MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                      Jul 02 2020, 10:50 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                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Angelo Velez,                                             July 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2467
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Amy J. Barbar,
                                                          Magistrate
                                                          Trial Court Cause Nos.
                                                          49G01-1602-F3-7337
                                                          49G01-1805-PC-15736



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020                            Page 1 of 10
                                                  Case Summary
[1]   Angelo Velez (“Velez”) appeals his convictions for Attempted Robbery, as a

      Level 3 felony,1 two counts of Burglary, as Level 4 felonies,2 and two counts of

      Theft, as Class A misdemeanors.3 We affirm.



                                                     Issues
[2]   Velez presents two issues for review:


                 I.           Whether the jury was erroneously instructed as to the
                              State’s burden of proof; and


                 II.          Whether sufficient evidence supports one of the
                              convictions for Burglary.


                                  Facts and Procedural History
[3]   During the morning of December 17, 2015, Indianapolis resident Tim

      McDowell (“McDowell”) heard his dog barking and looked out the window of

      his residence on Vine Street to investigate. McDowell saw three men dressed in

      black run across a yard, run down the alley behind McDowell’s residence, and

      then run back across the yard. The men were carrying a television, a bag, and a




      1
          Ind. Code §§ 35-42-5-1(1), 35-41-5-1.
      2
          I.C. § 35-43-2-1.
      3
          I.C. § 35-43-4-2(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020    Page 2 of 10
      keyboard case. A fourth man joined with the first three, and McDowell saw

      them drive away in a white SUV with dark tinted windows.


[4]   McDowell’s father called 9-1-1, and Indianapolis Metropolitan Police Officer

      Steven Spina (“Officer Spina”) responded to the dispatch at 8:57 a.m.

      Meanwhile, Nicholas Szalai (“Szalai”) had been on his way to work when he

      received notice that his residential security alarm had been activated. Szalai

      immediately returned home to find that his window had been broken and a

      television and computer monitor were missing. Szalai provided Officer Spina

      with a thirty-second security video recorded inside the residence, from which

      two still photos were produced.


[5]   Less than one mile away, on Crestwood Drive, Ranmundo Rangel (“Rangel”)

      heard a knock at his door. When Rangel approached the door, he saw that it

      was cracked open. Five men entered the house. One man struck Rangel in the

      face, and one demanded to know “where’s the money, where’s the drugs.”

      (Trans. Exhibit Vol. II, pg. 91.) Rangel’s tenant, Debar Lindsey (“Lindsey”),

      was inside a bedroom when she heard the disturbance. She took refuge in a

      closet and called 9-1-1. Within minutes, Lindsey was dragged from the closet

      by one of the men, who renewed the demand for money and drugs. Lindsey

      saw that one of the men was holding a knife that looked like one she had

      ordered from an infomercial. One of the men struck Lindsey in the back of her

      head, knocking her down.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 3 of 10
[6]   Some of the men began to whistle, an apparent signal to leave, giving Rangel

      the opportunity to flee the residence. Rangel ran and hid in his neighbor’s

      bushes; he saw the group of men leaving his residence and drive away in a

      white or tan vehicle he called a van.4 Rangel’s neighbor, Gose Garsia

      (“Garsia”) saw a group of men drive off in a white Chevy Envoy. Garsia

      estimated that police arrived three to five minutes later. Officer Jeffrey Stagg

      (“Officer Stagg”) responded to a dispatch at 9:10 a.m. When he arrived at the

      Rangel residence, Officer Stagg saw a large television set abandoned at the

      curb. He also recovered a discarded knife like Lindsey’s knife.


[7]   Rangel identified Velez from a photographic array. Five fingerprints, later

      identified as those of Velez, were lifted from the television abandoned at

      Rangel’s curb. Lindsey was unable to identify any of her attackers.


[8]   Velez was charged with attempted robbery causing bodily injury to Rangel,

      attempted armed robbery and kidnapping of Lindsey, theft of Rangel’s

      property, theft of Szalai’s property, burglary of Rangel’s residence, and burglary

      of Szalai’s residence. Velez was tried before a jury on March 26 and 27, 2018.

      The jury acquitted Velez of kidnapping and was unable to reach a verdict as to

      attempted robbery of Lindsey. Velez was found guilty of the remaining

      charges.




      4
          Rangel was speaking through an interpreter.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 4 of 10
[9]    On April 20, 2018, Velez received an aggregate sentence of ten years

       imprisonment. This consisted of six years for attempted robbery of Rangel, a

       concurrent six-year sentence for burglary of Rangel’s residence, two concurrent

       one-year sentences for theft, and a consecutive four-year sentence for burglary

       of Szalai’s residence.


[10]   Court-appointed counsel filed a Notice of Appeal on behalf of Velez. However,

       on May 14, 2018, Velez filed a pro-se petition for post-conviction relief. Upon

       the motion of counsel, the appeal was dismissed without prejudice, to permit

       remand for resolution of the post-conviction proceedings.5 Velez was denied

       post-conviction relief and his direct appeal proceeded.



                                     Discussion and Decision
                                            Jury Instruction
[11]   Prior to the presentation of evidence, the trial court conducted a bench

       conference to discuss jury instructions, at which the court signaled its intention

       to utilize Indiana Pattern Jury Instruction 1.07 on the State’s burden of proof.

       The proposed language as to each count was:


                  [Definition of Offense] Before you may convict the defendant of
                  [offense] the State must prove each of the following elements
                  beyond a reasonable doubt:




       5
           See Indiana Appellate Rule 37.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 5 of 10
                        [elements]


               If the State fails to prove each of these elements beyond a
               reasonable doubt you must find the defendant not guilty of the
               crime of [offense] as charged in Count [#].


       App. Vol. III, pgs. 12-20.


[12]   Velez objected to the proposed instruction and asked that the trial court follow

       a federal pattern instruction on burden of proof, such that the word “any”

       would be substituted for “each” in the last sentence. Velez argued that the jury

       could have understood the final sentence of the Indiana pattern instruction to

       mean that acquittal was proper only if the State had failed to prove each, as in

       each and every, element. The trial court responded that the federal instruction’s

       use of “any” was “more accurate,” but stated, “each leads me to the same

       conclusion.” (Trans. Exhibits Vol. II, pgs. 13-14.) The trial court decided to

       “defer to the [Indiana] pattern.” Id. at 14.


[13]   Velez now argues that the jury was incorrectly instructed on the State’s burden

       of proof. The purpose of a jury instruction is to inform the jury of the law

       applicable to the facts without misleading the jury, and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.

       Batchelor v. State, 119 N.E.3d 550, 560 (Ind. 2019). The “preferred practice is to

       use the pattern jury instruction,” but pattern instructions are not always upheld

       as correct statements of law. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct.

       App. 2005).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 6 of 10
[14]   To give “concrete substance for the presumption of innocence,” due process

       requires the State to persuade the factfinder “beyond a reasonable doubt of

       every fact necessary to constitute the crime charged.” In re Winship, 397 U.S.

       358, 363, 90 S. Ct. 1068 (1970). Accordingly, the jury must be instructed in a

       manner that does not relieve the State of its burden of proof. See Batchelor, 119

       N.E.3d at 560. In general, a trial court has discretion in instructing the jury;

       however, when a question of law is presented, our review is de novo. Id. at 554.

       We reverse the trial court only if the instruction resulted in prejudice to the

       defendant’s “substantial rights.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind.

       2015).


[15]   Here, the challenged instruction first tells the jury that the State must prove

       beyond a reasonable doubt each element of the charged offense. The final

       sentence again uses the word “each” but in a different context, that is, the jury

       is instructed when acquittal is mandatory. The word “any” may well be a

       preferable substitution, dispelling any possible doubt. The jury would be

       instructed, in explicit terms, that a failure of proof on any element mandates

       acquittal.


[16]   Although we acknowledge that the burden of proof instructions given in this

       case may well have been more artfully worded, it is well-settled that jury

       instructions are to be considered as a whole, not in isolation. O’Connell v. State,

       970 N.E.2d 168, 172 (Ind. Ct. App. 2012). We look to whether the

       instructions, taken as a whole, misstate the law or otherwise mislead the jury.”

       Id. Thus, our focus is not limited to the repetition of one word.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 7 of 10
[17]   The Velez jury was instructed to consider the instructions as a whole. Among

       the instructions was Preliminary Instruction 6, regarding the presumption of

       innocence. The jury was instructed that, to overcome this presumption, “the

       State must prove the defendant guilty of each element of the crime charged

       beyond a reasonable doubt.” (App. Vol. III, pg. 11.) The jury was also

       instructed, relative to every specific crime alleged, that the State must prove

       each element (thereinafter enumerated) beyond a reasonable doubt. Finally, in

       a preliminary instruction directed to explaining the concept of reasonable

       doubt, the jury was instructed that the State must prove each and every element

       by evidence that “leaves no reasonable doubt.” Id. at 27. In sum, we are not

       persuaded that the jury was misled or that Velez suffered prejudice to his

       substantial rights.


                  Sufficiency of the Evidence – Szalai Burglary
[18]   To convict Velez of the Szalai burglary, as charged, the State was required to

       prove beyond a reasonable doubt that Velez broke and entered Szalai’s

       residence with the intent to commit theft inside the residence. Ind. Code § 35-

       43-2-1. Velez concedes that Szalai’s residence was burglarized, but he claims

       that the State failed to establish his identity as one of the perpetrators.


[19]   When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 8 of 10
       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


[20]   Victim testimony and fingerprint evidence tied Velez to the Rangel burglary,

       unlike the Szalai burglary. Velez insists that Szalai’s thirty-second security

       video lacks any probative value. But this argument ignores Detective Scott

       Stauffer’s testimony that he produced still photographs from the video. At trial,

       Velez was instructed to remove his glasses and the jury was provided with the

       still photographs, State’s Exhibits 20 and 21, for comparison. Although Velez

       requested that the photographs be used only as a demonstrative exhibit, the trial

       court clarified that they were being admitted as substantive evidence. Velez

       asks that we discard this evidence, but we do not reweigh evidence or assess

       credibility of witnesses. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009).


[21]   Velez also argues that the jury was invited to draw unreasonable inferences.

       According to Velez, the State asked the jury “to infer that he was in two places

       at the same time.” Appellant’s Brief at 35. Velez observes that the police

       dispatches were very close in time, 8:57 a.m. at Vine Street and 9:10 at

       Crestwood Drive. Velez also point to Garsia’s testimony that he put his child

       on a bus at 8:45 a.m. and saw a white vehicle parked in front of Rangel’s

       residence. To the extent that testimony about a vehicle’s location may be said

       to create a conflict about a person’s location, it is the role of the fact-finder to

       determine whom to believe and what portion of conflicting evidence to believe.

       Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017). The State did not fail to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 9 of 10
       present sufficient evidence from which the jury could identify Velez as one of

       the burglars of the Szalai residence.



                                               Conclusion
[22]   Velez is not entitled to reversal on the basis of instructional error. Sufficient

       evidence supports Velez’s conviction for burglary of the Szalai residence.


[23]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2467 | July 2, 2020   Page 10 of 10
