MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Sep 25 2017, 10:23 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Gholston,                                        September 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1605-CR-1031
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G02-1411-MR-52305



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017         Page 1 of 30
                                                                          1
[1]   William Gholston appeals his conviction for murder. He raises two issues

      which we revise and restate as:


            I.       Whether the trial court abused its discretion in admitting the
                     videotape of his interview with the police; and

            II.      Whether the evidence is sufficient to sustain his conviction.



      We affirm.


                                          Facts and Procedural History

[2]   In 2013, Gholston met Nicole Cruz in a west-side Indianapolis neighborhood

      and told her that he lived in the neighborhood on North Traub Avenue. At the

      time, he lived nearby at 1133 North Elder Avenue. Gholston and Cruz entered

      into a relationship, and he moved in with her. After their relationship ended in

      July 2014, Cruz moved to Bluffton, Indiana.


[3]   In the summer of 2014, Gholston met Victor Robinson who lived in the west-

      side neighborhood at 1025 North Traub Avenue. Gholston did not move in

      with Robinson, but he used his address. During that time, Gholston also lived

      at 1057 North Traub Avenue.


[4]   On August 29, 2014, Gholston withdrew money using his debit card from an

      ATM at the Phillips 66 gas station located in the west-side neighborhood at the




      1
          Ind. Code § 35-42-1-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 2 of 30
      corner of 16th Street and North Tremont Street. The next day, he made a

      purchase using his debit card at a liquor store located nearby at 16th Street and

      Medford Avenue.


[5]   On the weekend of August 29-31, 2014, fifteen-year-old Dominique Allen was

      staying at her older sister Mareeka’s house located in the same west-side

      neighborhood near 14th Street and Mount Street. On Saturday evening, August

      30, 2014, Dominique and a girlfriend went to the downtown mall, met up with

      another girlfriend, and eventually returned to the neighborhood where Mareeka

      lived at around 11:00 pm. Throughout the rest of the evening and early hours

      of Sunday morning, the girls met with various friends and walked around the

      near west side. At some point, Dominique and one of her girlfriends became

      upset with each other because Dominique would not help her friend look for

      the friend’s lost cell phone.


[6]   The three girls eventually returned to Mareeka’s house around 4:00 a.m. on

      Sunday morning, and Dominique’s two girlfriends went to bed. Dominique

      placed her cell phone on a charger and then went outside and sat in front of the

      house.


[7]   Also on Saturday night, Shannon Baxter was staying at his girlfriend’s house

      that was located across the street from Mareeka’s house. He had seen

      Dominique and other teenagers sitting on Mareeka’s front porch earlier in the

      evening. Around 4:00 a.m. on Sunday morning, there was a shooting at the

      Phillips 66 gas station near Mareeka’s house. When Baxter and his girlfriend


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 3 of 30
       heard police sirens coming from the station, they walked toward the gas station

       to see what was happening, and Baxter saw Dominique walking alone toward

       the gas station.


[8]    When Baxter returned home, he saw Dominique sitting alone in front of

       Mareeka’s house and was concerned. He asked Dominique if she was “all

       right,” and whether she “need[ed] to use the phone or something.” Transcript

       Volume I at 141. Dominique said she was “okay,” and Baxter went inside his

       girlfriend’s house and went to sleep. Id.


[9]    Mareeka woke up at 8:00 a.m. on Sunday morning, August 31, 2014.

       Dominique’s friends were in the house, but Dominique was not. Mareeka

       searched the neighborhood for Dominique but was unable to find her. Mareeka

       called the police to report Dominique missing.


[10]   At around 8:00 a.m. on August 31st, Katherine Perry walked outside her home

       at 1054 North Elder Avenue and saw a fire at a neighboring house. She could

       not see what was burning but assumed a neighbor was burning trash. Also

       around 8:00 a.m., Willie Hawkins, who lived at 1101 North Elder Avenue, saw

       smoke coming from the back of a house located across the street from him at

       1108 North Elder Avenue.


[11]   Bradley Parks lived at 1108 North Elder Avenue and had lived there for

       approximately three months. Before Parks moved in, the house had been

       uninhabited for years. On the morning of the 31st, Parks took his dog outside to



       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 4 of 30
       his backyard and there discovered Dominique’s burned, dead body, and he

       called 911.


[12]   All of Dominique’s body was burned, some parts more severely than others. In

       places, the flesh had been burned so badly that Dominique’s bone was exposed.

       A plastic bag had been placed over her head and had melted onto it. Looped

       and knotted around her neck was a ligature – a black coaxial cable – that also

       was tied to her ankles. Forensic trace chemistry testing showed an odorless

       charcoal lighter fluid likely had been used to burn the body. The autopsy

       results showed the cause of death was asphyxiation by either manual or ligature

       strangulation or by suffocation and that death had occurred before the body was

       burned. The pathologist found bruising of the left eye and of the lips and

       abrasions of the neck.


[13]   On September 2, 2014, Dominique’s purse and the pair of black sandals she had

       been wearing when she disappeared were found in the backyard of an

       unoccupied house located at 1919 West 10th Street. They appeared to have

       been neatly placed on the ground. The purse was opened but appeared to be

       undisturbed. The items were found a little over a block south of the house

       where Dominique’s body had been found two days earlier.


[14]   On September 2nd, Gholston withdrew additional money from the ATM at the

       Phillips 66 gas station. Two days later, he called Cruz and asked her to pick

       him up from Indianapolis. She took him back to Bluffton, Indiana, and he

       moved in with her.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 5 of 30
[15]   In early November 2014, the police received DNA results from Dominique’s

       body and belongings. The results showed the likely presence of Gholston’s

       DNA on Dominique’s left hand and right foot and the presence of his DNA on

       her right sandal.


[16]   The police arrested Gholston in Bluffton for a parole violation and transported

       him to Indianapolis. On November 10, 2014, he was placed in an Indianapolis

       Metropolitan Police Department (“IMPD”) interview room, and IMPD

       Captain Craig Converse and Detective Marcus Kennedy (hereinafter

       collectively referred to as “the officers”) entered, eventually Mirandized

       Gholston, and began speaking with him. He spoke to the officers at length

       before invoking his right to remain silent and right to counsel. The entire

       interview was videotaped. That same day, a warrant was obtained for a buccal

       swab from Gholston for the purpose of DNA comparison, and a sample was

       collected.


[17]   On November 20, 2014, the State charged Gholston with murder, and on

       January 29, 2015, it alleged that he was an habitual offender.


[18]   Before trial, on January 12, 2016, Gholston moved to suppress all the

       statements he provided to the officers during the videotaped interview, alleging

       that the statements were obtained in violation of his Fifth and Sixth

       Amendment rights to remain silent and to counsel and in violation of his

       corresponding rights under the Indiana Constitution, Article One, Sections 13

       and 14. He argued alternatively that any statements made after he invoked his


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 6 of 30
                                                                                                                    2
       Miranda rights should be suppressed. A hearing was held on February 16, 2016

       and on February 22, 2016, the trial court issued an order granting the motion in

       part and denying it in part, and excluding the statements Gholston made to the

       officers prior to his being advised of his rights.


[19]   On March 7-9, 2016, Gholston was tried by jury. A redacted version of his

       videotaped interview that excluded his pre-Miranda statements was played for

       the jury. The jury found him guilty as charged. On April 15, 2016, the court

       found Gholston to be an habitual offender and sentenced him to sixty-four

       years imprisonment, enhanced by twenty years for the habitual offender

       finding, for a total sentence of eighty-four years.


                                                     Discussion

                                   I. Admission of Videotaped Interview

[20]   Gholston raises several issues regarding whether the trial court abused its

       discretion when it admitted into evidence his videotaped interview with the

       officers. His specific arguments are that the waiver of his Miranda rights was

       not voluntary, the officers continued to question him after he invoked his

       Miranda rights, and a Doyle violation occurred.




       2
        A complete video recording of Gholston’s interview with the officers was admitted into evidence at the
       suppression hearing, and the evidence admitted at the suppression hearing was incorporated into the record
       at trial.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017       Page 7 of 30
[21]   A trial court has broad discretion in ruling on the admission or exclusion of

       evidence. Palilonis v. State, 970 N.E.2d 713, 731 (Ind. Ct. App. 2012), trans.

       denied. The trial court’s ruling on the admissibility of evidence will be disturbed

       on review only upon a showing of an abuse of discretion. Id. An abuse of

       discretion occurs when the trial court’s ruling is clearly against the logic, facts,

       and circumstances presented. Id. We do not reweigh the evidence, and we

       consider conflicting evidence most favorable to the trial court’s ruling. Id. at

       731-732.


[22]   When Gholston was interviewed by Captain Converse and Detective Kennedy,

       Captain Converse removed the restraint from Gholston’s arm and offered

       refreshments. The officers said they were investigating a missing girl, showed

       Gholston a sketch of a man they said was a possible suspect as well as a picture

       of Dominique, and asked Gholston if he could help with the investigation. The

       officers did not tell him initially that his DNA had been found at the scene of

       the crime or that he was a suspect. They told him they were reading him his

       Miranda rights because of the parole violation. Captain Converse thanked

       Gholston for helping the officers with the investigation, for “treatin’ us [officers]
                                           3
       man to man and helpin’.” State’s Exhibit 6 at 25.


[23]   Detective Kennedy read Gholston his Miranda rights as follows:




       3
         This part of the videotaped interview took place prior to Gholston being read his rights. It was found by the
       trial court to be inadmissible and was not seen by the jury. The part of the interview that took place after
       Gholston was read his rights was found by the trial court to be admissible and was played to the jury.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017         Page 8 of 30
        [I]t says you have the right to remain silent. Anything you say
        can be used as evidence against you in court. Well, and we ain’t
        even talking about that right now. You have the right to talk to a
        lawyer for advice before we ask you any questions and to have
        him with you during questioning. If you cannot afford a lawyer,
        one will be appointed for you before any questioning. And if you
        decided to answer questions now without a lawyer, you still have
        the right to stop at any time. You also have the right to –


State’s Exhibit 183 at 1. Gholston interrupted and asked, “Do I need a

lawyer?” Id. The following exchange then took place:


        [Detective Kennedy]: No, we’re just showin’ you pictures and
        stuff.


        [Gholston]: Oh.


        [Detective Kennedy]: You also have the right to stop answering
        questions any time until you talk to a lawyer. Understand those?


        [Gholston]: Now, you read number two and said not at this
        time. What’s that supposed to mean?


        [Captain Converse]: Oh, that means-- . . . --that means if you
        wanted a lawyer, you know--


        [Gholston]: No.


        [Captain Converse]: --you don’t have to talk to us.


        [Gholston]: No, it says anything I can--anything I say can be
        used as evidence against me in court. [Detective Kennedy] said,
        “We ain’t talkin’ about that right now.”

Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017   Page 9 of 30
               [Captain Converse]: Well--no, no, like if I showed you this
               picture--


               [Detective Kennedy]: Yeah.


               [Gholston]: Oh.


               [Captain Converse]: --William, if I showed you this picture and
               you said, “Oh, yeah, by the way, I was with him and we hit a
               lick together.”, [sic] then we would be obligated by law when we
               were filing charges with this guy and say, “We talked to William,
               William was with him.”


               [Gholston]: Oh.


               [Captain Converse]: So that’s what I meant. If you tell us
               you’re--you were with one of these guys, we’d obligated [sic] to
               report it.


       Id. Gholston then read the Advice of Rights form and signed the Waiver of

       Rights. As Gholston signed the waiver, Detective Kennedy again told him,

       “you can stop [talking to us] at any time.” Id. at 3.


[24]   Gholston proceeded to tell the officers that he left the west-side neighborhood

       on August 1, 2014, and returned at the beginning of September to help his

       mother pay a bill. He said he had seen Dominique only on the news. When

       the officers confronted him with the fact that they had found his DNA at the

       scene, he cursed then said, “you got me sweatin’ now, man.” Id. at 24. When

       Captain Converse pointed out that his DNA being found at the scene

       contradicted his story about leaving town for a month, Gholston said, “I’m
       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 10 of 30
       done talkin’. . . . Yeah, yeah I’m done talkin’. And I asked you all if I needed

       an attorney, [sic] you all said, ‘No’.” Id. at 25-26. At that point, the officers

       stopped asking questions and then told Gholston they were going to obtain a

       search warrant to take a sample of his DNA.


[25]   Despite telling the officers he was “done talkin’,” Gholston began asking the

       officers questions, and the following exchange took place:


               [Gholston]: And on there it says--what--a handprint? Can I read
               that again, please?


               [Captain Converse]: No. No. Not right now. You said you
               wanted--you said you didn’t wanna talk anymore.


               [Gholston]: Yeah. Yeah.


               [Captain Converse]: So, you know, you--


               [Gholston]: That said a handprint on it--


               [Captain Converse]: --you indicated you were done.


               [Gholston]: --or somethin’.


               [Detective Kennedy]: But, yeah, we do have your DNA on
               several places at the scene.


               [Gholston]: Where was she killed at? That’s what I--


               [Captain Converse]: Well--

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 11 of 30
        [Gholston]: --(inaudible) I mean--


        [Captain Converse]: --you--


        [Gholston]: --you’re not sayin’--


        [Captain Converse]: --listen, you told us you don’t wanna talk
        anymore and you mentioned a lawyer. We can’t talk to you, I
        mean--


        [Gholston]: He’s still talkin’. He’s still talkin’ about--


        [Detective Kennedy]: Mm-hmm.


        [Gholston]: --where they found some stuff at at the scene. What
        scene? Where was she killed at?


        [Detective Kennedy]: Well, we found her body on Elder. 10th--
        or 11th and Elder.


        [Gholston]: Mm-hmm.


        [Detective Kennedy]: Which is the next street over from Traub.


        [Gholston]: Uh-huh.


        [Detective Kennedy]: We believe she was killed at 10th and
        Elder.


        [Gholston]: So, who lives on 10th and Elder?




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 12 of 30
               [Detective Kennedy]: Nobody. Well, without--askin’ any
               questions or anything--


               [Gholston]: Mm.


               [Detective Kennedy]: --I can tell you that you--your DNA was
               found --.


       Id. at 27-28.


[26]   Captain Converse re-cuffed Gholston to his comfort and asked if he wanted

       more water. Gholston continued to ask questions as the officers reiterated that

       they found his DNA at the scene and told Gholston that he was “the only one

       of interest in this case.” Id. at 29-30. Gholston then asked for an attorney to be

       present when the DNA sample was taken. The following exchange occurred.

               [Gholston]: But now on this--hold on now. On this test thing,
               though, I’m not sayin’ no but could I at least have an attorney
               present? Please? Before we do this? . . . I would like one here
               for that, well, I mean, seriously. Please. I mean, I’m not denyin’
               nothin’. I’m not denyin’ that I’m gonna--submit the thing, you
               know what I mean? So, you know, I don’t-- . . . I mean--at least-
               -can I at least try to find me an attorney, though? Because I
               don’t--trust this man, seriously.


                                                    *****


               [Captain Converse]: If you wanna initiate something, you know,
               we can do that and talk (inaudible). You know, we can’t talk
               anymore right--to you right now because, I mean, ‘cause you’ve
               already said you didn’t wanna talk, you want a lawyer and all
               that, I, you know.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 13 of 30
                                                    *****


               [Gholston]: Yes, I do. . . . I would like to have an attorney
               present, though before we do anything, please.


       Id. at 31-32. The officers discussed whether Gholston had a right to have an

       attorney present when the DNA sample was taken but did not ask Gholston

       any additional questions about the case. Captain Converse again asked

       Gholston if the officers could get him more refreshments and then the officers

       left the interview room.


                                       A. Waiver of Miranda Rights

[27]   Gholston’s first contention regarding the admission of the videotaped interview

       is that the trial court abused its discretion by admitting the interview because he

       did not voluntarily and intelligently waive his right to remain silent. According

       to Gholston, the officers used deception and trickery to convince him to waive

       his Miranda rights.


[28]   The State bears the burden of proving beyond a reasonable doubt that the

       defendant voluntarily and intelligently waived his rights. Ringo v. State, 736

       N.E.2d 1209, 1211 (Ind. 2000). A waiver of one’s Miranda rights occurs when

       the defendant, after being advised of those rights and acknowledging an

       understanding of them, chooses to make a statement without taking advantage

       of those rights. Id. at 1211-1212. The voluntariness of a defendant’s waiver of

       rights is judged by considering the totality of the circumstances. Id. at 1212.

       Factors that may be considered when reviewing the totality of the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 14 of 30
       circumstances for whether a waiver of rights was voluntary, include “police

       coercion, the length of the interrogation, its location, its continuity, as well as

       the defendant’s maturity, education, physical condition, and mental health.”

       State v. Keller, 845 N.E.2d 154, 165 (Ind. Ct. App. 2006). “A signed waiver

       form is one item of evidence showing the accused was aware of and understood

       his rights.” Ringo, 736 N.E.2d at 1212. Nevertheless, “[w]hen challenged, the

       State may need to show additional evidence tending to prove that Defendant’s

       waiver and decision to speak were voluntary.” Id.


[29]   Gholston points to the following as evidence that the officers used deception

       and trickery to convince him to waive his Miranda rights: the officers did not

       tell him at the beginning of the interview that his DNA had been found on

       Dominique’s body and sandal; the officers repeatedly told him that the only

       reason he was being interviewed was because he had been arrested for a parole

       violation; the officers “repeatedly minimized and misrepresented the basis for

       advising [him] of his rights and the significance of [his rights];” the officers led

       him to believe that they “were required to read him his rights only as a

       formality . . . because he had been arrested for a parole violation;” and the

       police led him into a false sense of security by offering him refreshments and

       shaking his hand. Appellant’s Brief at 15, 18. We are not persuaded.


[30]   During the interview, Detective Kennedy, while pointing to the Advice of

       Rights form, read aloud to Gholston each Miranda right. When the detective

       used the phrase “and we ain’t even talking about that right now,” Gholston

       asked for clarification. State’s Exhibit 183 at 1. The officers explained that, if

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 15 of 30
       during the interview Gholston told them he participated in criminal activity, the

       officers would be obligated to report it. Gholston gave no indication that he did

       not understand the explanation, and he signed the waiver and proceeded to talk

       with the officers. He later demonstrated his awareness of his rights when he

       requested that the interview stop because he wanted to talk to an attorney.


[31]   The officers did not lie to Gholston when they told him that he had been

       brought to the police station because of a parole violation and that his DNA

       was found at the crime scene. Their decision not to tell Gholston initially that

       he was a suspect in Dominique’s murder and that his DNA was found at the

       scene of the crime was not deception or trickery prohibited by Miranda. See

       Colorado v. Spring, 479 U.S. 564, 576-577, 107 S. Ct. 851, 858-859 (1987) (“This

       Court has never held that mere silence by law enforcement officials as to the

       subject matter of an interrogation is ‘trickery’ sufficient to invalidate a suspect’s

       waiver of Miranda rights . . . . ‘[W]e have never read the Constitution to require

       that the police supply a suspect with a flow of information to help him calibrate

       his self-interest in deciding whether to speak or stand by his rights.’”) (footnotes

       and internal citations omitted). “[A] suspect’s awareness of all the possible

       subjects of questioning in advance of interrogation is not relevant to

       determining whether the suspect voluntarily, knowingly, and intelligently

       waived his Fifth Amendment privilege.” Id. at 577, 107 S. Ct. at 859.


[32]   Gholston is not uneducated: he is a high school graduate, and at the time of the

       interview was forty-six years old. He was cogent and lucid during the

       interview. There was no evidence of threats, violence, promises, or use of

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 16 of 30
       improper influences by the officers. The entire interview lasted approximately

       ninety minutes.


[33]   Gholston was familiar with the criminal justice system and with waiving his

       Miranda rights due to his connection with crimes that occurred more than a

       decade ago. He was investigated for murder by the Indianapolis Police

       Department (“IPD”) in 2002 and 2003. At that time, he was advised of his

       rights, and he signed a waiver of rights form and provided a detective with a
                                                                                      4
       statement that was used against him at his murder trial. In 2004, he was

       investigated for sexual assault charges and was interviewed by an IPD detective

       who read him his Miranda rights. In that case, he initially requested an attorney

       and told the detective:

                  [Gholston]: I will not [sign the waiver of rights form] until [my
                  attorney is] here because I just been through this and I’ve been
                  tricked once before with this stuff there. . . . I don’t wanna do
                  anything until my attorney gets here. I don’t wanna do anything.
                  . . . I mean, I wanna know what’s goin’ on before I . . . I say
                  anything. Cause I don’t know what the hell is goin’ on. And if
                  this is some stuff that’s above my head . . . stuff I don’t
                  understand, I’d rather have somebody here that can clarify, you
                  know, for me . . . break it down for me. Because I’m not
                  understanding this at all. I’m not understanding this at all.


                  [Detective Burkhardt]: Okay. That says to me that you want
                  your attorney present.




       4
           Following the trial, Gholston was found not guilty of the murder charge.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 17 of 30
                  [Gholston]: Yes.


       State’s Exhibit 3 at 2-3. Gholston later decided to waive his rights and give a
                                             5
       statement to the detective.


[34]   We do not find that any trickery, deception, or other circumstances occurred

       during Gholston’s interview that would overcome the voluntariness of the

       waiver of his rights. We find beyond a reasonable doubt that Gholston

       voluntarily waived his rights and conclude that the trial court did not abuse its

       discretion in admitting the videotaped interview based upon Gholston’s

       contention that the waiver of his rights was involuntary.


                                                  B. Right to Counsel

[35]   Gholston next contends that the trial court erred in admitting into evidence his

       videotaped interview because the officers continued to interrogate him after he

       unambiguously and unequivocally invoked his right to counsel by saying, “I’m

       done talkin’.” State’s Exhibit 183 at 25. He maintains that he told the officers

       “he no longer wanted to talk to them at least six times before [Captain]

       Converse [stopped asking him questions].” Appellant’s Brief at 22.


[36]   Pursuant to Miranda, any person subject to a custodial interrogation has the

       right to counsel. Sauerheber v. State, 698 N.E.2d 796, 801 (Ind. 1998). When a

       defendant has invoked this right to counsel, the police must cease questioning




       5
           The State eventually dismissed the sexual assault charges because the alleged victim did not cooperate.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 18 of 30
       until counsel has been made available or until the accused initiates further

       communication with the police. Id. The request for counsel, however, must be

       unambiguous and unequivocal. Carr v. State, 934 N.E.2d 1096, 1102 (Ind.

       2010). “[I]f a suspect makes a reference to an attorney that is ambiguous or

       equivocal in that a reasonable officer in light of the circumstances would have

       understood only that the suspect might be invoking the right to counsel,” the

       interrogation need not cease. Davis v. United States, 512 U.S. 452, 459, 114 S.

       Ct. 2350 (1994).


[37]   When the officers told Gholston that his DNA was found at the crime scene, he

       told them that he returned to Indianapolis from Bluffton, Indiana, in

       September. He then cursed and said, “you got me sweatin’ now, man. After

       further discussion, the following exchange occurred:

               [Gholston]: --I’m done talkin’.


               [Detective Kennedy]: (Inaudible).


               [Captain Converse]: I mean, here’s the thing, if--


               [Gholston]: No--


               [Captain Converse]: --if you--


               [Gholston]: --I’m done.


               [Captain Converse]: --if you wanna talk about somebody else.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 19 of 30
               [Gholston]: No.


               [Captain Converse]: Not you but if there’s somebody else--


               [Gholston]: No.


               [Captain Converse]: --we need to know about--


               [Gholston]: No, I’m done talkin’ ‘cause this here’s a trickery
               [s***]. I’m done talkin’.


               [Detective Kennedy]: No, we’re not tryin’ to trick you.


               [Gholston]: Yeah, yeah I’m done talkin’. And I asked you all if
               I needed an attorney, you all said, “No.”


               [Captain Converse]: Okay.


       State’s Exhibit 183 at 25-26. After Gholston said he was “done talkin’,” the

       officers did not ask him any more questions. Instead, they told him they were

       going to obtain a warrant to take a sample of his DNA. He then began asking

       the officers questions about where Dominique’s body was found. The officers

       answered his questions, explained that his DNA was found at the scene of the

       crime, and told him he was the only suspect in the case. They reminded him

       that he told them he did not want to talk with them.


[38]   Gholston was equivocal when he expressed that he no longer wanted to talk

       with the officers. He did not unambiguously assert his right to counsel when he

       said, “I’m done talkin’” such that the officers were required to terminate the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 20 of 30
       interview because after he said, “I’m done talkin’,” he continued to ask the

       officers questions even after the officers reminded him that he told them he no

       longer desired to speak with them. Although Gholston continued to speak with

       the officers, the officers treated him as if he unequivocally had invoked his

       Miranda rights and did not ask him additional questions. Based upon the

       foregoing, the trial court did not abuse its discretion in admitting the videotaped

       interview on that basis.


                                              C. Doyle Violation

[39]   Gholston also argues that the admission of the interview amounted to a Doyle

       violation because “[it] permitted the State to use Gholston’s assertion [during

       the interview] of his right to stop talking with police as affirmative proof of his

       guilt.” Appellant’s Brief at 9, 24. Per Gholston:

               The prosecution purposely showed the jury that once confronted
               with the DNA evidence and his seemingly inconsistent
               statements, Gholston chose that moment to invoke his right to
               stop talking to police. This was an obvious attempt to suggest
               that Gholston’s assertion of his constitutional right showed he
               was guilty, and knew he had been caught. . . . [By showing the
               videotape,] the State aimed to imply to the jurors that Gholston
               was not willing to submit to the [buccal] swab without counsel
               present because he had something to hide.


       Appellant’s Reply Brief at 11. Gholston also argues that the prosecutor violated

       Doyle when he said during closing arguments, “[Gholston] was told by the

       detectives that his DNA was on that body and he didn’t have any explanation.”

       Transcript Volume IV at 789.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 21 of 30
[40]   In Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976), the United

       States Supreme Court held that “the use for impeachment purposes of

       petitioners’ silence, at the time of arrest and after receiving Miranda warnings,

       violated the Due Process Clause of the Fourteenth Amendment.” The Court

       explained, “while it is true that the Miranda warnings contain no express

       assurance that silence will carry no penalty, such assurance is implicit to any

       person who receives the warnings.” Id. at 618, 96 S. Ct. at 2245. In this

       context, “‘[s]ilence’ does not mean only muteness; it includes the statement of a

       desire to remain silent as well as a desire to remain silent until an attorney has

       been consulted.” Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003). The Doyle

       rule is not limited solely to the use for impeachment purposes of a defendant’s

       silence, as it has been held to apply to the use of a defendant’s silence as

       affirmative proof in the State’s case-in-chief. Id.


[41]   As for the prosecutor’s comment during closing arguments that Gholston had

       no explanation regarding his DNA being found at the scene of the crime, this

       did not amount to a Doyle violation. The prosecutor’s statement was not used

       to impeach Gholston and was not a comment on Gholston’s right to remain

       silent. To the extent Gholston argues a Doyle violation occurred when the State

       played the portion of the videotaped interview showing him invoking his right

       to remain silent, we note that he failed to object to the admission of the

       videotaped interview on grounds that it constituted an impermissible comment

       on his right to remain silent. When the State offered the videotaped interview

       at trial, defense counsel objected “based on our previous Motion to Suppress . .


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 22 of 30
       . and move to incorporate our arguments from our [memorandum in support of

       the Motion to Suppress].” Transcript Volume III at 698-699. However, the

       motion to suppress did not raise allegations of a Doyle violation, and when

       defense counsel objected at trial to the admission of the interview, counsel did

       not allege that a Doyle violation had occurred. A claim of trial court error in

       admitting evidence may not be presented on appeal unless there is a timely trial

       objection “stat[ing] the specific ground [of objection], unless it was apparent

       from the context.” Ind. Evidence Rule 103(a)(1); see, e.g., Hilliard v. State, 609

       N.E.2d 1167, 1169 (Ind. Ct. App. 1993) (by failing to object, defendant waived

       issue that prosecutor made improper comment in closing rebuttal argument

       about defendant’s silence). Gholston’s failure to object on the specific ground

       of a Doyle violation waives the issue.


[42]   Further, even assuming a Doyle violation occurred, Gholston must demonstrate

       fundamental error. A claim that has been waived by a defendant’s failure to

       object at trial may be reviewed on appeal to determine whether fundamental

       error occurred, but the fundamental error exception to the contemporaneous

       objection requirement is “extremely narrow, and applies only when the error

       constitutes a blatant violation of basic principles, the harm or potential for harm

       is substantial, and the resulting error denies the defendant fundamental due

       process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v.

       State, 849 N.E.2d 578, 587 (Ind. 2006)). To be considered fundamental, the

       claimed error must make a fair trial impossible. Id. (citing Clark v. State, 915

       N.E.2d 126, 131 (Ind. 2009)). Thus, this exception is available only in

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 23 of 30
       “egregious circumstances.” Id. (citing Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)).


[43]   To determine whether a Doyle violation denied a defendant a fair trial, we must

       examine five factors: (1) the use to which the prosecution puts the post-arrest

       silence; (2) who elected to pursue the line of questioning; (3) the quantum of

       other evidence indicative of guilt; (4) the intensity and frequency of the

       reference; and (5) the availability to the trial court judge of an opportunity to

       grant a motion for mistrial or to give curative instructions. Robinette v. State, 741

       N.E.2d 1162, 1165 (Ind. 2001); see, e.g., Barton v. State, 936 N.E.2d 842 (Ind. Ct.

       App. 2010) (applying Robinette factors in assessing whether fundamental error

       occurred), trans. denied.


[44]   In Kubsch, the Indiana Supreme Court addressed whether the trial court erred in

       admitting into evidence Wayne Kubsch’s entire videotaped interrogation.

       Kubsch was charged with three counts of murder. The videotaped

       interrogation showed two rounds of Kubsch’s questioning by the police, during

       which Kubsch invoked his right to remain silent. At trial, and over Kubsch’s

       objection, the State played the entire videotape twice to the jury. Kubsch was

       convicted as charged. On appeal, the Court found that there was a Doyle

       violation and that the trial court erred in admitting into evidence the entire

       videotape. Kubsch, 784 N.E.2d at 914. The Court then examined the five

       factors to determine whether the error was harmless beyond a reasonable doubt

       (as a proper objection had been made) and found that it was not because:



       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 24 of 30
               The use to which the State, in its case in chief, put those portions
               of the videotape showing Kubsch invoking his right to silence is
               rather apparent: Kubsch was unwilling to talk with police even
               though his wife and step-son had just been killed, giving the
               impression that Kubsch had something to hide or else he would
               assist in locating their killers. And although the amount of other
               evidence indicative of Kubsch’s guilt as set forth in the “Facts”
               section of this opinion is sufficient to sustain the convictions, that
               evidence is circumstantial and was fiercely contested at trial.


       Kubsch, 784 N.E.2d at 915 (footnote omitted). At Kubsch’s trial, the

       prosecution made numerous references to Kubsch’s invocation of his right to

       silence. The defense requested a curing instruction, but the instruction was not

       given. The Indiana Supreme Court also found particularly relevant that it

       appeared the jury reached its verdict shortly after watching the videotape for a

       second time. Id. at 916.


[45]   We now turn to the instant case. Regarding the factor of the prosecution’s use

       of Gholston’s post-Miranda silence, we note that the prosecution played the

       portion of the videotaped interview for the jury during which Gholston invoked

       his right to remain silent, which could have allowed the jury an opportunity to

       draw the impermissible inference that by invoking his silence he had something
                 6
       to hide. However, when we apply the remaining factors to determine whether




       6
        We observe the jury was instructed that Gholston was not required to “explain anything” at trial.
       Preliminary Instructions 7 and 2 – Confidential Appendix III at 51, 61.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 25 of 30
       Gholston was denied a fair trial, we find that Gholston’s case can be

       distinguished from Kubsch.


[46]   The factor of the quantum of other evidence indicative of Gholston’s guilt,

       though circumstantial, favors a finding Gholston received a fair trial. During

       the summer of 2014, Gholston lived approximately one block from where

       Dominique’s body was found. He told the officers that he left the west-side

       neighborhood on the first of August and did not return until September;

       however, evidence showed that on August 29, 2014, two days before

       Dominique was murdered, he withdrew money from an ATM located in the

       west-side neighborhood and, on the following day, he made a purchase at a

       nearby liquor store. Gholston claimed he did not know Dominique but his

       DNA likely was found on her body and was found on her sandal which was

       located a little over a block away from where her body was found. When the

       officers presented Gholston with the DNA evidence, he told them “you got me

       sweatin’ now, man,” then proceeded to repeatedly gesture as if to wipe sweat

       from his forehead. State’s Exhibits 182, 183 at 24. Gholston’s neighbor

       remembered seeing Gholston in the neighborhood prior to the date that

       Dominique was murdered but not after, and Gholston moved to Bluffton a few

       days after Dominique’s body was discovered.


[47]   In addition, the reference to Gholston’s silence was minimal and favors a

       finding that he received a fair trial. The prosecution played the video one time

       for the jury and did not elicit any testimony from witnesses regarding Gholston

       invoking his right to silence. Also, there was no opportunity for the trial court

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 26 of 30
       to admonish the jury, grant a motion for mistrial, or give a curative instruction

       because no objection on grounds of a Doyle violation was made, and this factor

       also favors the conclusion he received a fair trial.


[48]   Based upon the record, and in light of the five factors, we find that any Doyle

       violation was not so substantial and blatant as to render Gholston’s trial unfair

       and did not constitute fundamental error.


                                       II. Sufficiency of the Evidence

[49]   Gholston next contends that there is insufficient evidence to support his murder

       conviction because the evidence presented at trial was circumstantial.

               Our standard of review for claims challenging the sufficiency of
               the evidence is well settled. Whether the evidence is direct or
               circumstantial, we will not reweigh it or assess the credibility of
               witnesses. Reviewing solely the evidence and the reasonable
               inferences from that evidence that support the verdict, we decide
               whether there is substantial evidence of probative value from
               which a reasonable jury could find the defendant guilty beyond a
               reasonable doubt. A conviction for [m]urder may be based
               purely on circumstantial evidence. We will not disturb a verdict
               if the jury could reasonably infer that the defendant is guilty
               beyond a reasonable doubt from the circumstantial evidence
               presented. On appeal, the circumstantial evidence need not
               overcome every reasonable hypothesis of innocence. It is enough
               if an inference reasonably tending to support the verdict can be
               drawn from the circumstantial evidence.


       Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995) (internal citations omitted). To

       support Gholston’s murder conviction, the State was required to prove that



       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 27 of 30
       Gholston “knowingly or intentionally kill[ed] another human being. . . .” Ind.

       Code § 35-42-1-1 (2014).


[50]   The evidence at trial shows that Gholston was very familiar with the west-side

       neighborhood where the crime took place. During the summers of 2013 and

       2014, he resided in the neighborhood. In the summer of 2014, he met a woman

       who lived in the neighborhood and began living with her. The woman’s house

       was located on the same block where Dominique’s body was found. During

       that same summer, Gholston also lived in a house that was located

       approximately one block from where the body was found.


[51]   When Gholston was interviewed by the officers about Dominique’s murder, he

       lied to the officers. He told them that he left the west-side neighborhood the

       first of August 2014, and did not return until September 2014; however, bank

       records showed that on August 29, 2014, he withdrew money from an ATM

       located at a gas station in the west-side neighborhood and that, on the following

       day, he made a purchase at a nearby liquor store.


[52]   Dominique was visiting her sister from August 29-31, 2014, and was last seen

       alive in the early morning hours, on Sunday, August 31st, sitting in front of her

       sister’s house. The house was located in the west-side neighborhood where

       Gholston was staying and was approximately one block from the gas station

       that housed the ATM that he had recently used. Dominique’s burned, dead

       body was discovered around noon on August 31st, behind a house that had been

       uninhabited for years but recently had become occupied, and was located


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 28 of 30
       approximately one block from a house where Gholston used to live.

       Gholston’s neighbor remembered seeing him in the neighborhood prior to the

       date that Dominique was murdered but not after.


[53]   On September 2nd, Dominique’s purse and the pair of black sandals she had

       been wearing when she disappeared were found in the backyard of an

       unoccupied house located a little over a block south of the house where her

       body was found. That same day Gholston withdrew more money from the

       ATM located at the neighborhood gas station. Two days later, on September 4,

       2014, Gholston called his ex-girlfriend and asked her to pick him up from

       Indianapolis. She took him back to Bluffton where she lived, and he moved in

       with her.


[54]   During his interview with the officers, Gholston claimed he did not know

       Dominique; however, DNA results showed the likely presence of his DNA on

       Dominique’s left hand and right foot and the presence of his DNA on her right

       sandal, which was found a little over a block away from where her body was

       found. When the officers told Gholston that his DNA had been found at the

       crime scene, he told them, “you got me sweatin’ now, man,” then proceeded to

       gesture as if to wipe sweat from his forehead. State’s Exhibits 182, 183 at 24.


[55]   Although no single fact proves that Gholston murdered Dominique, we find

       that the collective circumstantial evidence was sufficient to allow a reasonable

       jury to infer that Gholston killed her. Considering these facts together, the jury




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 29 of 30
       could have found beyond a reasonable doubt that Gholston killed Dominique.

       Thus, sufficient evidence supports his murder conviction.


                                                   Conclusion

[56]   Although it was erroneous to admit into evidence the parts of Gholston’s

       videotaped interview with Captain Converse and Detective Kennedy that

       showed him invoking his right to silence, we find that the error did not result in

       fundamental error. We also find that the State presented sufficient evidence to

       support Gholston’s murder conviction.


[57]   For the foregoing reasons, we affirm the judgment of the trial court.


[58]   Affirmed.


       Vaidik, C.J., concurs in result without opinion.


       Bradford, J., concurs.




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