MEMORANDUM DECISION                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                        08/31/2017, 9:55 am
this Memorandum Decision shall not be                                              CLERK
                                                                               Indiana Supreme Court
regarded as precedent or cited before any                                         Court of Appeals
                                                                                    and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. Buehler                                       Curtis T. Hill, Jr.
Warsaw, Indiana                                          Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

J.N.,                                                    August 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         43A04-1703-JV-613
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable David C. Cates,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         43D01-1609-JD-268



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017              Page 1 of 9
[1]   J.N. appeals his juvenile adjudication for committing an act that would

      constitute Level 3 felony child molesting if committed by an adult. Specifically,

      he contends that the juvenile court abused its discretion in admitting his

      videotaped statement to the investigating officer at the evidentiary hearing.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Near the end of the school year in 2016, seventeen-year-old J.N., nine-year-old

      B.R., eight-year-old D.A., and D.A.’s six-year-old brother J.C. were playing in

      a wooded area after school behind their trailer park. In the woods, J.N. had a

      “hideout” with blankets and a pillow. Transcript at 42. J.N. eventually told

      B.R. and J.C. to go away for a few minutes, which they did. When B.R.

      returned, he observed D.A. “sucking [J.N.’s] private, his wiener.” Id. at 37.

      J.N. told B.R. to go away and not to tell anybody. B.R. was scared and left.


[4]   On July 9, 2016, D.A.’s mother took her to the hospital upon learning that J.N.

      had possibly molested D.A. Detective Todd Sautter of the Kosciusko County

      Sheriff’s Department went to the hospital and spoke with D.A. and her family.

      Around this same time, B.R. told his parents about what he had seen several

      weeks earlier involving D.A. and J.N. Thereafter, on July 11, B.R. spoke with

      Detective Sautter.


[5]   On July 12, 2016, J.N. and his mother (Mother) came to the sheriff’s

      department for an interview with Detective Sautter. J.N. and Mother had


      Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017   Page 2 of 9
      heard several recent rumors regarding various allegations being made by D.A.,

      her family, and B.R. against J.N.1 At the beginning of the interview, Detective

      Sautter advised that he wanted to speak with J.N. regarding an incident that

      happened between J.N. and D.A. Detective Sautter then read an advice of

      rights/waiver of rights form, which J.N. signed and Mother witnessed.

      Thereafter, he informed J.N. and Mother that he was going to step out of the

      room so they could have private consultation time. Detective Sautter returned

      a little over two minutes later after seeing that J.N. and Mother were no longer

      talking. Upon his return, Detective Sautter asked if they had had a chance to

      talk. He then read the juvenile waiver of rights form to J.N. and Mother, which

      they then executed. Thereafter, J.N. made incriminating statements, including

      admitting to having had D.A. perform oral sex on him in the woods.


[6]   On September 2, 2016, a delinquency petition was filed against J.N. The

      juvenile court held a suppression hearing immediately before the fact-finding

      hearing on December 22, 2016. J.N. sought to suppress his statement on the

      basis that the juvenile waiver was not properly obtained. Specifically, J.N.

      argued that he and Mother were not provided a meaningful time for

      consultation – only two minutes – and were not informed of the delinquent act




      1
        Mother indicated to Detective Sautter that she came for the interview because “there’s too many stories
      floating around and too many things that I have questions on.” Exhibit Book at State’s Exhibit 1. J.N. stated
      that B.R. had told four different stories.

      Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017              Page 3 of 9
      of which he was suspected of committing. The juvenile court denied the

      motion to suppress.


[7]   During the fact-finding hearing, B.R. and Detective Sautter testified, and J.N.’s

      statement was admitted into evidence. The juvenile court ultimately

      adjudicated J.N. delinquent for having committed what would be Level 3

      felony child molesting if committed by an adult, noting that exclusion of the

      videotaped statement would not have changed this determination. Following a

      dispositional hearing, the court ordered J.N. to be placed with the Indiana

      Department of Correction Boys School for the completion of their program.

      J.N. now appeals. Additional facts will be provided below as needed.


                                          Discussion & Decision


[8]   J.N. contends that the juvenile court erred in admitting his statement to

      Detective Sautter because certain procedural safeguards for the waiver of a

      juvenile’s constitutional rights were not followed. Specifically, J.N. argues that

      he was not afforded an opportunity for meaningful consultation with Mother as

      required by Ind. Code § 31-32-5-1(2)(C). He also contends that the waiver was

      not made knowingly and voluntarily because prior to obtaining the waiver,

      Detective Sautter did not inform J.N. and Mother that J.N. was suspected of

      molesting D.A.


[9]   The State bears the burden of proving beyond a reasonable doubt that the

      juvenile received all of the protections required by I.C. § 31-32-5-1 and that both

      the juvenile and his parent knowingly and voluntarily waived the juvenile’s

      Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017   Page 4 of 9
       rights. D.M. v. State, 949 N.E.2d 327, 334-35 (Ind. 2011). In reviewing a

       juvenile court’s denial of a motion to suppress, we do not reweigh the evidence

       but instead examine the record to determine whether there is substantial

       evidence of probative value to support that decision. Id. at 335. We consider

       any conflicting evidence in a light most favorable to the juvenile court’s

       decision, along with any substantial uncontested evidence. Id. And we will

       uphold the decision if it is supported by “a reasonable view of the evidence.” Id.


[10]   Although not addressed by the parties, we initially observe that it is not clear

       whether J.N. was actually in custody at the time he was interviewed by

       Detective Sautter. “As a general rule, when a juvenile who is not in custody

       gives a statement to police, neither the safeguards of a Miranda warning nor the

       juvenile waiver statute is implicated.” N.B. v. State, 971 N.E.2d 1247, 1252

       (Ind. Ct. App. 2012) (footnote omitted), trans. denied. To be custodial in the

       non-arrest context, the interrogation must commence after the juvenile’s

       freedom of action has been deprived in a significant way. Id. In other words,

       would a reasonable person in similar circumstances believe he is not free to

       leave? Id.


[11]   The threshold issue, therefore, should be whether J.N. was subjected to a

       custodial interrogation when he gave his statement. But the parties ignored this

       issue below and in this appeal. Accordingly, we will assume for the sake of

       argument that J.N. was subjected to a custodial interrogation.


[12]   I.C. § 31-32-5-1 provides in relevant part as follows:


       Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017   Page 5 of 9
                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 parent…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[.]


       Further, I.C. § 31-32-5-4 sets out six circumstances to consider in determining

       whether the waiver of rights by the parent and juvenile was made knowingly

       and voluntarily, one of which – I.C. § 31-32-5-4(3) – is whether they had been

       informed of the delinquent act with which the child was charged or of which

       the child was suspected.


[13]   We turn first to J.N.’s contention that he and Mother were not provided with a

       meaningful opportunity for consultation.2 The consultation requirement is



       2
         J.N. also argues that his rights were “subjectively waived” prior to the consultation with Mother because of
       the initial advice of rights/waiver of rights form that he signed and Mother witnessed. Appellant’s Brief at 11.
       J.N. has waived this argument by failing to raise it below. Moreover, we observed that the requirements of
       I.C. § 31-32-5-1 may still be met and the waiver found knowing and voluntary if the record demonstrates that
       the child waived his rights again – either directly or impliedly – after being afforded the opportunity to engage
       in meaningful consultation with the child’s parent. See N.B., 971 N.E.2d at 1256. Here, J.N. did so directly
       by signing the juvenile waiver of rights form.

       Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017                Page 6 of 9
       satisfied when actual consultation of a meaningful nature occurs, the purpose of

       which is to allow the juvenile to make a decision on whether to waive his rights

       in a comparatively relaxed and stable atmosphere. D.M., 949 N.E.2d at 335. In

       this regard, the State need only prove that the police provided a relatively

       private atmosphere that was free from police pressure in which the juvenile and

       his parent could have a meaningful discussion about the allegations,

       circumstances of the case, and the ramifications of their responses to police

       questioning. Id.


[14]   While we agree that two minutes is not a substantial amount of time in which

       to consult regarding waiving J.N.’s rights, the record establishes that it was

       sufficient under the circumstances of this case. Detective Sautter reentered the

       interrogation room only after observing that Mother and J.N. were no longer

       conversing. He then made sure to ask if they had been able to talk before he

       began reading the juvenile waiver of rights form to them. Moreover, Mother

       testified at the suppression hearing that she had an opportunity to talk with J.N.

       and that it was his decision to go ahead with the interview. Although she was

       supportive of this decision, Mother indicated that she warned J.N. that the

       detective was trained in asking questions. Mother testified further that she

       knew what was at stake and had advised her son accordingly before signing the

       waiver. Under these circumstances, we cannot say that the trial court abused its

       discretion in determining that Mother and J.N. were afforded an opportunity

       for meaningful consultation.




       Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017   Page 7 of 9
[15]   Next, J.N. argues that his waiver was not knowing and voluntary because he

       was not advised of the “nature of the allegations that law enforcement was

       investigating prior to waiving his rights.” Appellant’s Brief at 12. J.N. notes that

       Detective Sautter made no mention of child molesting or sexual misconduct

       prior to obtaining the waiver.


[16]   This is but one of six nonexclusive factors to be considered when determining

       whether a waiver is made knowingly and voluntarily.3 Standing alone, this

       factor is insufficient to render a waiver unknowing and involuntary. See Estrada

       v. State, 969 N.E.2d 1032, 1042 (Ind. Ct. App. 2012) (citing Tingle v. State, 632

       N.E.2d 345, 352-53 (Ind. 1994)), trans. denied.


[17]   Here, the record indicates that before coming in for the interview, Mother and

       J.N. were keenly aware of rumors going around the trailer park regarding

       sexual activity between J.N. and eight-year-old D.A. Mother had seen or

       received text messages from D.A.’s mother a few days prior regarding the

       sexual abuse allegations, and J.N. noted that B.R. had told at least four




       3
           I.C. § 31-32-5-4 requires the juvenile court to “consider all the circumstances of the waiver”, including:

               (1) The child’s physical, mental, and emotional maturity.
               (2) Whether the child or the child’s parent…understood the consequences of the child’s
               statement.
               (3) Whether the child and the child’s parent…had been informed of the delinquent act with
               which the child was charged or of which the child was suspected.
               (4) The length of time the child was held in custody before consulting with the child’s parent….
               (5) Whether there was any coercion, force, or inducement.
               (6) Whether the child and the child’s parent…had been advised of the child’s right to remain
               silent and to the appointment of counsel.

       Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017                  Page 8 of 9
       different stories. Under the circumstances, it is unlikely that J.N. was unclear

       about the nature of the interview.


[18]   As J.N. essentially concedes, the other statutory factors also support a finding

       that the waiver in this case was voluntarily and knowingly made. J.N. was

       seventeen years old when he waived his rights, he and Mother understood the

       consequences of his statements, and there is no indication that he had been held

       in custody. Further, Mother and J.N. were fully advised of J.N.’s rights, and

       Detective Sautter did not use any coercion or force. The totality of the

       circumstances supports the trial court’s determination that the waiver was

       knowingly and voluntarily made.


[19]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A04-1703-JV-613 | August 31, 2017   Page 9 of 9
