                                                                 FILED
                                                            Jun 20 2018, 12:07 pm

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court



                         IN THE

  Indiana Supreme Court
            Supreme Court Case No. 18S-JV-295

                            D.Z.,
                    Appellant (Respondent)

                             –v–

                    State of Indiana
                     Appellee (Petitioner)


                    Decided: June 20, 2018

Appeal from the Hendricks Superior Court, No. 32D03-1704-JD-86
             The Honorable Karen M. Love, Judge

   On Petition to Transfer from the Indiana Court of Appeals,
                    No. 32A05-1708-JV-1907



                Opinion by Chief Justice Rush
       Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.

   As today’s companion opinion B.A. holds, Miranda warnings protect
students—no less than adults at a school—when police place them under
custodial interrogation. Custodial interrogation, though, requires police
involvement. So when school officials alone meet with students, a clear
rule governs: Miranda warnings are not required.

   Here, only an assistant principal interviewed D.Z., so Miranda warnings
were not required. We also find no reversible evidentiary error and that
sufficient evidence supports D.Z.’s criminal-mischief adjudication, so we
affirm the juvenile court.


Facts and Procedural History
   In early March 2017, sexual graffiti on boys-bathroom walls at
Brownsburg High School prompted a school investigation. Assistant
Principal Demetrius Dowler soon enlisted school resource officer Nathan
Flynn’s help finding a suspect. From surveillance video, they pinpointed
seventeen-year-old D.Z.

   Assistant Principal Dowler called D.Z. into his office for a closed-door
discussion. With only the two of them in the room, Dowler detailed his
investigation and said that he knew D.Z. was the culprit. D.Z.
remorsefully responded that he didn’t know why he did it, that he knew it
was wrong, and that he didn’t have anything against the girls named in
the graffiti.

   Assistant Principal Dowler suspended D.Z. for five days and told
Officer Flynn of D.Z.’s confession. Flynn then went into Dowler’s office to
talk to D.Z., who again confessed. At the end of that conversation, Flynn
told D.Z. that he was being charged with a crime.

   The next month, the State filed a delinquency petition alleging that D.Z.
committed criminal mischief and harassment. At the factfinding hearing,
the parties agreed that D.Z.’s incriminating statements to Officer Flynn
should be suppressed since D.Z. was never Mirandized. But they




Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018        Page 2 of 8
disagreed about the earlier statements to Assistant Principal Dowler. The
juvenile court admitted them over D.Z.’s objection.

  At the end of the hearing, the court found that the State failed to prove
harassment, but that D.Z. had committed criminal mischief, a Class B
misdemeanor if committed by an adult.

   D.Z. appealed, challenging (1) the admission of his statements to
Assistant Principal Dowler, (2) the admission of photos pulled from
surveillance video, (3) the admission of photos of the graffiti, and (4) the
sufficiency of the evidence supporting the criminal-mischief finding.

   The Court of Appeals reversed in a split opinion, addressing only the
admission of D.Z.’s incriminating statements to Assistant Principal
Dowler. D.Z. v. State, 96 N.E.3d 595, 599–603 (Ind. Ct. App. 2018). The
majority first described a modern school-discipline focus on criminal
charges—a point that Judge Baker emphasized in a separate concurrence.
Id. at 599–602 (majority opinion); 604 (Baker, J., concurring). It then found
that the statements should have been suppressed because D.Z. was under
custodial interrogation. Id. at 602 (majority opinion).

   Judge Brown dissented. Id. at 604–06 (Brown, J., dissenting). She would
have affirmed because Officer Flynn was not present for D.Z.’s interview
with Dowler and because no evidence showed that Dowler was an agent
of the police. Id.

  We granted the State’s petition to transfer, vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Whether D.Z. was under custodial interrogation is an issue of law
reviewed de novo. See B.A. v. State, No. 49S02-1709-JV-567, ___ N.E.3d ___,
slip op. at 4 (Ind. June 20, 2018). That issue dictates whether the juvenile
court abused its discretion in admitting D.Z.’s statements to Assistant
Principal Dowler. See id.




Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018           Page 3 of 8
Discussion and Decision

I. D.Z. was not under custodial interrogation.
   In today’s companion opinion B.A. v. State, we explore how Miranda
and its custodial interrogation test apply in today’s schools. B.A., slip op.
at 5–11. As we explain there, when police officers are present at and
involved in a suspect’s interview, the custody and interrogation analyses
are fact-specific and can result in close calls. Id. at 9–11.

   But when police officers aren’t present, a clear rule applies: students are
neither in custody nor under interrogation, unless school officials are
acting as agents of the police. Id.; see also Ritchie v. State, 875 N.E.2d 706,
717 (Ind. 2007) (“[C]ivilians conducting their own investigation need not
give Miranda warnings.”).

   Here, unlike in B.A., the clear rule governs; Officer Flynn was not in the
room when Assistant Principal Dowler talked with D.Z. So D.Z. was
entitled to Miranda warnings only if Dowler was an agent of the police. See
Sears v. State, 668 N.E.2d 662, 668 (Ind. 1996) (“The police . . . cannot avoid
their duty under Miranda by attempting to have someone act as their
agent in order to bypass the Miranda requirements.”), overruled on other
grounds by Scisney v. State, 701 N.E.2d 847, 848–49 (Ind. 1998).

   “There must be some evidence of an agency relationship” before we
can find one. Sears, 668 N.E.2d at 669. But as Judge Brown explained in her
dissent, no evidence suggests that police directed or encouraged Assistant
Principal Dowler to act on their behalf. See D.Z., 96 N.E.3d at 604–06
(Brown, J., dissenting); see also Resnover v. State, 460 N.E.2d 922, 933 (Ind.
1984). Quite the reverse; Dowler asked Officer Flynn—the only officer
mentioned in the record—to help with his ongoing school investigation.
And while Dowler did share D.Z.’s confession with Officer Flynn, the
focus was not on criminal charges but on finding out who was doing the
graffiti.

   Nor does Officer Flynn’s interview with D.Z. show an agency
relationship simply because it came on the heels of Dowler’s interview.



Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018           Page 4 of 8
Yes, Officer Flynn knew during his investigation that criminal charges
were possible. And he did tell D.Z. at the end of his interview that
criminal charges were coming. But that is not enough to show that
Dowler’s interview was pretextual priming for Officer Flynn’s
interrogation. Contra D.Z., 96 N.E.3d at 603.

   Assistant Principal Dowler thus was not acting as an agent of the
police. But even if he had been, Miranda warnings wouldn’t be required
here. Miranda’s premise is that “the interaction of custody and official
interrogation” creates the danger of coercion. Illinois v. Perkins, 496 U.S.
292, 297 (1990). Since that coercion “is determined from the perspective of
the suspect,” an agency relationship implicates Miranda only if the suspect
is aware enough of the underlying police involvement to create a
“coercive atmosphere.” Id. at 296; Ritchie, 875 N.E.2d at 717 (recognizing
that the “essential ingredients” of a coercive atmosphere are absent when
the suspect “speaks freely to someone whom he believes is not an
officer”). Here no evidence shows that D.Z. even knew that Assistant
Principal Dowler had talked to Officer Flynn.

  For these reasons, the juvenile court correctly denied D.Z.’s motion to
suppress his incriminating statements to Assistant Principal Dowler.


II.     The admission of photos was not reversible
        error; sufficient evidence supports D.Z.’s
        criminal-mischief adjudication.
   Because the Court of Appeals reversed the juvenile court on Miranda
grounds, it did not address D.Z.’s three other appellate arguments. D.Z.
also challenges the admission of two sets of photos and the sufficiency of
the evidence supporting his criminal-mischief adjudication.

   D.Z. first challenges the admission of three photos—pulled from the
school’s surveillance video—of him outside graffitied bathrooms. He
argues that the State failed to lay their foundation and that their




Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018         Page 5 of 8
admission violated Indiana Evidence Rule 1002’s best evidence rule. 1 We
find that any errors were harmless.

   While the original video wasn’t preserved, both Officer Flynn and
Assistant Principal Dowler testified without objection that they
independently watched it and saw that, for two of the bathrooms, D.Z.
was the only person to go into both of them when they were graffitied.
That testimony meshes with D.Z.’s confession—D.Z. remorsefully told
Dowler that he didn’t know why he did the graffiti, that he knew it was
wrong, and that he didn’t have anything against the girls named. The
photos were thus cumulative of other substantial evidence, so any error in
their admission was harmless. See McCallister v. State, 91 N.E.3d 554, 562–
63 (Ind. 2018).

   D.Z.’s next argument is that the State failed to lay a proper foundation
for five photos of the graffiti. He correctly notes that Officer Flynn
couldn’t lay a full foundation for at least four of the photos since he hadn’t
seen the graffiti itself. See Shelton v. State, 490 N.E.2d 738, 742 (Ind. 1986)
(“A witness’s testimony that the picture is a true and accurate
representation of the evidence portrayed is the foundation [required for]
the admission of a photograph.”). But Assistant Principal Dowler did see
the graffiti and identified it in each photo, filling the cracks in the photos’
initial foundation. See Torres v. State, 442 N.E.2d 1021, 1024–25 (Ind. 1982).

   D.Z.’s final argument is that insufficient evidence supports his criminal-
mischief adjudication. Under our standard of review, “we examine only
‘the probative evidence and reasonable inferences’ that support the
verdict.” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007)). Here, the evidence shows five instances of
graffiti. For two of them, D.Z. was the only person who could’ve done
both. Plus, D.Z. remorsefully admitted that he knew doing the graffiti was




1D.Z.’s arguments cue interesting questions about silent witness foundation, whether photos
pulled from a video are “duplicates,” and the interaction between Indiana Rules of Evidence
1003 and 1004. Because the answers would not affect the outcome here, we leave them for
another case.



Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018                       Page 6 of 8
wrong. These facts and their reasonable inferences sufficiently support the
juvenile court’s delinquency adjudication.


Conclusion
   D.Z. was not entitled to Miranda warnings since he was interviewed
only by a school official—not by police. He also cannot prevail on his
evidentiary and sufficiency of the evidence challenges. We thus affirm his
criminal-mischief adjudication.


David, Massa, Slaughter, and Goff, JJ., concur.



ATTORNEY FOR APPELLANT
Jeffery A. Earl
Law Offices of Lewis & Earl
Danville, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE
INDIANA SCHOOL BOARDS ASSOCIATION
Kent M. Frandsen
Parr Richey Frandsen Patterson Kruse LLP
Lebanon, Indiana

ATTORNE YS FOR AM IC I C UR IA E
J UVEN IL E L AW CENTE R; BARTON CHI LD L AW AND P OL I CY
CENTER; EMORY LAW S CHOOL ; CENT ER F OR CH ILDREN’S
LAW AND PO LI CY; CENTE R ON WRONGFUL C ONV ICTIONS OF
YOUTH; AND PAUL HOLLAND
Amy E. Karozos
Greenwood, Indiana


Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018        Page 7 of 8
Marsha L. Levick
Juvenile Law Center
Philadelphia, Pennsylvania




Indiana Supreme Court | Case No. 18S-JV-295 | June 20, 2018   Page 8 of 8
