Riley, J.
Appellants-Defendants, Daniel Wahl (Daniel) and Saundra Wahl (Saundra), (collectively, the Wahls), appeal their conviction for involuntary manslaughter, Class D felonies, Ind. Code § 35-42-1-4 (2013). We affirm
The Wahls present this court with four issues on appeal, which we consolidate and restate as the following three issues: (1) Whether the trial court abused its discretion by admitting certain evidence; (2) Whether the State presented sufficient evidence to sustain the Wahls’ involuntary manslaughter conviction; and (3) Whether the trial court abused its discretion by ordering the Wahls to pay restitution.
While presenting similar but slightly different arguments, the Wahls assert that the trial court abused its discretion when it excluded Dr. Dragan from testifying as an expert witness. In addition, the Wahls contend that the trial court abused its discretion by admitting into evidence the video reenactment of Saundra explaining the events leading to A.D. being stuck in the security gate.
B. Video Reenactment
The Wahls argue that the trial court abused its discretion by denying their motion to suppress the video reenactment…The Wahls collectively claim that when the video was taken, it violated their Fourth Amendment rights under the United States Constitution, and Article 1, Section 11 of the Indiana Constitution. Saundra additionally claims that her Fifth Amendment rights were violated when she was asked to participate in the reenactment video absent any Miranda warnings.
1. Fourth Amendment Violation
The Wahls concede that exigent circumstances existed after the police responded to the 9-1-1 call, however, they argue that their continued presence until 5:00 p.m. which led to the video reenactment, constituted an impermissible search not falling within any exception. The State argues the continued police presence in the Wahls’ home and the recording fell under the exigency exception.
…
The Wahls’ 9-1-1 call invited police to enter the house and deal with an emergency. See United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010) (911 call seeking assistance is an invitation to enter and provide assistance). Notwithstanding the fact that A.D. had been removed from the home, once there, the officers found another emergency, namely, several other children in the daycare who had been present during the incident, it was of extreme concern for the officers to remove those children from the scene of the incident. Throughout the afternoon, and in conjunction with the Wahls, the police cared for the children and reunited them with their parents. While the video was taken after all the children had presumably been picked up by their parents and no exigency existed at the time, the State argues that the video was taken with Saundra’s consent.
…
Again, throughout the afternoon, the Wahls cooperated with the police in caring for the children inside their in-home daycare, they voluntarily discussed what had happened in the living room, and later Saundra agreed to participate in a video reenactment of the events in the basement. While a few items were moved during the reenactment, namely, the rocking chair and swing, Saundra helped the officers place those items in their original position as she narrated the events. Furthermore, the record is devoid of any evidence establishing that Detective Finn’s actions and statements were impermissibly coercive, thereby overcoming Saundra’s will. See Buckley, 797 N.E.2d at 849. The record supports that Detective Finn was very polite with his questioning during the video reenactment. As a result, we conclude that Saundra voluntarily and knowingly consented to the search of her home which led to the video reenactment. Accordingly, we find that the Wahls’ rights pursuant to the Fourth Amendment of the United States Constitution were not violated
2. Article 1, Section 11 of the Indiana Constitution
Next, we address the Wahls’ claim that law enforcement’s conduct in performing the reenactment video without a warrant was unreasonable and therefore violated their rights pursuant to the Article 1, Section 11 of the Indiana Constitution[.]
…
In evaluating the totality of the circumstances, and thus the reasonableness of the search, we consider both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure. Litchfield, 824 N.E.2d at 360. Thus, to determine the reasonableness of police conduct under the totality of the circumstances, we consider “(1) the degree of concern, suspicion, or knowledge that the person has violated the law; (2) the degree of intrusiveness that the search or arrest method imposes on the person; and (3) the extent of law enforcement needs.” State v. Harmon, 846 N.E.2d 1056, 1058 (Ind. Ct. App. 2006).
Regarding the first factor, the officers’ degree of concern, suspicion, or knowledge that a violation had occurred, in the instant case, this factor was essentially non-existent. As we noted above, the officers arrived at the Wahls’ residence to assist with a report of an unconscious child. However, after A.D. was pronounced dead, the officers were justified in having a reasonably high degree of concern or suspicion that some sort of criminal activity might have occurred based on their observation of that the gate that had choked A.D. was faulty. As for the second factor, the degree of police intrusion on the Wahls’ ordinary activities were not substantial. The Wahls had invited the police inside their home to help with the unconscious child, and they continued to cooperate with law enforcement for the remainder of the afternoon to reunite the other children with their parents. After all the children had left, Saundra agreed to take part in the video reenactment. Further, we note that the video reenactment was limited to the basement, the area where the incident occurred. And finally, as to the third factor, we find that law enforcement needs were high. Detective Finn had good reason for investigating the events leading to A.D.’s death. Moreover, after Saundra consented to participating in the video enactment, there was no need to obtain a warrant.
Saundra on behalf of Daniel, waived any and all of the Wahls’ search rights since she agreed to submit to the video reenactment. Thus, given the reasonably high degree of suspicion of criminal activity, the minimally intrusive nature of police conduct prior to obtaining Saundra’s consent, and the extent of law enforcement needs, the Wahls have failed to establish that the video reenactment, was unreasonable under Article I, Section 11 of the Indiana Constitution.
C. Custodial Interrogation
Saundra claims that when the video reenactment was taken, the taped interrogation was custodial in nature and she should have been advised of her rights under Miranda v. Arizona, 384 U.S. 436, 444 (1966).
…
Saundra primarily relies on the presence of several officers in the house during the afternoon to support her claim that she was subject to a custodial interrogation. In particular, she contends that at the time the video was taped, there were no children inside her home, the police had taped off her home to keep everybody other than law enforcement from entering, and she had been surrounded by several officers who were “directing her course of action in recreating the scene of the accident.” (Saundra’s Br. p. 20). She adds that the police were also “not transparent” about their intentions and that the officers deceptively led her to believe that the video would only be used to assist the coroner in determining A.D.’s cause of death, and not for a criminal investigation. (Saundra’s Br. p. 20). Thus, Saundra maintains that she was in custody at the time the video was taped, and she should have been advised of her Miranda rights.
There is no question in this case that Detective Finn’s questions during the video reenactment with Saundra constituted an interrogation. The dispositive issue here is whether Saundra was in custody at that time the video was taped. The record shows that law enforcement entered the Wahls’ residence to respond to a 9-1-1 call of an unconscious child. At approximately 12:52 p.m., Detective Finn, arrived at the Wahls’ residence and began questioning Daniel as to the daily procedures at the daycare. At 12:59 p.m., A.D. was pronounced dead. During Daniel’s narration of the events that had occurred that day, Saundra emerged from the basement in hysterics and announced to Daniel that A.D. was dead. Detective Finn stopped questioning Daniel so that Daniel could give Saundra some comfort. The record reveals that Saundra was emotional and distraught by A.D.’s death. Other officers continued to arrive at the Wahls’ residence, some in uniform and others in street clothes. Following the pronouncement of A.D.’s death, the officers, in conjunction with the Wahls, spent the rest of their afternoon caring for the children and reuniting them with their parents at the canopy set up outside the Wahls’ residence. The Wahls were not placed in handcuffs or attended by an officer who monitored their movements inside their home. It appears that at around 5:00 p.m., after all the children had presumably left the Wahls’ residence, Detective Finn finally made a proper inquiry as to the events preceding A.D. being stuck in the gate. It was at this moment that Saundra was asked to participate in a video recording demonstrating the events.
Despite spending his afternoon at the Wahls’ residence, Detective Finn was unaware of the events leading to A.D.’s death. Without more definite information about the events, Detective Finn conducted “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process,” which does not fall within the purview of Miranda requirements. Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602. Further, while there were other officers present during the video reenactment, it appears that only one officer was conducting the questioning. See Gauvin v. State, 878 N.E.2d 515, 520-21 (Ind. Ct. App. 2007) (relying, in part, on fact that three officers conducted the interview to determine the suspect was in custody) (citations omitted).
Based on the totality of the circumstances, we conclude that Saundra was not in custody and was not required to have been advised of her Miranda rights at the time she was asked to narrate the events which were captured in a video. Accordingly, we hold that the trial court did not abuse its discretion in admitting the video recording into evidence.
CONCLUSION
In light of the foregoing, we hold that the trial court did not abuse its discretion in excluding expert testimony, admitting the video reenactment, or issuing a restitution order. In addition, we hold that the State presented sufficient evidence beyond a reasonable doubt to sustain the Wahls’ involuntary manslaughter conviction.
Affirmed.
Tavitas, J. concurs with separate opinion
Mathias, J. dissents with separate opinion
Tavitas, Judge concurring
I respectfully concur, but I write separately to emphasize relevant statutory provisions, which I believe further support the conclusion that Miranda warnings were not required prior to Saundra’s participation in the video reenactment. Indiana Code Section 36-2-14-61 provides:
Whenever the coroner is notified that a person in the county:
(1) has died from violence;
(2) has died by casualty;
(3) has died when apparently in good health;
(4) has died in an apparently suspicious, unusual, or unnatural manner; or (5) has been found dead;
the coroner shall, before the scene of the death is disturbed, notify a law enforcement agency having jurisdiction in that area. The agency shall assist the coroner in conducting an investigation of how the person died and a medical investigation of the cause of death. The coroner may hold the remains of the decedent until the investigation of how the person died and the medical investigation of the cause of death are concluded.
(emphasis added). The specific facts of this case demonstrate that the detectives were fulfilling their duty to assist the coroner in his investigation, and Saundra was not subjected to a custodial interrogation.
…
As Detective Hawkins explained, the doll reenactment is “standard procedure” following infant and child deaths. Id. at 34. The coroner’s office “expect[s]” law enforcement to “have that documentation to help them out.” Id. Similarly, Detective Finn testified that a doll reenactment was “best practice” in any child or infant death case to assist the coroner’s office. Id. at 112. At the end of the video reenactment, Detective Finn told Saundra that Saundra needed to place the doll where A.D. was found in order for detectives to take a photograph for the coroner’s office. See State’s Ex. 45. The coroner used the doll reenactment in making findings with regard to A.D.’s death.
While the detectives did not tell Saundra that she was free to leave or free to ask the detectives to leave, Detective Finn communicated the Wahls were “not under arrest or otherwise detained.” Tr. Vol. III p. 23. At no point did the Wahls object to law enforcement’s presence in the house. The Wahls were cooperative and free to move about the home throughout the day. Moreover, as can be seen in the video, when Saundra became upset recalling the day’s events, she was permitted to walk away to calm down. See State’s Ex. 45. When detectives left the Wahls’ home on June 20, 2013, detectives did not consider the Wahls to be “suspects of criminal activity.” Tr. Vol. III p. 131.
As evidenced by the above facts, law enforcement was conducting a general onscene investigation pursuant to Indiana Code Section’s 36-2-14-6’s mandate that law enforcement “shall assist the coroner”, and Saundra was not in custody. Thus, the warnings described in Miranda were unnecessary prior to the reenactment video, as Miranda does not affect “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process[.]” See Miranda, 384 U.S. at 477, 86 S. Ct. at 1629.
…
The events on June 20, 2013, were tragic, and there is no positive outcome here. Nonetheless, I am compelled to conclude law enforcement was conducting a general on-the-scene investigation to assist the coroner, and Saundra was not subjected to a custodial interrogation during the reenactment video. As such, I concur.
Mathias, J., dissenting
Because I believe that the admission of the video reenactment violated Saundra’s Miranda rights, I respectfully dissent.
…
I agree with the majority that Detective Finn’s questions during the video reenactment constituted interrogation. See Slip op. at 21 (“There is no question in this case that Detective Finn’s questions during the video reenactment with Saundra constituted an interrogation.”). Accordingly, the only issue on which I differ from the majority is whether Saundra was in custody for purposes of Miranda. The majority concludes that she was not; I believe that she was.
…
I believe that the totality of the circumstances in the present case demonstrates that Saundra was in custody, i.e., her freedom of action was deprived in a significant way such that a reasonable person in her position would not have felt free to end the interrogation and leave. There was no indication that the police ever informed Saundra that she was free to not answer questions. And although Saundra called 911, thereby seeking the aid of the police, the police remained in the house for several hours after A.D. was taken to the hospital and after all of the other children were removed from the house. The police even told Saundra that they wanted her to recreate the scene of A.D.’s tragic death in order to help the police assist the coroner. But this was objectively not the only, or even the primary, purpose of the reenactment. Instead, the police were encouraging Saundra to incriminate herself. And even though the questioning took place in the Wahls’s home, the police had a large degree of control over the environment: the police had taped off the house to keep others out, and there were multiple police officers in the home. Indeed, the police collected evidence from the scene. The police also directed Saundra as she reenacted the events that led to A.D.’s death. In other words, the police were in control of the scene, not Saundra.
Under the totality of these facts and circumstances, I believe that Saundra’s freedom of action and movement were deprived in a significant way, i.e., she was in custody for purposes of Miranda. Because Saundra was subject to custodial interrogation, the police were required to advise her of her Miranda rights. The failure to so advise Saundra of her Miranda rights means that the trial court should have excluded the video reenactment from evidence, and I respectfully dissent from the majority’s conclusion otherwise.