Jose Maldonado-Morales v. State of Indiana , 2013 Ind. App. LEXIS 86 ( 2013 )

FILED
Feb 25 2013, 9:41 am
FOR PUBLICATION
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PETER D. TODD GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSE MALDONADO-MORALES, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1205-CR-255
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-0911-FD-000246
February 25, 2013
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Jose Maldonado-Morales appeals his conviction of domestic battery in the
presence of a child, a Class D felony. Ind. Code § 35-42-2-1.3 (2006).
We affirm.
ISSUE
The sole issue in this appeal is whether the trial court abused its discretion when it
instructed the jury on the doctrine of transferred intent.
FACTS AND PROCEDURAL HISTORY
In November 2009, Maldonado-Morales was involved in an altercation with his
ex-wife and mother of his child, Ana Justo, and Justo’s boyfriend, Victor Ortega. Late in
the evening, Maldonado-Morales went to Justo’s apartment and left a note on her truck.
Thinking Maldonado-Morales had gone, Justo and Ortega went outside to retrieve the
note; however, Maldonado-Morales had not gone but had remained in the parking lot.
Maldonado-Morales and Ortega began arguing. When Justo saw the two men approach
each other, she stepped in between them. Ortega and Maldonado-Morales began to hit
one another, and Maldonado-Morales punched Justo, causing her to fall to the ground and
cut her ankle. The toddler daughter of Maldonado-Morales and Justo was present for the
entire altercation.
Based upon this incident, Maldonado-Morales was charged with domestic battery
in the presence of a child as a Class D felony. At Maldonado-Morales’ jury trial, the
court instructed the jury on transferred intent. Maldonado-Morales objected to the
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instruction, but the trial court overruled the objection. The jury returned a verdict of
guilty, and Maldonado-Morales was sentenced to two years with all but 116 days
suspended. It is from this conviction that he appeals.
DISCUSSION AND DECISION
Maldonado-Morales contends that the trial court erroneously instructed the jury as
to transferred intent. We review the trial court’s decisions on instruction of the jury for
an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). When
determining whether a trial court erroneously gave or refused to give a tendered
instruction, we consider the following: (1) whether the tendered instruction correctly
states the law; (2) whether there was evidence presented at trial to support the giving of
the instruction; and (3) whether the substance of the tendered instruction was covered by
other instructions that were given. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). We
will reverse a conviction only if the appellant demonstrates that the instructional error
prejudices his substantial rights. Treadway, 924 N.E.2d at 636.
Maldonado-Morales’ claim of error with regard to the transferred intent instruction
is that the instruction incorrectly stated the law. The instruction stated, in relevant part:
If one intends to injure a person and by mistake or inadvertence
injures another person, his intent is transferred from the person to whom it
was directed to the person actually injured and he may be found guilty of
domestic battery.
Appellant’s App. p. 27. In a muddled argument, Maldonado-Morales appears to claim
that the transferred intent instruction was improper in this case because domestic battery
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(the offense he committed by hitting Justo) and battery (the offense he would have
committed had he hit Ortega) are distinct offenses that require a different mens rea such
that transferred intent cannot apply.
Maldonado-Morales’ assertion is similar to the claim raised by the respondent in
D.H. v. State, 932 N.E.2d 236 (Ind. Ct. App. 2010). In that case, D.H., a juvenile,
engaged in an altercation with another student at school. When D.H. attempted to punch
the other student, he struck a teacher instead. The juvenile court found that D.H.
committed an act that would be a D felony battery if committed by an adult. On appeal,
D.H. asserted that the doctrine of transferred intent should not apply in his case because
striking the other student would have amounted to a Class A or Class B misdemeanor,
while striking the teacher elevated the offense to a Class D felony.
In D.H., this Court noted that Indiana Code section 35-41-2-2(d) (1977) provides
that the level of culpability required for the commission of an offense is required with
respect to “every material element of the prohibited conduct” and that the terms
“prohibited conduct” and “element” are not synonymous. D.H., 932 N.E.2d at 238.
Therefore, the culpability requirement applies only to that conduct which is prohibited by
the statute. Id. (citing Markley v. State, 421 N.E.2d 20, 21-22 (Ind. Ct. App. 1981)).
Thus, the Court held that, with respect to the battery statute, the culpability requirement
of “knowingly or intentionally” applies only to the prohibited conduct elements of
touching another in a rude, angry, or insolent manner. Id. The Court further held that
aggravating circumstances that increase the penalty for the crime, such as bodily injury to
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a school employee in the course of her duties, must be proved beyond a reasonable doubt
but do not require separate proof of culpability. Id. Therefore, the State was required to
prove beyond a reasonable doubt that D.H. knowingly or intentionally struck a person in
a rude, insolent, or angry manner. Then, in order to elevate the act to a Class D felony,
the State was required to prove beyond a reasonable doubt that the person that was struck
was a school employee in the course of her duties. Id. at 239.
Turning to the instant case, we apply the reasoning in D.H. to the facts before us.
Both the offense of battery, as set forth in Indiana Code section 35-42-2-1 (2009), and the
offense of domestic battery, as set forth in Indiana Code section 35-42-2-1.3, prohibit
touching another in a rude, insolent, or angry manner. In addition, the culpability
requirement in both statutes is the same: knowing or intentional. See Ind. Code §§ 35-
42-2-1, -1.3. Pursuant to Indiana Code section 35-41-2-2(d) and the holding in D.H., the
required culpability in both statutes (i.e., knowingly or intentionally) applies only to the
prohibited conduct elements of touching another in a rude, insolent, or angry manner.
Thus, here, the State was required to prove beyond a reasonable doubt that Maldonado-
Morales knowingly or intentionally touched a person in a rude, insolent, or angry manner.
The element in the present case that sets domestic battery apart from a general
battery is the requirement that the person touched (1) is or was a spouse of the other
person, (2) is or was living as if a spouse of the other person, or (3) has a child in
common with the other person. See Ind. Code § 35-42-2-1.3(a). This is an additional
element akin to the aggravating circumstances discussed in D.H. 932 N.E.2d at 239. A
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second additional element present in this case is the commission of the offense in the
presence of a child. See Ind. Code § 35-42-2-1.3(b)(2); see also Appellant’s App. 72.
This element is an aggravating circumstance of domestic battery that increases the
penalty for the crime to a D felony. See Ind. Code § 35-42-2-1.3(b)(2). Both of these
additional elements require proof beyond a reasonable doubt but do not require proof that
Maldonado-Morales acted knowingly or intentionally with regard to these facts. In
summary then, the State was required to prove beyond a reasonable doubt that
Maldonado-Morales knowingly or intentionally struck a person, and then prove beyond a
reasonable doubt that the person that was struck is or was the spouse of Maldonado-
Morales and that Maldonado-Morales committed the offense in the presence of a child.
Thus, the two offenses of battery and domestic battery do not require a different
mens rea as suggested by Maldonado-Morales; rather, both offenses require a showing
beyond a reasonable doubt of a “knowing or intentional” touching in a rude, insolent, or
angry manner. The additional elements are facts that the State must prove beyond a
reasonable doubt; however, there is no requirement that the state prove that Maldonado-
Morales acted knowingly or intentionally as to the status of the victim or the presence of
a child.
CONCLUSION
For the reasons stated, we conclude that the trial court did not abuse its discretion
by instructing the jury as to the doctrine of transferred intent.
Affirmed.
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NAJAM, J., and CRONE, J., concur.
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