MEMORANDUM DECISION                                               FILED
                                                             Jul 21 2016, 5:42 am
Pursuant to Ind. Appellate Rule 65(D),
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
Philip R. Skodinski                                      Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Michael Neloff,                                   July 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1511-CR-1933
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1410-F1-8



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 1 of 14
                                                 Case Summary
[1]   Jeremy Michael Neloff appeals his convictions, following a jury trial, for three

      counts of level 1 felony rape. On appeal, he contends that the trial court abused

      its discretion in admitting certain evidence. He also asserts that the State

      presented insufficient evidence to sustain his convictions. Concluding that the

      trial court did not abuse its discretion and that the State presented sufficient

      evidence to sustain the convictions, we affirm.


                                    Facts and Procedural History
[2]   The facts most favorable to the verdicts are as follows. On October 18, 2014,

      A.G. 1 was out drinking beers and watching football at the bars with her friends

      in South Bend. After driving one of her friends home on the west side of town,

      A.G. planned to stay the night with her ex-boyfriend rather than driving all of

      the way back to her home in Bristol. However, at around 3:56 a.m. on October

      19, the car A.G. was driving ran out of gas on Grape Road in Mishawaka.

      Because A.G.’s ex-boyfriend did not answer her call, she decided to just pull

      over and wait for help.


[3]   Meanwhile, Neloff was out driving around with his almost one-year-old son,

      K.N., in order to help K.N. fall asleep. Neloff pulled his car up behind A.G.’s

      and offered to help her. He told her that he would drive to a gas station to see if




      1
       We note that in its appellate brief, the State refers to the victim as “P.G.” However, we refer to her as
      “A.G.” based upon her full legal name.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016                Page 2 of 14
      it sold gas cans and then return. Neloff drove away and returned a few minutes

      later to report that he had found a station that sold gas cans. He offered to drive

      A.G. to the gas station. Because the presence of his young son in the back seat

      made her feel comfortable, A.G. agreed to let Neloff drive her to buy gas. As

      they drove, A.G. and Neloff engaged in “that awkward small talk that you

      make when you’re with a stranger.” Tr. at 26.


[4]   A.G. “wasn’t paying very much attention” to where Neloff was driving, but

      suddenly realized that they had turned down a dead-end road. Id. A.G. started

      to be concerned because she noticed that there were no houses around and that

      they were in a wooded area. Neloff claimed that he had made a mistake and

      that he would just turn the car around. Instead, he turned into a nearby drive,

      “forcefully shoved the car in park[,]” and grabbed A.G. into a bear hug. Id. at

      28. A.G. began to struggle and fight. Neloff, who weighed roughly 225

      pounds, told her “[D]on’t move, don’t do it.” Id. A.G. “completely started to

      panic” and asked Neloff what he wanted. Id. Neloff pulled her over to his side

      of the car and “proceeded to pull his pants down and shove [A.G.’s] head into

      his crotch.” Id. A.G. screamed and kept trying to fight back until she felt

      “something sharp” on her neck. Id. Neloff threatened, “[D]on’t move or I will

      slice you wide open.” Id. at 29. A.G. believed that Neloff was holding a knife

      or box cutter to her throat. A.G. feared that Neloff might kill her, so she just

      “froze” and tried not to make any sudden movements. Id.


[5]   Neloff forced A.G. to perform oral sex on him. While she was performing oral

      sex, Neloff pulled A.G.’s pants down and inserted his fingers in both her anus

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 3 of 14
      and her vagina. A.G. continued to cry and scream. This awakened Neloff’s

      young son, and A.G. could hear his son crying from the back seat. A.G. next

      saw a bright light shining in her face and realized that Neloff was filming her.

      He asked A.G. her name and age, and she lied and said that her name was

      “Ashley” and that she was “twenty-one.” Id. at 30. A.G. was just trying “to

      survive” at this point. Id.


[6]   Neloff ordered A.G. to remove the boots that she was wearing. Rather than

      oblige, A.G. moved as far over into the passenger seat of the car as she could

      get. Neloff screamed at her to take her “f**king boots” off, so she did. Id. at

      31. Neloff then climbed on top of A.G. and attempted to have sexual

      intercourse with her. He inserted his penis inside her vagina and moved “back

      and forth” in a sexual manner for about four minutes, but he could not

      maintain an erection. Id. Neloff’s son was screaming and crying very loud, and

      Neloff eventually climbed off A.G. Neloff was saying out loud, “[W]hat am I

      doing, I am not a bad person ... I don’t know why I am … what am I doing

      [?].” Id. at 32. A.G. thought that Neloff’s sudden claimed confusion and

      remorse was “very fake,” but she decided to just “go with it” since fighting him

      had not worked. Id. A.G. realized that the weapon that Neloff had held to her

      throat was a screwdriver. A.G. assured Neloff that he was not a bad person

      and that she knew that he was not trying to hurt her. A.G. asked Neloff to take

      her to her car, and she promised him that she would not tell anyone what had

      happened. Neloff began looking around the car while saying, “I can’t let you

      go.” Id. at 48. A.G. was frantic and started begging Neloff not to kill her.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 4 of 14
      A.G. brought up God and tried to convince Neloff that maybe God put her in

      the situation to help him. Neloff seemed to be amenable to this idea and started

      telling A.G. about his life and his addictions. One of the addictions that he

      discussed with A.G. was his addiction to voyeurism.


[7]   Neloff finally drove to the gas station and purchased a gas can and gas for A.G.

      He then drove A.G. back to her car and put gas in it. Neloff requested that

      A.G. spend more time talking with him. She agreed to talk with him but

      insisted that they park in front of a store that she believed had security cameras.

      Neloff followed A.G. to the storefront. A.G. wanted to get Neloff’s name so

      that she could identify him to police. Neloff was “regretful,” “remorseful,” and

      “apologetic” to A.G. about raping her. Id. at 42. She convinced him that she

      needed his name so that she could be sure that he hadn’t ever raped anyone

      else. He allowed A.G. to look at his identification in his wallet. She

      memorized as much information as she could. After that, A.G. told Neloff that

      she needed to leave. Neloff responded, “[S]o I guess I will just go home and

      wait for the cops.” Id. at 43. A.G. told him that she had a lot to think about

      and that she would not feel safe driving away unless he left first. Neloff left,

      and A.G. drove straight to her ex-boyfriend’s house and then to the police

      station.


[8]   Neloff was arrested, and a recorded interview was conducted by Mishawaka

      Police Department Special Victims Unit Detective Martin Mullins on October

      23, 2014. Before the interview, Detective Mullins advised Neloff of his Miranda

      rights. Neloff read along with Detective Mullins and read a portion of the

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 5 of 14
       statement of his rights aloud back to Detective Mullins. He then signed a

       waiver of rights form. During the interview, Neloff inquired, “There’s no way I

       can speak to a counselor or an attorney before I talk about this?” State’s Ex. 12:

       Appellant’s App. at 166. Mullins responded, “That’s totally up to … I can’t

       suggest a counselor. I can’t suggest an attorney. Those aren’t decisions I’m

       allowed to make.” Id. at 167. Neloff continued to speak to Mullins but never

       admitted to raping A.G.


[9]    The State charged Neloff with four counts of level 1 felony rape, one count of

       level 5 felony criminal confinement, and one count of level 6 felony performing

       sexual conduct in the presence of a minor. Before trial, Neloff filed a motion to

       suppress arguing that his statements to police during the interview on October

       23, 2014, should be suppressed because he invoked his right to counsel.

       Following a suppression hearing, the trial court denied Neloff’s motion

       concluding that his alleged invocation of his right to counsel was equivocal and

       ambiguous.


[10]   A jury trial was held on August 31 through September 3, 2015. The jury found

       Neloff guilty of three counts of level 1 felony rape and not guilty of one count of

       level 1 felony rape. The criminal confinement and performing sexual conduct

       counts were dismissed. This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 6 of 14
                                         Discussion and Decision

             Section 1 – The trial court did not abuse its discretion in
             admitting into evidence Neloff’s interview with police.
[11]   Neloff first asserts that the trial court erred in denying his pretrial motion to

       suppress his interview with Detective Mullins. That issue is no longer viable.

       Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Because he appeals following a

       completed trial, the issue before us is properly framed as whether the trial court

       abused its discretion in admitting the evidence at trial. Id. The trial court is

       afforded wide discretion in ruling on the admissibility of evidence, and we

       review its ruling only for an abuse of discretion. Beasley v. State, 46 N.E.3d

       1232, 1235 (Ind. 2016). An abuse of discretion occurs when the decision is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party’s substantial rights. Id. We do not reweigh the evidence, and we

       consider only the evidence that is either favorable to the ruling or unrefuted

       evidence favorable to the defendant. Id.


[12]   During his recorded interview with Detective Mullins, Neloff inquired,

       “There’s no way I can speak to a counselor or an attorney before I talk about

       this?” State’s Ex. 12: Appellant’s App. at 166. 2 Neloff contends that this



       2
         On appeal, Neloff directs us to other statements that he made later during his interview, which he argues
       may have also constituted requests for counsel. However, he made no mention of these statements in his
       motion to suppress and did not call the trial court’s attention to these additional statements when he renewed
       his objection to the admission of the interview at trial. Therefore, his challenge to these additional statements
       is waived. See Addison v. State, 962 N.E.2d 1202, 1211 (Ind. 2012) (a defendant may not argue one ground for
       objection at trial and then raise new grounds on appeal); see also Townsend v. State, 632 N.E.2d 727, 730 (Ind.
       1994) (a party waives an issue if it is raised for the first time on appeal).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016                Page 7 of 14
       statement constituted an invocation of his right to counsel and that the

       interview should have ceased at that point. Thus, he argues that the admission

       of his interview violated his right to counsel. We disagree. 3


[13]   It is well established that “[i]nvocation of the Miranda right to counsel requires,

       at a minimum, some statement that can reasonably be construed to be an

       expression of a desire for the assistance of an attorney.” Davis v. United States,

       512 U.S. 452, 459 (1994) (quotation marks and citation omitted). While the

       cessation of police questioning is required once an accused requests counsel, the

       request for counsel must be unambiguous and unequivocal. Berghuis v.

       Thompkins, 560 U.S. 370, 381 (2010). Indeed, the request must be made with

       sufficient clarity such that a “reasonable police officer in the circumstances

       would understand the statement to be a request for an attorney.” Davis, 512

       U.S. at 459.


[14]   In Davis, the United States Supreme Court determined that the defendant's

       statement “maybe I should talk to a lawyer” was not an unequivocal request for

       counsel. Id. at 462. In Taylor v. State, 689 N.E.2d 699 (Ind. 1997), the

       defendant stated, “I guess I really want a lawyer, but, I mean, I've never done




       3
         The State argues that Neloff has waived his argument regarding the admission of the interview by
       specifically advocating for and agreeing to the admission of a less redacted version of the interview versus a
       more redacted version that the State initially introduced. We find the State’s argument disingenuous, as our
       review of the record reveals that Neloff renewed his objection to the admission of the interview at trial based
       upon his motion to suppress, see Tr. at 131, and that the discussion and advocation the State is referring to
       occurred simply because once Neloff knew that the evidence was coming in, he wanted the more complete
       version admitted.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016               Page 8 of 14
       this before so I don't know.” Id. at 703. Our supreme court determined that the

       defendant's statement was “an expression of doubt, not a request” and was

       merely the suspect choosing to “think out loud about whether to exercise his

       constitutional right.” Id. at 703–05. In Powell v. State, 898 N.E.2d 328 (Ind. Ct.

       App. 2008), trans. denied (2009), this Court considered the defendant’s statement

       “Could I see about getting a lawyer or something man?” Id. at 337. We found

       the wording of that statement, which was posed as a question to officers, to be

       ambiguous and not sufficiently clear as to constitute a request for an attorney.

       We emphasized in Powell that officers immediately followed up and asked the

       defendant if he in fact wanted an attorney. When directly asked, the defendant

       did not say yes or clarify that he wanted counsel. See id.


[15]   Neloff’s statement here is akin to the statements made in Davis, Taylor, and

       Powell and was neither unambiguous nor unequivocal. Neloff posed a question

       to Detective Mullins regarding whether he needed an attorney, and even after

       Detective Mullins told him that it was a personal decision, Neloff failed to

       clarify that he wanted counsel. Under the circumstances, we cannot say that

       Neloff’s request was made with sufficient clarity such that a reasonable police

       officer under the circumstances would understand that Neloff was

       unambiguously asserting his right to counsel. The trial court did not abuse its

       discretion when it admitted Neloff’s interview with Detective Mullins into

       evidence.


[16]   Additionally, even if the trial court abused its discretion in admitting Neloff’s

       interview with Detective Mullins, any such error was harmless. “[S]tatements

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 9 of 14
       obtained in violation of the federal constitution and erroneously admitted are

       subject to harmless error analysis.” Anderson v. State, 961 N.E.2d 19, 28 (Ind.

       Ct. App. 2012), trans. denied. The reviewing court must be satisfied that the

       error did not contribute to the verdict, that is, that the error was unimportant in

       relation to everything else the jury considered on the issue in question. Morales

       v. State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). In other words, “if the

       State has presented other overwhelming evidence of the defendant’s guilt, then

       an erroneously admitted statement may be deemed harmless.” Anderson, 961

       N.E.2d at 28.


[17]   Our review of Neloff’s interview reveals that it is a far cry from a confession of

       guilt and was generally consistent with his direct testimony at trial in which he

       did not admit to any nonconsensual sexual contact with A.G. Thus, we cannot

       say that the interview contributed to his rape convictions. Moreover, as we will

       discuss more fully later in this opinion, the State presented other overwhelming

       evidence of Neloff’s guilt sufficient to render any error in the admission of his

       interview with Detective Mullins harmless beyond a reasonable doubt. In

       short, the admission of the interview was unimportant in relation to the other

       evidence considered by the jury. Accordingly, we find no error much less

       reversible error on this issue.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 10 of 14
         Section 2 – The trial court did not abuse its discretion in
       admitting Neloff’s testimony regarding a conversation that he
                             had with his wife.
[18]   Next, Neloff relies on the marital privilege doctrine to argue that the trial court

       abused its discretion in permitting the State to question him during trial

       regarding a conversation that he had with his wife. 4 As stated above, the trial

       court is afforded wide discretion in ruling on the admissibility of evidence, and

       we review that ruling only for an abuse of discretion. Beasley, 46 N.E.3d at

       1235. Our supreme court has indicated that the marital privilege prohibits

       “requiring a spouse to testify as to confidential marital communications, but

       does not bar the spouse from testifying if the spouse chooses to do so.” Glover v.

       State, 836 N.E.2d 414, 422 (Ind. 2005); see Ind. Code § 34-46-3-1 (providing that

       “the following persons shall not be required to testify regarding the following

       communications…(4) Husband and wife as to communications made to each




       4
         Although Neloff’s wife did testify briefly at trial, she asserted the marital privilege and did not testify
       regarding any conversations that she had with Neloff.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016                   Page 11 of 14
       other.”). Under the circumstances presented here, Neloff’s reliance on the

       marital privilege is misplaced and unavailing. 5


[19]   On appeal, Neloff complains about a line of questioning that was initiated by

       his own trial counsel as a matter of strategy. He was asked by his counsel on

       direct examination, “Did you tell your wife that you felt like you cheated on

       her?” Tr. at 185-86. Neloff answered his counsel’s question in the affirmative

       and explained why he made that statement to his wife. Then, on recross, the

       State asked Neloff follow-up questions about what else he had told his wife

       during that same conversation, and the trial court permitted Neloff to answer

       over his counsel’s objection on the grounds of marital privilege. We conclude

       that Neloff voluntarily opened the door during direct examination to further

       questioning as to the conversation that he had with his wife. Evidence that is

       otherwise inadmissible may become admissible when the defendant opens the

       door to questioning on that evidence. Bryant v. State, 802 N.E.2d 486, 500 (Ind.

       2004). “In order to open the door, the evidence relied upon must leave the trier

       of fact with a false or misleading impression of the facts related.” Id. Neloff’s




       5
         Although we need not reach the issue because we conclude that Neloff opened the door to the challenged
       testimony, we question his ability as the party-spouse to assert the marital privilege to exclude his own
       testimony regarding what he said to his wife. It is generally accepted under Indiana law that “[b]ecause the
       marital privilege exists only to protect marriages, only the witness-spouse [as opposed to the party-spouse]
       may claim the privilege….” 12 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE, INDIANA EVIDENCE §
       501.558 (3d. ed 2007) (citing Glover, 836 N.E.2d at 416). However, the “leading common law treatises agree
       that the privilege should belong to the spouse who made the communication, rather than to the spouse to
       whom the communication is made[.]” Id. at n.1 (citations omitted). While our courts do not appear to have
       specifically considered or adopted this position, we note that the broad language of Indiana Code Section 34-
       46-3-1(4) certainly implies that the privilege belongs to both spouses regarding communications made to each
       other.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016            Page 12 of 14
       limited and obviously self-serving answers on direct examination regarding the

       conversation that he had with his wife left the jury with a misleading impression

       that the only thing that he said to his wife regarding the early morning in

       question was that he felt like he cheated on her, when in fact he said much

       more. The trial court did not abuse its discretion by permitting the State to

       question Neloff regarding the conversation that he had with his wife.


         Section 3 – The State presented sufficient evidence to sustain
                            Neloff’s convictions.
[20]   Finally, Neloff contends that the State presented insufficient evidence to sustain

       his convictions. When reviewing a claim of insufficient evidence, we neither

       reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

       499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

       therefrom that support the verdict and will affirm if there is probative evidence

       from which a reasonable factfinder could have found the defendant guilty

       beyond a reasonable doubt. Id. In short, if the testimony believed by the trier

       of fact is enough to support the verdict, then the reviewing court will not disturb

       the conviction. Id. at 500. “A conviction can be sustained on only the

       uncorroborated testimony of a single witness, even when that witness is the

       victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[21]   To convict Neloff of level 1 felony rape, the State was required to prove that,

       while armed with a deadly weapon, Neloff knowingly or intentionally had

       sexual intercourse with another person or knowingly or intentionally caused

       another person to perform or submit to other sexual conduct when the other

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 13 of 14
       person was compelled by force or imminent threat of force. See Ind. Code § 35-

       42-4-1. A.G. explained to the jury how Neloff drove her down a deserted road,

       grabbed her, held a sharp object to her throat, and threatened to slice her “wide

       open." Tr. at 29. She then testified in great detail regarding how Neloff forced

       her to perform oral sex on him, attempted to have sexual intercourse with her,

       and also how he touched her anus and inserted his fingers into both her vagina

       and her anus. A.G. stated that she feared for her life during her encounter with

       Neloff.


[22]   Neloff points to what he claims are inconsistencies in A.G.’s story and argues

       that A.G.’s testimony regarding the rapes as well as the other events that

       occurred that early morning was not believable. The entirety of Neloff’s

       argument is merely a request that we reweigh the evidence and reassess

       credibility in his favor, tasks not within our prerogative on appeal. The State

       presented sufficient evidence to sustain the convictions.


[23]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1933 | July 21, 2016   Page 14 of 14
