Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1031 | September 25, 2017 Page 1 of 30

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Valerie K. Boots

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

William Gholston,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 25, 2017

Court of Appeals Case No.

49A05-1605-CR-1031

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

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 2 of 30

[1] William Gholston appeals his conviction for murder.1 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 westside 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 3 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 4 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 5 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 6 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 7 of 30

Miranda rights should be suppressed. A hearing was held on February 16, 20162

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 8 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] 

man to man and helpin’.”

3

 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 

statement that was used against him at his murder trial.4 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 18 of 30

[Gholston]: Yes.

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

statement to the detective.5

[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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 

to hide.6 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 26 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 27 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 28 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 29 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 30 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.