MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Aug 26 2016, 5:21 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLANT
Karen Celestino-Horseman                                 Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.T.,                                                    August 26, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1509-JV-1528
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,
                                                         The Honorable Marilyn A.
Appellee-Petitioner.                                     Moores, Judge

                                                         The Honorable Scott Stowers,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1505-JD-850



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016     Page 1 of 12
                                       Statement of the Case
[1]   D.T. appeals his adjudication as a delinquent for robbery, as a Level 5 felony if

      committed by an adult, following a bench trial. On appeal, D.T. raises four

      issues, which we consolidate and restate as the following two issues:

              1. Whether his confession was inadmissible because he did not
                 knowingly or voluntarily waive his Miranda rights.


              2. Whether the State presented sufficient evidence to support his
                 adjudication as a delinquent for robbery.


[2]   We reverse and remand with instructions.


                                 Facts and Procedural History
[3]   On May 12, 2015, Morgan Edwards was working as a technician at a CVS

      pharmacy in Indianapolis. At approximately 11:56 a.m., an African-American

      male wearing a black hoodie with the hood up walked up to the pharmacy

      counter and began knocking his knuckles against the counter to get Edwards’

      attention. Edwards walked to the counter and said, “Can I help you?” Tr. at

      15. The male, later identified as D.T., did not speak but slid a folded-up note

      over to her. Edwards picked up the note without reading it and gave it to the

      pharmacist, Charles Elroy. Edwards then stood by the safe, out of the

      pharmacist’s way.


[4]   In addition to being the pharmacist, Elroy was also the pharmacy manager. As

      such, he was the only individual at the pharmacy that day who had access to


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 2 of 12
      the codes to the safe. When Elroy saw an African-American male in a hoodie

      approach the pharmacy drop-off counter, he immediately thought the

      individual was there to rob the pharmacy. As D.T. approached the counter,

      Elroy was on the telephone but reached into his pocket to make sure he had the

      paper with the codes to the safe. After Edwards brought Elroy the note, he did

      not read it but opened the safe, grabbed eight or nine bottles of prescription

      medicine, dropped them into a plastic bag, and handed the bag to D.T. D.T.

      ran out of the store, not knowing that the bottles contained a tracking device. A

      pharmacy technician called 9-1-1.


[5]   Indianapolis Metropolitan Police Department (“IMPD”) Officers responded to

      the 9-1-1 call, interviewed Edwards and Elroy, reviewed the CVS surveillance

      video, and obtained the paper D.T. had handed to Edwards. The paper stated

      “This is a robbery . . . ” and demanded medication. State’s Ex. 5. By following

      the tracking device in the bottles, IMPD officers then apprehended D.T.

      approximately nine blocks away from the CVS.


[6]   After D.T. was arrested, Sergeant Brent Hendricks of the IMPD interviewed

      D.T. at the police station, and that interview was video-taped. Before the

      interview, Sergeant Hendricks allowed D.T. to consult privately with his

      mother. After D.T. and his mother consulted, Sergeant Hendricks provided

      D.T. with a “juvenile waiver form” that stated D.T.’s Miranda rights. Tr. at 55;

      State’s Ex. 8. Sergeant Hendricks also read the juvenile waiver form out loud

      to D.T., and he then indicated the lines where D.T. should sign. While D.T.

      looked at the waiver form and while the video camera continued to record both

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 3 of 12
      visual and audible audio, Sergeant Hendricks stepped out of the room for eight

      seconds. State’s Ex. 10 at 3:55:17-25.1 D.T. signed the waiver form. D.T. was

      not offered an opportunity to consult with his mother after he was told his

      rights and before he waived those rights. D.T. subsequently confessed to the

      robbery.


[7]   On May 12, the State charged D.T. with count I, robbery by force or threat of

      force, pursuant to Indiana Code Section 35-42-5-1(1). On July 10, the State

      charged D.T. with count II, violation of release of conditions, pursuant to

      Indiana Code Section 31-37-6-6(d). On July 22, the State charged D.T. with

      count III, robbery by putting any person in fear, pursuant to Indiana Code

      Section 35-42-5-1(2). The latter charge specifically stated:

              On or about the 12th of May, 2015, [D.T.] did knowingly or
              intentionally take property, to wit: various prescription
              narcotics, from the person or presence of Morgan Edwards, by
              putting Morgan Edwards in fear.


      Appellant’s App. at 69-A.


[8]   On July 30, following a hearing, the trial court adjudicated D.T. a delinquent

      child under count III. However, the trial court dismissed count II, and it took

      under advisement a motion to dismiss count I. On September 2, 2015, the trial

      court dismissed count I. This appeal of the count III conviction ensued.




      1
       The State’s contention that Sergeant Hendricks left D.T., “his mother and his grandmother in the room
      with the waiver form for approximately 15 seconds by themselves,” Appellee’s Br. at 11, is inaccurate.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016         Page 4 of 12
                                      Discussion and Decision
                                 Issue One: Waiver of Miranda Rights

[9]    D.M. first contends that his waiver of his Miranda rights is not valid and,

       therefore, his subsequent confession must be excluded from evidence. A trial

       court is afforded broad discretion in ruling on the admissibility of evidence, and

       we will reverse such a ruling only upon a showing of an abuse of discretion.

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

       of discretion involves a decision that is clearly against the logic and effect of the

       facts and circumstances before the court. Id. In making this determination, this

       court does not reweigh evidence and considers conflicting evidence in a light

       most favorable to the trial court’s ruling. Id. However, “to the extent a ruling is

       based on an error of law or is not supported by the evidence it is reversible, and

       the trial court has no discretion to reach the wrong result.” Pruitt v. State, 834

       N.E.2d 90, 104 (Ind. 2005).


[10]   Our supreme court has clearly identified how we are to determine the

       voluntariness of a Miranda waiver.


               In determining the voluntariness of a Miranda waiver, we
               examine the totality of the circumstances surrounding the
               interrogation to determine whether the suspect’s choice was the
               product of a free and deliberate choice rather than intimidation,
               coercion, or deception and whether the waiver was made with a
               full awareness of both the nature of the right[s] being abandoned
               and the consequences of the decision to abandon [them].


                                                       ***

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 5 of 12
               Relevant considerations include the juvenile’s physical, mental,
               and emotional maturity; whether the juvenile or his or her parent
               understood the consequences of the juvenile’s statements;
               whether the juvenile and his or her 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
               or her parent; whether there was any force, coercion, or
               inducement; and whether the juvenile and his or her parent had
               been advised of the juvenile’s Miranda rights.


       D.M. v. State, 949 N.E.2d 327, 339-340 (Ind. 2011) (internal quotations and

       citations omitted).


[11]   The special status accorded juveniles in other areas of the law is fully applicable

       in the area of criminal procedure. S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct.

       App. 2010) (citing Hall v. State, 346 N.E.2d 584, 586 (Ind. 1976)), trans. denied.

       “To give effect to that status in the context of waiving intricate, important, and

       long established Fifth and Sixth Amendment rights, we require that a juvenile

       be afforded a meaningful opportunity to consult with a parent or guardian

       before the solicitation of any statement.” Id. (citation omitted). Thus, Indiana

       Code Section 31-32-5-1 (2015) provides that a juvenile’s state or federal

       constitutional rights 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;


                                                        ***

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 6 of 12
                           (C) meaningful consultation has occurred between
                          that person and the child; and


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


       Our supreme court has held that a parent-child consultation under this statute

       “can only be meaningful where both the juvenile and the parent are advised of

       the juvenile’s rights prior to the consultation.” D.M., 949 N.E.2d at 341-42

       (emphasis added); see also Douglas v. State, 481 N.E.2d 107, 111 (Ind. 1985)

       (“[P]ursuant to Lewis [v. State, 288 N.E.2d 138 (Ind. 1972)], the consultation

       must occur after the advisement of rights but prior to the decision to execute a

       waiver and make a statement.”).


[12]   Here, the officer interviewing D.T. allowed him to consult privately with his

       mother only before the officer advised D.T. of his Miranda rights. D.T.’s

       consultation with his mother regarding his rights cannot have been meaningful

       because neither he nor his mother was told what D.T.’s rights were before their

       consultation. 2 Id. Therefore, D.T.’s subsequent waiver of his rights and

       confession to the crime cannot be used against him. Lewis, 288 N.E.2d at 142.




       2
         After handing the waiver form to D.T., Sergeant Hendricks stepped out of the interrogation room for only
       eight seconds, which, contrary to the State’s argument, did not provide an opportunity for a “meaningful
       consultation” between D.T. and his guardian. First, eight seconds can hardly be considered adequate time
       for a meaningful consultation. Second, those eight seconds were recorded by an audio/visual video camera
       and therefore were not private as required for a juvenile’s “meaningful consultation” with his parent. S.D. v.
       State, 937 N.E.2d 425, 431 (Ind. Ct. App. 2010), trans. denied; see also J.L. v. State, 5 N.E.3d 431, 439 (Ind. Ct.
       App. 2014) (juvenile was not provided a meaningful opportunity to consult with his parent when the
       audio/visual video camera in the interview room was never turned off).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016                  Page 7 of 12
                                 Issue Two: Sufficiency of the Evidence

[13]   D.T. contends that the State failed to provide sufficient evidence to support his

       conviction for robbery. In reviewing a sufficiency of the evidence claim, we

       neither reweigh the evidence nor assess the credibility of the witnesses. See, e.g.,

       Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the

       probative evidence and reasonable inferences therefrom that support the

       conviction, Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans.

       denied, and we “consider conflicting evidence most favorably to the trial court’s

       ruling,” Wright v. State, 828 N.E.2d 36, 352 (Ind. 2005). We affirm if the

       probative evidence and reasonable inferences drawn from that evidence “could

       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt.” Jackson, 925 N.E.2d at 375.


[14]   The State charged D.T. with robbery as a Level 5 felony pursuant to Indiana

       Code Section 35-42-5-1(2). That statute provides that a person commits

       robbery if he “knowingly or intentionally takes property from another person or

       from the presence of another person by putting any person in fear.” Id. The

       State charged D.T. with committing robbery by intentionally taking “various

       prescription narcotics from the person or presence of Morgan Edwards by

       putting Morgan Edwards in fear.” Appellant’s App. at 69. Thus, to prove the

       crime charged, the State first had to prove that D.T. took the property “from the

       presence of” Morgan Edwards. The evidence shows that the narcotics were

       taken from Elroy, in Edwards’ presence. That is sufficient to show the property



       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 8 of 12
       was taken “from the presence of” Edwards.3 See, e.g., Gordon v. State, 499

       N.E.2d 228, 229 (Ind. 1986).


[15]   The State was next required to prove that, by putting Edwards in fear, D.T.

       caused Elroy to hand over the narcotics to D.T. “[A] robbery by fear is not

       accomplished when a bystander is afraid if that bystander’s fear did not

       contribute to the victim’s surrender of the property.” Rowe v. State, 496 N.E.2d

       585, 590 n.2 (Ind. Ct. App. 1986). There must be a causal relationship or nexus

       between the act of putting a person in fear and the victim’s decision to surrender

       the property. Id. Here, Edwards testified that she was afraid, but there was no

       evidence that Elroy gave the narcotics to D.T. because Edwards was in fear.

       Elroy did not testify that Edwards was in fear, nor did he testify that he

       observed any signs of fear in Edwards. Instead, when Elroy was asked at trial,

       “And what thoughts were going through your head” after Edwards handed him

       the note, he stated only, “I guess mainly just the process, you know, making

       sure I do the right thing with those medications and tracker, get them in the bag

       and get the individual out the door.” Tr. at 34. There was no evidence that

       Edwards communicated her fear to Elroy or that Elroy saw anything that made

       him believe Edwards was in fear. Edwards testified that she “just kind of stood

       out of the way.” Tr. at 18. There was no evidence from which a fact finder

       could infer that Elroy had any concern for Edwards’ state of mind, much less




       3
           Of course, we do not consider D.T.’s confession that was obtained in violation of his constitutional rights.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016                Page 9 of 12
       that Edwards’ fear contributed to Elroy’s surrender of the property. Rowe, 496

       N.E.2d at 590 n.2.


[16]   And there was also no evidence that Elroy was in fear.4 Elroy did not testify

       that he was afraid, and there was no evidence from which the trier of fact could

       infer that Elroy was in fear. For example, there was no evidence that D.T.

       threatened Elroy or anyone else, nor was there any evidence that D.T. had a

       weapon. Cf. Rickert v. State, 876 N.E.2d 1139, 1141 (Ind. Ct. App. 2007) (noting

       fear could be inferred from the fact that the defendant pointed a gun at the

       victim). Rather, the evidence showed that D.T. handed the note to Edwards 5

       and then simply stood at the counter, waiting.


[17]   In sum, neither Edwards nor Elroy gave testimony that would establish the fear

       element of robbery as charged. There was no evidence that Elroy was in fear,

       and there was no evidence that Elroy knew or believed Edwards was in fear.

       Therefore, the State did not provide sufficient evidence to support D.T.’s

       conviction for count III, robbery by putting a person in fear, and we must

       reverse that conviction.




       4
         D.T. maintains that it is not relevant whether Elroy was in fear because the charging information
       specifically stated that D.T. took the property by putting Edwards in fear. Thus, D.T. states it would not
       suffice for the State to show that D.T. committed robbery by placing Elroy in fear. However, we do not
       address this argument as there was no evidence that Elroy was in fear in any case.
       5
         The note D.T. handed to Edwards said, “This is a robbery . . . ” and demanded medication, but this is not
       sufficient evidence that he committed robbery because it does not show that D.T. used, or threated to use,
       force or that he put any person in fear, either one of which is a required element to establish robbery. I.C. §
       35-42-5-1.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016             Page 10 of 12
[18]   However, when a conviction is reversed because of insufficient evidence, we

       may remand for the trial court to enter a judgment of conviction upon a lesser-

       included offense if the evidence is sufficient to support the lesser offense. Ball v.

       State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied. Theft is a lesser

       included offense of robbery. Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994).

       To prove theft as a Class A misdemeanor, the State must prove that a person

       knowingly or intentionally exerted unauthorized control over property of

       another person, with intent to deprive the other person of any part of its value

       or use. Ind. Code § 35-43-4-2(a).6 Here, the witness testimony and the note

       D.T. handed to Edwards were sufficient evidence that D.T. committed theft as

       a Class A misdemeanor.


                                                    Conclusion
[19]   Since D.T.’s confession cannot be used against him due to an invalid waiver of

       his rights, and since the State failed to provide other evidence sufficient to

       support D.T.’s conviction for robbery, we must reverse his conviction for

       robbery, as a Level 5 felony. However, there was sufficient evidence that D.T.

       committed the lesser included offense of theft as a Class A misdemeanor.

       Therefore, we remand for the trial court to enter a conviction for theft, as a

       Class A misdemeanor.


[20]   Reversed and remanded with instructions.



       6
         There is not sufficient evidence in the record to prove D.T. committed theft as a felony because there is no
       evidence of the value of the narcotics or that D.T. had a criminal history. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016            Page 11 of 12
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-JV-1528| August 26, 2016   Page 12 of 12
