FOR PUBLICATION

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                  GREGORY F. ZOELLER
Office of the Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                                                                           Apr 04 2013, 9:25 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT LAWRENCE ALBORES, JR.,                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 45A03-1207-CR-327
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-1009-MR-12




                                       April 4, 2013



                                OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issue

       Robert Lawrence Albores, Jr., appeals his conviction of murder, a felony. Albores

raises one issue for our review: whether the trial court abused its discretion by refusing to

give his proposed jury instruction regarding the presumption of innocence. Concluding that

the trial court did not abuse its discretion, we affirm the conviction.

                                Facts and Procedural History

       Albores and the victim in this case, Michael Miranda, got along with no problems for

several years. However, in 2008, Albores’s cousin was shot and killed. Albores believed

Miranda was involved in the shooting. On July 22, 2010, Albores and Miranda found

themselves stopped at an intersection at the same time. Albores fired several shots at

Miranda and drove away. Miranda died five days later.

       Albores was charged with murder and criminal gang activity. During the jury trial, the

State presented evidence that Albores and Miranda were members of rival street gangs and

argued that Albores shot Miranda in retaliation for his cousin’s death in 2008. Albores

testified at trial and denied being part of a gang. He did not deny he shot Miranda, but

claimed he did so out of fear for his life. He described a turbulent relationship between the

parties and a history of shootings that had allegedly occurred during the two years prior to the

shooting that led to Miranda’s death. The jury was instructed on both self-defense and the

lesser included offense of reckless homicide. The jury returned a verdict of guilty on the

murder charge and not guilty on the criminal gang activity charge. The trial court sentenced




                                               2
Albores to a fifty-five year term of imprisonment. Albores now appeals. Additional facts

will be provided as necessary.

                                   Discussion and Decision

                                    I. Standard of Review


       The manner of instructing a jury is left to the sound discretion of the trial court.

Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). We review the trial court’s

decision only for an abuse of that discretion. Id. On review of a trial court’s decision to

refuse a proposed jury instruction, we consider whether the instruction (1) correctly states the

law, (2) is supported by the evidence, and (3) is covered in substance by other instructions

that are given. Id. “We consider jury instructions as a whole and in reference to each other

and do not reverse the trial court . . . unless the instructions as a whole mislead the jury as to

the law in the case.” Lyles v. State, 834 N.E.2d 1035, 1048 (Ind. Ct. App. 2005) (internal

quotes and citations omitted), trans. denied.

                                    II.    Jury Instructions


       The trial court refused to give the following jury instruction tendered by Albores:

       Under the law of this state, a person charged with a crime is presumed to be
       innocent. This presumption continues in favor of the accused throughout the
       trial of this cause. To overcome the presumption of innocence, the State must
       prove the Defendant guilty of each essential element of the crime charged,
       beyond a reasonable doubt.
       The Defendant is not required to present any evidence to prove his/her
       innocence or to prove or explain anything.
       You should attempt to fit the evidence to the presumption the Defendant is
       innocent.



                                                3
         If the evidence in this case is susceptible of two (2) constructions or
         interpretations, each of which appears to you to be reasonable, and one of
         which points to the guilt of the Defendant, and the other to his/her innocence,
         it is your duty, under the law, to adopt that interpretation which is consistent
         with the Defendant’s innocence, and reject that which points to his guilt.

Appellant’s Appendix at 100. Albores argues that the refusal of this instruction was an abuse

of discretion. We disagree.

         Albores notes that the rejected jury instruction is identical to the instruction rejected

by the trial court in Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans. denied, and in

that case, a panel of this court found an abuse of discretion for denying the instruction, id. at

865. However, the focus is not just on the rejected instruction but also on the jury

instructions in fact given. Even if an instruction is a correct statement of the law and finds

support in the evidence, a trial court may in its discretion refuse to give it if it is covered in

substance by other instructions. O’Connell v. State, 970 N.E.2d 168, 173-74 (Ind. Ct. App.

2012).

         In Robey v. State, 454 N.E.2d 1221 (Ind. 1983), upon which the ruling in Lee was

predicated upon, the trial court denied an instruction proposed by the defendant and instead

gave its own instructions, which included, in part, the instruction proposed by Albores and

denied by the trial court in this case, id. at 1222. In its opinion, our supreme court stated:

         [a]n instruction of this character which advises the jury that the presumption of
         innocence prevails until the close of the trial, and that it is the duty of the jury
         to reconcile the evidence upon the theory of the defendant’s innocence if they
         could do so, must be given if requested.

Id. Yet, despite the trial court having denied the jury instruction at issue, the court held there

was no error because the instructions given “adequately directed the jury to receive and

                                                  4
evaluate the trial evidence while in the posture of presuming the defendant innocent and

demanding of the State that it produce strong and persuasive evidence of guilt wholly at odds

with innocence.” Id.

       As in Robey, a consideration of the jury instructions in this case—taken as a whole

and in reference to each other—demonstrates that the jury was properly instructed to presume

the defendant innocent and demand that the State produce strong and persuasive evidence of

guilt wholly at odds with innocence. The relevant portions of the jury instructions given by

the trial court follow:

       . . . it is a fundamental concept in our law that the defendant comes into court
       presumed to be innocent of the charges; and this presumption remains
       throughout the trial of the case, until and unless it is overcome by competent
       proof of guilt beyond a reasonable doubt.
       Since the defendant is presumed to be innocent, he is not required to present
       any evidence to prove his innocence or to prove or explain anything. If at the
       conclusion of the trial there remains in your mind a reasonable doubt
       concerning the defendant’s guilt, you should find him not guilty.
       To this Amended Information the defendant has entered pleas of not guilty.
       Upon the issues thus joined, the burden rests upon the State of Indiana to prove
       to each of you, beyond a reasonable doubt, every essential element of the
       charges contained in the amended information.
       The Amended Information which has been filed against the defendant is
       merely the formal method of charging the defendant, and the charges must be
       proven by the evidence introduced during this trial.
       The burden is upon the State to prove beyond a reasonable doubt that the
       defendant is guilty of the crimes charged. It is a strict and heavy burden. The
       evidence must overcome any reasonable doubt concerning the defendant’s
       guilt. But it does not mean that a defendant’s guilt must be proved beyond all
       possible doubt.
       A reasonable doubt is a fair, actual and logical doubt based upon reason and
       common sense. A reasonable doubt may arise either from the evidence or
       from a lack of evidence. Reasonable doubt exists when you are not firmly
       convinced of the defendant’s guilt, after you have weighed and considered all
       the evidence.


                                              5
         A defendant must not be convicted on suspicion or speculation. It is not
         enough for the State to show that the defendant is probably guilty. On the
         other hand, there are very few things in this world that we know with absolute
         certainty. The State does not have to overcome every possible doubt.
         The State must prove each element of the crimes by evidence that firmly
         convinces each of you and leaves no reasonable doubt. The proof must be so
         convincing that you can rely and act upon it in this matter of the highest
         importance.
         If you find that there is a reasonable doubt that the defendant is guilty of the
         crime, you must give the defendant the benefit of that doubt and find the
         defendant not guilty of the crime under consideration.

Appellant’s App. at 141-43. Thus, the court informed the jury that a person charged with a

crime is to be presumed innocent, that the presumption of innocence remains throughout the

trial, and that to overcome this presumption of innocence, the State was required to prove

guilt beyond a reasonable doubt. The trial court also instructed the jury on the definition of

reasonable doubt and informed the jury that if there was a reasonable doubt that Albores was

guilty, they should give him the benefit of that doubt and find him not guilty of the crime.

The rejected instruction was covered in substance by these instructions, and thus the trial

court did not abuse its discretion.1



         1
            Albores also argues that because the jury was presented with evidence regarding gang-related violence
involving both the defendant and the victim, the evidence was “clearly susceptible of two (2) constructions or
interpretations [revenge versus self-defense], each of which appears . . . reasonable” and thus the proposed instruction
was “particularly appropriate here.” Brief of Appellant at 9 (citation omitted). However, in addition to adequately
addressing the presumption of innocence, the trial court gave a detailed instruction regarding the evidence and witness
testimony, which included, in part, the following:

         If you find conflicting testimony, you may have to decide what testimony you will believe and what
         testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of
         it.
         The quantity of evidence or the number of witnesses need not control your determination of the truth.
         You should give the greatest value to the evidence you find most convincing.

Appellant’s App. at 144. The court also told the jury “to consider all the instructions as a whole.” Id. at 149. The court
was not required to mention the presumption of innocence in the same instruction addressing conflicting evidence.


                                                            6
         Our holding is further supported by several recent cases decided by this court. In

Simpson v. State, 915 N.E.2d 511 (Ind. Ct. App. 2009), trans. denied, a panel of this court

found that the trial court did not abuse its discretion by denying an instruction similar to the

instruction rejected here and stated that Robey simply requires instructing the jury that it

should fit the evidence to the presumption that a defendant is innocent, id. at 520.2 In Smith

v. State, 981 N.E.2d 1262 (Ind. Ct. App. 2013), another panel of this court relied upon

Simpson and similarly found no reversible error when the trial court rejected a proposed

instruction similar to the one rejected here, because the jury was properly instructed that it

should fit the evidence to the presumption that a defendant is innocent, id. at 1269. And in

Santiago v. State, 2013 WL 796066, at *1 (Ind. Ct. App., March 5, 2013), this court once

again held that the trial court did not abuse its discretion by refusing to give the defendant’s

proposed jury instruction, id. at *3. The instructions given in that case appear to be nearly

identical to the instructions given by the trial court here. See id. at *2-3. While in both


         2
          The Simpson court also stated that the defendant’s proposed jury instruction was incomplete. 915 N.E.2d at
520. In Simpson, the defendant, like Albores, had tendered a jury instruction that included the first but not the second of
the following two paragraphs taken from the instructions given in Robey:

         If the evidence in this case is susceptible of two constructions or interpretations, each of which appears
         to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his
         innocence, it is your duty, under the law, to adopt that interpretation which will admit of the
         defendant’s innocence, and reject that which points to his guilt.
         You will notice that this rule applies only when both of the two possible opposing conclusions appear
         to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to
         be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable
         deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable
         deduction points to the defendant’s guilt, the entire proof must carry the convincing force required by
         law to support a verdict of guilt.

Id. at 519-20 (quoting Robey, 454 N.E.2d at 1222). The court found the first paragraph incomplete because it “failed to
inform the jury that they could in fact conclude that one of the two opposing conclusions was unreasonable.” Id. at 520;
see also Matheny v. State, 983 N.E.2d 672, 680 (Ind. Ct. App. 2013) (holding that the first paragraph was incomplete
without the following companion paragraph). Because we hold that the trial court’s instructions considered as a whole

                                                             7
Santiago and this case, the jury was not explicitly instructed to reconcile the evidence with

the presumption of innocence, the instructions, considered as a whole, properly conveyed this

concept to the jury. Id. at *3. This differs from Lee, 964 N.E.2d at 859, the case relied upon

by Albores, where the instructions given were less detailed and did not inform the jury that

the presumption of innocence prevails throughout the trial, see id. at 864.

         Finally, we note that, similar to the instructions in Santiago, the jury instructions given

by the trial court here appear to be based on the Indiana Pattern Jury Instructions. See

Transcript at 1129. While pattern jury instructions are not always upheld as correct

statements of law, the preferred practice in Indiana is to use pattern jury instructions. Boney

v. State, 880 N.E.2d 279, 294 (Ind. Ct. App. 2008), trans. denied.3 In sum, because, taken as

a whole, the instructions given by the trial court properly conveyed the law to the jury, the

trial court did not abuse its discretion when it refused to give Albores’s proposed instruction.

                                                    Conclusion

         The trial court did not abuse its discretion when it refused to give Albores’s proffered

jury instruction regarding the presumption of innocence. We therefore affirm his conviction.

         Affirmed.

KIRSCH, J., and VAIDIK, J., concur.




properly conveyed the law, we need not decide this issue.
         3
        Albores, in his reply brief, states that the pattern instructions were revised in February of 2013 in response to
Lee. However, this case was tried in 2012 and thus a 2013 revision has no bearing on the issue in this case.

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