FOR PUBLICATION                                       Dec 20 2013, 6:04 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON                               GREGORY F. ZOELLER
Brownsburg, Indiana                           Attorney General of Indiana

                                              ERIC P. BABBS
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JAMES MIRA,                                   )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A04-1305-CR-245
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Dennis W. Lopes, Judge Pro Tempore
                           Cause No. 49F18-1107-FD-51687



                                  December 20, 2013


                             OPINION - FOR PUBLICATION


BROWN, Judge
       James Mira appeals his conviction for theft as a class D felony. Mira raises one

issue, which we revise and restate as whether the trial court committed fundamental error

in admitting certain evidence. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On June 10, 2011, Robin Ludlow left her home in Indianapolis for between one

hour and one hour and forty-five minutes to pick up her children from school. When she

left her home, an air conditioning unit which her husband Brian had disconnected from

the home was at the side of the home. While Robin was away, Jennifer Sheard, the

Ludlows’ neighbor, observed Mira and another individual in front of the Ludlows’ home

loading the air conditioning unit into the bed of a pickup truck and drive away. Sheard

knew Mira because he was another neighbor’s son-in-law. Upon returning home Robin

noticed that the air conditioning unit was missing, and the police were contacted.

       Detective Stephen Carroll of the Indianapolis Metropolitan Police Department was

assigned to investigate the theft, and on June 29, 2011, he presented a photo array to

Sheard, who identified Mira as one of the men she observed removing the air conditioner.

On July 1, 2011, Detective Carroll mailed a letter to Mira at his mother-in-law’s address

stating that Mira was “a suspect in a larceny” and that Mira “needed to contact” him.

Transcript at 29. Detective Carroll subsequently went on a vacation, and after returning

on July 11, 2011, while “catching up on . . . voicemails,” noted that Mira “had called and

left [] a voicemail” stating that he had received the letter and asking Detective Carroll to

call him back. Id. at 26. On July 13, 2011, Detective Carroll called and spoke with Mira




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about arranging a meeting. Mira stated that he needed to check his schedule and would

call back; however, he did not do so.

         On July 22, 2011, the State charged Mira with theft as a class D felony. On

October 31, 2012, the court held a bench trial in which the State elicited without

objection Detective Carroll’s testimony regarding writing the letter, talking to Mira on

the phone, and Mira not calling him back. Mira testified and denied involvement in the

theft. During cross-examination, the prosecutor asked Mira “why did you never get back

with the Detective,” to which Mira’s counsel objected based upon attorney-client

privilege, and the court sustained the objection, noting that “why he got back to the

Detective or not could be an area where he was exercising his 5th Amendment right and I

don’t think that at that point there he should be required to answer that question.” Id. at

52-53.     During closing argument, the prosecutor argued the credibility of Sheard’s

identification of Mira, disputed the defense’s theory regarding whether Mira owned a

pickup truck in June 2011, and did not mention Mira’s decision to not call Detective

Carroll back. The court found Mira guilty as charged. On April 24, 2013, the court held

a sentencing hearing and sentenced Mira to two years in the Department of Correction.

                                        DISCUSSION

         The issue is whether the trial court committed fundamental error in admitting

certain evidence.    Generally, a trial court’s ruling on the admission of evidence is

reviewed for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000).

Errors in this regard are not reversible if such admission constituted harmless error. Fox

v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.

                                            3
However, as Mira recognized, here the evidence being challenged was not objected to

when it was presented at trial. Consequently, in order to avoid waiver of this issue Mira

invokes the fundamental error doctrine, which permits appellate review of otherwise

procedurally defaulted claims. See Southward v. State, 957 N.E.2d 975, 977 (Ind. Ct.

App. 2011). “The fundamental error doctrine is ‘extremely narrow,’ requiring an error

‘so prejudicial that a fair trial is impossible.’” Id. (quoting Sasser v. State, 945 N.E.2d

201, 203 (Ind. Ct. App. 2011), trans. denied). “Blatant violations of basic principles,

coupled with substantial potential or actual harm and denial of due process constitute

fundamental error.” Id.; see also Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (“To

qualify as fundamental error, an error must be so prejudicial to the rights of the defendant

as to make a fair trial impossible. To be fundamental error, an error must constitute a

blatant violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process.”).

       Mira argues that although “[t]he United States Supreme Court recently held that a

defendant’s refusal to answer an investigating officer’s questions before the defendant

has been arrested or Mirandized can be used substantively and for impeachment unless

the defendant explicitly stated that he was refusing to answer the officer’s questions on

Fifth Amendment grounds” in Salinas v. Texas, 133 S. Ct. 2174, 2180 (2013), “this court

is free to interpret Article One, Section Fourteen of the Indiana Constitution so as to give

broader protection to Indiana’s citizens.” Appellant’s Brief at 5, 7 (citing Ajabu v. State,

693 N.E.2d 921, 927 (Ind. 1998)). Mira suggests that “this court hold that, under the

Indiana Constitution, an individual’s exercise of his right against self-incrimination

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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. at 8. In so arguing, Mira maintains that “[i]t defies logic to

allow the State to use an individual’s exercise of a constitutional right as evidence of guilt

simply because the right was exercised before the State’s duty to administer Miranda

warnings arose.” Id.

       The State begins by arguing that “[t]he transcript does not reveal a blatant error,

nor does it reveal any prejudice to Mira from the trial court’s consideration of the now-

challenged evidence,” and, moreover, he “[h]as not shown a lack of fundamental

fairness.” Appellee’s Brief at 8. In so arguing, the State highlights that Mira was tried to

the bench, and this court generally presumes that “a court renders its decisions solely on

the basis of relevant and probative evidence.” Id. at 9. The State also argues that

“[c]ontrary to Mira’s argument, this case does not involve a defendant’s exercise of

constitutional rights being used as substantive or impeachment evidence” and was instead

“better characterized as evidence about the course of a police investigation,” and

contends that the United States Supreme Court’s opinion in Salinas is not implicated. Id.

at 10. The State maintains that even if we accept Mira’s framing of the issue, he “merely

requests a different result under the Indiana Constitution but does not advance a specific

reason based on constitutional text, history, or structure.” Id. at 15. Finally, the State

notes that the court at Mira’s trial “refused to allow any evidence about why Mira did not

contact Detective Carroll,” that “[i]t is therefore specious to suggest that Mira’s silence




                                              5
was a factor in the trial court’s finding Mira guilty,” and that accordingly there can be no

finding of fundamental error. Id. 18.

       This court’s opinion in Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010),

reh’g denied, trans. denied, is instructive.     In Owens, Owens’s step-daughter C.R.

disclosed to school officials and police that she had been molested by Owens, and during

the investigation Detective Scott McKinney “tried to contact Owens on his cell phone

more than once.” 937 N.E.2d at 883-884. Detective McKinney also “went to Owen’s

Hamilton County residence with a DCS caseworker,” found him not to be home, “left his

business card with a message requesting that Owens contact him,” and repeated the

procedure two days later,” but Detective McKinney never did hear from Owens. Id. at

884. At Owens’s jury trial, Detective McKinney testified about his investigation and

specifically testified “that he tried to call Owens more than once but failed to reach him,”

that “he went to Owens’s home and left his business card asking Owens to call him,” and

that he never received contact from Owens. Id. at 884-885.

       On appeal, this court first noted that Owens failed to preserve the error for review

because he did not object and that we could only reverse if he demonstrated the existence

of fundamental error. Id. at 885. We found that Owens could not “avoid procedural

default because he fail[ed] to demonstrate that the admission of Detective McKinney’s

testimony constitutes error, let alone fundamental error.” Id. After discussing pre-

Salinas federal case law demonstrating that there was a “split as to whether the

Constitution permits the prosecution to use a defendant’s pre-arrest, pre-Miranda silence

as substantive evidence in its case-in-chief,” id. at 886, we stated that in Owens’s case,

                                             6
“even under the cases holding that a defendant’s pre-arrest, pre-Miranda silence is

protected by the Fifth Amendment, Owens’s lack of response to Detective McKinney is

outside the ambit of the Fifth Amendment.” Id. at 891. Specifically, we held:

       Recall that in the majority of those cases, the court specifically considered
       whether the defendant invoked the right to remain silent and concluded that
       the defendant’s statement or action was an invocation of the right. See
       Combs[ v. Coyle, 205 F.3d 269, 286 (6th Cir. 2000), reh’g denied, cert.
       denied, 531 U.S. 1035, 121 S. Ct. 623 (2000)]; [United States v. Burson,
       952 F.2d 1196, 1200 (10th Cir. 1991), cert. denied, 503 U.S. 997, 112 S.
       Ct. 1702 (1992)]; Coppola[ v. Powell, 878 F.2d 1562, 1567 (1st Cir. 1989),
       cert. denied, 493 U.S. 969, 110 S. Ct. 418 (1989)]; see also Berghuis v.
       Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010)
       (holding that during police interrogation right to remain silent must be
       invoked unambiguously)[, reh’g denied]. Based on these cases and the
       particular circumstances present here, Owens’s mere lack of response does
       not support a finding that he invoked the right to remain silent. Perhaps
       Owens did not respond because the wind blew Detective McKinney’s cards
       away, or perhaps Owens was very ill or too busy, or perhaps he just did not
       like the police. Also, since Detective McKinney never told Owens why he
       wanted to talk to him, there is no basis to conclude that Owens even would
       have known that he was the subject of an investigation. Based on the
       foregoing, we conclude that the State did not infringe upon Owens’s Fifth
       Amendment privilege against self-incrimination by introducing evidence
       that Detective McKinney did not hear from Owens. It follows that no error,
       let alone fundamental error, occurred in the admission of the testimony.

Id. at 891-892.

       We find this reasoning applicable in this case. As noted, evidence was presented

at trial that Mira did not call Detective Carroll back in order to schedule a meeting to

discuss the theft of the air conditioner. However, during the bench trial, when the

prosecutor attempted to delve into the reason Mira did not follow up with Detective

Carroll, Mira’s counsel objected, and the objection was sustained. As Owens notes, the

failure on Mira’s part to follow up with Detective Carroll does not support a finding that



                                            7
he invoked his right to remain silent. To the extent that Mira requests that we overturn

the reasoning of Owens and find that this evidence was erroneously admitted pursuant to

Article 1, Section 14 of the Indiana Constitution, we agree with the State that Mira does

not offer a specific reason and merely requests a different result. We can find no basis to

disagree with the reasoning of Owens based upon Article 1, Section 14 of the Indiana

Constitution.1

                                           CONCLUSION

        For the foregoing reasons, we affirm Mira’s conviction for theft as a class D

felony.

        Affirmed.

ROBB, C.J., and BARNES, J., concur.




        1
         We observe that one distinction between the defendant in Owens and Mira is that Mira was told
by Detective Carroll in the initial letter that he was the subject of a larceny investigation, while the
defendant in Owens was apparently never specifically told by officers the nature of the investigation.
Even so, however, we do not believe that the circumstances here, including that Mira initially phoned
Detective Carroll upon receiving the letter, told Detective Carroll during their phone conversation that he
would check his schedule and call the detective back but subsequently failed to do so, was tantamount to
invoking one’s right to remain silent.

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