Angelo Velez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 02 2020, 10:50 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angelo Velez, July 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2467
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff. Judge
The Honorable Amy J. Barbar,
Magistrate
Trial Court Cause Nos.
49G01-1602-F3-7337
49G01-1805-PC-15736
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020 Page 1 of 10
Case Summary
[1] Angelo Velez (“Velez”) appeals his convictions for Attempted Robbery, as a
Level 3 felony,1 two counts of Burglary, as Level 4 felonies,2 and two counts of
Theft, as Class A misdemeanors.3 We affirm.
Issues
[2] Velez presents two issues for review:
I. Whether the jury was erroneously instructed as to the
State’s burden of proof; and
II. Whether sufficient evidence supports one of the
convictions for Burglary.
Facts and Procedural History
[3] During the morning of December 17, 2015, Indianapolis resident Tim
McDowell (“McDowell”) heard his dog barking and looked out the window of
his residence on Vine Street to investigate. McDowell saw three men dressed in
black run across a yard, run down the alley behind McDowell’s residence, and
then run back across the yard. The men were carrying a television, a bag, and a
1
Ind. Code §§ 35-42-5-1(1), 35-41-5-1.
2
I.C. § 35-43-2-1.
3
I.C. § 35-43-4-2(a).
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keyboard case. A fourth man joined with the first three, and McDowell saw
them drive away in a white SUV with dark tinted windows.
[4] McDowell’s father called 9-1-1, and Indianapolis Metropolitan Police Officer
Steven Spina (“Officer Spina”) responded to the dispatch at 8:57 a.m.
Meanwhile, Nicholas Szalai (“Szalai”) had been on his way to work when he
received notice that his residential security alarm had been activated. Szalai
immediately returned home to find that his window had been broken and a
television and computer monitor were missing. Szalai provided Officer Spina
with a thirty-second security video recorded inside the residence, from which
two still photos were produced.
[5] Less than one mile away, on Crestwood Drive, Ranmundo Rangel (“Rangel”)
heard a knock at his door. When Rangel approached the door, he saw that it
was cracked open. Five men entered the house. One man struck Rangel in the
face, and one demanded to know “where’s the money, where’s the drugs.”
(Trans. Exhibit Vol. II, pg. 91.) Rangel’s tenant, Debar Lindsey (“Lindsey”),
was inside a bedroom when she heard the disturbance. She took refuge in a
closet and called 9-1-1. Within minutes, Lindsey was dragged from the closet
by one of the men, who renewed the demand for money and drugs. Lindsey
saw that one of the men was holding a knife that looked like one she had
ordered from an infomercial. One of the men struck Lindsey in the back of her
head, knocking her down.
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[6] Some of the men began to whistle, an apparent signal to leave, giving Rangel
the opportunity to flee the residence. Rangel ran and hid in his neighbor’s
bushes; he saw the group of men leaving his residence and drive away in a
white or tan vehicle he called a van.4 Rangel’s neighbor, Gose Garsia
(“Garsia”) saw a group of men drive off in a white Chevy Envoy. Garsia
estimated that police arrived three to five minutes later. Officer Jeffrey Stagg
(“Officer Stagg”) responded to a dispatch at 9:10 a.m. When he arrived at the
Rangel residence, Officer Stagg saw a large television set abandoned at the
curb. He also recovered a discarded knife like Lindsey’s knife.
[7] Rangel identified Velez from a photographic array. Five fingerprints, later
identified as those of Velez, were lifted from the television abandoned at
Rangel’s curb. Lindsey was unable to identify any of her attackers.
[8] Velez was charged with attempted robbery causing bodily injury to Rangel,
attempted armed robbery and kidnapping of Lindsey, theft of Rangel’s
property, theft of Szalai’s property, burglary of Rangel’s residence, and burglary
of Szalai’s residence. Velez was tried before a jury on March 26 and 27, 2018.
The jury acquitted Velez of kidnapping and was unable to reach a verdict as to
attempted robbery of Lindsey. Velez was found guilty of the remaining
charges.
4
Rangel was speaking through an interpreter.
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[9] On April 20, 2018, Velez received an aggregate sentence of ten years
imprisonment. This consisted of six years for attempted robbery of Rangel, a
concurrent six-year sentence for burglary of Rangel’s residence, two concurrent
one-year sentences for theft, and a consecutive four-year sentence for burglary
of Szalai’s residence.
[10] Court-appointed counsel filed a Notice of Appeal on behalf of Velez. However,
on May 14, 2018, Velez filed a pro-se petition for post-conviction relief. Upon
the motion of counsel, the appeal was dismissed without prejudice, to permit
remand for resolution of the post-conviction proceedings.5 Velez was denied
post-conviction relief and his direct appeal proceeded.
Discussion and Decision
Jury Instruction
[11] Prior to the presentation of evidence, the trial court conducted a bench
conference to discuss jury instructions, at which the court signaled its intention
to utilize Indiana Pattern Jury Instruction 1.07 on the State’s burden of proof.
The proposed language as to each count was:
[Definition of Offense] Before you may convict the defendant of
[offense] the State must prove each of the following elements
beyond a reasonable doubt:
5
See Indiana Appellate Rule 37.
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[elements]
If the State fails to prove each of these elements beyond a
reasonable doubt you must find the defendant not guilty of the
crime of [offense] as charged in Count [#].
App. Vol. III, pgs. 12-20.
[12] Velez objected to the proposed instruction and asked that the trial court follow
a federal pattern instruction on burden of proof, such that the word “any”
would be substituted for “each” in the last sentence. Velez argued that the jury
could have understood the final sentence of the Indiana pattern instruction to
mean that acquittal was proper only if the State had failed to prove each, as in
each and every, element. The trial court responded that the federal instruction’s
use of “any” was “more accurate,” but stated, “each leads me to the same
conclusion.” (Trans. Exhibits Vol. II, pgs. 13-14.) The trial court decided to
“defer to the [Indiana] pattern.” Id. at 14.
[13] Velez now argues that the jury was incorrectly instructed on the State’s burden
of proof. The purpose of a jury instruction is to inform the jury of the law
applicable to the facts without misleading the jury, and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.
Batchelor v. State, 119 N.E.3d 550, 560 (Ind. 2019). The “preferred practice is to
use the pattern jury instruction,” but pattern instructions are not always upheld
as correct statements of law. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct.
App. 2005).
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[14] To give “concrete substance for the presumption of innocence,” due process
requires the State to persuade the factfinder “beyond a reasonable doubt of
every fact necessary to constitute the crime charged.” In re Winship, 397 U.S.
358, 363, 90 S. Ct. 1068 (1970). Accordingly, the jury must be instructed in a
manner that does not relieve the State of its burden of proof. See Batchelor, 119
N.E.3d at 560. In general, a trial court has discretion in instructing the jury;
however, when a question of law is presented, our review is de novo. Id. at 554.
We reverse the trial court only if the instruction resulted in prejudice to the
defendant’s “substantial rights.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind.
2015).
[15] Here, the challenged instruction first tells the jury that the State must prove
beyond a reasonable doubt each element of the charged offense. The final
sentence again uses the word “each” but in a different context, that is, the jury
is instructed when acquittal is mandatory. The word “any” may well be a
preferable substitution, dispelling any possible doubt. The jury would be
instructed, in explicit terms, that a failure of proof on any element mandates
acquittal.
[16] Although we acknowledge that the burden of proof instructions given in this
case may well have been more artfully worded, it is well-settled that jury
instructions are to be considered as a whole, not in isolation. O’Connell v. State,
970 N.E.2d 168, 172 (Ind. Ct. App. 2012). We look to whether the
instructions, taken as a whole, misstate the law or otherwise mislead the jury.”
Id. Thus, our focus is not limited to the repetition of one word.
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[17] The Velez jury was instructed to consider the instructions as a whole. Among
the instructions was Preliminary Instruction 6, regarding the presumption of
innocence. The jury was instructed that, to overcome this presumption, “the
State must prove the defendant guilty of each element of the crime charged
beyond a reasonable doubt.” (App. Vol. III, pg. 11.) The jury was also
instructed, relative to every specific crime alleged, that the State must prove
each element (thereinafter enumerated) beyond a reasonable doubt. Finally, in
a preliminary instruction directed to explaining the concept of reasonable
doubt, the jury was instructed that the State must prove each and every element
by evidence that “leaves no reasonable doubt.” Id. at 27. In sum, we are not
persuaded that the jury was misled or that Velez suffered prejudice to his
substantial rights.
Sufficiency of the Evidence – Szalai Burglary
[18] To convict Velez of the Szalai burglary, as charged, the State was required to
prove beyond a reasonable doubt that Velez broke and entered Szalai’s
residence with the intent to commit theft inside the residence. Ind. Code § 35-
43-2-1. Velez concedes that Szalai’s residence was burglarized, but he claims
that the State failed to establish his identity as one of the perpetrators.
[19] When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
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such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.[20] Victim testimony and fingerprint evidence tied Velez to the Rangel burglary,
unlike the Szalai burglary. Velez insists that Szalai’s thirty-second security
video lacks any probative value. But this argument ignores Detective Scott
Stauffer’s testimony that he produced still photographs from the video. At trial,
Velez was instructed to remove his glasses and the jury was provided with the
still photographs, State’s Exhibits 20 and 21, for comparison. Although Velez
requested that the photographs be used only as a demonstrative exhibit, the trial
court clarified that they were being admitted as substantive evidence. Velez
asks that we discard this evidence, but we do not reweigh evidence or assess
credibility of witnesses. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009).
[21] Velez also argues that the jury was invited to draw unreasonable inferences.
According to Velez, the State asked the jury “to infer that he was in two places
at the same time.” Appellant’s Brief at 35. Velez observes that the police
dispatches were very close in time, 8:57 a.m. at Vine Street and 9:10 at
Crestwood Drive. Velez also point to Garsia’s testimony that he put his child
on a bus at 8:45 a.m. and saw a white vehicle parked in front of Rangel’s
residence. To the extent that testimony about a vehicle’s location may be said
to create a conflict about a person’s location, it is the role of the fact-finder to
determine whom to believe and what portion of conflicting evidence to believe.
Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017). The State did not fail to
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present sufficient evidence from which the jury could identify Velez as one of
the burglars of the Szalai residence.
Conclusion
[22] Velez is not entitled to reversal on the basis of instructional error. Sufficient
evidence supports Velez’s conviction for burglary of the Szalai residence.
[23] Affirmed.
Crone, J., and Altice, J., concur.
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