                                                                           FILED
                                                                      Aug 19 2019, 10:04 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Michael A. Campbell
Attorney General of Indiana                                Highland, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA
State of Indiana,                                          August 19, 2019
Appellant/Cross-Appellee-Petitioner,                       Court of Appeals Case No.
                                                           18A-JV-2409
        v.                                                 Interlocutory Appeal from the
                                                           Lake Superior Court, Juvenile
O.E.W.,                                                    Division
Appellee/Cross-Appellant-Respondent.                       The Honorable Thomas P.
                                                           Stefaniak, Jr., Judge
                                                           The Honorable Matthew B.
                                                           Gruett, Magistrate
                                                           Trial Court Cause Nos.
                                                           45D06-1803-JD-106




Mathias, Judge.




Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                            Page 1 of 29
[1]   The State of Indiana appeals the order of the Juvenile Division of the Lake

      Superior Court granting a motion filed by juvenile O.E.W. seeking to suppress

      statements he made during a police interview in which he was not advised of

      his Miranda rights. O.E.W. cross-appeals and argues that the juvenile court

      clearly erred by finding that there was probable cause to believe that he

      committed acts that would be, if committed by an adult, felony murder, Level 2

      felony robbery resulting in serious bodily injury, and Class A misdemeanor

      theft. We affirm the juvenile court in all respects.


                                  Facts and Procedural History

[2]   In August 2017, then-fifteen-year-old O.E.W. lived with his de facto father

      Andy Ruiz (“Ruiz”), Ruiz’s children, and Ruiz’s girlfriend Adriana Garcia

      (“Garcia”), in a home on Alexander Avenue in Hammond, Indiana. O.E.W.’s

      girlfriend, C.P., lived on the same block. The victim in this case, Lucia

      Gonzales (“Gonzales”), lived a block away on Alexander Avenue with her

      children and her boyfriend, Marco Vera (“Vera”). O.E.W. had previously

      purchased marijuana from Vera and, on at least one occasion, directly from

      Gonzales herself.


[3]   On August 21, 2017, O.E.W. told his girlfriend C.P. that he planned to go to

      purchase marijuana from Vera at 9:00 p.m. that night. Between 8:45 p.m. and

      9:00 p.m. that evening, Ruiz noticed that O.E.W. had left home without

      permission. Garcia sent her son and C.P. out to look for O.E.W. Shortly

      thereafter, C.P. saw O.E.W. running away from the area near Gonzales’s home

      toward the dead-end of Alexander Avenue. O.E.W. then returned to the area of
      Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019         Page 2 of 29
      Gonzales’s home, got on his bicycle, and rode away. Although C.P. called out

      O.E.W.’s name, he did not stop.

[4]   O.E.W. returned home at approximately 9:30 p.m. He immediately went into

      the bathroom and took a shower. When O.E.W. came out of the shower, Ruiz

      noticed that O.E.W. had several injuries, including puncture wounds to his

      arms, legs, back, and torso. When confronted by Ruiz, O.E.W. initially stated

      that the chain on his bicycle had broken and that he had injured himself while

      attempting to fix it. When Ruiz stated that the injuries did not appear to have

      been caused by fixing the bicycle, O.E.W. then claimed that he had been

      stabbed during a fight at a local park. Ruiz took O.E.W. to the hospital, where

      his wounds were treated. Early the next morning, Garcia saw a black Samsung

      smartphone lying near O.E.W.’s phone. Garcia had never seen the Samsung

      phone before, and, when she returned from work later that day, the phone was

      gone.


[5]   Also early the next morning, at approximately 6:00 a.m., Gonzales’s six-year-

      old daughter came to her neighbor’s home, carrying her younger siblings. The

      small child told the neighbor that she saw someone whom she thought to be her

      “stepfather” Vera lying on the floor, bleeding. Tr. Vol. 2, p. 171. The neighbor

      telephoned the police, who went to the Vera/Gonzales home and found the

      body of Gonzales, not Vera, lying supine on the kitchen floor. Gonzales’s body

      was covered in blood; her pants had been pulled down, exposing her genitalia,

      and her shirt had been pulled up, exposing her breasts. Gonzales had defensive

      wounds on her arms and had suffered numerous stab wounds and cuts to her

      Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019     Page 3 of 29
      head and upper torso. She had also suffered a blunt-force wound to the head

      that caused an open skull fracture and resulting brain injury. The police were

      unable to locate Gonzales’s Samsung smartphone.


[6]   Later that day, O.E.W.’s mother, S.W., reported the alleged attack on her son

      to the police. After speaking with a patrol officer, she telephoned a Detective

      Suarez, who informed her that she should bring her son to the station to make a

      statement. She accordingly took O.E.W. to the police station that evening to

      speak with detectives about his claim that he had been stabbed by another

      juvenile in a local park the night before. She also indicated to the police that she

      was concerned that the attack on her son might somehow be related to the

      death of Gonzalez.


[7]   Hammond Police Department Detective Shawn Ford (“Detective Ford”) spoke

      with O.E.W. and his mother in an interview room, where O.E.W.’s statement

      was video recorded.1 O.E.W. sat at one side of an oval table with Detective

      Ford sitting across from him. O.E.W.’s mother sat slightly behind and to the

      right of O.E.W. near the corner of the interview room. O.E.W. told Detective

      Ford that he and his friend M.C. went to a local park to meet I.W. and his

      friend D.M. so that O.E.W. and I.W. could finish a fight that had started at




      1
        Although the video was recorded, it was not offered into evidence at the suppression hearing. It is therefore
      not part of the record on appeal. O.E.W.’s counsel offered to provide the juvenile court a copy of the video at
      the end of the suppression hearing, but the court indicated that it did not believe it was necessary to view the
      video to rule on the suppression issue. The juvenile court thus ruled on the suppression issue without ever
      having viewed the interview and based its ruling solely on the testimony of O.E.W.’s mother and the two
      testifying officers.

      Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                                Page 4 of 29
      school. O.E.W. stated that, after he won the fight, I.W. stabbed him. At some

      point in the interview, Detective Ford’s supervisor, Lieutenant Mark Tharp

      (“Lt. Tharp”) came into the interview room. He did not sit down, but leaned

      against the door frame. Lt. Tharp also worked as a resource officer at the high

      school O.E.W. attended and knew some of the juveniles involved in the fight.


[8]   During the interview, O.E.W.’s mother appeared to be “uncomfortable and just

      very kind of nervous and unsettled[.]” Tr. Vol. 2, p. 33. Detective Ford

      wondered why O.E.W.’s mother was concerned that her son, or the attack on

      her son, might be connected with the death of Gonzales. Detective Ford

      therefore asked if he could speak to her privately, and she agreed. Lt. Tharp

      took O.E.W. into another room while Detective Ford spoke with O.E.W.’s

      mother. Lt. Tharp made small talk with O.E.W., but did not interview him and

      did not garner any information from him at this time. Detective Ford asked

      O.E.W.’s mother if she had any problems with him asking her son about the

      murder, and she indicated that “she’s fine with [that].” Id.


[9]   Detective Ford was not involved with the investigation of Gonzales’s death and

      therefore did not know any of the details of the homicide itself. He therefore

      asked O.E.W. open-ended questions regarding the murder. O.E.W. indicated

      that he knew Gonzales and was aware that she had been killed. Detective Ford

      had already established where O.E.W. claimed to be at the time of the

      murder—in the park fighting. Lt. Tharp testified that he recalled how O.E.W.

      stated that he had previously been to the home of Vera and Gonzales. Id. at 50–



      Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019        Page 5 of 29
       51. At some point during the interview,2 evidence technicians took photographs

       of O.E.W.’s injuries and took a buccal swab to collect his DNA. At the

       conclusion of the interview, O.E.W. and his mother left the police station.


[10]   Detective Ford subsequently spoke with I.W., the youth whom O.E.W.

       claimed to have fought on the night of the murder. I.W. admitted that he and

       O.E.W. had gotten into a fight at school, but stated that he did not go to the

       park to fight. I.W.’s father confirmed that his son was at home that night. I.W.

       also had no injuries that indicated he had been in a fight. I.W.’s friend D.M.

       also denied having been at the park, and he too had no injuries indicating that

       he had been in a fight. O.E.W.’s friend, M.C., also denied having been with

       O.E.W. in the park when he claimed to have been stabbed. Instead, M.C. told

       the police that O.E.W. had told him that he was stabbed by someone he could

       not identify.

[11]   On August 23, 2017, the police secured a warrant for information regarding the

       location of Gonzales’s phone. The phone’s service provider gave the police the

       location of the phone, which was on the 1700 block of 171st Street in

       Hammond. The police went to that address and found O.E.W. sleeping in the

       basement. Beneath his pillow was Gonzales’s phone. Forensic investigation of




       2
         During the suppression portion of the hearing, it was not established when the photographs and buccal
       swab were taken. During the remainder of the waiver hearing, however, Detective Ford testified that that this
       occurred “pretty early on” in the interview, apparently before he spoke with O.E.W.’s mother and began to
       ask O.E.W. questions concerning the Gonzales murder. Id. at 198. Even if it was improper to take a DNA
       sample of O.E.W. at this time, the lead detective in the murder investigation later secured a warrant to take a
       DNA sample from O.E.W.

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                               Page 6 of 29
       the phone revealed that it had last connected to Gonzales’s wi-fi network at

       approximately 9:00 p.m. on August 21, the night of the murder, and had next

       connected to a secure wi-fi network at O.E.W.’s home the following morning at

       7:20 a.m. Later that day, it connected to another wi-fi network named

       “[O.E.W.]’s iPhone.” Tr. Vol. 3, pp. 31, 37.


[12]   The lead detective in the murder case now considered O.E.W. to be a suspect.

       Accordingly, he secured a warrant to gather a DNA sample from O.E.W., and

       the police again took a buccal swab from O.E.W. Subsequent testing revealed

       that DNA from O.E.W. or one of his paternal relatives was located on the shirt

       Gonzales was wearing at the time of her death. Gonzalez’s DNA was also

       found on O.E.W.’s underwear, but the rest of the clothes he had been wearing

       had already been laundered.


[13]   After speaking with O.E.W.’s girlfriend C.P., the police searched the area near

       the dead-end of Alexander Avenue, where she had seen O.E.W. run after

       leaving the area of Gonzales’s home. There, they discovered a crow bar and a

       kitchen knife. Gonzales’s injuries were consistent with being inflicted by these

       items, and her boyfriend Vera indicated that the recovered items looked similar

       to those kept in their home and garage. The knife and crowbar had been left

       exposed to the elements, including a heavy rainstorm the night of the murder.

       Thus, the police were unable to obtain any blood samples or usable DNA from

       these items.




       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019      Page 7 of 29
[14]   On March 26, 2018, the State filed a request seeking authorization to file a

       petition alleging O.E.W. was a delinquent child, which request the juvenile

       court granted. The following day, the State filed a petition alleging that O.E.W.

       was a delinquent child for committing acts that, if committed by an adult,

       would be knowing or intentional murder, felony murder, Level 2 felony robbery

       resulting in serious bodily injury, and Class A misdemeanor theft. The State

       simultaneously filed a petition to waive jurisdiction of the case to adult criminal

       court.


[15]   On July 23, 2018, the juvenile court held the first of several hearings on the

       waiver issue. At the beginning of the hearing, O.E.W. moved to suppress the

       statements he made during his interview with the police, claiming that he had

       been subjected to custodial interrogation without having been advised of his

       Miranda rights. The juvenile court therefore heard the issue of the motion to

       suppress before continuing with the waiver issue. After listening to testimony

       from O.E.W.’s mother, Detective Ford, and Lt. Tharp, and hearing the

       arguments of counsel, the juvenile court granted the motion in part, suppressing

       any statements made by O.E.W. in the second part of the interview where

       Detective Ford asked questions about Gonzales’s death. The juvenile court then

       proceeded to hear evidence on the issue of the motion to waive the case to

       criminal court.


[16]   On August 22, 2018, the State filed a motion to certify the juvenile court’s order

       on the motion to suppress for interlocutory appeal. On August 27, 2018, before

       the court had ruled on the State’s motion to certify the suppression order for

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 8 of 29
       interlocutory appeal, the juvenile court entered an order finding sufficient

       probable cause to believe that O.E.W. committed what would be, if committed

       by an adult, felony murder, robbery resulting in serious bodily injury, and theft.3

       The juvenile court, however found that there was “insufficient probable cause

       to believe [O.E.W.] committed the delinquent act of Murder, Felony (I.C. 35-

       42-1-1(1) [knowing or intentional murder]).” Appellant’s App. p. 95. The State

       then filed, and the juvenile court granted, a motion to dismiss that allegation.4


[17]   On August 31, 2018, the juvenile court issued an order waiving jurisdiction to

       adult criminal court. On September 10, 2018, the juvenile court granted the

       State’ motion to certify its suppression order for interlocutory appeal. The

       following day, O.E.W. filed a motion to certify the juvenile court’s probable

       cause order for interlocutory appeal, which the court granted on September 18,

       2018. This court subsequently granted the parties’ motions to accept

       interlocutory jurisdiction and, on January 31, 2019, we granted the State’s

       motion to consolidate the two interlocutory appeals.




       3
        As discussed below, a finding of probable cause is required before jurisdiction of a juvenile delinquency case
       may be waived to adult court.
       4
         The juvenile court also issued waiver orders in two other cases involving O.E.W.: Cause No. 45D06-1708-
       JD-500 and Cause No. 45D06-1708-JD-501, alleging that O.E.W. committed acts that would be rape and
       robbery. The notices of appeal filed by both the State and O.E.W. in the instant appeal reference only the
       juvenile court’s orders in Cause No. 45D06-1803-JD-106, and neither party presents any argument with
       regard to the juvenile court’s orders in these other two causes. Our discussion is therefore limited to Cause
       No. JD-106, involving the murder of Gonzales.

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                               Page 9 of 29
                                                I. The State’s Appeal

[18]   We first address the issue presented in the State’s interlocutory appeal, i.e.,

       whether the juvenile court erred by granting O.E.W.’s motion to suppress the

       statements he made during the interview with Detective Ford and Lt. Tharp.


       A. Standard of Review

[19]   Questions regarding the admission of evidence are generally entrusted to the

       discretion of the juvenile court, and we review the court’s rulings only for an

       abuse of that discretion. J.D.P. v. State, 857 N.E.2d 1000, 1006 (Ind. Ct. App.

       2006) (citing B.K.C. v. State, 781 N.E.2d 1157, 1162 (Ind. Ct. App. 2003)), trans.

       denied. Here, however, the State “b[ore] the burden of demonstrating the

       constitutionality of the measures it uses in securing information.” State v.

       Mason, 829 N.E.2d 1010, 1015 (Ind. Ct. App. 2005) (citing State v. Farber, 677

       N.E.2d 1111, 1113 (Ind. Ct. App. 1997), trans. denied). Thus, because the

       juvenile court granted the motion to suppress, the State appeals from a negative

       judgment. See id. (citing Farber, 677 N.E.2d at 1113–14). A party appealing a

       negative judgment must show that the lower court’s ruling was contrary to law.

       Id. We will reverse a negative judgment only when the evidence is without

       conflict and all reasonable inferences lead to a conclusion opposite that of the

       lower court. Id. (citing Farber, 677 N.E.2d at 1114). And we neither reweigh the

       evidence nor judge the credibility of witnesses and consider only the evidence

       most favorable to the judgment. Id.




       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 10 of 29
       B. Miranda Warnings

[20]   As our supreme court recently summarized:


               The Supreme Court of the United States’s groundbreaking
               Miranda v. Arizona decision adopted the now-famous “Miranda
               warnings.” 384 U.S. 436, 444 (1966). They apply to suspects
               under custodial interrogation, who must be told that they have “a
               right to remain silent, that any statement [they do] make may be
               used as evidence against [them], and that [they have] a right to
               the presence of an attorney, either retained or appointed.” Id. As
               the Miranda Court noted, “the very fact of custodial interrogation
               exacts a heavy toll on individual liberty and trades on the
               weakness of individuals,” id. at 455, so they may be
               psychologically coerced into speaking, id. at 446–48. These
               warnings thus safeguard the Fifth Amendment right against self-
               incrimination by warding off police coercion. Id. at 467; Howes v.
               Fields, 565 U.S. 499, 507 (2012).


       B.A. v. State, 100 N.E.3d 225, 230 (Ind. 2018). Children are particularly

       vulnerable to such coercion, making Miranda warnings especially important,

       even when police place a student under custodial interrogation at school as

       opposed to a police station. Id. (citing J.D.B. v. North Carolina, 564 U.S. 261, 269

       (2011)).


       C. Juvenile Waiver Statute

[21]   In this state, juveniles have long been accorded special status in the area of

       criminal procedure. S.D. v. State, 937 N.E.2d 425, 429–30 (Ind. Ct. App. 2010)

       (citing Hall v. State, 264 Ind. 448, 451, 346 N.E.2d 584, 586 (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
       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 11 of 29
       that a juvenile be afforded a meaningful opportunity to consult with a parent or

       guardian before the solicitation of any statement.” Id. at 429. Accordingly, our

       General Assembly enacted the juvenile waiver statute.5 B.A., 100 N.E.3d at

       231.

[22]   The juvenile waiver statute provides:


                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:

                (1) by counsel retained or appointed to represent the child if the
                child knowingly and voluntarily joins with the waiver;

                (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;
                     or

                (3) by the child, without the presence of a custodial parent,
                guardian, or guardian ad litem, if:




       5
         These protections were first set forth by our supreme court in Lewis v. State, 259 Ind. 431, 288 N.E.2d 138
       (1972), and were later codified in the juvenile waiver statute. See Sevion v. State, 620 N.E.2d 736, 738 (Ind. Ct.
       App. 1993) (citing predecessor statute).

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                                 Page 12 of 29
                    (A) the child knowingly and voluntarily consents to the
                    waiver; and

                    (B) the child has been emancipated under IC 31-34-20-6 or IC
                    31-37-19-27, by virtue of having married, or in accordance
                    with the laws of another state or jurisdiction.


       Ind. Code § 31-32-5-1. When Miranda applies to minors, the juvenile waiver

       statute applies too. B.A., 100 N.E.3d at 231.


[23]   Importantly, however, Miranda is applicable only when an individual is subject

       to custodial interrogation. Accordingly, when a juvenile who is not in custody

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

       juvenile waiver statute is implicated. S.D., 937 N.E.2d at 430 (citing Borton v.

       State, 759 N.E.2d 641, 646 (Ind. Ct. App. 2001), trans. denied). Thus, the

       threshold issue is whether O.E.W. was in custody at the time he spoke with the

       police. See id. If so, the police were required to comply with Miranda and the

       juvenile waiver statute.

[24]   The question of whether a person is in custody for purposes of Miranda is a

       mixed question of fact and law. State v. Ruiz, 123 N.E.3d 675, 679 (Ind. 2019).

       The circumstances surrounding the interrogation are questions of fact, and

       whether those facts add up to custody for Miranda purposes is a question of law.

       Id. As always, “we defer to the [juvenile] court’s factual findings . . . [b]ut we

       review de novo the legal question of whether the facts amounted to custody.”

       Id. (citing State v. Brown, 70 N.E.3d 331, 334–35 (Ind. 2017); State v. Quirk, 842

       N.E.2d 334, 340 (Ind. 2006)).

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 13 of 29
[25]   In determining whether a person was in custody such that Miranda warnings are

       required, our ultimate inquiry is whether there is a formal arrest or a restraint of

       the freedom of movement of the degree associated with a formal arrest. Hicks v.

       State, 5 N.E.3d 424, 429 (Ind. Ct. App. 2014) (citing State v. Hicks, 882 N.E.2d

       238, 241 (Ind. Ct. App. 2008)), trans. denied.6 We make this determination by

       examining whether a reasonable person in similar circumstances would believe

       he or she is not free to leave. Id. We examine all the circumstances surrounding

       an interrogation, and we are concerned with objective circumstances, “not upon

       the subjective views of the interrogating officers or the suspect.” Id. (citing

       Hicks, 882 N.E.2d at 241).


[26]   Our court has previously referenced a “helpful list of factors commonly

       considered by courts in determining whether a person was in custody for

       purposes of Miranda” that was compiled by the Seventh Circuit Court of

       Appeals. See Bean v. State, 973 N.E.2d 35, 40 (Ind. Ct. App. 2012) (citing Sprosty

       v. Buchler, 79 F.3d 635, 641 (7th Cir. 1996)), trans. denied. These factors include:


                  whether and to what extent the person has been made aware that
                  he is free to refrain from answering questions; whether there has
                  been prolonged, coercive, and accusatory questioning, or
                  whether police have employed subterfuge in order to induce self-
                  incrimination; the degree of police control over the environment
                  in which the interrogation takes place, and in particular whether
                  the suspect’s freedom of movement is physically restrained or
                  otherwise significantly curtailed; and whether the suspect could



       6
           The court in State v. Hicks, in turn cited California v. Beheler, 463 U.S. 1121, 1125 (1983).

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                                 Page 14 of 29
                reasonably believe that he has the right to interrupt prolonged
                questioning by leaving the scene.


       Id.; accord Reid v. State, 113 N.E.3d 290, 300 (Ind. Ct. App. 2018), trans. denied;

       Gauvin v. State, 878 N.E.2d 515, 521 (Ind. Ct. App. 2007), trans. denied; see also

       Ruiz, 123 N.E.3d at 680 (listing factors including “location, duration, and

       character of the questioning; statements made during the questioning; the

       number of law-enforcement officers present; the extent of police control over

       the environment; the degree of physical restraint; and how the interview begins

       and ends[.]”).


[27]   The historical facts surrounding O.E.W.’s interview with the police are

       relatively undisputed. O.E.W.’s mother made the initial contact with the police

       about her son being stabbed, as she was concerned that her son’s stabbing might

       be related to the attack on Gonzales. The police told her to bring him to the

       station to make a statement. Thus, although she came to the station voluntarily,

       she did so at the request of the police. Detective Ford interviewed O.E.W. at

       the police station in a small interview room, and there were two officers present

       during the questioning. After asking questions unrelated to Gonzales’s death,

       Detective Ford took O.E.W.’s mother aside to ask if he could speak with her

       son about the murder. Although she agreed, O.E.W.’s mother testified that she

       was nervous and scared. She also testified that she did not feel free to leave.7




       7
        Although her subjective belief is not dispositive, see Hicks, 5 N.E.3d at 429, we still find it relevant to the
       question of whether a reasonable person would feel free to leave.

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                                   Page 15 of 29
       Moreover, although neither O.E.W. nor his mother was physically restrained,

       and the door to the interview room remained open, they were never informed

       that they were free to leave.


[28]   In terms of the Sprosty factors, O.E.W. was not informed that he was free to

       refrain from answering questions. It is not entirely clear how long the

       interrogation lasted, but the questions do not appear to have been terribly

       accusatory. Still, the police did question O.E.W. about his knowledge of the

       murder. The police had exclusive control over the environment where the

       questioning took place. Indeed, we can think of few environments where an

       otherwise-unrestrained juvenile would feel less free to leave than an interview

       room in a police station. Although O.E.W. was not physically restrained, he

       was not informed that he was free to leave. See State v. Linck, 708 N.E.2d 60, 63

       (Ind. Ct. App. 1999), trans. denied. We also note that O.E.W. was always in the

       presence of at least one of the officers. Furthermore, there is no indication that

       O.E.W. was ever given an opportunity to consult with his mother about

       answering the questions. Given the totality of these circumstances, we agree

       with the juvenile court that O.E.W. was in custody. That is, a reasonable

       juvenile in his position, having been brought to the police station by his mother,

       subjected to interrogation regarding a murder in an interview room, and never

       being told that he was free to leave, would not feel free to leave.

[29]   Because he was in custody for purposes of Miranda, the police should have

       advised O.E.W. of his Miranda rights and complied with the mandates of the

       juvenile waiver statute. It is uncontested that they did neither. We therefore

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 16 of 29
       conclude that the juvenile court did not err as a matter of law by granting

       O.E.W.’s motion to suppress.8


                                              II. O.E.W.’s Cross-Appeal

[30]   On cross-appeal, O.E.W. contends that the juvenile court clearly erred by

       finding that probable cause existed to believe that O.E.W. committed the acts

       that, if committed by an adult, would be felony murder, robbery causing serious

       bodily injury, and theft.


       A. Probable Cause Requirement for Waiver

[31]   Probable cause that a juvenile committed the acts alleged is required before the

       juvenile court may waive jurisdiction to criminal court.9 A juvenile court shall

       waive jurisdiction of a juvenile to adult criminal court if it finds, after a hearing

       that: (1) the child is charged with an act which would be murder if committed

       by an adult; (2) there is probable cause to believe that the child has committed

       the murder; (3) and the child was at least twelve years of age when the act



       8
         The juvenile court granted the motion to suppress only with regard to the latter part of the interview.
       O.E.W. makes no claim that the juvenile court erred by not granting the motion to suppress with regard to
       the initial part of the interview, likely because it is undisputed that O.E.W. made no incriminating statements
       during this portion of the interview. We therefore express no opinion on the propriety of the juvenile court’s
       ruling with regard to the initial part of the interview. Still, we emphasize the importance of compliance with
       the juvenile waiver statute when interviewing juvenile suspects, as children are particularly vulnerable to such
       coercion, making Miranda warnings especially important. B.A., 100 N.E.3d at 230 (citing J.D.B., 564 U.S. at
       269).
       9
        Even before a delinquency petition may be filed, the juvenile court must first determine whether there is
       probable cause to believe that: “(A) the child is a delinquent child,” and “(B) it is in the best interests of the
       child or the public that the petition be filed.” Ind. Code § 31-37-10-2. Here, O.E.W.’s attack on the
       sufficiency of the evidence supporting the juvenile court’s probable cause order is aimed not at this
       preliminary probable cause determination, but the subsequent probable cause determination required to
       waive a juvenile to adult criminal court.

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                                   Page 17 of 29
       charged was allegedly committed. Ind. Code § 31-30-3-4. The only restriction

       upon waiver is if the juvenile court determines that it “would be in the best

       interests of the child and of the safety and welfare of the community for the

       child to remain within the juvenile justice system.” Id.


[32]   Indiana Code section 31-30-3-2 similarly states that upon motion of the

       prosecutor and following a hearing, the juvenile court may waive jurisdiction if

       it finds that:


               (1) the child is charged with an act that is a felony:

                    (A) that is heinous or aggravated, with greater weight given to
                    acts against the person than to acts against property; or

                    (B) that is a part of a repetitive pattern of delinquent acts,
                    even though less serious;

               (2) the child was at least fourteen (14) years of age when the act
               charged was allegedly committed;

               (3) there is probable cause to believe that the child committed the
               act;

               (4) the child is beyond rehabilitation under the juvenile justice
               system; and

               (5) it is in the best interests of the safety and welfare of the
               community that the child stand trial as an adult.


[33]   Thus, under either of these statutes, a finding of probable cause that the child

       committed the act or acts alleged is required before a juvenile may be waived to

       adult court. O.E.W. argues that there was insufficient evidence to support a



       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019           Page 18 of 29
       finding of probable cause that he committed the acts alleged, i.e., felony

       murder, robbery resulting in serious bodily injury, and theft.

[34]   Probable cause exists when the facts and circumstances, based upon reasonably

       trustworthy information, are sufficient to warrant a reasonable belief that a

       crime has been committed. Strosnider v. State, 422 N.E.2d 1325, 1328 (Ind. Ct.

       App. 1981). This standard requires more than a mere suspicion, but does not

       require proof beyond a reasonable doubt. Id.


[35]   A juvenile court’s waiver order must include specific findings of fact to support

       the order. Jordan v. State, 62 N.E.3d 401, 405 (Ind. Ct. App. 2016) (citing Ind.

       Code § 31-30-3-10), trans. denied. We therefore apply our familiar two-tiered

       standard of review for review of a trial court’s findings of fact and conclusions

       of law. See Trial Rule 52(A) (noting that trial court shall make special findings

       of fact without request by the parties “in any other case provided by these rules

       or by statute.”). Under this standard, we consider first whether the evidence

       supports the findings, and second, whether the findings support the judgment.

       In re D.S., 910 N.E.2d 837, 840 (Ind. Ct. App. 2009) (citing In re T.S., 906

       N.E.2d 801, 804 (Ind. 2009)), trans. denied. “A finding is clearly erroneous when

       there are no facts or inferences drawn therefrom that support it.” Id. A

       judgment is clearly erroneous only if the findings do not support the

       conclusions or the conclusions do not support the judgment. Id. “Thus, if the

       evidence and inferences therefrom support the trial court’s decision, we must

       affirm.” Id. On appeal, we do not reweigh the evidence or judge the credibility



       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019        Page 19 of 29
       of witnesses but view only the evidence and its reasonable inferences most

       favorable to the judgment. In re T.S., 906 N.E.2d at 804.


       B. Allegedly Erroneous Findings of Fact

[36]   O.E.W. contends that two of the juvenile court’s findings of fact are clearly

       erroneous. These allegedly erroneous findings provide:


               11. Following the execution of the search warrant, [O.E.W.] was
               interviewed on scene by Hammond Police. [O.E.W.] claimed to
               have received the black Samsung cell phone from [M.C.]
               approximately two weeks prior to August 23, 2017.

               12. On August 23, 2017, Detective Carter went to McDonald’s
               on Kennedy Avenue in Hammond, Indiana to conduct an
               interview with [M.C.], who is employed at said business. [M.C.]
               denied being with [O.E.W.] at Hessville Park on August 21,
               2017. [M.C.] indicated that he was working on [the] evening of
               August 21, 2017 and provided a copy of his time sheet to
               establish the same. Said individual also denied ever providing
               [O.E.W.] with any cell phone, specifically within the last two
               weeks.


       Appellant’s App. p. 91–92.


[37]   O.E.W. claims that there was no testimony or evidence presented at the

       probable cause hearing to support these findings. The State counters that this

       information was included in the probable cause affidavit submitted to the court

       when seeking approval to file the delinquency petition against O.E.W. The

       State also notes that some of this information was included in the testimony of

       Detective Ford and Lt. Tharp during the suppression portion of the hearing.


       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019     Page 20 of 29
[38]   We need not decide whether the juvenile court could consider the probable

       cause affidavit that had previously been filed but was not admitted at the

       probable cause hearing because, even assuming that these findings were clearly

       erroneous, the remaining findings are more than sufficient to support the

       juvenile court’s ultimate probable cause determination. Erroneous factual

       findings are not fatal to the judgment if the remaining valid findings and

       conclusions support the judgment, rendering the erroneous finding superfluous

       and harmless as a matter of law. Shelby’s Landing-II, Inc. v. PNC Multifamily

       Capital Institutional Fund XXVI Ltd. P’ship, 65 N.E.3d 1103, 1111 (Ind. Ct. App.

       2016) (citing Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 32

       (Ind. Ct. App. 2008), trans. denied). Here, as set forth below, the remainder of

       the juvenile court’s findings are supported by sufficient evidence, and these

       findings support the court’s conclusion that there was probable cause to believe

       that O.E.W. committed the acts alleged in the delinquency petition.


       C. Probable Cause to Believe that O.E.W. Committed the Acts Alleged in the
          Delinquency Petition

[39]   The juvenile court determined that there was probable cause to believe that

       O.E.W. committed acts that, if committed by an adult, would be felony

       murder, robbery resulting in serious bodily injury, and theft. The felony murder

       statute provides that “[a] person who knowingly or intentionally kills another

       human being while committing or attempting to commit . . . robbery . . .

       commits murder, a felony.” Ind. Code § 35-42-1-1(2). The robbery statute

       provides that “[a] person who knowingly or intentionally takes property from


       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 21 of 29
       another person or from the presence of another person . . . by using or

       threatening the use of force . . . or by putting any person in fear” commits

       robbery, which is a “Level 2 felony if it results in serious bodily injury to any

       person other than the defendant.” Ind. Code § 35-42-5-1(a). And the theft

       statute provides that a person who “knowingly or intentionally exerts

       unauthorized control over property of another person, with intent to deprive the

       other person of any part of its value or use, commits theft, a Class A

       misdemeanor.” Ind. Code § 35-43-4-2(a).


[40]   Here, the juvenile court found the following facts relevant to a determination of

       probable cause. Gonzales was found murdered in her home, and her cell phone

       was missing. O.E.W. was unaccounted for over a period during the night

       Gonzales was murdered. He claimed to have been stabbed during an altercation

       at a local park. O.E.W.’s girlfriend, however, had seen him near the scene of the

       crime, where O.E.W. had purchased marijuana in the past. O.E.W. had told his

       girlfriend earlier that day that he planned to purchase more marijuana from

       Gonzales’s boyfriend, Vera. When confronted about his injuries, O.E.W. initially

       lied and stated he had been in a bicycle accident. The two people with whom

       O.E.W. had allegedly fought in the park denied having been at the park. When

       the police executed a warrant to search for Gonzales’s missing phone, they found

       the phone underneath a pillow where O.E.W. had been sleeping. The phone had

       connected to Gonzales’s wi-fi network on the night of her death, then to

       networks associated with O.E.W. the next day. The police found a knife and

       crowbar in the area where O.E.W.’s girlfriend had seen him run after leaving the


       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 22 of 29
       area near Gonzales’s home, and Gonzales’s injuries were consistent with being

       stabbed and bludgeoned. When the police executed a search warrant at O.E.W.’s

       home, they seized a pair of underwear O.E.W. had been wearing on the night of

       the murder. Subsequent DNA testing of the underwear revealed DNA matching

       that of Gonzales. DNA testing of the shirt worn by Gonzales when she died

       contained DNA with a Y chromosome matching that of O.E.W. or his paternal

       ancestors and relatives. See Appellant’s App. pp. 94.


[41]   From this evidence, the juvenile court properly concluded that there was

       probable cause to believe that O.E.W. took Gonzales’s phone from her by force

       and that she died as a result. These acts would be theft, robbery resulting in

       serious bodily injury, and felony murder if committed by an adult. Whether this

       is sufficient to prove to a jury beyond a reasonable doubt that O.E.W.

       committed these crimes is yet to be decided. All that the juvenile court

       determined here is that there was sufficient evidence to support a determination

       of probable cause that O.E.W. committed these acts.


[42]   O.E.W.’s argument that the juvenile court overlooked evidence that suggested

       Vera might be involved are simply a request that we view evidence not

       favorable to the juvenile court’s decision, reweigh the evidence, and come to a

       different conclusion. This is not our role as an appellate court. See In re T.S., 906

       N.E.2d at 804; In re D.S., 910 N.E.2d at 840.


[43]   We also reject O.E.W.’s argument that, because the juvenile court found that

       there was insufficient evidence to support a finding of probable cause that he


       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019        Page 23 of 29
       committed what would be knowing or intentional murder if committed by an

       adult, there was necessarily insufficient evidence for a finding of probable cause

       that he committed the other acts alleged in the delinquency petition. As our

       supreme court has recognized in the context of a jury verdict in a criminal case,

       inconsistent verdicts “are not subject to appellate review on grounds that they

       are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d

       643, 649 (Ind. 2010). Seemingly logically inconsistent verdicts may be due to a

       fact-finder’s choice to exercise lenity even if there is sufficient evidence. Id. at

       648. Indiana jurisprudence recognizes a fact-finder’s use of lenity as “an

       important component of our criminal justice system.” Id. at 649. We see no

       reason not to apply the same reasoning to a trial court when acting as the trier

       of fact. Thus, the only issue for us on appeal is whether there was sufficient

       evidence to support the juvenile court’s probable cause determination, not to

       judge the logical consistency of the court’s judgment. See id.


[44]   Moreover, the juvenile court’s probable cause determinations are not

       necessarily inconsistent. The juvenile court could have concluded that the

       evidence supported a probable cause determination that O.E.W. took the phone

       from Gonzales by force and that she died as a result of this force, but that

       O.E.W. did not act intentionally (that is, with the conscious objective to kill

       Gonzales) or knowingly (that is, with an awareness of a high probability that he

       would kill Gonzales). See Ind. Code § 35-41-2-2 (a), (b).


[45]   In summary, the evidence supporting the juvenile court’s order is sufficient to

       support the court’s determination that there is probable cause to believe that

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019         Page 24 of 29
       O.E.W. committed the acts that, if committed by an adult, would be theft,

       robbery resulting in serious bodily injury, and felony murder. We therefore

       affirm the juvenile court’s probable cause order.10


                                                   Conclusion
[46]   With regard to the State’s appeal, we conclude that the juvenile court did not

       err as a matter of law by concluding that O.E.W. was subject to custodial

       interrogation when the police questioned him regarding his knowledge of

       Gonzales’s death. We therefore affirm the juvenile court’s order on O.E.W.’s

       motion to suppress. With regard to O.E.W.’s cross-appeal, we conclude that the

       juvenile court did not clearly err when it found that the evidence is sufficient to

       show that there is probable cause to believe that O.E.W. committed acts that

       would be felony murder, robbery resulting in serious bodily injury, and theft if

       committed by an adult. Accordingly, we also affirm the juvenile court’s order

       finding probable cause.


[47]   Affirmed.


       May, J., concurs.


       Brown, J., concurs in part and dissents in part with a separate opinion.




       10
         O.E.W. makes no challenge to the remaining requirements for waiver contained in Indiana Code sections
       31-30-3-4 and 31-30-3-2. He only challenges the juvenile court’s determination that there is probable cause
       that he committed the acts alleged.

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019                            Page 25 of 29
                                                    IN THE
           COURT OF APPEALS OF INDIANA
       State of Indiana,                                     Court of Appeals Case No.
                                                             18A-JV-2409
       Appellant/Cross-Appellee-Petitioner,

               v.

       O.E.W.,
       Appellee/Cross-Appellant-Respondent.



       Brown, Judge, concurs in part and dissents in part with opinion.


[48]   I concur with the majority’s conclusion in Part II and would affirm the juvenile

       court’s probable cause order. However, I respectfully disagree with Part I of the

       opinion in that I do not find that O.E.W. was in custody at the police station.


[49]   First, I would not find that O.E.W.’s mother came to the station at the request

       of police. She knew Detective Suarez personally and initiated contact with

       him. In response to being asked “[a]nd so as a result of your conversation with

       Detective Suarez, you came down to the police department,” she stated,

       “[c]orrect.” Transcript Volume II at 15. This exchange immediately followed

       her statement, when asked what led to the phone call with Detective Suarez,

       that:

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019               Page 26 of 29
               I was just concerned about what happened to my son and all the
               crimes that had happened, because of the person who, you know,
               who my son said did it. So I was concerned that he might know
               of something that happened, because he knew the boy who did
               that to him, you know, so, I just felt like he needed to talk.

       Id.


[50]   As to how the issue of the “murder that had occurred” came up, O.E.W.’s

       mother testified that she told the officers the same thing she had told Detective

       Suarez and that she “was just like, you know, due to what happened to my son

       and what the events that occurred in the neighborhood, he could, might know

       something, because of what – the person who attacked him, you know.” Id. at

       17. When asked if, “[t]o [her] recollection, all they were asking is if he had

       information or knew anything about this incident, correct,” she answered

       affirmatively and stated: “And I always thought the whole time it was just

       because of what happened to him, they were trying to figure out, like, could

       that boy be connected. I never knew, you know . . . .” Id. at 19-20. She further

       answered in the negative when asked both if she specifically recalled an officer

       asking O.E.W. his whereabouts that evening and if she recalled O.E.W. being

       asked if he had committed the homicide.

[51]   During Detective Ford’s direct testimony, in response to whether he began a

       line of questioning related to Gonzales’s murder, he answered “[s]omewhat”

       and continued:


               I mean, basically, murder investigations are somewhat delicate,
               and, like I said, I didn’t have a lot of knowledge of the

       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019       Page 27 of 29
                investigation in and of itself, so they were more open-ended
                questions to elicit anything that if he did have any specific
                information or – like I said, I didn’t have a lot of information, so
                really it was just some brief, you know, even if he knew the
                people and some open-ended questions to see if there was any
                information that would help with that investigation down the
                road.

       Id. at 31. He indicated that, when leaving the interview, nothing

       “overwhelmingly said that [O.E.W.] was really any part of” the homicide in

       terms of his demeanor or answers. Id. at 34. During the redirect examination,

       he stated that he “wouldn’t say that” he agreed that, upon leaving the station

       that evening, O.E.W. became a potential suspect in the murder investigation,

       and he testified that he “actually thought it was just a bizarre incident.” Id. at

       40-42.

[52]   Ultimately, I would find that O.E.W. presented at a police station as a “victim

       of a stabbing” at Hessville Park, and at the July 23, 2018 hearing, all three of his

       witnesses in support of his motion to suppress testified as such. See id. at 26

       (Detective Ford stating that, “[f]or [O.E.W.’s] case, he was the – we believed at

       the time, a victim of a stabbing); accord id. at 9-10 (O.E.W.’s mother responding

       affirmatively when asked both if, at the time she took him into the station, she

       was under the impression that he was the victim of a stabbing and if she was

       there only “to report . . . a perceived crime” against him), 46 (Lieutenant Tharp

       agreeing that O.E.W. “may have been . . . the victim of a stabbing”).


[53]   In the context of a purported victim showing up at the police station and being

       asked, in a room with a door that remained open, first about his injuries and
       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019         Page 28 of 29
       eventually about certain events that occurred in the neighborhood, I would

       conclude that O.E.W. was not in custody. See State v. Brown, 70 N.E.3d 331,

       336 (Ind. 2017) (“The test of whether a defendant is in custody is not whether a

       defendant feels free to go, but rather whether there was a ‘“formal arrest or

       restraint on freedom of movement” of the degree associated with a formal

       arrest’.”) (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526

       (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3519

       (1983))).


[54]   For these reasons, I respectfully dissent as to Part I of the opinion.




       Court of Appeals of Indiana | Opinion 18A-JV-2409 | August 19, 2019      Page 29 of 29
