Justin D. Adney v. State of Indiana (mem. dec.) ( 2019 )

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
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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
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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
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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).
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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
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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.
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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
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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.
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[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.
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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.
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