MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 16 2020, 9:19 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Scott H. Duerring                                         Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Tina L. Mann
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Oscar Orozco,                                             April 16, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2408
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          71D03-1902-MR-2



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020                    Page 1 of 7
[1]   Oscar Orozco appeals his conviction for Murder.1 He argues that the evidence

      is insufficient to disprove his claim of self-defense beyond a reasonable doubt.

      Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   On June 10, 2017, Miguel Rosales and a group of his friends, including Orozco

      and George Martinez, went to a bar in Mishawaka. At the bar, several groups

      of friends met up; the gathering included Bennie Bueno and Joe Caballero.

      After last call at the bar, the large group got up and left, walking out to the

      parking lot. Once in the parking lot, a fight broke out. “It was a rumble,” with

      everyone fighting, including Orozco. Tr. Vol. III p. 91. At some point, Orozco

      punched Caballero.


[3]   Rosales punched Bueno, knocking him down, and Bueno pulled out a gun.

      Martinez grabbed the gun, and he and Bueno struggled for possession of the

      firearm. Rosales and another individual jumped on Bueno and began hitting

      him. As the struggle continued, Rosales hit Bueno on the head with a beer

      bottle, knocking him to the ground. The blow caused a huge cut in Bueno’s

      head that bled profusely and caused a hemorrhage around his brain. Rosales

      continued to “beat[] [Bueno] up” after Bueno fell to the ground. Tr. Vol. II p.




      1
          Ind. Code § 35-42-3-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020   Page 2 of 7
      191. Martinez was holding the barrel part of the gun, and the gun was going

      “up and down.” Tr. Vol. IV p. 64.


[4]   At that point, Bueno was no longer fighting. He was leaned up against the

      truck with Martinez at his side. Martinez had two hands on the gun and

      Rosales had his hands on Bueno’s forearms. Orozco then ran up and shot

      Bueno five times in the right side of his back and one time underneath his arm

      on the right side of his body. Bueno staggered away, bleeding profusely, and

      fell into his friend’s arms and onto the pavement, where he died. After Orozco

      shot Bueno, Orozco, Rosales, and Martinez ran to a vehicle, yelling “let’s go,

      get out of here,” and drove away. Id. at 30. The gun was “thrown out,” and

      Orozco and his friends decided to drive back to Chicago and no one talked

      about what had happened because they “didn’t want to know.” Id. at 31, 92.


[5]   On February 15, 2019, the State charged Orozco with murder and a firearm

      enhancement.2 Orozco’s jury trial began on September 9, 2019, at which he

      raised a claim that he had acted in self-defense. The jury found Orozco guilty

      of murder on September 12, 2019. Orozco waived his right to have a jury

      consider the firearm enhancement, and the trial court found him guilty of the

      enhancement. On October 11, 2019, the trial court sentenced Orozco to forty-

      five years, enhanced by five years for the firearm use, for an aggregate sentence

      of fifty years imprisonment. Orozco now appeals.




      2
          It is unclear why there was a lengthy delay between the shooting and the filing of the criminal charges.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020                        Page 3 of 7
                                   Discussion and Decision
[6]   Orozco’s sole argument on appeal is that the State did not disprove his claim of

      self-defense beyond a reasonable doubt. The standard of review for a challenge

      to the sufficiency of evidence to rebut a claim of self-defense is the same as the

      standard for any sufficiency of the evidence claim. Wallace v. State, 725 N.E.2d

      837, 840 (Ind. 2000). Thus, we will neither reweigh the evidence nor assess

      witness credibility. Id. If there is sufficient probative evidence supporting the

      factfinder’s conclusion, then we will affirm. Id.


[7]   A person is justified in using deadly force against another person if he

      “reasonably believes that that force is necessary to prevent seriously bodily

      injury” to himself or a third person. Ind. Code § 35-41-3-2(c). To assert a

      successful claim of self-defense, a defendant must show that he (1) was in a

      place 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.

      McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). When the defense is raised and

      supported by the evidence, the State bears the burden of negating one of the

      elements. Id. We will reverse a conviction despite a claim of self-defense only

      if no reasonable person could say that the claim was negated by the State

      beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999).


[8]   The General Assembly has decreed that a person is not justified in using force if,

      among other things, “the person has entered into combat with another

      person . . . unless the person withdraws from the encounter and communicates


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020   Page 4 of 7
       to the other person the intent to do so and the other person nevertheless

       continues or threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3).


[9]    In this case, there was a melee in the parking lot involving many people,

       including Orozco. Witnesses testified that “everybody just started fighting,” tr.

       vol. II p. 174, “everybody [was] fighting” and it was a “rumble,” tr. vol. III p.

       91, “[e]verybody was fighting and running around” and no one was trying to

       stop it, tr. vol. II p. 149, and “once the fight broke out, it was just like a domino

       effect. Everybody just started fighting,” tr. vol. IV p. 68. Orozco was part of

       the melee and punched Joe Caballero during the fight. Tr. Vol. III p. 150.


[10]   In other words, Orozco was not an innocent bystander. He was a willing and

       active participant. Orozco points out that there is no evidence that he was

       involved in combat with Bueno, but in the situation of a large melee we do not

       believe that is a relevant fact. Orozco was part of a large group of people and

       was, therefore, part of the “everybody” who was fighting. We believe that a

       reasonable factfinder could have inferred from these circumstances that Orozco

       was a mutual combatant who had not withdrawn and communicated an intent

       to do so before he shot Bueno.


[11]   Moreover, we also note that before Orozco shot Bueno, Bueno had already

       stopped fighting. He had been repeatedly punched by Rosales and Martinez.

       Rosales hit him with a beer bottle and knocked him to the ground, causing a

       large head wound that was bleeding profusely. The jury heard testimony that

       this significant head trauma “likely would have caused some type of disability


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020   Page 5 of 7
       of the brain function” that would be potentially severe. Tr. Vol. III p. 17. In

       addition to the large wound caused by the bottle, Bueno also sustained the

       following injuries before he was shot: a black eye, an abrasion on his back,

       multiple abrasions on his face, and multiple small lacerations and tearing of the

       tissue in the back of his head. At the time Orozco shot him, Bueno was on the

       ground, leaned up against a vehicle. Martinez had control of Bueno’s gun and

       Rosales was holding Bueno’s forearms.


[12]   A reasonable factfinder could infer from this evidence that it was no longer

       objectively reasonable for Orozco to believe that Bueno still posed a risk of

       serious bodily injury to anyone because Bueno was simply too incapacitated by

       his injuries. Additionally, Orozco shot Bueno five times in the back and once

       in the side. See Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007) (“Firing

       multiple shots undercuts a claim of self-defense.”). Therefore, even if Orozco

       had been justified in using some level of force, the jury could have reasonably

       determined that he used excessive force under the circumstances.


[13]   Finally, we note that after Orozco shot Bueno, he got in the vehicle with his

       friends and fled the state, throwing out the gun at some point in the process.

       See Banks v. State, 257 Ind. 530, 538, 276 N.E.2d 155, 159 (1971) (holding that

       evidence of a defendant’s flight from the scene and subsequent disposition of

       the weapon was competent evidence of consciousness of guilt). In other words,

       Orozco’s own conduct shows that he did not believe he had acted in self-

       defense. Rather than calling for medical assistance or contacting law

       enforcement, he fled the state and disposed of the murder weapon. This is

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020   Page 6 of 7
       probative evidence from which a reasonable factfinder could have concluded

       that the murder was not committed in self-defense.


[14]   For all these reasons, we find that there is sufficient evidence supporting the

       jury’s conclusion that the State disproved Orozco’s claim of self-defense beyond

       a reasonable doubt.


[15]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020   Page 7 of 7
