MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 26 2017, 11:01 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew J. Baldwin Curtis T. Hill, Jr.
Baldwin Kyle & Kamish, P.C. Attorney General of Indiana
Franklin, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Candelario Cruz-Trujillo, October 26, 2017
Appellant-Defendant, Court of Appeals Case No.
41A01-1612-CR-2723
v. Appeal from the Johnson Circuit
Court
State of Indiana, The Honorable K. Mark Loyd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
41C01-1510-MR-2
Mathias, Judge.
[1] Candelario Cruz-Trujillo (“Candelario”) appeals his conviction for murder. In
this appeal, Candelario claims that the trial court abused its discretion when it
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refused to instruct the jury on involuntary manslaughter, voluntary
manslaughter, and reckless homicide.
[2] We affirm.
Facts and Procedural History
[3] In the fall of 2014, Candelario discovered that his wife Isabel was having an
affair with Miguel Hernandez (“Hernandez”). Subsequently, Isabel moved out,
and their children decided to stay with Candelario. In September 2015,
Candelario and Isabel were having disagreements about where the children
should live. During this time, Hernandez called Candelario and boasted,
“[Candelario] was feeling like a big man taking away the children from
[Isabel].” Tr. Vol. III, p. 55. This angered Candelario and on September 12,
2015, he went to Hernandez’s apartment “to tell him not to mess with me, that
if he wanted to say something, to tell me face to face, not to call me on the
phone.” Id. Candelario waited for Hernandez at his apartment, and when
Hernandez arrived, he spotted Candelario, quickly exited his car, and retreated
into his apartment before there was a confrontation.
[4] In the following weeks, Candelario noticed cars driving slowly by his home,
and he was informed by a neighbor that a few strange men were walking near
his property. Because of these events, Candelario illegally purchased a firearm.
On September 29, Hernandez called Candelario and the following exchange
took place:
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I asked him, what do you want? And he told me, are you scared?
And I said, no, I’m not scared of nobody. I told him I want to see
him - - I want to see you because I don’t want you to be going
around my house. And he had fun. He told me that I was stupid,
an asshole. I told him, you too. And I told him, if you want to
say something, tell it face to face, don’t call me on the phone.
And by now, I raised my voice, I was more upset. And I hang
up.
Id. at 66 (errors in original). Later that same evening, Candelario went out to
his truck and began drinking heavily. At some point during the night,
Candelario severely cut his hand on a broken beer bottle. He went inside and
his oldest daughter helped him wrap his wound. His daughter also
communicated with Isabel, encouraging her to come assist with Candelario.
[5] Isabel arrived and attempted to take Candelario to the hospital. He refused and
told her, “now I’m going to talk to Miguel.” Id. at 69. Isabel tried to block in
Candelario’s car, but he maneuvered his truck around her vehicle and traveled
to the Four Seasons restaurant, where Hernandez was employed as a cook,
around 5:30 a.m. on September 30.
[6] Candelario pulled into the Four Seasons and waited in his truck for Hernandez
to arrive. Soon after, Hernandez pulled in and Candelario exited his truck to
confront him. Candelario told Hernandez he wanted to talk to him; however,
Hernandez began backing up and moving towards the restaurant entrance.
Hernandez appeared to grab for something, and Candelario raised his gun and
fired several shots at Hernandez. After Hernandez fell to the ground,
Candelario shot Hernandez once more in the back of the head. Candelario went
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back to his truck and drove away. He was arrested without incident later that
day.
[7] The State charged Candelario with murder on October 7, 2015. A three-day
jury trial commenced on September 12, 2016, during which the trial court
found that the evidence did not warrant jury instructions on involuntary
manslaughter, voluntary manslaughter, and reckless homicide. The jury found
Candelario guilty, and he was sentenced on November 7 to fifty-six years in the
Indiana Department of Correction. Candelario now appeals.
Discussion and Decision
[8] Candelario claims that the trial court abused its discretion when it failed to
instruct the jury on involuntary manslaughter, voluntary manslaughter, and
reckless homicide as each is a lesser included offense of murder. Trial courts are
provided broad discretion when instructing juries. Erlewein v. State, 775 N.E.2d
712, 714 (Ind. Ct. App. 2002), trans. denied. When determining whether to give
a lesser included offense instruction, trial courts apply the three-part test our
supreme court set out in Wright v. State, 658 N.E.2d 563 (Ind. 1995). The
supreme court succinctly explained this test in Wilson v. State:
The first two parts require the trial court to determine whether
the offense is either inherently or factually included in the
charged offense. If so, the trial court must determine whether
there is a serious evidentiary dispute regarding any element that
distinguishes the two offenses. . . . Where a trial court makes
such a finding, its rejection of a tendered instruction is reviewed
for an abuse of discretion.
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765 N.E.2d 1265, 1271 (Ind. 2002) (citations, quotation, and footnote omitted).
If the evidence in the record does not support giving an instruction on an
inherently or factually included lesser offense, then the trial court should not
give it to the jury. Wright, 658 N.E.2d at 567.
I. Involuntary Manslaughter
[9] Murder and involuntary manslaughter are distinguished by the defendant’s
intent. Wilson, 765 N.E.2d at 1271. Murder requires an intent to kill, whereas
involuntary manslaughter requires an intent to batter. Evans v. State, 727 N.E.2d
1072, 1081 (Ind. 2000). Involuntary manslaughter is not an inherently lesser
included offense of murder; however, it is a factually included lesser offense if
the charging information alleges that a battery accomplished the killing. Norris
v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans. denied. The charging
information here alleges that “on or about September 30, 2015 in Johnson
County, State of Indiana, Candelario Cruz-Trujillo did knowingly and/or
intentionally kill another human being, to-wit: Miguel Hernandez.” Appellant’s
App. p. 9.
[10] Candelario does not dispute the fact that the charging information fails to allege
a battery, rather he argues that the term “charging instrument” as used by the
Wright court should include both the charging information and the probable
cause affidavit.1 He contends that because the probable cause affidavit indicates
1
Candelario is not the first individual to present this argument, and our courts and legislature have
consistently separated the probable cause affidavit from the charging instrument. E.g., Ind. Code § 35-34-1-
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that Candelario committed battery by shooting Hernandez, then the jury should
have been instructed on involuntary manslaughter. We disagree for two
reasons.
[11] First, the wording of the charging information foreclosed the opportunity for
Candelario to seek an instruction on involuntary manslaughter. The Wright
court explained, “the State cannot draft an information that forecloses an
instruction on an inherently lesser included offense of the crime charged . . . .”
658 N.E.2d at 569. However, “[w]hat is clear . . . is that the State may only
foreclose instruction on a lesser offense that is not inherently included in the
crime charged by omitting from a charging instrument factual allegations
sufficient to charge the lesser offense.” Id. at 570.
[12] Candelario was charged with “knowingly and/or intentionally” killing
Hernandez. Appellant’s App. p. 9. There is no reference in the charging
information to a battery that would provide a basis for an involuntary
manslaughter instruction. Candelario notes that “the probable cause affidavit
indicates that [Candelario] both attempted and committed the crime of battery
by shooting Miguel Hernandez.” Appellant’s Br. at 18. Despite Candelario’s
reliance on the probable cause affidavit, it was well within the State’s discretion
2(a) (there is no requirement for a narrative probable cause affidavit in the statute specifying the contents of
the charging information); Ind. Code § 35-34-1-2.4(a) (separately listing an “indictment, information,
pleading, motion, petition, probable cause affidavit” when discussing verified documents); Schweitzer v. State,
531 N.E.2d 1386, 1388 (Ind. 1989) (clarifying that “The probable cause affidavit relates to the pretrial
detention of the defendant, not to the charging instrument.”); State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct.
App. 2010) (identifying the different purposes for a charging instrument and the probable cause affidavit),
trans. denied. We decline to disrupt this precedent here.
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to draft the charging information in such a way as to foreclose the opportunity
for Candelario to seek a conviction on involuntary manslaughter. See Champlain
v. State, 681 N.E.2d 696, 702 (Ind. 1997) (observing that where the information
alleged only that defendant “did knowingly kill another human being,” the
information specifically did not assert a battery, and therefore, involuntary
manslaughter was not a factually included lesser offense of murder).
[13] Second, the record before us reveals no evidentiary dispute concerning whether
Candelario intended to kill or batter Hernandez. We have previously held that
“The intent to kill may be inferred from the use of a deadly weapon in a manner
likely to cause death or great bodily injury, in addition to the nature of the
attack and circumstances surrounding the crime.” Fuentes v. State, 10 N.E.3d 68,
75 (Ind. Ct. App. 2014), trans. denied. Additionally, our supreme court has held
that firing a weapon in the direction of a victim is substantial evidence from
which a jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332 (Ind.
1988).
[14] It is undisputed that Candelario raised his firearm and fired several shots at
Hernandez from close range. After Hernandez fell, Candelario shot him once
more in the head before fleeing. The evidence thus did not warrant an
instruction on involuntary manslaughter, and the trial court did not abuse its
discretion by refusing to give it.
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II. Voluntary Manslaughter
[15] Murder and voluntary manslaughter are distinguished by evidence of sudden
heat, “which is an evidentiary predicate that allows mitigation of a murder
charge to voluntary manslaughter.” Washington v. State, 808 N.E.2d 617, 625
(Ind. 2004). Our supreme court has characterized sudden heat “as anger, rage,
resentment, or terror sufficient to obscure the reason of an ordinary person,
preventing deliberation and premedication . . . and rendering a person
incapable of cool reflection.” Id. at 626. Voluntary manslaughter is an
inherently included offense of murder; however, an instruction on voluntary
manslaughter is appropriate only “if there exists evidence of sufficient
provocation to induce passion that renders a reasonable personal incapable of
cool reflection.” Id.
[16] Candelario argues that “A reasonable person could conclude that [Candelario]
was terrified” and that “It is certainly reasonable that this terror could obscure
the judgment of [Candelario] to the point that he even mistook keys for a hand
gun.” Appellant’s Br. at 20. Candelario classifies the circumstances surrounding
the shooting as “appreciable evidence of sudden heat” and thus claims the trial
court abused its discretion when it did not instruct the jury on voluntary
manslaughter. Id.
[17] To support his argument, Candelario cites to this court’s decision in Collins v.
State, 966 N.E.2d 96 (Ind. Ct. App. 2012). In that case, Collins and her husband
got into a heated argument. Id. at 100–01. The fight escalated quickly to the
point where Collins’s husband grabbed a knife and slashed his wife, cutting her
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several times. Id. at 101. Collins broke away from her husband, ran upstairs to
retrieve a gun, and shot and killed him. We held that the trial court properly
instructed the jury on voluntary manslaughter because there was “sufficient
evidence from which a jury could conclude that Collins acted in sudden heat.”
Id. at 103. We do not have similar evidence in the case before us.
[18] The record here is filled with evidence that Candelario’s impetus to kill did not
suddenly arise in response to a contemporaneous event. Suprenant v. State, 925
N.E.2d 1280, 1284 (Ind. Ct. App. 2010), trans. denied. Candelario contemplated
his actions for several hours before confronting Hernandez. After a sleepless
night, he consciously drove his truck to wait for Hernandez at his place of
employment. See Washington, 808 N.E.2d at 626 (holding that an instruction on
voluntary manslaughter was not warranted where the evidence showed a degree
of deliberation and cool reflection). When Hernandez saw Candelario,
Hernandez began backing away to head into the restaurant. It was at this point
that Candelario raised his gun and shot Hernandez multiple times. Once
Hernandez fell, Candelario fired a final shot into the back of Hernandez’s head.
[19] There is nothing in the record to indicate Candelario and Hernandez engaged
in any type of confrontation prior to the shooting. While Candelario testified
that he felt Hernandez could have had a gun, he also testified that he never saw
a weapon. Further, Hernandez did not provoke Candelario prior to the
shooting. See Suprenant, 925 N.E.2d at 1282–83 (explaining that the provocation
required for voluntary manslaughter must be something more than mere words
“sufficient to obscure the reason of an ordinary man.”). Simply put, there is no
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evidence in the record from which a reasonable person could conclude that
Candelario acted in sudden heat. The trial court properly rejected Candelario’s
voluntary manslaughter instruction.
III. Reckless Homicide
[20] Finally, Candelario argues that the trial court should have given the jury an
instruction on reckless homicide. Our supreme court has explained:
[T]he only element distinguishing murder and reckless homicide
is the defendant's state of mind: reckless homicide occurs when
the defendant “recklessly” kills another human being, and
murder occurs when the killing is done “knowingly” or
“intentionally.” Reckless conduct is action taken in plain,
conscious, and unjustifiable disregard of harm that might result
and the disregard involves a substantial deviation from
acceptable standards of conduct. By contrast, a person engages in
conduct “knowingly” if the person is aware of a “high
probability” that he or she is doing so. Thus, reckless homicide is
an inherently included lesser offense of murder. The
determinative issue here is whether the evidence produced a
serious evidentiary dispute concerning [the defendant]’s state of
mind that would justify giving the requested instruction.
Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citations and footnote
omitted).
[21] Candelario reasons that “Confronting a man that is having an affair with your
wife while intoxicated and armed with a revolver is reckless behavior and a
genuine issue exists over whether the killing was premediated or reckless.”
Appellant’s Br. at 22. We disagree.
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[22] The State presented ample evidence that Candelario intentionally killed
Hernandez. Candelario pointed the gun at Hernandez and shot him multiple
times. Candelario also admitted that he shot Hernandez in the head after
Hernandez fell to the ground. Candelario testified:
I’m going to talk to somebody, and if he resists me, I had the
gun, and it was to shoot. It was to use it. I’m going to see him.
But if he wants to fight with me, shoot, I can use the gun. That’s
why I had it, to shoot.
Tr. Vol. III, p. 88. The evidence here does not produce an evidentiary dispute
concerning whether Candelario acted knowingly or recklessly. See Newman v.
State, 751 N.E.2d 265, 269 (Ind. Ct. App. 2001) (instruction on reckless
homicide was not warranted where defendant admitted to pointing and firing a
gun at the victim), trans. denied. Therefore, the trial court properly rejected
Candelario’s reckless homicide instruction.
Conclusion
[23] Under these facts and circumstances, the trial court did not abuse its discretion
when it refused to instruct the jury on involuntary manslaughter, voluntary
manslaughter, and reckless homicide.
[24] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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