 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                FILED
                                                              Feb 05 2013, 9:58 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                           CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
 collateral estoppel, or the law of the case.                             tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                                    GREGORY F. ZOELLER
Marion County Public Defender Agency                 Attorney General of Indiana
Indianapolis, Indiana
                                                     KATHERINE MODESITT COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

ALFREDO LOPEZ,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 49A05-1207-CR-346
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Clayton Graham, Judge
                        The Honorable Valerie Horvath, Commissioner
                              Cause No. 49G17-1203-FD-14945


                                          February 5, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        Alfredo Lopez appeals his conviction of Domestic Battery, 1 a class D felony. Lopez

presents the following restated issue for review: Did the trial court err in refusing Lopez’s

tendered instruction on the presumption of innocence?

        We affirm.

        The facts favorable to the conviction are that Lopez had lived with his girlfriend,

Tonya Fleenor, and her daughter, C.B., for more than eight months at the time of the events

leading to his conviction. On the morning of March 4, 2012, Lopez awakened Fleenor and

told her that he needed to use the bathroom but could not do so because C.B. had been in

there for a long time. Fleenor told C.B. that she needed to leave the bathroom and C.B.

complied. A short time later, C.B. went downstairs to the kitchen and asked Lopez if she

could eat leftovers from the previous evening’s dinner. Lopez told her that she could not and

that she should eat breakfast food instead. C.B. left the house to go to church.

        After C.B. left, Fleenor picked up a video-game unit from the floor of the living room

and walked into the kitchen to prepare coffee. Lopez walked behind her and wrapped his

arms around her in a “bear hug” attempting to get the video game from her. Transcript at 32.

In so doing, he squeezed Fleenor’s hands and wrists “very hard”, to the point that Fleenor

thought Lopez had broken one of her thumbs. Id. at 33. As Fleenor attempted to get away,

Lopez punched her multiple times in her cheek and jawbone and then “slammed” her on her

tailbone to the floor. Id. Fleenor got up, went upstairs, and called the woman who drove

C.B. to church and asked her not to bring C.B home until Fleenor confirmed that it was okay


1
    Ind. Code Ann. § 35-42-2-1.3 (West, Westlaw current through 2012 2nd Reg. Sess.).

                                                  2
to do so. Lopez came upstairs, called his sister, and told her he and Fleenor had been

fighting and that he was coming to her (his sister’s) house. When Fleenor attempted to get

up off of the bed, Lopez flung the phone at her and told her she was not going anywhere.

After ten or fifteen minutes, Lopez told Fleenor to drive him to his sister’s house, which she

did. When Fleenor arrived back home, she called police and reported that Lopez had

assaulted her. When C.B. arrived home after church, she observed that her mother was

crying and had bruises on her hands and arms.

       On March 5, Lopez telephoned Fleenor approximately thirty to forty-five times and

the two exchanged frequent text messages. Lopez continually asked Fleenor to take him

back, but she was not receptive to the request. That evening, Fleenor contacted police again

and reported that Lopez had been calling her and threatening her. Indianapolis Metropolitan

Police officer Kenneth Greer responded to the call.

       When Officer Greer knocked on the door, Fleenor answered while holding a can of

mace. While Officer Greer was interviewing Fleenor and C.B., Lopez phoned four times.

Fleenor answered the first time. She indicated to Officer Greer that it was Lopez and he told

her to put it on speaker phone if she was willing to talk with Lopez. She did so. During that

conversation, Lopez and Fleenor primarily discussed returning Lopez’s belongings to him.

When he called a second time, this one also put on speaker phone so that Officer Greer could

hear what was being said, Lopez threatened to burn down Fleenor’s house, vandalize her

vehicle, and come inside the house, “stomp on her chest and kill her.” Id. at 120. The third

time he called, Fleenor indicated she did not feel well and left the room. C.B. answered the


                                              3
third call and put it on speaker phone. Although Lopez did not make threats during that call,

his tone “wasn’t good.” Id. at 121. When Lopez called a fourth time, Officer Greer

instructed C.B. to not answer the phone. Greer then drove to Lopez’s sister’s apartment and

placed Lopez under arrest.

       The State charged Lopez with three counts of domestic battery, two as class D felonies

and one as a class A misdemeanor; one of the former was elevated to a class D felony on the

basis that Lopez had a prior conviction of domestic battery. The State also charged Lopez

with one count of battery on a family or household member as a class D felony, criminal

confinement as a class D felony, intimidation as a class D felony, and battery as a class A

misdemeanor. The State later added a habitual offender allegation. Prior to trial, the State

dismissed one count of domestic battery as a class D felony and one count of battery as a

class D felony, both for evidentiary reasons.

       Following trial, a jury found Lopez not guilty of criminal confinement and

intimidation and guilty of battery and one count of domestic battery, both as class A

misdemeanors. In the second phase of the trial, the jury found Lopez guilty of domestic

battery, elevated to a class D felony as a result of a previous domestic battery conviction. It

is unclear from the record how the habitual offender allegation was resolved. The State

speculates that “it appears that the State dismissed this charge sometime before the beginning

of phase two of Defendant’s jury trial.” Appellee’s Brief at 2 n.1. Regardless, Lopez was not

found to be a habitual offender. The trial court entered judgment of conviction only on the

elevated charge of class D felony domestic battery and sentenced Lopez to three years on that


                                                4
conviction.

       At trial, Lopez tendered the following “presumption of innocence” instruction:

       If the evidence in this case is susceptible of two constructions or interpretation,
       each of which appears to you to be reasonable, and one of which points to the
       guilt of the accused, and the other to his innocence, it is your duty, under the
       law, to adopt that interpretation which is consistent with the accused’s
       innocence, and reject that which points to his guilt.

Appellant’s Appendix at 136. The court refused the instruction, citing the following reasons:

       Defendant’s tendered final instruction will be omitted. I believe the pre … the
       preliminary instructions that were covered by the State address both of those
       issues. And while they don’t state exactly the same thing, exactly the same
       way, the message covered in that proposed final instruction is addressed in
       pervious [sic] preliminary instructions as well as the reasonable doubt
       instruction.

Id. at 149. Lopez contends the trial court erred in omitting his tendered instruction.

       Our standard of review in matters such as this is well settled.

       To resolve an appellate claim of trial court error in refusing an instruction, we
       consider: (1) whether the tendered instruction is a correct statement of the law;
       (2) whether there is evidence in the record to support the instruction; and (3)
       whether the substance of the instruction is covered by other instructions given
       by the court. When evaluating these factors, we are mindful that instructing
       the jury generally lies within the sole discretion of the trial court and that
       reversal is appropriate only for abuse of discretion.

Raess v. Doescher, 883 N.E.2d 790, 798-99 (Ind. 2008) (internal citations omitted). Lopez

contends that “for almost a century, the Indiana Supreme Court has held that failure to give

this particular instruction is reversible error[.]” Appellant’s Brief at 4-5. In support of his

argument that the failure to give this instruction after it has been requested constitutes

reversible error, Lopes cites Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans.

denied. We need not decide whether this contention is true because Lopez’s claim is subject

                                               5
to the harmless error analysis.

       Even where a trial court errs in giving or refusing to give a tendered instruction, the

defendant is entitled to reversal only if he or she affirmatively shows that the error prejudiced

his or her substantial rights. Mateo v. State, 2012 WL 6711478 (Ind. Ct. App. Sept. 17,

2012), trans. denied. “Errors in the giving or refusing of instructions are harmless where a

conviction is clearly sustained by the evidence and the jury could not properly have found

otherwise.” Lee v. State, 964 N.E.2d at 862-63 (quoting Dill v. State, 741 N.E.2d 1230, 1233

(Ind. 2001)).

       Fleenor testified at trial as to the events of March 4 and 5, consistent with the narrative

set out above. To the extent that C.B. observed the events of that day, her trial testimony

corroborated Fleenor’s account of Lopez’s actions. In particular, C.B. testified that Lopez

was upset that she was taking too long in the bathroom before she left for church. She also

testified that when she arrived home after church, her mother was crying and her arms and

hands were bruised. When Officer Gregory Ressino responded to Fleenor’s call shortly after

the incident, she told him that Lopez had punched her in the face and that her hand hurt.

When Officer Greer responded to Fleenor’s call the next day in which she complained of

harassment, he observed that Fleenor’s hand, thumb, and wrist were bruised. The State

introduced photographs of those bruises at trial.

       The State also introduced text messages exchanged by Fleenor and Lopez following

the incident. Several hours after taking Lopez to his sister’s house, Fleenor texted, “U really

hurt me,” to which Lopez responded, “I know.” The Exhibits at 28. When Fleenor


                                                6
responded to Lopez’s request to essentially give him another chance, she replied, “Deep

down in my heart i love u but u hurt me so bad im so sore and bruised wow i don’t think this

can be fixed.” Id. at 30 (this text, as with all ensuing texts reproduced in this opinion, is

transcribed verbatim). Lopez reiterated his request for another chance and Fleenor replied,

“Why next time you really hurt me im so tired of the childish crap”. Id. Lopez responded,

“U know im retard sometimes i do hate myself.” Id. Fleenor repeated her belief that Lopez

would continue to act the same way if she gave him another chance and he responded, “Im

done with my bullshit and acting retarded all the way.” Id. at 31. Fleenor replied, “You said

that last time,” to which he replied, “I know but its never be this bad.” Id. Later, Lopez

texted, “I miss my family i really do i miss the hell out of yall I sooo sorry[.]” Id. at 32.

Fleenor replied, “It sucks you realise what u got then its gone[.]” Id. Lopez replied, “U aint

lying there. I know i fucked up i hate myself i wish i could take the pain away.” Id.

       After Officer Greer responded to Fleenor’s call on March 5, he overheard a phone call

made by Lopez in which Lopez threatened to vandalize Fleenor’s vehicle, come inside her

house, and “stomp on her chest and kill her.” Transcript at 120. In addition, the State called

as a witness Erica Shadek, the mother of two of Lopez’s children. She testified that Lopez

sent her a text at 6:32 p.m. on March 5 informing her that he was going back to jail. Finally,

Lopez called Fleenor from the Marion County Jail on March 6 and began the conversation by

saying, “I guess I fucked up, huh? Big time.” State’s Exhibit 8. He then proceeded to ask

Fleenor to drop the matter, in exchange for which he promised to leave her alone. During

this short conversation, Fleenor informed Lopez that she was in the hospital and indicated


                                              7
that she might have a collapsed lung. Lopez responded with distress and remorse.

       Taken together, the foregoing considerable evidence of guilt is such that even had the

rejected instruction been read, the outcome of trial would not have changed. Dill v. State,

741 N.E.2d 1230. Thus, even assuming for the sake of argument that the trial court erred in

refusing Lopez’s tendered instruction on the presumption of innocence, the error was

harmless. See Lee v. State, 964 N.E.2d 859.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




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