      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        ) No. 78556-7-1
                    Respondent,         )
                                        ) DIVISION ONE
           V.                           )
                                        )
M.B.-M., a Minor,                       )
                                        ) UNPUBLISHED OPINION
                    Appellant.          )
                                        ) FILED: April 29, 2019
                                        )

      SMITH, J. — M.B.-M. appeals his conviction for attempted first degree child

molestation. His sole argument on appeal is that the waiver of his Mirandal

rights when he was 13 years old was invalid because he did not have an

attorney, parent, or other adult advocate present during the interrogation.

Because Washington law allows minors over the age of 12 to waive their Miranda

rights without the consent of a guardian, we affirm.

                                     FACTS

       On March 12, 2017, 12-year-old A.D. observed 5-year-old O.S. lying on

his stomach and 13-year-old M.B.-M. kneeling or squatting over him. Neither

0.S. nor M.B.-M. was wearing pants or underwear and A.D. could see M.B.-M.'s

exposed penis. 0.S. said, "help me" to A.D., and she grabbed O.S. and took him

out of the room. 0.S. later explained that M.B.-M.'s "'balls were on my butt."



      I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
No. 78556-7-1/2

       A few weeks later, two detectives interviewed M.B.-M. at the Federal Way

Police Department. Although M.B.-M. arrived with his family, only the detectives

were present for the interview. The detectives provided M.B.-M. with a written

form explaining his constitutional rights, which they read to him. M.B.-M.

confirmed both verbally and in writing that he understood his rights and agreed to

speak to the detectives.

      The State charged M.B.-M. with first degree child molestation. After

determining that M.B.-M.'s statement to police was admissible, the juvenile court

judge found M.B.-M. guilty of attempted first degree child molestation. M.B.-M.

appeals.

                           WAIVER OF MIRANDA RIGHTS

       M.B.-M. argues that his waiver of his Miranda rights was invalid and

involuntary because he did not have an attorney, parent, or other adult advocate

present during the interrogation. We disagree.

      "The trial court's legal conclusions regarding the adequacy of. . . Miranda
                                 (
warnings are issues of law that we review de novo." State v. Mayer, 184 Wn.2d

548, 555, 362 P.3d 745 (2015).

       Before a custodial interrogation, the police must advise a suspect that he

has the 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.

Miranda, 384 U.S. at 444-45. In In re Gault, 387 U.S. 1, 55, 87S. Ct. 1428, 18 L.

Ed. 2d 527(1967), the United States Supreme Court held the constitutional

privilege against self-incrimination under Miranda applies with equal force to


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No. 78556-7-1/3

juveniles. RCW 13.40.140(8) also states that a juvenile "shall be accorded the

same privilege against self-incrimination as an adult." Under RCW 13.40.140(11),

a parent or guardian "shall give any waiver" for a child under 12 years of age. By

contrast, a juvenile who is "at least twelve years of age" may waive his rights

without the consent of a parent. RCW 13.40.140(11),(10).

       In Dutil v. State, 93 Wn.2d 84, 606 P.2d 269 (1980), the petitioners argued

that a parent or advocate must be present for any juvenile to be "deemed

capable of knowingly and intelligently waiving his rights." Dutil, 93 Wn.2d at 86.

The Washington Supreme Court rejected this argument:

       The legislature has found that a child under 12 is incapable of
       intelligently waiving his rights in a juvenile proceeding, but it has
       chosen to leave that question to be determined upon the facts of
       the individual case, where the juvenile is closer to the age of
       majority.

Dutil, 93 Wn.2d at 94. It held the "totality of circumstances test" applies to

juveniles over the age of 12. Dutil, 93 Wn.2d at 93-94.

       Under the totality of circumstances approach, the determination of
       whether a knowing and intelligent waiver has been made is the
       responsibility of the juvenile judge, who is presumably experienced
       in handling juvenile cases and who has the child and other
       witnesses before him, as well as the facts pertaining to the child's
       age, intelligence, education and experience.

Dutil, 93 Wn.2d at 89.

       Here, the juvenile court judge concluded that M.B.-M. knowingly and

intelligently waived his Miranda rights before the police interrogated him and that

his statements to police were admissible. The following unchallenged findings

support the trial court's conclusion:




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No. 78556-7-1/4

      1      On April 5, 2017M Respondent was interviewed by
             Detectives Adrienne Purcella and Kris Durell in a room off
             the lobby at the Federal Way Police Department after having
             arrived with his family[.] Respondent and the two detectives
             were present for the entire interview[,] no other parties were
             present at any time[.]

      2      Respondent was not restrained in any manner during the
             interview[.]

      3      Respondent was 13 years old at this time[.] He knew his
             apartment complex name and apartment number, though he
             did not know the complex address[.] He provided his birth
             date when prompted[.]

      4      Respondent[']s interactions with the detectives, including
             appropriate answers to questions and use of language at
             times more advanced than what would be expected for
             someone of his age[,] demonstrate that he understood the
             situation and what was being asked of him[.] Respondent
             used the words ["]accused[,]" "assuming,"
             ["]inappropriately[,"]["]pressing charges[,"]["]innocence[,"]
             ["]guilty["] appropriately in the context of the conversation[.]
             Respondent responded at different points in the affirmative
             and negative and clarified his answers when he disagreed
             with the representations of the detectives[.]

      5      Respondent was provided a written form enumerating his
             constitutional rights including his freedom to decline to speak
             with detectives[.] This form was read to Respondent[.] This
             form included a section in which Respondent could indicate
             his decision to waive those rights[.]

      6      Respondent indicated by both written signature and verbal
             assent that he understood his rights and agreed to speak
             with the detectives[.]

M.B.-M. does not challenge any of these findings, so they are verities on appeal.

State v. O'Neill, 148 Wn.2d 564, 571,62 P.3d 489 (2003). We hold that based

on these uncontested findings, M.B.-M.'s waiver of his Miranda rights was

knowing and intelligent under the totality of the circumstances. M.B.-M. does not

make any argument to the contrary.

                                         4
No. 78556-7-1/5

       M.B.-M.'s sole argument on appeal is that his waiver of his Miranda rights

was not valid because no attorney or interested adult was present during his

interrogation. We acknowledge, as the Washington Supreme Court did in State

v. O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), that psychological and

neurological studies show "that the 'parts of the brain involved in behavior

control' continue to develop well into a person's 20s." O'Dell, 183 Wn.2d at 691-

92(footnote and internal quotation marks omitted). This calls into question

whether, in general, a minor can truly consent to a waiver of his or her Miranda

rights. But because the Supreme Court determined in Dutil that the "totality of

the circumstances" test adequately protects minors, we reject M.B.-M.'s

argument that a blanket prohibition on waiver without the consent of an

interested adult is necessary.

       Furthermore, even assuming that M.B.-M.'s confession was not knowing

and intelligent, and therefore inadmissible, reversal is not required if any error in

admitting it was harmless. "The test for whether a constitutional error is harmless

is whether the untainted evidence of the defendant's guilt is so overwhelming that

it necessarily leads to the same outcome." Mayer, 184 Wn.2d at 555. Here, in

another unchallenged finding of fact, the juvenile court judge found that "0[1SH's

statements alone are not proof beyond a reasonable doubt, but his statements in

combination with what AHD[.]saw, are proof beyond a reasonable doubt."

Therefore, even without M.B.-M.'s statements to police, there was proof beyond

a reasonable doubt that he committed first degree attempted child molestation.




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No. 78556-7-1/6

      We affirm.




WE CONCUR:




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