatically more serious than what he was led to

believe would be discussed at the station and substantially changed the tenor of the

interrogation. Such a “bait and switch” would most probably lead a reasonable person to

feel much less likely to be permitted to simply walk out of the police station.

       Third, the questioning in this case was clearly aggressive and fairly lengthy. Bean

repeatedly denied molesting either H.B. or M.S., but the officers continued insisting that

children would not make up molestation allegations. By the time Bean finally confessed,

he had been at the station for nearly two-and-a-half hours and been subjected to

                                             14
questioning regarding criminal activity for approximately two hours. We also note that at

one point, Bean asked if he could leave and one of the detectives responded, “Well, if

you want to leave—that’s—you can leave at any time. Is that—you understood—but

we’d like to come back and talk to you for a second. Okay? All right.” App. p. 243.

This might not have compelled Bean to stay, but on the other hand it strongly encouraged

him to do so.

       Fourth, we note that unlike cases such as Luna and Faris, Bean in fact was not

allowed to return home after he finally confessed. At one point before he confessed Bean

tried to ask if he would be allowed to go home if he told the officers what they apparently

wanted to hear, and they failed to provide a direct answer to that question. A reasonable

person in Bean’s situation at that point might have felt he or she was in a “Catch-22”: to

either continue denying wrongdoing indefinitely, with police refusing to accept those

denials, or to confess and face immediate arrest. Thus, there was no “proof in the

pudding” here—instead, he was arrested after having given his statement.

       We need not decide whether these factors alone would have been enough to render

Bean in custody at the time of his confession. The crucial factor here that leads us to

believe that Bean was in custody when he finally confessed is that he had been advised of

the Miranda rights to remain silent and to an attorney, that he had invoked those rights,

and that police continued questioning him anyway. Indeed, this case differs from Luna,

Morris, and many others in that the question in those cases was whether the suspect



                                            15
should have been advised of their Miranda rights; Bean, by contrast, was advised of those

rights and tried to invoke them, albeit unsuccessfully.

        After considering the totality of the circumstances, including but not limited to

police informing Bean of the Miranda rights, we conclude that Bean was in custody when

he finally gave his confession because a reasonable person would not have felt free to

leave the police station at that point. The facts here are even more indicative of custody

than those of Ackerman v. State, 774 N.E.2d 970, 979 (Ind. Ct. App. 2002), trans. denied,

where we found a suspect to be in custody where she was “transported from home with

no obvious means of returning, had admitted possible illegal activity to police, and then

finally was advised of her Miranda rights . . . .”5 At the time of Bean’s confession, he

was in custody but had either (a) not been meaningfully informed of his Miranda rights or

(b) had earlier invoked those rights.

        The State also argues that even if Bean was in custody when he confessed, he had

not unambiguously invoked his right to counsel. An accused’s request for counsel must

be unambiguous and unequivocal. Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App.

2012), trans. denied.       Cessation of police questioning is not required if a suspect’s

reference to an attorney is ambiguous or equivocal, such that a reasonable officer in light

of the circumstances would have understood only that the suspect might be invoking the

right to counsel. Id. Invocation of the Miranda right to counsel requires, at a minimum,

5
  Ackerman addressed whether a suspect was in custody for purposes of advising her of her right to
counsel before consenting to a search under Pirtle v. State, 236 Ind. 16, 323 N.E.2d 634 (1975). This
court has noted that the same “custody” analysis applies to Pirtle questions as it does to Miranda issues.
Morris, 871 N.E.2d at 1017-18.
                                                   16
some statement that can reasonably be construed to be an expression of a desire for the

assistance of an attorney. Id. The request must be made with sufficient clarity such that

a “reasonable police officer under the circumstances would understand the statement as a

request for an attorney.” Id.

       In Anderson, we found the invocation of the right to counsel unequivocal where

the defendant said, “I really would like to talk to an attorney or something,” and his right

to counsel should therefore have been “‘scrupulously honored.’” Id. (quoting Miranda,

384 U.S. at 479, 86 S. Ct. at 1630). Bean’s statement in the case before us was equally

unequivocal: Bean said, “I want a lawyer so that way, you know, I don’t have to worry

about–you know–saying I don’t know for the fifty-millionth time.”            App. p. 264.

Questioning should have ceased at this point.

       Additionally, the State asserts that Bean reinitiated conversation with the police

after saying he wanted an attorney. Once a suspect invokes the right to counsel, further

interrogation is allowed only when it is shown that the accused initiated further

discussions and knowingly and intelligently waived the right to counsel he or she had

earlier invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 493 (1984). Bean did

continue speaking after saying “I want a lawyer.” However, these statements were

rambling and made while Bean was crying. Contrary to the State’s assertion, Bean made

no confession in these statements. Rather than cease further communications with Bean,

the detective instead repeatedly attempted to prod Bean into either confessing or

“clarifying” whether he really wanted counsel.         These “persistent resumptions of

                                            17
communication after the defendant’s invocation of rights” were improper. See Carr, 934

N.E.2d at 1107. Moreover, after the detective made several attempts to “clarify” whether

Bean wanted a lawyer, Bean stated, “And I told you—I, I want this to be done with. . . .

Over.” App. p. 265. In combination with Bean’s earlier unequivocal invocation of his

right to counsel, this unequivocal invocation of his right to silence should have been

honored. But it was not. As such, we conclude that Bean’s ultimate confession was

obtained in violation of Miranda and should have been suppressed.

      The State further argues that even if the trial courts erred in admitting Bean’s

confession, any such errors were harmless.       A federal constitutional error in the

admission of evidence may be harmless, but only if it can be deemed harmless beyond a

reasonable doubt. Carr, 934 N.E.2d at 1107. It is not enough that there might be

sufficient evidence of guilt without the erroneously admitted evidence; its admission

must be harmless beyond a reasonable doubt. Koenig v. State, 933 N.E.2d 1271, 1272

(Ind. 2010). To be harmless, the erroneously admitted evidence must be unimportant in

relation to everything else considered by a jury on the issue in question. Anderson, 961

N.E.2d at 28.

      We cannot reach that conclusion here. Aside from the confession, there was no

evidence to support Bean’s convictions aside from H.B.’s testimony, which was vague in

parts and lacked detail. It simply is impossible to say that a jury would not have

considered Bean’s confession to be important in either trial. We note, moreover, that the

Carroll County jury acquitted Bean of two of the molestation charges against him.

                                           18
Bean’s confession related one act of molestation against H.B. in Carroll County while

H.B.’s testimony alleged several acts. We, therefore, reverse both of Bean’s molestation

convictions.   Because there is no claim of insufficient evidence to support those

convictions, he may be retried. See Carr, 934 N.E.2d at 1109.

                                        Conclusion

       Bean’s confession was obtained in violation of Miranda protocol and should not

have been admitted into evidence in either trial. Those errors were not harmless and must

result in reversal of his molestation convictions in Carroll and White Counties. We

reverse and remand for retrials, if the State so chooses.

       Reversed and remanded.

FRIEDLANDER, J., and MAY, J., concur.




                                             19
