MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 15 2017, 5:58 am
court except for the purpose of establishing                         CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward Smith,                                            March 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1609-CR-1974
        v.                                               Appeal from the Lake Superior
                                                         Corut
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1308-FC-89



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017    Page 1 of 7
                                          Case Summary
[1]   Edward Smith appeals his convictions for child molesting and criminal

      confinement, arguing that the trial court should have declared a mistrial after

      the prosecutor, during her closing argument, commented on Smith’s failure to

      speak with police after the incident in question. Finding no error, we affirm.



                            Facts and Procedural History
[2]   The evidence supporting Smith’s convictions can be summarized as follows.

      On June 26, 2013, eleven-year-old K.C. was waiting for a friend in the hallway

      of an apartment building in East Chicago when Smith approached her and

      asked her name and age (Smith lived in the building, K.C. did not). K.C. did

      not answer, and Smith grabbed her by the wrist and pulled her into his

      apartment. Inside, he pulled down K.C.’s pants and underwear, kissed K.C.’s

      neck, and placed his penis on her buttocks. Around that time, Smith’s wife

      returned from a trip to a store and saw Smith with K.C. Smith’s wife

      confronted him, and the two began to fight. When the fight spilled out of the

      apartment, a neighbor, Alice Simpson, pulled Smith off of his wife. Smith’s

      wife told Simpson that she had just caught Smith standing over a “baby” with

      her pants pulled down. Court’s 6/30/16 Ex. 1. As a crowd started to gather,

      Smith “took off.” Id. Simpson went with Smith’s wife back to Smith’s

      apartment and saw K.C., who looked “scared.” Id. K.C. went home and told

      her mother what had happened. A police officer responded to a report of a



      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017   Page 2 of 7
      domestic disturbance and spoke with Smith’s wife and then with K.C. and her

      mother.

[3]   The State charged Smith with child molesting and criminal confinement. At

      trial, the jury heard testimony from K.C., her mother, and two investigating

      officers, and it listened to a recording of an evidentiary deposition of Simpson.

      Smith’s wife did not testify against him, but Simpson and one of the officers

      testified about the incriminating statements Smith’s wife had made during and

      immediately after the quarrel. During the prosecutor’s closing argument, she

      discussed Simpson’s testimony that Smith left the scene:

              You also heard Alice Simpson testify that when she looked up,
              he was gone. Ladies and gentlemen, I would argue that you can
              absolutely consider the fact that that was his consciousness of
              guilt. If he didn’t feel like he did anything wrong, if everybody is
              lying, why did he run away? Why did he run away? Why
              wouldn’t he talk to the police?


      Trial Tr. p. 193. At that point, Smith’s attorney objected, and the following

      sidebar ensued:

              Defense:         I’m moving for a mistrial at this point. The State
                               has shifted the burden, commenting on his right not
                               to make a statement. She said why wouldn’t he stay
                               there and explain what happened.


              Prosecutor: Your Honor, may I respond?


              Court:           You may respond.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017   Page 3 of 7
        Prosecutor: I move to strike the last comment and leave it at the
                    fact that he ran away because there was testimony
                    that -- that Alice Simpson saw him leave.


        Court:           Correct. It’s commentary about what the witness
                         saw the defendant do, leaving after she approached
                         the defendant, not necessarily a commentary on his
                         right not to testify. I do not believe that the
                         comment made by the Prosecutor in this instance
                         rises to a level of mistrial. All right. This -- and
                         your request is denied.


        Defense:         It’s still not proper. I don’t believe it’s proper what
                         she said, commenting on his right not to stay there
                         and explain himself. How can she comment to his
                         right to remain silent? To preclude him from doing
                         that.


        Court:           Again, she didn’t make a comment about his right
                         to remain silent or be a witness.


        Defense:         If he did stay there and explain what happened.
                         That’s what she just said. That’s commenting on
                         his right not to say anything.


        Court:           Well, I -- I disagree. The Prosecutor said why
                         didn’t he talk to the police.


        Defense:         They can’t comment on his right to remain silent.


        Prosecutor: But he wouldn’t have been under arrest at that
                    point.



Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017   Page 4 of 7
              Court:           No, he wasn’t. I disagree. Request to have this case
                               declared a mistrial is denied. Okay.


[4]   Id. at 194-95. The prosecutor then finished her argument with no further

      reference to Smith’s silence. The jury found Smith guilty as charged, and the

      trial court sentenced him to ten years in prison.

[5]   Smith now appeals.



                                Discussion and Decision
[6]   Smith contends that the prosecutor engaged in misconduct when she asked why

      Smith would not talk to police after the incident and that the trial court

      therefore should have granted his motion for a mistrial. A defendant claiming

      prosecutorial misconduct must show (1) that misconduct occurred and (2) that

      the misconduct, under all of the circumstances, placed him in a position of

      grave peril to which he would not have been subjected otherwise. Ryan v. State,

      9 N.E.3d 663, 667 (Ind. 2014). “The gravity of peril is measured by the

      probable persuasive effect of the misconduct on the jury’s decision rather than

      the degree of impropriety of the conduct.” Id.


[7]   Smith maintains that he properly preserved his misconduct claim by objecting

      and requesting a mistrial and that we should therefore review the trial court’s

      ruling on his motion as we typically review such rulings: for an abuse of

      discretion. See Knapp v. State, 9 N.E.3d 1274, 1283 (Ind. 2014) (“[G]ranting or

      denying a mistrial is reviewed only for abuse of discretion.”). The State, on the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017   Page 5 of 7
      other hand, asserts that Smith failed to preserve his claim because he did not

      ask the trial court to admonish the jury before he moved for a mistrial and that

      he is therefore required to show that the trial court committed fundamental

      error by not ordering a mistrial.

[8]   We need not decide who is right about the standard of review, because even

      under the more forgiving abuse-of-discretion standard, Smith cannot prevail.

      Both the United States Supreme Court and this Court have held that a

      defendant claiming a Fifth Amendment violation with regard to pre-arrest, pre-

      Miranda silence generally must have expressly invoked the privilege against self-

      incrimination at the time of the silence. Salinas v. Texas, 133 S. Ct. 2174, 2179-

      80 (2013); Owens v. State, 937 N.E.2d 880, 891 (Ind. Ct. App. 2010), reh’g denied,

      trans. denied. Here, Smith does not claim that he invoked the privilege against

      self-incrimination, he does not meaningfully distinguish this case from Owens,

      and he does not even mention Salinas. Therefore, he has not established that

      the prosecutor committed misconduct when she referred to his pre-arrest

      silence.1




      1
       In his opening brief, Smith cited Doyle v. Ohio, 426 U.S. 610, 619 (1976), where the United States Supreme
      Court held that the State’s use of a defendant’s post-arrest, post-Miranda silence to impeach the defendant
      violates the Due Process Clause of the Fourteenth Amendment, and Wisehart v. State, 693 N.E.2d 23, 64 (Ind.
      1998), where the Indiana Supreme Court cited Doyle for the proposition that the State cannot comment on a
      defendant’s post-arrest, post-Miranda silence for any purpose during trial. In his reply brief, however, Smith
      conceded that the comment at issue here concerned pre-arrest, pre-Miranda silence. See Appellant’s Reply
      Br. p. 6.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017             Page 6 of 7
[9]    Even if the prosecutor had engaged in misconduct, Smith has not convinced us

       that her comment placed him in a position of grave peril to which he would not

       have been subjected otherwise, i.e., that the comment probably affected the

       jury’s verdict. See Ryan, 9 N.E.3d at 667. First, the comment was isolated;

       Smith does not claim that there were any other references to his silence.

       Second, the jury was specifically instructed both at the beginning and at the end

       of trial that the arguments of counsel are not evidence. Appellant’s App. Vol. II

       pp. 96, 118. Third, and most importantly, the evidence against Smith was

       substantial. K.C.’s own testimony about what happened was corroborated by

       Simpson’s testimony that Smith’s wife told her about finding Smith standing

       over a “baby” who had her pants pulled down, as well as Simpson’s own

       observation of a “scared” K.C. in Smith’s apartment. In addition, Smith’s

       flight from the scene is evidence of consciousness of guilt. See Myers v. State, 27

       N.E.3d 1069, 1077 (Ind. 2015), reh’g denied. Given the strength of the State’s

       case, we find it highly unlikely that the jury would have reached a different

       verdict but for the prosecutor’s comment.

[10]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-1974 | March 15, 2017   Page 7 of 7
