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 Jan 22 2014, 9:31 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHALLIE A. GRAY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1306-CR-534
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-1201-MR-4425
January 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Defendant Challie A. Gray was convicted, following a jury trial, of the
murder of Regina Roska. In challenging his conviction on appeal, Gray contends that the
trial court abused its discretion in excluding certain evidence from trial. Gray also contends
that the trial court abused its discretion in admitting certain evidence at trial. Specifically,
Gray claims that the trial court erroneously excluded evidence relating to the prior bad acts of
an unnamed possible third-party perpetrator as well as evidence of the potential motive of the
possible unnamed third-party perpetrator. Gray also claims that the trial court erroneously
admitted video of a surveillance recording offered by Appellee-Plaintiff State of Indiana.
Concluding that the trial court acted within its discretion with regard to the exclusion and
admission of the evidence in question, we affirm.
FACTS AND PROCEDURAL HISTORY
In January of 2012, Gray lived with his girlfriend, Roska, in Apartment 417 of a
single-story apartment complex on Indianapolis’s west side. At approximately 10:15 p.m. or
10:30 p.m. on January 18, 2012, Gray and Roska parked a white van belonging to Gray in
front of Apartment 417. Neighbor Ashley Engleking heard Gray and Roska arguing with
each other as they exited the van and entered Apartment 417.
Fifteen to twenty minutes later, Engleking approached Apartment 417 to deliver some
fudge and two birthday cards to Roska. As Engleking approached Apartment 417, but before
knocking on the door, she heard Gray say, “F*** you, fat b****, I wish you would die.” A/V
Rec. 5/13/13 2:44:02-2:44:18 p.m. When Roska answered the door, Engleking noticed that
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Roska looked unusually pale. Engleking did not see anyone outside of Apartment 417 or any
vehicles coming or going from the area as she returned to her apartment.
Not long after Engleking left Apartment 417, David Martin, who lived next door to
Gray and Roska in Apartment 419, heard a man and a woman arguing in Apartment 417.
Martin then heard a banging or thumping noise coming from Apartment 417. After hearing
the banging or thumping noise, Martin opened his front door and saw Gray walking quickly
away from the apartment building before turning around and walking back toward the
apartment building.
Michael Carson, who lived two doors down from Gray and Roska in Apartment 413,
also looked outside after hearing four knocking sounds. Although Carson did not initially see
anyone outside, he saw Gray quickly walking to the white van before turning and walking
back toward the apartment building a few moments later.
Carol Radloff, who also lived next door to Gray and Roska in Apartment 415, had
almost fallen asleep when she heard glass breaking. Upon investigating the cause of the
sound, Radloff discovered three bullet holes in the wall of her living room that was shared
with Apartment 417. Radloff also discovered that the glass on a picture frame hung on a wall
in her apartment had been broken by a bullet. Radloff then telephoned her caregiver, Bonnie
Hart, and asked Hart to come assess the situation. Soon thereafter, Hart and Joyce Collier
looked through the partially opened door of Apartment 417, saw Roska’s limp arm, and
requested that neighbors call 911.
When Indianapolis Metropolitan Police Officer Kenneth Kunz arrived at Apartment
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417 at approximately 11:17 p.m., he found that the door was ajar. Officer Kunz saw Roska’s
body lying on the floor after he met resistance as he tried to open the door. Officer Kunz did
not find anyone else in the apartment. Roska had been shot three times: once in the head,
once in the neck, and once in the chest. Roska was subsequently transported to the hospital,
where she was pronounced dead at 11:59 p.m.
During a further investigation of Apartment 417, police found a spent bullet laying in
the doorway of Apartment 417; four spent casings laying in the living room, which was the
room nearest the doorway; and a box of ammunition in the living room. The ammunition
inside the box was stamped “CCI 9mm LUGER.” Three of the four spent casings were also
stamped “CCI 9mm LUGER” and the fourth spent casing was stamped “Tulamo 9mm
LUGER.” Police also recovered spent bullets from Radloff’s apartment. It was subsequently
determined that the three CCI-brand casings and the spent bullets recovered from the crime
scene and Radloff’s apartment had all been fired from the same firearm.1
Gray was apprehended a short time later coming out of a wooded area approximately
one mile from Apartment 417. Without being questioned or prompted by police, Gray said
something to the effect that he did not know why he did what he did. At the time Gray was
apprehended, his shirt, pants, belt, socks, and shoes had blood stains or droplets of blood on
them. Gray’s pants had also been torn near the knee. DNA testing of the samples found on
Gray’s belt and sock showed that each item contained a DNA mixture, the major profile of
which either matched or was consistent with Gray, and the minor profile of which either
1
The firearm used in the shooting was never recovered.
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matched or was consistent with Roska.
On January 23, 2012, the State charged Gray with murder. The trial court conducted a
two-day jury trial on May 13, 2013, and May 14, 2013. During trial, Gray sought to
introduce evidence of an alternative killer, an unnamed man who lived in or around the
apartment complex who was known to have a propensity for mischief and criminal behavior.
The trial court excluded some of Gray’s proffered evidence as being hearsay as well as too
speculative and remote. Following the two-day trial, the jury found Gray guilty of Roska’s
murder. The trial court subsequently sentenced Gray to a sixty-two-year term of
imprisonment.
DISCUSSION AND DECISION
On appeal, Gray contends that the trial court abused its discretion in excluding certain
evidence and also in admitting certain evidence. Specifically, Gray claims that the trial court
erroneously excluded evidence relating to the prior bad acts of an unnamed possible third-
party perpetrator and evidence of the potential motive of the unnamed possible third-party
perpetrator. Gray also claims that the trial court erroneously admitted video of a surveillance
recording showing the outside of Gray and Roska’s apartment during the timeframe relevant
to Roska’s murder.
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004).
An abuse of discretion occurs if a trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court. Id. However,
the improper admission of evidence is harmless error when the conviction is
supported by substantial independent evidence of guilt sufficient to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the conviction. Hernandez v. State, 785 N.E.2d 294,
5
300 (Ind. Ct. App. 2003), trans. denied.
Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004). “To determine that the error did
not contribute to the verdict, we determine whether the error was unimportant in relation to
everything else the jury considered on the issue in question.” Meadows v. State, 785 N.E.2d
1112, 1122 (Ind. Ct. App. 2003).
I. Exclusion of Evidence
In arguing that the trial court abused its discretion in excluding evidence relating to
the prior bad acts of an unnamed possible third-party perpetrator and the potential motive of
the unnamed possible third-party perpetrator, Gray argues that the evidence was crucial to his
theory of defense, i.e., that Roska was the victim of a “robbery gone bad,” and, as a result,
that the trial court denied him of his constitutional right to present a defense. Gray correctly
asserts that he has a constitutional right to present a defense. However, in presenting said
defense, Gray must comply with the established rules of procedure and evidence that are
designed to assure both fairness and reliability in the ascertainment of guilt and innocence.
See Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
A. Prior Bad Acts of an Unnamed Possible Third-Party Perpetrator
Gray argues that the proffered evidence of alleged prior bad acts of an unnamed
possible third-party perpetrator who lived in or near the apartment complex was relevant and
should have been admitted at trial. Under Indiana Evidence Rule 401, “evidence is relevant
when it has ‘any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
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evidence.’” McGaha v. State, 926 N.E.2d 1050, 1053 (Ind. Ct. App. 2010) (quoting Ind.
Evid. R. 401), trans. denied. “Evidence which tends to show that someone else committed
the crime logically makes it less probable that the defendant committed the crime, and thus
meets the definition of relevance in Rule 401.” Joyner v. State, 678 N.E.2d 386, 389 (Ind.
1997). “However, under Evidence Rule 403, the evidence may be excluded if its probative
value is out-weighed by unfair prejudice, confusion of the issues, or the potential to mislead
the jury.” McGaha, 926 N.E.2d at 1053. “Before evidence of a third party is admissible, the
defendant must show some connection between the third party and the crime.” Id.
In Joyner, the defense sought to present evidence that the alleged third-party actor was
having an affair with the victim, worked at the same place as the victim, had engaged in
sexual relations with the victim the night before her disappearance, had an argument with the
victim the day she was last seen alive, and came to work late the day after her disappearance,
falsifying his tardiness on his time sheet. 678 N.E.2d at 389. Other evidence admitted at
trial, i.e. evidence that a hair found inside the plastic bag covering the victim’s head excluded
the defendant as the donor of the hair but indicated that there was a ninety-eight to ninety-
nine percent probability match with the alleged third-party actor, was consistent with the
proffered evidence. Id. The Indiana Supreme Court held that, under those circumstances, it
was error to prevent the defense from offering the proposed evidence connecting the alleged
third-party actor to the victim. Id. at 390.
Here, unlike in Joyner, the record was devoid of any evidence connecting the
unnamed possible third-party perpetrator to the victim. Gray sought to admit evidence that
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this unnamed individual had, on occasion, thrown rocks at the windows of one of the
residents of the apartment complex, was said to have stolen an air conditioner, and was said
to have a drug problem. No evidence was admitted into the record or proffered by Gray,
however, indicating that Roska knew this unnamed possible third-party perpetrator, that
Roska had had any prior interaction with the unnamed possible third-party perpetrator, or that
there was any connection whatsoever between Roska and this unnamed individual. As such,
we conclude that the trial court did not abuse its discretion in excluding the proffered
evidence. See Lashbrook v. State, 762 N.E.2d 756, 758 (Ind. 2002) (providing that the trial
court acted within its discretion in excluding evidence of statements made by a third party
where, in stark contrast to Joyner, there was no material evidence connecting the third party
to the victim); Pope v. State, 737 N.E.2d 374, 379 (Ind. 2000) (providing that the trial court
acted within its discretion in excluding evidence that a third party possessed bullets similar to
bullets found at the crime scene over a week before the shooting because there was simply no
link between the bullets recovered from the crime scene and the bullets allegedly possessed
by the third party).
In addition, the trial court acted within its discretion in excluding the evidence of the
prior bad acts of the unnamed possible third-party perpetrator because the proffered evidence
was nothing more than propensity evidence that was offered to prove that the unnamed
possible perpetrator had a propensity to engage in mischief and criminal behavior, and
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therefore was disallowed under Indiana Evidence Rule 404(b).2 See Camm v. State, 908
N.E.2d 215, 231 (Ind. 2009) (providing that the proffered evidence of a third party’s sexual
compulsion for feet and shoes was properly excluded under the Rules of Evidence because
the proffered evidence was intended to lead the jury to make the forbidden inference that the
third party acted in conformity with this character trait); Hauk v. State, 729 N.E.2d 994, 1001
(Ind. 2000) (providing that the trial court’s decision to exclude evidence suggesting that a
third party acted in accordance with a character trait was well within the court’s discretion).
B. Motive of the Unnamed Third Party Perpetrator
During trial, Gray sought to present the theory that Roska was killed by an unnamed
third-party perpetrator during a “robbery gone bad.” In support of this defense, Gray sought
to introduce evidence that there was a general belief in the neighborhood that Gray had
recently received a lump sum of money. Gray argues that the proffered evidence relating to
the general belief in the neighborhood that he had recently received a lump sum of money
was relevant to show that some unnamed third party had motive to break into Gray and
Roska’s apartment. Again, in the context of third-party motive evidence, before evidence
relating to a third party is admissible, the defendant must show some connection between the
third party and the crime. See Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009), declined to
follow on other grounds by Austin v. State, 997 N.E.2d 1027 (Ind. 2013); McGaha, 926
N.E.2d at 1053. Gray has failed to do so.
2
Indiana Evidence Rule 404(b) provides that “evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.”
9
In Pelley, the defendant sought to introduce evidence that a third-party allegedly
associated with the victim’s prior life in Florida had motive to kill the victim. 901 N.E.2d at
505. The defendant, however, did not show that the witnesses called at trial were competent
to testify about the victim’s life in Florida or present any evidence connecting the events that
were alleged to have occurred in Florida to the murder of the victim. Id. at 505-06. Upon
review, the Indiana Supreme Court found that absent a more direct connection, the trial court
did not abuse its discretion in excluding the proffered evidence of an alleged third-party
motive as too speculative. Id. at 506.
Likewise, in McGaha, the defendant sought to introduce evidence that a third-party,
i.e., the victim’s marijuana dealer, had motive to kill the victim. 926 N.E.2d at 1054. The
proffered evidence, however, did not indicate that any of the witnesses had first-hand
knowledge of statements or conduct on the part of the alleged marijuana dealer. Id. At most,
one witness had knowledge of a rumor. Id. Upon review, this court determined that because
the defendant was unable to offer any evidence connecting the alleged marijuana dealer to
the victim’s murder, the trial court acted within its discretion in excluding the proffered
evidence. Id. at 1055.
Here, Gray sought to introduce evidence that a third-party could have had a motive to
rob him and Roska because there was a general belief in the neighborhood that he had
recently received a lump sum of money. The trial court allowed Gray to question Collier and
Engleking about whether Gray had given either of them money and about whether they had
seen Gray give money to any other individual. The trial court also allowed Collier to testify
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to her belief regarding Gray’s financial situation in light of the money he gave her. The trial
court, however, excluded evidence relating to rumors or claims which Collier and Engleking
had heard from others about Gray.
Upon review, we observe that the record is devoid of any evidence indicating that a
robbery occurred. Gray presented no evidence suggesting that anything was missing from
Apartment 417. Also, multiple witnesses testified that they did not see any other individual
in or around Apartment 417 before, during, or after Roska’s murder. As such, any evidence
relating to rumors concerning Gray’s financial status as a potential motive for a “robbery
gone bad” that resulted in Roska’s death was too speculative to be relevant. Accordingly, we
conclude that the trial court acted within its discretion in excluding the proffered evidence
because Gray has failed to establish a connection between any unnamed possible third-party
perpetrator and Roska’s murder. See Pelley, 901 N.E.2d at 505; McGaha, 926 N.E.2d at
1053.
II. Admission of Evidence
Gray also argues that the trial court abused its discretion in admitting a surveillance
video recording of the area outside Apartment 417 from the night in question. Specifically,
Gray argues that the video should not have been admitted because the quality of the video
was low, and as a result, no relevant evidence could be gleaned from the video. We disagree.
While we note that the quality of the surveillance video was indeed poor, upon review,
we were able to observe what appeared to be a white van approach and park outside
Apartment 417 at approximately 10:34 p.m. Shortly after 11:00 p.m., we were also able to
11
observe what appeared to be a man exit Apartment 417 and approach the white van before
turning and walking back toward the apartment building. While the video quality was such
that we were unable to definitively identify the man in the video as Gray, these images were
consistent with witness testimony regarding Gray’s actions just prior to and after the time
when Roska appears to have been shot. As such, we conclude that the surveillance video was
relevant to the State’s case as it appeared to bolster the testimony of the State’s witnesses.
The trial court, therefore, acted within its discretion in admitting the surveillance video into
evidence at trial.
Furthermore, even if the video quality was so poor as to make it impossible to glean
relevant evidence from the video, any potential error in admitting the video was, at most,
harmless.
No error in the admission of evidence is grounds for setting aside a conviction
unless such erroneous admission appears inconsistent with substantial justice
or affects the substantial rights of the parties. The improper admission of
evidence is harmless error when the conviction is supported by such
substantial independent evidence of guilt as to satisfy the reviewing court that
there is no substantial likelihood that the questioned evidence contributed to
the conviction. To determine whether the erroneous admission of irrelevant
and prejudicial evidence of extrinsic offenses is harmless, we judge whether
the jury’s verdict was substantially swayed. If the error had substantial
influence, or if one is left in grave doubt, the conviction cannot stand.
Lafayette v. State, 917 N.E.2d 660, 666-67 (Ind. 2009) (internal citations and quotation
omitted).
Upon review of the unchallenged evidence, we cannot say that the allegedly
erroneously admitted surveillance video had a substantial influence on the jury’s verdict.
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Engleking testified that she heard Gray and Roska arguing as they entered Apartment 417
together approximately thirty minutes before Roska was shot. Multiple other witnesses
testified that they heard a man and a woman arguing just prior to the shooting. Shortly after
the shooting, multiple witnesses saw Gray walk from the area of Apartment 417. Gray was
subsequently apprehended about one mile from Apartment 417. When apprehended by
police, Gray had traces of Roska’s blood on his clothing. In addition, while being
transported to the police station, Gray volunteered a comment, without any prompting by
police, to the effect that he did not know why he did what he did. In light of the evidence of
Gray’s guilt, cannot say that there was a substantial likelihood that the allegedly unclear
images depicted on the surveillance video had a substantial influence on the jury’s verdict.
As such, the admission of the surveillance video was, at most, harmless. Id. at 667.
CONCLUSION
In sum, the trial court acted within its discretion in excluding the proffered evidence
relating to the alleged prior bad acts of an unnamed possible third-party perpetrator as well as
the possible motive of said unnamed third party. The trial court also acted within its
discretion in admitting the surveillance video at trial.
The judgment of the trial court is affirmed.
KIRSCH, J. and MAY, J., concur.
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