MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               May 29 2020, 10:34 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Holly L. Lyons                                          Josiah Swinney
Brand & Morelock                                        Deputy Attorney General
Greenfield, Indiana                                     Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon L. Shockley,                                    May 29, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-161
        v.                                              Appeal from the Hancock Superior
                                                        Court
State of Indiana,                                       The Honorable Dan E. Marshall,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        30D02-1809-F6-2077



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020                       Page 1 of 16
                                       Statement of the Case
[1]   Brandon Shockley (“Shockley”) appeals, following a jury trial, his convictions

      for Level 6 felony auto theft1 and Level 6 felony resisting law enforcement.2

      Shockley argues that the trial court: (1) erred by admonishing the jury rather

      than declaring a mistrial when Shockley objected to one of the State’s

      witnesses’ testimony regarding Rule 404(b) evidence; and (2) violated his right

      against self-incrimination when it required him to show his tattoos during trial.

      Concluding that Shockley has waived both arguments by: (1) failing to object

      to the admonishment and request a mistrial; and (2) raising a different

      argument on appeal than made to the trial court below, we affirm his

      convictions.


[2]   We affirm.


                                                    Issues
                1. Whether Shockley has waived his argument that the trial court
                   erred by admonishing the jury regarding Trial Rule 404(b)
                   evidence rather than declaring a mistrial when he failed to object
                   to the admonishment and failed to request a mistrial.

                2. Whether Shockley has waived his argument that the trial court
                   violated his right against self-incrimination.




      1
          IND. CODE § 35-43-4-2.
      2
          I.C. § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 2 of 16
                                                    Facts
[3]   On September 5, 2018, Kevin Kiel (“Kiel”), who normally left his Chevy

      Avalanche parked about 300 feet from his Columbus, Indiana home, noticed

      that his vehicle was missing. He called the police and reported that his

      Avalanche had been stolen.


[4]   The following day, around 5:30 p.m., Hancock County Sheriff’s Department

      Deputy Dillen Sexton (“Deputy Sexton”) was on a routine traffic patrol near

      U.S. 40 in Hancock County. When Deputy Sexton was at the intersection of

      200 South and 700 West, he noticed that the driver of an Avalanche kept

      looking back at the deputy in his driver’s side mirror. Finding the driver’s

      behavior suspicious, Deputy Sexton followed the Avalanche as it pulled into

      and out of a driveway. As the Avalanche backed out of the driveway, Deputy

      Sexton noted the license plate number. The deputy, who saw that a white male

      was driving the Avalanche, ran the plate number. Because the Avalanche had

      left Deputy Sexton behind, Deputy Sexton drove on a county road in order to

      catch up to the Avalanche; when he did, Deputy Sexton was driving in the

      opposite direction as the Avalanche. As the deputy crossed paths with the

      Avalanche, he saw two white males in the car, but he “focused on” the driver

      because he had been the person who had previously tried to “avoid” the deputy.

      (Tr. Vol. 2 at 133). Deputy Sexton could see that the driver, who was later

      identified as Shockley, had a “scrawny build” and a thin-looking beard and a

      mustache. (Tr. Vol. 2 at 133). Specifically, the deputy noted that the driver’s

      facial hair “look[ed] like someone who struggle[d] a little bit to grow a beard.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 3 of 16
      (Tr. Vol. 2 at 133). Deputy Sexton turned his vehicle around and got behind

      the Avalanche, which sped away at “a high rate of speed.” (Tr. Vol. 2 at 134).

      At that time, Deputy Sexton received information that the Avalanche had been

      stolen. He then “activated his emergency lights and sirens” and “engaged in a

      pursuit.” (Tr. Vol. 2 at 134).


[5]   Shockley drove the Avalanche onto Brookville Road and drove through stop

      signs and stop lights as he headed towards Marion County. Traffic was

      “substantially heavy[,]” and Shockley swerved in and out of traffic and crossed

      into oncoming traffic to get around other cars. (Tr. Vol. 2 at 138). Shockley’s

      speed reach over 100 miles per hour. As Shockley drove near the intersection

      of Brookville Road and German Church Road, Deputy Sexton noticed the

      passenger in the Avalanche throw a plastic bag out the window. Another

      deputy later picked up the bag from the side of the road and found unused

      syringes.


[6]   As the high-speed chase continued onto Shadeland Avenue, the State Police

      joined the pursuit. Shockley eventually drove the Avalanche onto an exit ramp

      and “spun out[.]” (Tr. Vol. 2 at 144). As Deputy Sexton turned his vehicle

      around to get to the Avalanche, a State Trooper struck Deputy Sexton’s vehicle.

      The deputy’s vehicle and the trooper’s commission were damaged, and the

      officers were unable to continue their pursuit of the Avalanche.


[7]   Later that evening, the Avalanche was recovered near Shadeland Avenue and

      13th Street in Indianapolis. When an officer processed the car, he found various


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 4 of 16
      items, including a cell phone that did not belong to Kiel. Deputy Sexton

      obtained a search warrant to search the cell phone. During the search, the

      deputy found a Facebook profile belonging to Shockley, and the photograph on

      the profile was the same person that Deputy Sexton had seen driving the

      Avalanche. Deputy Sexton then ran Shockley’s name through the BMV and

      obtained a photograph, which confirmed that Shockley was the person whom

      the deputy had seen driving the stolen vehicle.


[8]   The State charged Shockley with Level 6 felony auto theft, Level 6 felony

      resisting law enforcement, and Level 6 felony possession of a syringe. Shortly

      thereafter, Shockley was also charged in Hendricks County for crimes that were

      alleged to have been committed on September 4, 2018 (“Hendricks County

      case”).3 These charges included, among others, Level 6 felony auto theft, Level

      2 felony burglary with a deadly weapon, and Level 6 felony attempted

      residential entry.


[9]   Prior to trial, the parties filed multiple motions, the majority of which related to

      potential evidence to establish Shockley’s identity in this case. The State filed a

      notice of 404(b) evidence, stating that it sought to introduce evidence that

      Shockley had recently been charged in other counties with auto theft.4 The




      3
          These charges were filed under cause number 32D02-1810-F2-22.
      4
        Shockley was also charged in Morgan County, under two different cause numbers, for Level 6 felony auto
      theft and Level 6 felony resisting law enforcement, which were alleged to have occurred on September 12,
      2018. Evidence from these causes were not discussed in this case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020                    Page 5 of 16
       State asserted that this evidence could assist the jury because identity would be

       an issue at trial. Specifically, the State sought to introduce evidence from

       Shockley’s Hendricks County case, which was alleged to have occurred the day

       before Shockley had stolen Kiel’s vehicle. In the Hendricks County case, Debra

       Koeberlein (“Koeberlein”) and Paul Martinez (“Martinez”) were two of the

       alleged victims. Both Koeberlein and Martinez saw Shockley—who was

       covered in tattoos—during the commission of his alleged Hendricks County

       crimes. Koeberlein saw Shockley in person, and Martinez saw him on his

       home’s surveillance video. The State sought to present testimony from

       Koeberlein and Martinez as additional identification evidence that Shockley

       was the perpetrator in this Hancock County case. More specifically, the State

       sought to provide evidence that would place Shockley near the scene where

       Kiel’s vehicle was stolen.5


[10]   The State also filed a motion for an examination of Shockley during the trial.

       In this examination motion, the State asserted that “during the investigation in

       this cause[,]” it had obtained “photographs depict[ing] a male suspect believed

       to be [Shockley] with distinct tattoos on [his] back[,]” and it sought to prove

       identification with admission of this evidence. (App. Vol. 2 at 38). The State

       further stated that because it expected Shockley to question the identification of

       the suspect, it sought an order to have Shockley “bare his back during the trial



       5
         Allegedly, on September 4, 2018, the day before Shockley stole Kiel’s vehicle, Shockley went into
       Koeberlein’s garage, waived a gun at Koeberlein, and eventually stole her husband’s Tacoma truck. This
       truck was then found in a field across the way from Kiel’s driveway.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020                    Page 6 of 16
       for the jurors to view.” (App. Vol. 2 at 39). The State cited Indiana Trial Rule

       356 and Flynn v. State, 412 N.E.2d 284 (Ind. Ct. App. 1980) to support its

       request for an examination. Although not specifically described in the State’s

       motion, the photographs depicting a shirtless and tattooed Shockley were part

       of the evidence obtained in Shockley’s pending Hendricks County case.


[11]   Shockley filed an objection to the State’s motion for a physical examination,

       arguing that the evidence was prejudicial and not relevant because it came from

       an investigation in a different cause. He also filed a motion to suppress the

       evidence found in Kiel’s Avalanche and any evidence obtained from the

       Hendricks County case, including any evidence that displayed a tattoo.

       Shockley also sought to suppress some of the State’s witnesses, including

       Koeberlein and Martinez, because they did not have any knowledge of the facts

       regarding the charges against him in this case. Shockley also filed a motion in

       limine, seeking to exclude any evidence that he had prior convictions or

       pending charges.




       6
           Trial Rule 35(A) provides:

                Order for Examination. When the mental or physical condition (including the blood group) of
                a party, or of a person in the custody or under the legal control of a party, is in controversy, the
                court in which the action is pending may order the party to submit to a physical or mental
                examination by a suitably licensed or certified examiner or to produce for examination the
                person in his custody or legal control. The order may be made only on motion for good cause
                shown and upon notice to the person to be examined and to all parties and shall specify the
                time, place, manner, conditions, and scope of the examination and the person or persons by
                whom it is to be made.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020                              Page 7 of 16
[12]   The trial court held a two-day jury trial in December 2018. Before commencing

       the trial, the trial court resolved some pending discovery issues, and the parties

       argued their motions to the trial court. The trial court noted that the pending

       motions, especially the State’s 404(b) motion and examination motion and

       Shockley’s motion to suppress the Hendricks County evidence and witnesses,

       were related. As for its 404(b) motion, the State argued that any potential

       evidence regarding Shockley’s actions in Hendricks County were being offered

       to prove the essential element of identification and that the evidence was

       intrinsic to the facts of the underlying charges in this case. The State indicated

       that it was going to restrict Koeberlein’s and Martinez’s testimony to identity

       only and that they would not specifically testify regarding the pending charges

       against Shockley in the Hendricks County case. For example, the State

       indicated that Koeberlein would not testify that Shockley had pointed a gun at

       her when he was in her garage and that Martinez would not testify that

       Shockley had tried to break into his house. The State also indicated that it

       would offer photographs taken from Martinez’s surveillance video and would

       redact the photos in which Shockley could be seen holding a gun. Shockley

       argued that the State’s proposed identification evidence was suggestive and

       could unfairly prejudice him or confuse the jury. The trial court ultimately

       granted the State’s 404(b) and examination motions and denied Shockley’s

       motion to suppress. When doing so, the trial court instructed and cautioned the

       State as follows:


               I want the State to be aware that . . . they must submit to me an
               instruction uh – for Final Instructions, this is for identity
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 8 of 16
               purposes only. And . . . I’m instructing the State to be very
               circumspect about the evidence that’s submitted, such that you
               don’t teeter over the line to where it is so prejudicial it exceeds its
               probative value, because uh – if we go too far down that road a
               uh – defense motion regarding how far we’re going down that
               road may be well taken . . . I don’t want to go into an area where
               we are trying this gentleman on misconduct based upon the
               allegations of what may have occurred in another county. I want
               it to be based on identity issues.

       (Tr. Vol. 2 at 77-78).


[13]   During the trial, the State presented testimony and evidence to establish the

       identity of Shockley as the perpetrator. Deputy Sexton testified to the facts

       above and identified Shockley as the person who had been driving the stolen

       Avalanche. The deputy also testified that when he saw Shockley’s Facebook

       profile photo on his cell phone, he was 100% positive that it was the same

       person who had been driving the stolen car. Additionally, the deputy testified

       that Shockley’s BMV photo confirmed that he had been the driver of the stolen

       Avalanche.


[14]   The State also presented identification testimony from Koeberlein and

       Martinez. Koeberlein identified Shockley as the man that she had seen in her

       garage on September 4, 2018. She testified that when she saw him on that day,

       he was wearing basketball shorts, was not wearing a shirt, and was covered in

       tattoos to the extent that it almost looked like a shirt. Additionally, Koeberlein

       testified that after she had seen Shockley in her garage, she felt scared, went

       into her house, and called the police. She then heard her husband’s Tacoma


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020    Page 9 of 16
       truck starting and a loud banging noise and then saw the garage door come off

       the hinges and the truck flying down her driveway. A sheriff deputy testified

       that the Tacoma truck was found a few days later in Bartholomew County in a

       field that was across the road from Kiel’s driveway where his Avalanche had

       been stolen.


[15]   Martinez testified that he had a home surveillance system that recorded videos

       of the outside of his house. He testified that his September 4, 2018 video

       showed that a shirtless man, who was wearing shorts and “had a lot of tattoos

       on his back[,]” was looking in Martinez’s house window. (Tr. Vol. 2 at 185).

       The State introduced four photographs of a shirtless Shockley as he stood

       outside Martinez’s house. (State’s Exs. 2, 18, 20, 21). These photographs

       revealed that Shockley’s torso and arms were covered in tattoos. State’s Exhibit

       18 shows Shockley standing on the porch while holding the handle of

       Martinez’s front door, while Exhibits 2 and 20 show Shockley standing on the

       porch and peering into Martinez’s house window. One of the window-peering

       photos, State’s Exhibit 20, reveals Shockley’s large back tattoos, which include

       some sort of large drawing covering the middle of his back and the word

       “PRIDE” in a very large font underneath the drawing tattoo.7 The fourth

       photo, Exhibit 21, is a close-up photo these two back tattoos.




       7
        The presentence investigation report indicates that Shockley had the words “white pride” tattooed on his
       back. The word “white” is not visible in the photographic exhibits admitted at trial.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020                     Page 10 of 16
[16]   Before introducing Exhibit 2 into evidence, the State asked Martinez to describe

       the photograph, and he responded that “it’s a man who was trying to break in

       the house.” (Tr. Vol. 2 at 186). The prosecutor responded, “Hold on – hold

       on, Sir.” (Tr. Vol. 2 at 186). Shockley objected, stating that this was “exactly

       what we said this purpose – There’s one identity that their [sic] trying to show”

       and that “[t]his isn’t what we talked about.” (Tr. Vol. 2 at 186). The trial court

       stated that Martinez’s response was “unresponsive” and beyond the scope of

       question, and it informed the parties that it would “instruct the Jury to

       disregard” the response. (Tr. Vol. 2 at 187). The trial court then admonished

       the jury as follows: “Ladies and gentlemen of the jury if you’ll disregard the

       last answer given by uh – the witness. You’re not to consider that in

       deliberations of this case.” (Tr. Vol. 2 at 187). Shockley neither objected to the

       trial court’s offered admonishment nor sought a mistrial. Nor did Shockley

       object to State’s Exhibits 2, 18, 20, or 21 when the State moved to admit them

       into evidence.


[17]   Thereafter, the State requested to have Shockley “display” his “body art.” (Tr.

       Vol. 2 at 202). Shockley objected, arguing that the Hendricks County case

       “ha[d] nothing to do with” or was not relevant to the current Hancock County

       case and that “[w]hoever this person is, the suspects in this case, there’s been no

       evidence that they have a tattoo.” (Tr. Vol. 2 at 202). The trial court overruled

       Shockley’s objection. The trial court instructed Shockley to remove his shirt so

       the jury could “see [his] front and back” and then told him to put his shirt back

       on. (Tr. Vol. 2 at 202).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 11 of 16
[18]   The State proposed a jury instruction regarding the 404(b) evidence that had

       been introduced. Shockley objected to the instruction, arguing that there had

       been “no wrongful conduct” where a witness had testified that the person in the

       photographs was at the door and looking in the window but had not taken

       anything. (Tr. Vol. 3 at 28). The State responded that it was “kind of at a loss”

       that Shockley was objecting to the 404(b)-limiting instruction. (Tr. Vol. 3 at

       29). The prosecutor agreed that looking in the window was not the bad act but

       noted that Koeberlein had testified and had identified him as the person she saw

       immediately before her husband’s truck was taken. The prosecutor stated that

       the proposed instruction was “a protection” for Shockley and that it would

       inform the jury that it was to consider the evidence only for the purpose of

       identifying Shockley. (Tr. Vol. 3 at 29). The trial court agreed with the State

       that the instruction was necessary for Shockley’s protection and to inform the

       jury that any evidence of wrongful conduct from the other incidents were to be

       considered only for identification purposes. In its final jury instructions, the

       trial court instructed the jury regarding the 404(b) evidence as follows:

       “Evidence has been introduced that the Defendant was involved in wrongful

       conduct other than those charged in the information. This evidence has been

       received solely on the issue of the Defendant’s identity. This evidence should

       be considered by you only for that limited purpose.” (Tr. Vol. 3 at 61).


[19]   The jury found Shockley guilty of Level 6 felony auto theft and Level 6 felony

       resisting law enforcement and not guilty of Level 6 felony unlawful possession

       of a syringe. The trial court imposed a two and one-half (2½) year sentence for


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 12 of 16
       Shockley’s auto theft conviction and a concurrent two and one-half (2½) year

       sentence for his resisting law enforcement conviction. Shockley now appeals.


                                                  Decision
[20]   Shockley argues that the trial court: (1) erred by admonishing the jury rather

       than declaring a mistrial when Shockley objected to Martinez’s testimony

       regarding Rule 404(b) evidence; and (2) violated his right against self-

       incrimination when it required him to show his tattoos during trial. We will

       review each argument in turn.


       1. Mistrial


[21]   We first address Shockley’s mistrial argument regarding Rule 404(b) evidence.

       “On appeal, a trial judge’s discretion in determining whether to grant a mistrial

       is afforded great deference, because the trial judge ‘is in the best position to

       gauge the surrounding circumstances of an event and its impact on the

       jury.’” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001) (internal quotation

       marks and citation omitted). A mistrial is “an extreme remedy that is justified

       only when other remedial measures are insufficient to rectify the situation.” Id.


[22]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.” Ind.

       Evid. Rule 404(b)(1). However, such evidence may be admitted to prove

       “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.” Evid. R. 404(b)(2) (emphasis added).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 13 of 16
[23]   Here, where this case turned on the identification of Shockley, the trial court

       allowed the State to present Rule 404(b) evidence to help establish Shockley’s

       identity. Shockley does not challenge the trial court’s ruling that the State could

       present this identity evidence. Instead, Shockley argues that the trial court

       erred when it admonished the jury rather than declaring a mistrial after he had

       objected to Martinez’s testimony.


[24]   Shockley, however, has waived appellate review of his argument. See Brown v.

       State, 572 N.E.2d 496, 498 (Ind. 1991) (providing that when an improper

       argument is alleged to have occurred, the proper procedure is to request an

       admonishment and, if the alleged error is not corrected, a mistrial). After

       Shockley objected to Martinez’s testimony, the trial court informed the parties

       that it would admonish the jury to disregard that testimony and then so

       admonished the jury. Shockley neither objected to the trial court’s

       admonishment nor requested the trial court to declare a mistrial. By failing to

       do so, he has also failed to preserve his argument on appeal. Accordingly,

       Shockley has waived his argument that the trial court erred when it did not

       enter a mistrial that had not been sought.


[25]   We recognize that an issue that has been waived by a defendant’s failure at trial

       to properly preserve the error can be reviewed on appeal if the defendant shows

       that fundamental error occurred. See Hoglund v. State, 962 N.E.2d 1230, 1239

       (Ind. 2012) (“Failure to object at trial waives the issue for review unless

       fundamental error occurred.”), reh’g denied. Here, however, Shockley does not

       raise a fundamental error argument. Indeed, he does not even acknowledge

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 14 of 16
       that he failed to request a mistrial, thereby leading to an argument of

       fundamental error. We decline to address an argument not raised, and we will

       not make such arguments for Shockley. See Barrett v. State, 837 N.E.2d 1022,

       1030 (Ind. Ct. App. 2005) (“We will not become a party’s advocate, nor will we

       address arguments that are inappropriate, improperly expressed, or too poorly

       developed to be understood.)


       2. Tattoos


[26]   Lastly, we turn to Shockley’s argument that the trial court violated his Fifth

       Amendment right against self-incrimination when it required him to show his

       tattoos during trial. As with the prior issue, we conclude that Shockley has

       waived appellate review of this issue.


[27]   “A party may not object to the admission of evidence on one ground at trial

       and seek reversal on appeal based on a different ground.” Casady v. State, 934

       N.E.2d 1181, 1191 (Ind. Ct. App. 2010) (citing Malone v. State, 700 N.E.2d 780,

       784 (Ind. 1998)), reh’g denied, trans. denied. Here, Shockley’s objection to the

       State’s request to have him show his tattoos was based on relevancy, not self-

       incrimination as he now attempts to argue on appeal. Because Shockley

       objected based on different grounds than he now raises on appeal, he has

       waived review of his appellate argument. See, e.g., Hunter v. State, 72 N.E.3d

       928, 932 (Ind. Ct. App. 2017) (holding that grounds for objection not raised at

       trial are unavailable on appeal), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 15 of 16
[28]   Waiver notwithstanding, “the proscription against compulsory self-

       incrimination extends only to testimonial or communicative responses not to

       purely physical tests which make the accused the true source of demonstrative

       evidence.” Flynn v. State, 412 N.E.2d 284, 288 n.4 (Ind. Ct. App. 1980). We

       have held that there was no violation of a defendant’s privilege against self-

       incrimination where the defendant was required to display his tattooed arm for

       the purpose of substantiating the defendant’s identification. See id. at 288. See

       also Springer v. State, 372 N.E.2d 466, 472 (Ind. Ct. App. 1978) (holding there

       was no self-incrimination violation where the defendant was required to stand

       and display his hands to the jury after two witnesses had testified that the

       robbery suspect was missing a finger). Given the specific facts of this case and

       the arguments before us on appeal, we cannot conclude that the trial court

       erred.


[29]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-161| May 29, 2020   Page 16 of 16
