Justin D. Adney v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 12, 2019
• Docket: 19A-CR-14
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 12 2019, 7:51 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David K. Payne Curtis T. Hill, Jr. Braje, Nelson & Janes, LLP Attorney General of Indiana Michigan City, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin D. Adney, July 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-14 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas J. Appellee-Plaintiff. Alevizos, Judge Trial Court Cause No. 46C01-1506-F1-521

Mathias, Judge.

[1] Justin Adney (“Adney”) was convicted in the LaPorte Circuit Court of Level 1

felony attempted rape, three counts of Level 3 felony rape, and Level 6 felony

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 1 of 10 strangulation. Adney received a 36-year sentence for attempted rape, three 14-

year sentences for rape, and a two-year sentence for strangulation, each to be

served concurrently with the Department of Correction. Adney now appeals,

arguing that:

I. The trial court committed fundamental error by not admonishing the jury to disregard testimony regarding lie detection technology; and,

II. The trial court erred in its sentencing order by considering the circumstances of an aggravating factor outside the record.

[2] We affirm.

Facts and Procedural History

[3] Adney had a sexual relationship with his victim, C.S., for approximately

sixteen months prior to May 5, 2015, the date of the events leading to the

convictions from which Adney now appeals. Tr. Vol. II, pp. 196, 199–200, 202–

03. On that day, C.S. arrived at Adney’s home and found him intoxicated. Tr.

Vol. II, p. 216. They discussed the possibility that C.S. might personally loan to

Adney $2,000. Tr. Vol. II, pp. 216–18.

[4] C.S. and Adney then engaged in consensual sexual activity. Tr. Vol. II, p. 222.

Adney became violent and C.S. withdrew her consent to the activity. Tr. Vol.

II, pp. 224–26. Subsequently, Adney used force to prevent C.S. from leaving his

home and raped her three separate times. Tr. Vol. II, pp. 226–37. C.S. struggled

to avoid Adney’s blows, and at one point, Adney wrapped his hands around

her neck and squeezed. Tr. Vol. II, pp. 239, 244–45. C.S. escaped Adney’s grip

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 2 of 10 and left the house under the guise of retrieving cash from her car to give as a

loan to Adney, as they had discussed earlier. Tr. Vol. II, pp. 246–48.

[5] Instead, C.S. got in her car and drove away, first calling a friend to describe

what had happened at Adney’s house and then calling 911. Tr. Vol. II, p. 249;

Tr. Vol. III, p. 3. A LaPorte County Sherriff’s Department officer responded to

C.S.’s home. Tr. Vol. III, p. 4. Shortly after the officer arrived, the officer

transported C.S. to the hospital where she was examined by medical staff. Tr.

Vol. III, pp. 5–8. C.S. was found to have bruises and marks on her face, throat,

tailbone, wrists, and arms. Tr. Vol. III, pp. 12–17, 98, 141–42, 144–48. Blood

vessels around her left eye were broken, and C.S. was found to have blood-

tinged discharge from her genitals. Tr. Vol. III, pp. 142–44, 152. In the month

following her rape, C.S. returned twice to the hospital for follow-up

examinations. Tr. Vol. III, p. 18. C.S. testified that she continued to suffer the

effects of the assault at the time of the August 2018 trial that led to Adney’s

convictions. Tr. Vol. III, pp. 19–20.

[6] On June 24, 2015, Adney was charged with one count of Level 1 felony

attempted rape, three counts of Level 3 felony rape, and one count of Level 6

felony strangulation. Appellant’s App. pp. 23–27. Adney was first tried in

October 2017; after examination of the jury, the trial judge granted Adney’s

motion for mistrial due to juror misconduct. Appellant’s App. pp. 67–72. A

second jury trial was held on August 13 through August 16, 2018. Appellant’s

App. pp. 138–46. The jury found Adney guilty, and the trial court convicted

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 3 of 10 Adney of all charged offenses. Appellant’s App. p. 145. Adney was sentenced

on December 5, 2018, to 36 years for attempted rape, 14 years for each of the

three counts of rape, and two years for strangulation, each to be served

concurrently. Appellant’s App. pp. 221–22. Adney filed a timely notice of

appeal on January 4, 2019. Appellant’s App. pp. 239–43.

Discussion and Decision [7] Adney’s arguments rely on the fundamental error exception to the general rule

that where a party fails to object to an alleged error at trial, the issue is waived

on appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). Errors and defects

in the proceedings that do not affect the substantial rights of parties are deemed

harmless. Camm v. State, 908 N.E.2d 215, 228 (Ind. 2009); Ind. Trial Rule 61. A

narrow exception is allowed for fundamental errors that so prejudice the rights

of a defendant that refusal by a court to correct the error would be inconsistent

with substantial justice. Benson, 762 N.E.2d at 755. Fundamental errors are

those that constitute blatant violations of basic principles of due process, cause

substantial harm or potential for harm, and result in the denial of due process

for the defendant. Ruggieri v. State, 804 N.E.2d 859, 863 (Ind. Ct. App. 2004). If

an error does not result in fundamental harm to a defendant’s rights, it is judged

to have no effect on the essential fairness of a trial, and thus a conviction may

stand despite the presence of harmless error. Durden v. State, 99 N.E.3d 645, 652

(Ind. 2018).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 4 of 10 I. Failure to Admonish the Jury

[8] Adney contends that fundamental error occurred when the State elicited

testimony regarding polygraph test technology. Appellant’s Br. p. 8. “In

general, a reference to a polygraph examination without an agreement by both

parties is inadmissible and grounds for error.” Glenn v. State, 796 N.E.2d 322,

325 (Ind. Ct. App. 2003), trans. denied. The concern is that evidence of lie

detection tests offered, refused, passed or failed will give rise to false inferences

about a defendant’s truthfulness. Shriner v. State, 829 N.E.2d 612, 619 (Ind. Ct.

App. 2005). This can occur if the jury infers a defendant took and failed or

refused to take a polygraph test when the State or a witness for the State

introduces the subject. Id. Conversely, when the defendant refers to a polygraph

test, the jury may infer he took and passed or was not offered a polygraph test.

Id. Thus, without an agreement between the parties, such evidence is

inadmissible because it can lead to erroneous inferences and have prejudicial

effect on either party. Id.

[9] If a reference to a polygraph examination is made, the prejudicial effect on

either party may be sufficiently mitigated by a judicial admonishment of the

jury. Sherwood v. State, 702 N.E.2d 694, 698 (Ind. 1998). Admonitions direct

jurors to disregard the testimony because the underlying polygraph examination

is inadmissible as evidence. Myers v. State, 887 N.E.2d 170, 191 (Ind. Ct. App.

2008), trans. denied. As we have previously explained, prejudicial impact on the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 5 of 10 defendant may be further mitigated if the trial judge “articulate[s] to the jury the

reasons that such evidence should not be considered.” Glenn, 796 N.E.2d at

325. A specific admonishment that refers to the inherent unreliability of lie

detection technology – though not a fail-safe – is an appropriate remedy. Id. at

326.

[10] Here, the State introduced the topic of lie detection technology during its direct

examination of Detective Jennifer Rhine-Walker. Tr. Vol. II, p. 148. The State

asked whether her department uses “lie detectors or voice stress analysis

machines.” Id. Rhine-Walker replied that the department does use the

technology. Id. The State’s follow-up questions and Rhine-Walker’s responses

then focused exclusively on why the department declines to use lie detection

technology on victims of criminal offenses. Id. at 148–49. Rhine-Walker

explained that policing best practices, federal policy, and the availability of

other investigative techniques all contribute to why victims are not asked to

submit to lie detection technology. Id.

[11] During cross examination, Adney’s counsel continued the line of inquiry about

general uses for lie detection technology:

Q: Okay. And does your department use [voice stress analysis]?

A: We use it mainly for employment, preemployment purposes. Occasionally in a criminal case.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 6 of 10 Q: All right.

A: But not as a matter of routine.

Q: Your department does use it then, right?

A: Yes. We have it available to us.

Q: All right. And does your department use polygraphs?

A: No, not typically.

Q: So do you know of anyone, say within the last year, that has been offered a polygraph or a voice stress analysis that has been a suspect?

A: I don’t know of any.

Tr. Vol. II, pp. 165–66.

[12] At no point did the State, Adney or Rhine-Walker refer to any particular

instance of a polygraph test being offered to or taken by C.S. or Adney. The

references to polygraph and voice stress analysis tests were about the relative

appropriateness of their use for different purposes. Tr. Vol. II, pp. 148–49, 165–

66. And from the totality of Rhine-Walker’s testimony, the jury learned that the

LaPorte County Sheriff’s Department considers lie detection tests inappropriate

in criminal investigations. Her testimony accomplished the same result as a jury

admonishment would have: the jury learned that the technology is inherently

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 7 of 10 unreliable, rarely used and thus not a regular part of criminal investigations.

The danger of the jury drawing false inferences about Adney’s truthfulness was

sufficiently mitigated by the detective’s testimony and so the references to lie

detection technology was harmless error.

II. Sentencing Determination

[13] Adney also contends that the trial court erred during his sentencing hearing.1 In

accordance with section 35-38-1-8(a) of the Indiana Code, Adney was

sentenced after a written presentence investigative report was prepared by a

probation officer and considered by the sentencing court. Appellant’s Conf.

App. pp. 181–90. Presentence investigative reports are prepared to “ensure the

court has before it all relevant information about the defendant’s background”

before sentencing. Hulfachor v. State, 813 N.E.2d 1204, 1207 (Ind. Ct. App.

2004). Should the report include any allegedly unreliable information upon

which the trial court relies, the defendant must object to the inclusion of that

information. Id. Failure to object results in waiver of the issue for appeal, the

exception being where inclusion of the information constitutes fundamental

error. Phelps v. State, 914 N.E. 2d 283, 290 (Ind. Ct. App. 2009).

1 Though Adney’s brief did not argue this error constituted fundamental error, we will nevertheless consider the issue as though it had been properly raised as an exception to Indiana Trial Rule 61, the harmless error rule.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 8 of 10 [14] Presentence investigative reports include individualized accounts of any

aggravating or mitigating factors in the defendant’s history that must be

considered by the sentencing court. Yates v. State, 429 N.E.2d 992, 994.

“Criminal activity that occurs subsequent to the offense for which one is being

sentenced is a proper sentencing consideration.” Williams v. State, 782 N.E.2d

1039, 1051 (Ind. Ct. App. 2003), trans. denied. In Adney’s case, aggravating

factors included his “significant criminal history,” violation of the terms of his

bond, and two arrests subsequent to the sentencing hearing. Appellant’s App.

pp. 221–22. The court found no mitigating factors. Id. at 222.

[15] Accordingly, the trial court used the aggravating factors to enhance Adney’s

sentences individually. Tr. Vol. IV, p. 28. For Level 1 felony attempted rape,

Adney received a 36-year sentence, above the statutory advisory of 30 years but

below the maximum of 40 years. Id. For each count of Level 3 Rape, Adney

received a 14-year sentence, above the statutory advisory of nine years but

below the maximum of 16 years. Id. Finally, for Level 6 Felony Strangulation,

Adney received a two-year sentence, above the statutory advisory of one year

but below the maximum of two-and-a-half years. Id. The court ordered the

sentences served concurrently. Id.

[16] We will remand for resentencing where we cannot say with confidence that the

trial court would have imposed the same sentence in the absence of the error.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 9 of 10 Pruitt v. State, 78 N.E.3d 14, 22 (Ind Ct. App. 2017), trans. denied. Adney asks us

to determine that the trial court fundamentally erred when it characterized one

of the aggravating factors – a subsequent arrest and criminal charge – in the

presentence investigative report as “rather violent.” Tr. Vol. IV, p. 28. The trial

court also referred to “very interesting photographs” accompanying the charge

of domestic battery. Id. Had the trial court not referred to the subsequent arrest

as violent, which it presumably gathered from the photographs, the fact that

Adney had twice been arrested since the sentencing hearing would still remain

as an aggravating factor. Accordingly, the error by the trial court was harmless

and did not affect Adney’s substantial rights.

Conclusion [17] While the trial court did not admonish the jury to disregard testimony about lie

detection technology, that failure was at worst harmless error, as was the trial

court’s reference to circumstances of an aggravating factor outside the record

during sentencing. Accordingly, we affirm.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-14 | July 12, 2019 Page 10 of 10