MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Aug 08 2019, 6:30 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Milton Zambrano Gonzalez,                                August 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3004
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G06-1708-MR-29166



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019                   Page 1 of 6
[1]   Milton Zambrano Gonzalez (“Gonzalez”) appeals his conviction of Level 2

      felony voluntary manslaughter. 1 Gonzalez argues he was acting in self-defense

      and the State did not provide sufficient evidence to disprove this. We affirm.



                                Facts and Procedural History
[2]   On the night of July 29, 2017, Gonzalez and his girlfriend, Rachel Mendoza-

      Nieto, went out drinking with a group of friends. One member of the group

      was Wilson Hernandez, whom Gonzalez had just met that night. The group

      went to bars, nightclubs, and an afterparty at a friend’s house. While out,

      Gonzalez consumed several beers and used cocaine multiple times. The group

      returned to Gonzalez’s apartment around 6 a.m. the next day.


[3]   Despite already being intoxicated, Gonzalez and Hernandez continued to drink

      when they got back to the apartment. After being at the apartment for some

      time, Hernandez began to make sexual gestures towards Mendoza-Nieto,

      making her uncomfortable. Mendoza-Nieto told Gonzalez what happened.

      Gonzalez told Hernandez to respect his house and Mendoza-Nieto. Hernandez

      and Gonzalez began to argue. Hernandez told Gonzalez he could have people

      come kill Gonzalez if he wanted.


[4]   Gonzalez went into the kitchen but then returned and continued arguing with

      Hernandez. Hernandez was sitting on the couch with Gonzalez standing in




      1
          Ind. Code § 35-42-1-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019   Page 2 of 6
      front of him. Mendoza-Nieto noticed Gonzalez had pulled a knife out of the

      back of his pants and was holding it behind his back. Mendoza-Nieto tried to

      grab the knife, but Gonzalez pushed her away. Hernandez swung his arm at

      Gonzalez, and Gonzalez then took the knife and began to stab Hernandez.

      Gonzalez stabbed Hernandez thirteen times. As Hernandez collapsed on the

      floor, Gonzalez kicked Hernandez in the head.


[5]   Gonzalez’s roommate, Omar Vidal Antuner, woke up and came out to see

      what had happened. Omar saw Hernandez dead and Gonzalez holding the

      knife. Omar asked Gonzalez why he did it. Gonzalez said Hernandez had

      been disrespectful to his girlfriend. Gonzalez took Hernandez’s cellphone and

      instructed Mendoza-Nieto to grab the knife. They took Omar’s keys and fled in

      his van. Gonzalez texted Omar, saying he would return to get rid of the body

      and threatening to hurt Omar if he told anyone. When Gonzalez returned,

      Omar went to the gas station and called the police. When the police knocked,

      Gonzalez fled and escaped.


[6]   On August 9, 2017, the State charged Gonzalez with murder, a felony. 2 The

      trial court found Gonzalez guilty of Level 2 felony voluntary manslaughter.

      The trial court sentenced him to twenty-eight years executed.



                                    Discussion and Decision


      2
          Ind. Code § 35-42-1-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019   Page 3 of 6
[7]   Gonzalez argues the record contains insufficient evidence to support his

      conviction. When considering the sufficiency of evidence, “a reviewing court

      does not reweigh the evidence or judge the credibility of the witnesses.”

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the

      probative evidence and reasonable inferences drawn from the evidence could

      have allowed a reasonable trier of fact to find the defendant guilty beyond a

      reasonable doubt.” Id. (internal citation omitted).


[8]   To prove Gonzalez committed voluntary manslaughter, the State had to present

      evidence that Gonzalez “knowingly or intentionally . . . kill[ed] another human

      being . . . while acting under sudden heat.” Ind. Code § 35-42-1-3 (2014).

      Gonzalez does not deny that he stabbed Hernandez. Rather, Gonzalez argues

      he was acting in self-defense.


              “To prevail on a claim of self-defense, a defendant must show he:
              (1) was in a place where he had a right to be; (2) did not provoke,
              instigate, or participate willingly in the violence; and (3) had a
              reasonable fear of death or great bodily harm. Wilson v. State, 770
              N.E.2d 799, 800 (Ind. 2002). “When a claim of self-defense is
              raised and finds support in the evidence, the State bears the
              burden of negating at least one of the necessary elements.” King
              v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied.
              “The State may meet this burden by rebutting the defense
              directly, by affirmatively showing the defendant did not act in
              self-defense, or by simply relying upon the sufficiency of its
              evidence in chief.” Id. If a defendant is convicted despite his
              claim of self-defense, we will reverse only if no reasonable person
              could say that self-defense was negated beyond a reasonable
              doubt. Wilson, 770 N.E.2d at 801.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019   Page 4 of 6
[9]    Mendoza-Nieto testified that, while Hernandez and Gonzalez were arguing,

       Gonzalez went to the kitchen and got a knife. (Tr. Vol. II at 108.) Gonzalez

       then walked up to Hernandez, who was sitting on the couch, and continued

       arguing. (Id.) Mendoza-Nieto tried to grab the knife from Gonzalez, and

       another friend tried to step in and keep Gonzalez away from Hernandez. (Id. at

       109.) Once Hernandez realized Gonzalez had a knife, Hernandez tried to

       punch him. Hernandez missed, and Gonzalez began to stab him. (Id. at 110.)

       The two began to wrestle, and Gonzalez continued to stab Hernandez. At

       some point during the fight, Hernandez got up from the floor, and then he

       collapsed. Gonzalez then kicked Hernandez in the head. (Id. at 114.) When

       Gonzalez’s roommate asked him why he did it, Gonzalez said he did it because

       Hernandez was disrespectful to his girlfriend. (Id. at 52.)


[10]   From this evidence, a jury could have reasonably rejected Gonzalez’s self-

       defense claim, because he did not act without fault or have a reasonable fear of

       death or serious bodily harm. Gonzalez approached Hernandez with a knife

       while Hernandez was sitting on the couch in a non-aggressive manner.

       Multiple people attempted to stop Gonzalez prior to the attack. Hernandez,

       who was unarmed, did not try to punch Gonzalez until he found out Gonzalez

       was holding a knife behind his back. Because Gonzalez willingly participated

       in the fight, his claim of self-defense fails. See Wolf v. State, 76 N.E.3d 911, 917

       (Ind. Ct. App. 2017) (defendant’s self-defense claim properly rejected when

       evidence established he willing participated in fight).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019   Page 5 of 6
                                               Conclusion
[11]   Because the State provided sufficient evidence showing Gonzalez willingly

       participated in the fight, his claim of self-defense fails. Accordingly, we affirm.


[12]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3004 | August 8, 2019   Page 6 of 6
