MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 10 2020, 10:19 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                                   ATTORNEY FOR APPELLEE
Peter C. Soldato                                         Benjamin J. Shoptaw
Goshen, Indiana                                          Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesus Olvera Duran,                                      June 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2419
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen Bowers,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D02-1806-F2-28



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020                   Page 1 of 10
[1]   Jesus Olvera Duran appeals following his convictions of Level 4 felony

      burglary, 1 Level 5 felony criminal confinement where the victim was under

      fourteen years of age, 2 Class B misdemeanor possession of marijuana, 3 and

      Class C misdemeanor possession of paraphernalia. 4 After the State’s

      presentation of evidence, Duran moved for a directed verdict regarding the

      charged crimes of Level 2 felony burglary 5 and Level 3 felony criminal

      confinement. 6 Even though the jury found Duran guilty of lesser included

      offenses as to those two charges, he claims on appeal the trial court erred in

      denying his directed verdict motion because the State failed to present any

      evidence that he possessed a deadly weapon. We affirm.



                                 Facts and Procedural History
[2]   Margarita Miller had four children—D.M.(1), D.M.(2), D.M.(3), and

      D.M.(4) 7—with Duran’s co-defendant, Marvin Maldonado. In June 2018,

      Miller and Maldonado were not in a relationship and Maldonado did not live

      in Miller’s apartment. On the evening of June 19, 2018, Miller let Y.V.—her 12




      1
          Ind. Code § 35-43-2-1(1).
      2
          Ind. Code § 35-42-3-3(b)(1)(A).
      3
          Ind. Code § 35-48-4-11(a)(1).
      4
          Ind. Code § 35-48-4-8.3(b).
      5
          Ind. Code § 35-43-2-1(3)(A).
      6
          Ind. Code § 35-42-3-3(3)(A).
      7
          The children were 9, 7, 5 and 2, respectively. (Tr. Vol. III at 76-77; 122.)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020      Page 2 of 10
      year old babysitter—stay with three of her children while she went grocery

      shopping. 8 At some point in the evening, Y.V. heard a few loud bangs on the

      front door of the apartment building. Although the door was locked, Duran

      and Maldonado entered the apartment building and went upstairs where Y.V.

      was sitting in the living room of Miller’s apartment. Maldonado walked to a

      back room of the apartment, and Duran stood near a metal baby gate in the

      living room. Y.V. wanted to get her phone which was nearby, but Duran told

      her that he would shoot her if she moved from the living room. A few seconds

      later, Y.V. heard something strike the metal baby gate. Y.V. did not see

      anything in Duran’s hand, but she believed Duran had a gun and felt she was

      not free to leave the room.


[3]   Maldonado reentered the living room, asked Y.V. where Miller’s new boyfriend

      was, and told Y.V. that he “was gonna put 66 stitches in him.” (Tr. Vol. III at

      145.) D.M.(3) woke up and voluntarily left with Duran and Maldonado. After

      they left, Y.V. called Miller to let her know what happened. Y.V. then went

      downstairs to try to secure the front door, and she saw the three leave in a white

      car.


[4]   Soon afterward, Patrolman Adrian Zehr of the Elkhart County Sheriff’s

      Department observed Maldonado’s white car cross over the clearly marked

      center line of the road and return to its lane of travel. Patrolman Zehr initiated




      8
          D.M.(1) was “at his grandma’s house.” (Tr. Vol. III at 76.)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 3 of 10
      a traffic stop and saw the driver, Maldonado, and the passenger, Duran, switch

      seats. He went to the passenger side of the vehicle, and he could smell a strong

      odor of an alcoholic beverage coming from the car. Maldonado exited the

      vehicle and a knife fell from his lap. Patrolman Zehr then put Maldonado in

      handcuffs, relocated Maldonado to his patrol car and placed Maldonado under

      arrest based on his intoxication while driving.


[5]   Patrolman Zehr searched the vehicle because it “was going to be towed” and

      found a bookbag on the floorboard of the front passenger seat where Duran had

      been seated. (Tr. Vol. II at 231.) Inside the bookbag, Patrolman Zehr found

      Duran’s social security card, a metal pipe, and a smoking pipe with burnt

      marijuana on the end of it. A second metal pipe was also found in the vehicle,

      but neither metal pipe was collected as evidence. Patrolman Zehr arrested

      Duran based on the marijuana found in his bookbag.


[6]   On June 21, 2018, the State charged Duran with Level 2 felony burglary, Level

      3 felony criminal confinement, Class B misdemeanor possession of marijuana,

      Class A misdemeanor possession of paraphernalia, 9 and Class A misdemeanor

      possession of marijuana with a prior conviction. 10 On February 6, 2019, the

      State amended the charging information, replacing the charge for Class A




      9
          Ind. Code § 35-48-4-8.3(b).
      10
           Ind. Code § 35-48-4-11(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 4 of 10
      misdemeanor possession of marijuana with a prior conviction with Class C

      misdemeanor possession of paraphernalia. 11


[7]   During the jury trial on August 20, 2019, Y.V. testified about the manner in

      which Duran and Maldonado entered the apartment and about not feeling like

      she was free to leave the apartment while they were inside. Patrolman Zehr

      testified about the metal pipe he found inside the bookbag. At the close of

      State’s case, Duran moved for a directed verdict pursuant to Indiana Trial Rule

      50(A), which the trial court denied:


                 [Duran]: I don’t intend to call any witnesses at this point. I do
                 have a motion that I’d like to make for a directed verdict, at least
                 as it relates to the while armed element. But we don’t have any—
                 I don’t have any witnesses. I don’t know…


                 [Court]: Why don’t you go ahead and rest, and then I’ll excuse
                 the jury so that we can work on the final instructions and we’ll—
                 we’ll consider the motion at that time. I assume it’s a motion for
                 a judgment on the evidence[.]


                                                    *****


                 [Court]: Please be seated. Mr. Wilson, I understand you have a
                 motion to make at this time?




      11
           Ind. Code § 35-48-4-8.3(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 5 of 10
        [Duran]: Yes, Your Honor. I would ask the Court to find that the
        State failed to present any evidence on the issue of while armed
        as to Count 1 and Count 2.


        [Court]: I’m sorry. Would you repeat that? You were facing
        away from me, and I didn’t hear everything that you said.


        [Duran]: I would ask the Court to find that the State failed to
        present any evidence on the elements of while armed, in Count 2
        specifically but also in Count 1.


                                                 *****


        [Court]: [State]?


        [State]: Your Honor, there’s been plenty of evidence of while
        armed. Y.V. just testified that she observed a knife in defendant’s
        back pocket. I mean, there’s an inference that can be drawn that
        the metal pipe in the vehicle discovered where [Duran] was, was
        the same metal object that was clinging [sic] against the baby
        gate. There’s sufficient evidence to put this matter in front of the
        jury and we ask that you do so and deny the motion.


        [Court]: At this point, I’m going to grant[ 12] the State leave to
        amend to substitute “metal pipe” for “crowbar.” And I will
        dismiss [sic] the motion for judgement on the evidence. I think
        that the evidence is limited with respect to that issue, but I think
        there’s enough to get to the jury.




12
  Following a recess in the State’s presentation of evidence, the State had verbally moved to amend the
charging information.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020                   Page 6 of 10
      (Tr. Vol. III at 180; 183-84) (footnote added).


[8]   On August 21, 2019, the jury returned guilty verdicts for Level 4 felony

      burglary, which required no finding of Duran being armed with a deadly

      weapon; Level 5 felony criminal confinement where victim is under 14 years of

      age, which also required no finding of Duran being armed with a deadly

      weapon; 13 Class B misdemeanor possession of marijuana; and Class C

      misdemeanor possession of paraphernalia. On September 24, 2019, the trial

      court sentenced Duran to an aggregate sentence of eight years, with four years

      suspended to probation, and ordered Duran to serve his sentence consecutive to

      his sentence for an unrelated case.



                                     Discussion and Decision
[9]   Duran challenges the trial court’s denial of his motion for directed verdict on

      two of his charges: Level 2 felony burglary and Level 3 felony criminal

      confinement. He argues the State failed to present evidence that he possessed a

      deadly weapon during the events at Miller’s apartment. To prove Duran

      committed Level 2 felony burglary, the State had to present evidence that

      Duran: (1) broke into and entered Miller’s home; (2) with the intent to commit

      a felony; (3) while armed with a deadly weapon. See Ind. Code § 35-43-2-

      1(3)(A) (elements of charged burglary). To prove Duran committed Level 3




      13
           Ind. Code § 35-42-3-3(3)(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 7 of 10
       felony criminal confinement, the State had to present evidence that Duran: (1)

       knowingly or intentionally confined Y.V.; (2) without Y.V.’s consent; (3) while

       armed with a deadly weapon. Ind. Code § 35-42-3-3(3)(A) (elements of charged

       confinement). A deadly weapon is defined as “a destructive device, weapon,

       device, taser [] or electronic stun weapon [], equipment, chemical substance, or

       other material that in the manner it—(A) is used; (B) could ordinarily be used;

       or (C) is intended to be used—is readily capable of causing serious bodily

       injury.” Ind. Code § 35-31.5-2-86(2).


[10]   Indiana Trial Rule 50(A) provides in part:


               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


       A directed verdict is proper only if all or some of the issues are not supported by

       sufficient evidence. Perez v. Hu, 87 N.E.3d 1130, 1134 (Ind. Ct. App.

       2017). “‘We will examine only the evidence and the reasonable inferences that

       may be drawn therefrom that are most favorable to the nonmovant, and

       the motion should be granted only where there is no substantial evidence

       supporting an essential issue in the case.’” Id. (quoting Think Tank Software Dev.

       Corp v. Chester, Inc., 30 N.E.3d 738, 744 (Ind. Ct. App. 2015), trans.

       denied). A directed verdict or judgment on the evidence is improper if there is

       evidence that would allow reasonable people to differ as to the result. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 8 of 10
[11]   Duran argues the trial court erred when it denied his motion for directed

       verdict. The State contends that even if the trial court erred in doing so, such

       error was harmless. An error is harmless when it results in no prejudice to the

       “substantial rights” of a party. Camm v. State, 908 N.E.2d 215, 225 (Ind.

       2009); Ind. Trial Rule 61. At its core, the harmless-error rule is a practical one,

       embodying “the principle that courts should exercise judgment in preference to

       the automatic reversal for error and ignore errors that do not affect the essential

       fairness of the trial.” United States v. Harbin, 250 F.3d 532, 546 (7th Cir.

       2001) (internal quotation marks omitted).


[12]   Here, we are not persuaded by Duran’s argument that he “may have been able

       to avail himself of a favorable plea bargain” had the court granted a directed

       verdict. (Appellant’s Br. 15-16.) The jury found Duran guilty of the lesser

       included offenses. Duran does not point us to any case law that supports his

       claim.


[13]   Furthermore, we do not agree that “the denial of Duran’s motion for directed

       verdict surely influenced the deliberation of the jury by giving jury members

       more room for compromise in their verdict.” (Id. at 16). The jury deliberated

       over evidence that supported an inference that Duran possessed a deadly

       weapon and committed Level 2 felony burglary and Level 3 felony criminal

       confinement and ultimately the jury returned guilty verdicts for the lesser

       included offenses. Based thereon, we conclude that the trial court’s denial of

       Duran’s motion for directed verdict was harmless. See Peek v. State, 454 N.E.2d

       450, 455 (Ind. Ct. App. 1983) (any error in denial of directed verdict is harmless

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 9 of 10
       when defendant is not convicted of the charge for which he moved for directed

       verdict).



                                               Conclusion
[14]   We conclude that any error in the trial court’s denial of Duran’s motion for

       directed verdict was harmless because he was not convicted of the crimes on

       which his motion for directed verdict was based. Accordingly, we affirm.


[15]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2419 | June 10, 2020   Page 10 of 10
