                                                                            FILED
                                                                       Jan 23 2020, 8:50 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Brian A. Karle                                              Curtis T. Hill, Jr.
Ball Eggleston, PC                                          Attorney General of Indiana
Lafayette, Indiana
                                                            Matthew B. Mackenzie
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

C.J.,                                                       January 23, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-JV-255
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Marilyn Moores,
Appellee-Plaintiff                                          Judge
                                                            The Honorable Geoffrey Gaither,
                                                            Magistrate
                                                            Trial Court Cause No.
                                                            49D09-1810-JD-1192



May, Judge.




Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                             Page 1 of 16
[1]   The trial court adjudicated C.J. as a delinquent for acts that would constitute

      Level 4 felony child molesting 1 if committed by an adult. He raises one issue

      on appeal, which we restate and expand to two issues: (1) whether the trial

      court abused its discretion by admitting evidence collected during an

      interrogation of C.J. because C.J. had not knowingly, intelligently, and

      voluntarily waived his constitutional rights before being interrogated by a police

      officer, and (2) whether there is sufficient evidence to support the true finding

      without considering the evidence derived from the interrogation. We reverse.



                               Facts and Procedural History                           2




[2]   C.J., a twelve-year-old boy, lived in Indianapolis with his Mother, Stepfather,

      four-year-old sister A.T., and eleven-year-old brother A.J. In October 2018,

      A.J. walked into a bedroom and saw A.T. with her pants down and C.J.’s face

      close to her rear end. A.J. told Mother what he saw. Mother called a “crisis

      hotline” and then took the children to the hospital. (Tr. Vol. II at 15.) Medical

      personnel performed a sexual assault assessment on A.T. but did not discover

      any signs of trauma. Hospital staff contacted the Indiana Department of Child

      Services (“DCS”), and DCS contacted law enforcement. Around 3 p.m. the




      1
          Ind. Code § 35-42-4-3(b).
      2
        We heard oral argument in this matter on December 5, 2019, in Indianapolis. We commend counsel for
      their able presentations.

      Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                        Page 2 of 16
      next day, Mother and the three children went to the Indianapolis Metropolitan

      Police Department to speak with Detective Eli McAllister.


[3]   Detective McAllister escorted C.J. to a room in the police station and left him

      alone for approximately fifty minutes. While waiting, C.J. sprawled on the

      floor, curled up into his shirt, drummed on the seat of a chair, sang, and played

      with his sock. Eventually, Mother and Detective McAllister entered the room,

      and Detective McAllister acknowledged that C.J. was “tired and sleepy.”

      (State’s Ex. 3 at 15:20:55.) 3 He told C.J. that it was C.J.’s decision whether to

      talk with him. C.J. and Detective McAllister then proceeded to talk about

      C.J.’s school, hobbies, chores, and bikes.


[4]   After a few minutes of informal conversation, Detective McAllister redirected

      the conversation to C.J.’s interactions with A.T. the night before by saying:

      “Hey man, I think you know why you’re here today.” (Id. at 15:31:20.)

      Detective McAllister then proceeded to review the waiver of rights form with

      C.J. and Mother. The waiver of rights form stated:


              Before we ask you any questions, you must understand your rights.


              1. You may have one or both of your parents present.


              2. You have the right to remain silent.




      3
        The timestamps represent the actual time of day the recording was recorded as measured by a 24-hour
      clock. The time is shown on the camera display of the video.

      Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                            Page 3 of 16
              3. Anything you say can be used as evidence against you in court.


              4. You have the right to talk to a lawyer for advice before we ask you
                 any questions, and to have him with you during questioning.


              5. If you cannot afford a lawyer and you want one, one will be
                 appointed for you by the court before questioning.


              6. If you decide to answer questions now, without a lawyer present, you
                 will still have the right to stop answering at any time. You will also
                 [have] the right to stop answering at any time until you talk to a
                 lawyer.


      (State’s Ex. 1) (emphasis in original).


[5]   Detective McAllister read each line of the waiver form and waited for C.J. and

      Mother to acknowledge that they understood. At times, C.J. interrupted

      Detective McAllister to talk about police television shows. C.J. also asked for

      and received clarification from Detective McAllister regarding rights 5 and 6.

      Detective McAllister assured C.J. and Mother that they would have time alone

      and unrecorded to discuss whether C.J. wished to waive his rights. Both C.J.

      and Mother signed the waiver of rights form acknowledging they had read and

      understood the six rights listed above.


[6]   Detective McAllister then took C.J. and Mother to a room where they could

      consult in private. Detective McAllister reentered the interrogation room, and




      Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020              Page 4 of 16
C.J. and Mother returned to the interrogation room a short time later. 4 Upon

returning to the room, Detective McAllister indicated Mother informed him off

camera that C.J. wanted to talk to him without Mother present, and C.J.

confirmed he wanted to talk to Detective McAllister alone. Detective

McAllister then went over the final three warnings on the waiver of rights form

with both C.J. and Mother, which stated:


        1. I have read the above rights and I understand and know what I am
           doing.


        2. We have been allowed time to consult without a police officer present.


        3. I expressly waive the above rights.


(State’s Ex. 1) (emphasis in original). C.J. asked about the meaning of the word

“expressly.” (State’s Ex. 3 at 15:43:32.) Detective McAllister clarified the

term, and both C.J. and Mother signed the waiver of rights form. Detective

McAllister and Mother then exited the interrogation room so that Detective

McAllister could escort Mother back to the front of the police station. While




4
  The parties disagree in their briefs about how long the consultation between Mother and C.J. lasted. C.J.
asked to use the restroom as he left the interrogation room, and presumably, he used the bathroom before
meeting with Mother to discuss his waiver of rights. C.J. argues the consultation with Mother lasted only 23
seconds; whereas, the State maintains the consultation was for approximately 2 minutes and 15 seconds.
C.J. calculates the length of time by comparing the timestamp for when Detective McAllister re-entered the
interrogation room after escorting Mother and C.J. out of the room with the timestamp for when Mother and
C.J. indicated they were ready to return. The State calculates the length of time by comparing the timestamp
for when C.J., Mother, and Detective McAllister left the interrogation room with the timestamp for when
C.J. and Mother re-entered the interrogation room.

Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                             Page 5 of 16
      alone in the interrogation room, C.J. hummed, moved chairs, danced, clapped,

      and laughed.


[7]   Detective McAllister returned and resumed the interrogation with C.J. alone.

      C.J. initially denied touching A.T. C.J. talked about cars, his difficulties

      spelling and reading, and fights with other children at his school. Over the

      course of the interrogation, Detective McAllister accused C.J. of lying and

      stated that he knew what really happened. C.J. eventually admitted touching

      and licking A.T.’s rear end. C.J. also acknowledged he might have touched her

      vagina.


[8]   C.J. told Detective McAllister he realized he would likely get into trouble when

      A.J. walked in on C.J. and A.T. Detective McAllister asked C.J. if C.J. knew

      better than to touch and lick A.T.’s rear end, and C.J. acknowledged that he did

      know better. C.J. claimed he did it even though he knew better because A.T.

      asked him to. Detective McAllister asked C.J.: “Why do you think you . . .

      shouldn’t have done that stuff? Shouldn’t have touched her or licked her down

      there?” (Id. at 16:19:05—16:19:10.) C.J. shrugged, and Detective McAllister

      continued, “What reason? Why is it wrong?” (Id. at 16:19:11 – 16:19:15.) C.J.

      characterized his behavior as “bad” but could not give a reason why it was bad.

      (Id. at 16:19:35-16:20:00.) Detective McAllister then suggested that A.T.’s age,

      A.T.’s lack of maturity, and A.T. being not as big as C.J. were why the

      behavior was wrong.




      Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020       Page 6 of 16
[9]    C.J. was arrested and charged with acts that, if committed by an adult, would

       constitute Level 3 felony child molesting 5 and Level 4 felony child molesting.

       The juvenile court held a delinquency hearing on January 3 and 4, 2019.

       Mother, A.J., A.T., and Detective McAllister testified at the hearing. At the

       hearing, Mother testified that:


                  Detective [McAllister] was really uh let me think of the word---
                  convincing on why I should let [C.J.] talk to him by himself and
                  that he felt it would be best for him to talk to [C.J.] by himself
                  and at that point, I felt like he was friendly towards me and that
                  he wanted the best interest and so I allowed that but now that all
                  of this has happened, I wish I wouldn’t have.


       (Tr. Vol. II at 18.) Mother also testified that C.J. told her he did not understand

       the rights on the waiver form, but she did not testify as to when or where C.J.

       told her he did not understand. At the conclusion of the hearing, the State

       dismissed the Level 3 felony child molesting allegation, and the court entered a

       true finding as to the Level 4 felony. The court placed C.J. on probation and

       ordered placement at a behavior health services provider as a condition of

       probation.



                                    Discussion and Decision
[10]   C.J. challenges the trial court’s admission of evidence collected during his

       interrogation by Detective McAllister. Trial courts retain broad discretion in



       5
           Ind. Code § 35-42-4-3.


       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020         Page 7 of 16
       ruling on the admission of evidence, and we will reverse only upon finding an

       abuse of discretion. S.G. v. State, 956 N.E.2d 668, 674 (Ind. Ct. App. 2011),

       trans. denied. An abuse of discretion is “a decision that is clearly against the

       logic and effect of the facts and circumstances before the court.” Id. However,

       when the issue is one of constitutional law, as in the case at bar, we review the

       claim de novo. See Brittain v. State, 68 N.E.3d 611, 616-17 (Ind. Ct. App. 2017),

       trans. denied.


[11]   C.J. argues his statements should not have been admissible because he did not

       knowingly and voluntarily waive his privilege against self-incrimination. The

       Fifth Amendment to the United States Constitution, the due process clause of

       the Fourteenth Amendment, and Article I, Section 14 of the Indiana

       Constitution protect Indiana citizens from self-incrimination and prohibit the

       use of involuntary statements against a criminal defendant. D.M. v. State, 949

       N.E.2d 327, 332 (Ind. 2011). These protections apply not only in court

       proceedings but also during custodial interrogations. Id. at 333.


[12]   In the context of juvenile interrogations, Indiana law requires additional

       procedural safeguards beyond those required by Miranda v. Arizona, 384 U.S.

       436 (1966). 6 Id. Indiana Code section 31-32-5-1(2) governs the waiver of

       juvenile rights during interrogation, and that statute states in relevant part:




       6
         As stated in Miranda, the subject of a custodial interrogation must “be warned that he has a right to remain
       silent, that any statement he does make may be used as evidence against him, and that he has a right to the
       presence of an attorney, either retained or appointed.” 384 U.S. at 444.

       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                                Page 8 of 16
               Any rights guaranteed to a child under the Constitution of the
               United States, the Constitution of the State of Indiana, or any
               other law may be waived only:


                                                       *****


               (2) by the child’s custodial parent, guardian, custodian, or
               guardian ad litem if:


                        (A) that person knowingly and voluntarily waives the
                        right;


                        (B) that person has no interest adverse to the child;


                        (C) meaningful consultation has occurred between that
                        person and the child; and


                        (D) the child knowingly and voluntarily joins with the
                        waiver[.]


       Ind. Code § 31-32-5-1(2).


[13]   Regarding these requirements, our Indiana Supreme Court has explained that

       before a juvenile’s statements can be used in the State’s case-in-chief:


               First, both the juvenile and his or her parent must be adequately
               advised of the juvenile’s rights. Second, the juvenile must be
               given an opportunity for meaningful consultation with his or her
               parent. Third, both the juvenile and his or her parent must
               knowingly, intelligently, and voluntarily waive the juvenile’s
               rights. Finally, the juvenile’s statements must be voluntary and
               not the result of coercive police activity.


       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020         Page 9 of 16
       D.M., 949 N.E.2d at 334 (footnotes and internal citations omitted). The State

       must prove beyond a reasonable doubt that the juvenile received all the

       protections listed in Indiana Code section 31-32-5-1 and that both the juvenile

       and his parent knowingly, intelligently, and voluntarily executed the waiver.

       Id.



       1. Both juvenile and parent must knowingly, intelligently, and
                   voluntarily waive the juvenile’s rights.
[14]   Our over-arching analysis focuses primarily on the third condition listed in

       D.M., whether C.J.’s waiver was knowing, intelligent, and voluntary. We

       evaluate the validity of a Miranda waiver by looking at the totality of the

       circumstances. Id. at 339. This includes considering the juvenile’s physical,

       mental, and emotional maturity; whether the juvenile or his parent understood

       the consequences of speaking with law enforcement; whether the juvenile and

       his parent were informed of the delinquent act for which the juvenile was

       suspected; the length of time the juvenile was held in custody before consulting

       with his parent; whether law enforcement used any force, coercion, or

       inducement; and whether the juvenile and his parents had been advised of the

       juvenile’s Miranda rights. Id. at 339-340.


             A. C.J.’s physical, mental, and emotional maturity and understanding of
                                           consequences.

[15]   C.J. contends he did not knowingly, intelligently, and voluntarily waive his

       Miranda rights. In J.D.B. v. North Carolina, the Supreme Court of the United


       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020      Page 10 of 16
       States observed that there are “coercive aspects” to any police interrogation of a

       suspect. 564 U.S. 261, 268 (2011). These pressures associated with custodial

       interrogation can induce individuals, and particularly juveniles, to make false

       confessions. Id. at 269. Therefore, the Miranda warnings are “designed to

       safeguard the constitutional guarantee against self-incrimination.” Id.


[16]   C.J. argues that “[a]s a low-functioning twelve-year-old, he did not and could

       not understand the nature of the rights being waived.” (Appellant’s Br. at 11.)

       Mother testified C.J. had an IQ of 70. During the interrogation, C.J.’s speech

       was stunted, he used poor grammar, and he talked about unrelated topics, like

       cars and television shows. While waiting to be interrogated by Detective

       McAllister, C.J. exhibited immature behavior by sprawling on the floor,

       drumming on the seat of his chair, and singing. Even when C.J. was left alone

       in the interrogation room after Detective McAllister read the waiver of rights to

       C.J. and C.J. waived his rights, C.J. hummed, moved chairs, danced, clapped,

       and laughed.


[17]   C.J.’s behavior was not that expected of someone who understands he is being

       questioned about a serious crime. In its dispositional decree, the trial court

       found C.J. “has special needs that require services for care and treatment that

       cannot be provided in the home.” (App. Vol. II at 174.) Further, the court

       found C.J. “often displays inappropriate and immature behaviors, which

       negatively affects his ability to build and maintain relationships with other

       children. He does not demonstrate empathy toward adults or other children,



       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020       Page 11 of 16
       and demonstrates significant difficulty understanding how his behavior impacts

       others.” (Id.)


       B. Whether C.J. and Mother were informed of the delinquent act of which C.J.
                                    was suspected.

[18]   Moreover, C.J. was never informed of the delinquent act of which he was

       suspected or of the potential consequences. After the interrogation, C.J. asked

       the arresting officer where he was being taken. There is no evidence C.J.

       recognized he was being asked about criminal activity during the interrogation.

       Detective McAllister did not specify the crime C.J. was suspected of

       committing, and C.J. did not exhibit an independent understanding that he was

       being accused of a crime. C.J. characterized licking and touching A.T. as

       “bad” but could not articulate why it was wrong. (State’s Ex. 3 at 16:19:00-

       16:20:00.) Parents often discipline children for behaviors that are not criminal,

       and children can disobey their parents without breaking the law. Therefore,

       C.J.’s mere recognition that he would likely get into trouble does not

       automatically equate to an appreciation for the illegal nature of his conduct.


                                            C. Advisement of Rights

[19]   Detective McAllister did read all the warnings on the waiver of rights form to

       C.J. and Mother before asking C.J. questions. C.J. and Mother both had copies

       of the waiver of rights form and were able to follow along as Detective

       McAllister read the form. When C.J. asked questions about the form, Detective

       McAllister answered his questions. However, in Berghuis v. Thompkins, the

       United States Supreme Court observed that “[i]f the State establishes that a

       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020      Page 12 of 16
       Miranda warning was given and the accused made an uncoerced statement, this

       showing, standing alone is insufficient to demonstrate a valid waiver of Miranda

       rights. The prosecution must make the additional showing that the accused

       understood these rights.” 560 U.S. 370, 384 (2010) (internal citation and

       quotation marks omitted). The State failed to make the additional showing

       required by Berghuis.


                                         D. Consultation with Mother

[20]   Finally, we note the de minimis consultation that occurred between C.J. and

       Mother. In D.M., our Indiana Supreme Court stated that for the purpose of

       meeting the statutory requirement that there be a meaningful consultation

       between the juvenile and parent, “the State needs only to prove that the police

       provided a relatively private atmosphere that was free from police pressure in

       which the juvenile and the parent could have had a meaningful discussion[.]”

       949 N.E.2d at 335. Mother and C.J. were provided an opportunity to discuss

       whether C.J. should waive his rights. The State does not need to prove that the

       consultation was beneficial. Id. at 336. However, “the extent to which the

       conversation aids in the waiver decision ‘is a circumstance among many others

       which the trial court may consider in arriving at its decision as to whether the

       waiver is voluntary and knowing.’” Id. (quoting Fortson v. State, 385 N.E.2d

       429, 436 (Ind. 1979), reh’g denied). The brevity of the conversation between C.J.

       and Mother impacts whether C.J.’s waiver was knowing and intelligent because

       we expect people facing consequential decisions to take time to contemplate

       their options before making a decision.

       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020     Page 13 of 16
[21]   After considering the totality of the circumstances, we cannot say that C.J.’s

       waiver of his rights was knowing, intelligent, and voluntary because of his

       demonstrated lack of maturity, the fact that he was not advised of the crime and

       possible consequences, and his minimal consultation with Mother. Therefore,

       we hold the trial court erred in admitting as evidence the videotape of C.J.’s

       interrogation and Detective McAllister’s testimony regarding C.J.’s statements

       during the interrogation. See Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001)

       (holding trial court committed reversible error in admitting defendant’s

       confession that was obtained in violation of the juvenile waiver statute).


                                   2. Sufficiency of the Evidence
[22]   Because that evidence was inadmissible, we must review whether the record

       contains sufficient other evidence to support C.J.’s adjudication as a delinquent

       for committing an act that would be Level 4 felony child molesting. Indiana

       Code Section 35-42-4-3 provides:


               A person who, with a child under fourteen (14) years of age,
               performs or submits to any fondling or touching, of either the
               child or the older person, with intent to arouse or satisfy the
               sexual desires of either the child or the older person, commits
               child molesting, a Level 4 felony.


       At oral argument, the State explained that if the confession is deemed

       inadmissible, it would still have the diagram C.J. marked during the

       interrogation, the information provided by Mother, and the testimony of C.J.’s

       brother, A.J. However, because we have concluded that C.J. did not

       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020       Page 14 of 16
knowingly waive his rights prior to the interrogation, the diagram C.J. marked

during the interrogation is also inadmissible as fruit of the poisonous tree. See

Wong Sun v. United States, 371 U.S. 471, 487 (1963) (holding defendant’s

declarations were inadmissible as fruit of an unlawful entry). Mother testified

that A.J. came to her “surprised.” (Tr. Vol. II at 12.) She further stated, “[A.J.]

didn’t specifically state sexual things had happened. He just said that his

brother had touched his sister.” 7 (Id. at 13.) Mother did not observe the alleged

inappropriate touching between C.J. and A.T. A.J. testified that he “walked

into the room and [he] saw [A.T.’s] pants down with [C.J.]’s face close to her

butt.” (Id. at 34.) A.J. did not testify at the hearing that he saw C.J. touch A.T.

Simply put, there is no evidence of any fondling or touching with intent to

arouse or satisfy any sexual desire. Therefore, there is insufficient evidence to

support the true finding without C.J.’s confession, and we reverse the true

finding of the trial court. See Hill v. State, 956 N.E.2d 174, 179 (Ind. Ct. App.

2011) (holding there was insufficient evidence to support defendant’s conviction

without evidence obtained during an illegal pat-down search), trans. denied.



                                          Conclusion



7
  C.J.’s counsel entered a continuing objection on hearsay grounds to Mother’s testimony about what A.J.
told her he saw, but the trial court overruled the objection.

Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020                           Page 15 of 16
[23]   C.J.’s waiver was not valid because the totality of the circumstances

       demonstrates he did not knowingly, intelligently, and voluntarily join the

       waiver. Therefore, the trial court abused its discretion in admitting into

       evidence the information gathered during that interrogation, and we reverse

       C.J.’s adjudication as a delinquent because the record contains no evidence to

       support it.


[24]   Reversed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JV-255 | January 23, 2020     Page 16 of 16
