MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Mar 03 2020, 8:46 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rebecca L. Gray                                          Curtis T. Hill, Jr.
The Law Offices of Rebecca Gray, LLC                     Attorney General
Carmel, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin C. Gray,                                          March 3, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-982
        v.                                               Appeal from the
                                                         Shelby Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Trent Meltzer, Judge
                                                         Trial Court Cause No.
                                                         73C01-1711-F5-122



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020                  Page 1 of 7
                                          Case Summary
[1]   Justin C. Gray appeals his conviction for child exploitation as a Level 5 felony,

      arguing that the trial court committed fundamental error by allowing certain

      testimony. We affirm.



                            Facts and Procedural History
[2]   Gray was in a relationship with J.S. (“Mother”) from 2015 until 2017. He

      moved in with Mother and her two children in July 2015. Gray would

      sometimes watch Mother’s daughter, H.S., while Mother was away from home.

      In August and September of 2016, when H.S. was five years old, Gray used his

      cell phone to take photos of H.S.’s vagina. Through a series of events not

      relevant here, Gray’s phone made its way to the Indiana State Police.


[3]   The State charged Gray with child exploitation as a Level 5 felony and

      possession of child pornography as a Level 6 felony. A jury trial was held, and

      Gray testified in his own defense that he took the photos because he was

      concerned about H.S.’s vaginal health. There is evidence that H.S. suffered

      from yeast infections and urinary tract infections in 2016, but Mother testified

      that she never asked Gray to take the photos, that he never showed her any of

      the photos, and that he never told her that he took the photos. The jury found

      Gray guilty as charged. The trial court merged the two counts, entered a

      conviction on the child-exploitation count only, and sentenced Gray to four

      years in prison.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020   Page 2 of 7
[4]   Gray now appeals.



                                 Discussion and Decision
[5]   Gray’s appeal concerns certain testimony by Indiana State Police Detective

      Kenneth Lee. Under direct examination by the State, Detective Lee described

      his investigation. The prosecutor asked, “Did you ever make actual contact

      with an individual by the name of Justin Gray?” Tr. Vol. II p. 161. Detective

      Lee answered, “I did.” Id. After he identified Gray in the courtroom,

      Detective Lee had the following exchange with the prosecutor:


              Q      And so after you had gotten the information or did you
              actually get information from Sergeant Deckard as far as the
              cellphone forensic report?


              A     Yes. Prior to meeting Justin Gray I had already had that
              information.


              Q      After receiving that information from Sergeant Deckard
              did you actually prepare charges and a probable cause in this
              particular case?


              A       Not before attempting to interview Justin Gray.


              Q      Okay. And so then after that you had - went ahead and
              presented charges and a probable cause to the Prosecutor’s
              Office, correct?


              A       That’s correct.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020   Page 3 of 7
      Id. Gray contends that Detective Lee’s testimony about “meeting Justin Gray”

      and “attempting to interview Justin Gray” is “evidence eluding [sic] to [Gray’s]

      refusal to submit to questioning by a police officer” and that this “use of [his]

      silence as substantive evidence” violated his privilege against self-incrimination

      under the Fifth Amendment to the U.S. Constitution and Article 1, Section 14

      of the Indiana Constitution. Appellant’s Br. p. 8. The Fifth Amendment

      provides, in part, that no person “shall be compelled in any criminal case to be

      a witness against himself[.]” Likewise, Article 1, Section 14 provides, in part,

      “No person, in any criminal prosecution, shall be compelled to testify against

      himself.”


[6]   As an initial matter, Gray acknowledges that he did not raise this issue in the

      trial court, either by objecting to the questions and/or answers or by asking the

      trial court to take some remedial action. This would normally constitute waiver

      of the issue for appeal. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied.

      However, Gray asserts that the trial court’s failure to intervene was

      fundamental error. “Fundamental error is an extremely narrow exception to

      the waiver rule where the defendant faces the heavy burden of showing that the

      alleged errors are so prejudicial to the defendant’s rights as to make a fair trial

      impossible.” Id. at 668. To establish fundamental error, the defendant must

      show that, under the circumstances, the trial judge erred in not sua sponte

      raising the issue because the alleged error constituted a clearly blatant violation

      of basic and elementary principles of due process and presented an undeniable

      and substantial potential for harm. Id. In evaluating a claim of fundamental


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020   Page 4 of 7
      error, our task is to look at the alleged error in the context of all that happened

      and all relevant information given to the jury—including evidence admitted at

      trial, closing argument, and jury instructions—to determine whether the alleged

      error had such an undeniable and substantial effect on the jury’s decision that a

      fair trial was impossible. Id.


[7]   For three reasons, we find no fundamental error.1 First, it is a long leap to say

      that Detective Lee’s testimony alluded to a “refusal to submit to questioning by

      a police officer.” He merely testified to “meeting Justin Gray” and “attempting

      to interview Justin Gray.” The fact that no interview actually occurred does

      not necessarily mean that Gray refused to submit to questioning. The record is

      silent as to why no interview took place.


[8]   Second, even if Detective Lee’s testimony could be understood to mean that

      Gray refused to answer questions, Gray has not shown that the testimony was

      inadmissible. Gray first asserts that this case involves post-arrest, pre-Miranda

      silence, which we have held cannot be used as substantive evidence in the

      State’s case-in-chief. See, e.g., Peters v. State, 959 N.E.2d 347, 353 (Ind. Ct. App.

      2011). However, there is no evidence that Gray was under arrest or otherwise

      in custody when Detective Lee attempted to interview him. Gray says that he

      “would not have felt as though he was free to leave and would ha[ve] been




      1
       Gray does not tell us what sua sponte action he thinks the trial court should have taken (e.g., stop Detective
      Lee from answering the prosecutor’s questions, admonish the jury to disregard the questions and answers,
      give a final instruction on the issue, declare a mistrial). This alone is arguably fatal to his claim that the trial
      court committed fundamental error by failing to take action.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020                            Page 5 of 7
       subject to the same constraints as if he was under formal arrest,” Appellant’s Br.

       p. 11, but he offers no citations to the record in support of that claim.


[9]    In the alternative, Gray contends that his alleged refusal to answer was

       inadmissible even if it was pre-arrest, pre-Miranda. But Gray himself

       acknowledges that the United States Supreme Court has held that a defendant’s

       pre-arrest, pre-Miranda refusal to answer an investigating officer’s questions can

       be used as substantive evidence unless the defendant explicitly stated that he

       was refusing to answer on Fifth Amendment grounds. Salinas v. Texas, 570

       U.S. 178, 185-86 (2013). Gray does not assert that he explicitly invoked his

       Fifth Amendment privilege against self-incrimination when Detective Lee

       attempted to interview him.


[10]   Instead, Gray argues that, “[n]otwithstanding Salinas, this court is free to

       interpret Article [1], § 14 of the Indiana Constitution so as to give broader

       protection to Indiana’s citizens.” Appellant’s Br. p. 11. He asks us to hold

       “that, under the Indiana Constitution, an individual’s exercise of his right

       against self-incrimination cannot be used as substantive evidence in a criminal

       prosecution regardless of when the exercise of the privilege occurred and

       regardless of whether the individual explicitly invoked the privilege.” Id. He

       does not cite any caselaw or any other authority in support of that proposed

       interpretation. But even if we were to adopt his proposed rule, we would not

       find that the trial court committed fundamental error by failing to predict such a

       ruling. In other words, because no such ruling existed at the time of Detective



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020   Page 6 of 7
       Lee’s testimony, the trial court could not be faulted for failing to take action,

       sua sponte, after hearing that testimony.


[11]   Third and finally, as the State emphasizes, the reference to Detective Lee

       meeting Gray and attempting to interview him was brief and isolated. The

       prosecutor did not ask any further questions on the matter or mention it during

       his opening statement or his closing argument. Gray has not convinced us that

       Detective Lee’s single, passing reference to their interaction “had such an

       undeniable and substantial effect on the jury’s decision that a fair trial was

       impossible.” Ryan, 9 N.E.3d at 667.


[12]   For all these reasons, the trial court did not commit fundamental error.


[13]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-982 | March 3, 2020   Page 7 of 7
