      MEMORANDUM DECISION

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

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


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


                                                 IN THE
          COURT OF APPEALS OF INDIANA

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



      Mathias, Judge.


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

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


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

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

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

      arguing that:


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

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

[2]   We affirm.


                                  Facts and Procedural History

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

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

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

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

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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

      convictions. Tr. Vol. III, pp. 19–20.

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

      (Ind. 2018).

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

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

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

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

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

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

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

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

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

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

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

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

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

      inadmissible because it can lead to erroneous inferences and have prejudicial

      effect on either party. Id.


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

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

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

      jurors to disregard the testimony because the underlying polygraph examination

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

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

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

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

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

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

       326.


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

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

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

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

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

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

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

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

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

       submit to lie detection technology. Id.


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

       general uses for lie detection technology:


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


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


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


               A: But not as a matter of routine.


               Q: Your department does use it then, right?


               A: Yes. We have it available to us.


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


               A: No, not typically.


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


               A: I don’t know of any.


       Tr. Vol. II, pp. 165–66.


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

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

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

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

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

       LaPorte County Sheriff’s Department considers lie detection tests inappropriate

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

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

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

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

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

       detection technology was harmless error.


                                          II. Sentencing Determination

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

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

       sentenced after a written presentence investigative report was prepared by a

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

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

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

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

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

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

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

       exception being where inclusion of the information constitutes fundamental

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




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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

       sentences served concurrently. Id.


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

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


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

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

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

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

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

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

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

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

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

       and did not affect Adney’s substantial rights.


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

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

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

       during sentencing. Accordingly, we affirm.



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




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