FOR PUBLICATION
                                                  May 30 2014, 7:41 am




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:
JULIE P. VERHEYE                            GREGORY F. ZOELLER
Mishawaka, Indiana                          Attorney General of Indiana

                                            BRIAN REITZ
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                           IN THE
                 COURT OF APPEALS OF INDIANA

JOSEPH FUENTES,                             )
                                            )
                                            )
     Appellant-Defendant,                   )
                                            )
        vs.                                 )      No. 71A04-1310-CR-522
                                            )
STATE OF INDIANA,                           )
                                            )
                                            )
     Appellee-Plaintiff.                    )

                 APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                     The Honorable Jane Woodward Miller, Judge
                           Cause No. 71D01-1210-FA-28


                                   May 30, 2014
                            OPINION – FOR PUBLICATION

MATHIAS, Judge
       Joseph Fuentes (“Fuentes”) was convicted in St. Joseph Superior Court of Class A

felony attempted murder, Class C felony possession of a handgun by a felon, Class D

felony criminal recklessness, and Class D felony resisting law enforcement, and was

sentenced to an aggregate term of forty years. Fuentes appeals and presents three issues

for our review, which we restate as:

       I.     Whether the trial court erred in admitting evidence that the police found an
              AR-15 rifle in the trunk of Fuentes’s car;

       II.    Whether the trial court improperly instructed the jury to continue to
              deliberate; and

       III.   Whether the State presented evidence sufficient to convict Fuentes of
              attempted murder.

       We affirm.

                              Facts and Procedural History

       On October 2, 2012, South Bend Police Officers John Comeau (“Officer

Comeau”) and Tim Cichowicz (“Officer Cichowicz”) were dispatched to a house on Ford

Street in South Bend, Indiana on a report of a possibly armed male. When the officers

arrived at the scene, Fuentes was standing by his tan Cadillac. Another man, later

identified as Jaime Duron (“Duron”) was standing in the yard of the house. Officer

Comeau told Duron to approach him and ordered Fuentes not to move. Duron obeyed the

officer’s commands, but Fuentes jumped into his car and drove away. Officer Cichowicz

pursued Fuentes in his patrol car with the siren and flashing lights activated. Fuentes

ignored Officer Cichowicz’s car and continued to flee, running through a stop sign. Soon

thereafter, Fuentes lost control of his car and crashed into a nearby yard. Undaunted,

Fuentes exited his car and fled on foot.

                                            2
        Officer Cichowicz got out of his patrol car and gave chase on foot. With Officer

Cichowicz closing in on him, Fuentes slowed down, turned around, and pointed a firearm

at Officer Cichowicz at head level. Officer Cichowicz dove for cover and heard Fuentes

fire the weapon. Fuentes then continued to flee down an alleyway. Officer Cichowicz

continued to pursue Fuentes, took cover behind a garage, and peered around the corner.

Fuentes, who was approximately twenty-five yards away, fired his weapon two more

times as Officer Cichowicz took cover.

        Fuentes then took refuge in an abandoned home. After the police SWAT team

surrounded the house and kicked in the door, Fuentes surrendered himself. When he was

taken into custody, Fuentes did not have a firearm on his person. However, during a

search of Fuentes’s car, the police found an AR-15 rifle1 in the trunk. Fuentes asked the

police officer who transported him to jail, “if [the police] had found an A.R. rifle in the

trunk of the car that [Fuentes] was driving.” Tr. p. 306.

        As a result of this incident, the State charged Fuentes on October 4, 2012, with

Class A felony attempted murder, Class C felony possession of a firearm by a felon,

Class D felony criminal recklessness, Class D felony resisting law enforcement, Class D

felony intimidation, and Class A misdemeanor carrying a handgun without a license. The

State later dismissed the intimidation charge. A bifurcated jury trial commenced on

September 3, 2013, with regard to all charges except possession of a firearm by a felon.

The jury found Fuentes guilty the following day, and Fuentes then pleaded guilty to being

a felon in possession of a firearm. At the October 2, 2013 sentencing hearing, the trial
1
  “The AR-15 is a civilian version of the military’s M16 rifle.” Steinberg v. State, 941 N.E.2d 515, 520
(Ind. Ct. App. 2011).

                                                    3
court “merged” the misdemeanor conviction for carrying a handgun without a license into

the conviction for possession of a firearm by a felon and imposed an aggregate executed

term of forty years. Fuentes now appeals.

                                 I. Admission of Evidence

       Fuentes first claims that the trial court erred in admitting evidence regarding the

AR-15 rifle found in the trunk of his car. In reviewing this claim, we note that questions

regarding the admission of evidence are left to the sound discretion of the trial court, and

we review the court’s decision only for an abuse of that discretion. Rogers v. State, 897

N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. The trial court abuses its discretion

only if its decision is clearly against the logic and effect of the facts and circumstances

before the court, or if the court has misinterpreted the law. Id.

       When the State began to offer into evidence photographs of the items found in

Fuentes’s car, including the AR-15 rifle, Fuentes’s counsel objected, stating: “I only

object to photo number 24. I believe it’s a picture of an A.R. 15 found in the trunk of the

automobile. I object to it because it’s not relevant, and any relevance the gun has to this

case is clearly outweighed by the undue prejudice toward [the defendant].” Tr. p. 272.

After the State argued to the trial court that the rifle was relevant to Fuentes’s motive to

flee from the police, Fuentes’s counsel replied, “Mr. Fuentes was not charged with

possession of a stolen item [i.e., the gun]. I mean there’s other evidence of motive to flee

that’s been presented. Obviously this gun is unduly [] prejudicial. It’s an assault rifle.”

Tr. pp. 272-73.




                                              4
        On appeal, Fuentes similarly claims that the admission of evidence that the rifle

was found in his trunk was improper because it was irrelevant and unfairly prejudicial.2

As we summarized in Jackson v. State, 973 N.E.2d 1123, 1127 (Ind. Ct. App. 2012),

trans. denied:

        Indiana Evidence Rules 401 through 403 govern relevancy of evidence.
        Relevant evidence is admissible; irrelevant evidence is not. Ind. Evidence
        Rule 402. Evidence is relevant if it has any tendency to make any “fact that
        is of consequence to the determination” of the action more or less probable.
        Ind. Evidence Rule 401. Relevant evidence can be excluded “if its
        probative value is substantially outweighed by the danger of unfair
        prejudice.” Ind. Evidence Rule 403.

        All evidence that is relevant to a criminal prosecution is inherently prejudicial;

thus proper inquiry under Evidence Rule 403 boils down to a balance of the probative

value of the proffered evidence against the likely unfair prejudicial impact of that

evidence. Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied.

(citing Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)). When determining the likely

unfair prejudicial impact, courts will look for the dangers that the jury will substantially

overestimate the value of the evidence or that the evidence will arouse or inflame the

passions or sympathies of the jury. Id.

        Here, it is clear that the presence of a rifle, which was not registered to Fuentes, in

the trunk of Fuentes’s car was relevant to the question of Fuentes’s motive to flee from


2
  Fuentes also claims that “[t]he real effect of the evidence of this gun was to create the impression in the
minds of the jurors that Fuentes was a bad guy and the kind of person who would shoot at another
person[.]” Appellant’s Br. p. 12. To the extent that this is an argument that evidence regarding the rifle
was improper evidence of “prior bad acts” under Indiana Evidence Rule 404(b), Fuentes failed to
preserve this argument by objecting on 404(b) grounds at trial. See Lashbrook v. State, 762 N.E.2d 756,
759 (Ind. 2002) (holding that defendant failed to preserve any error in the admission of evidence under
Evidence Rule 404(b) where he objected at trial only on grounds of relevancy).

                                                     5
the police. That is, the presence of the rifle made it more likely that Fuentes had a reason

to flee from the police when he was ordered to stop. And we do not think that the

relevance of this rifle was substantially outweighed by the danger of unfair prejudice.

First, the possession of a firearm, generally speaking, is not a misdeed. See Williams v.

State, 690 N.E.2d 162, 175 (Ind. 1997). Moreover, Fuentes was charged with possession

of a handgun, and the State presented direct evidence that Fuentes shot at the pursuing

officer. Thus, the jury was already aware that Fuentes possessed a firearm, and it is

unlikely that the jury would “substantially overestimate” the value of evidence that

Fuentes had in his trunk a weapon that he did not use. We therefore conclude that the

trial court did not abuse its discretion in admitting evidence regarding the rifle found in

the trunk of Fuentes’s car.3

                                        II. Jury Instruction

        Fuentes next claims that the trial court erred in its instruction to the jury to

continue deliberating after the jury indicated that it was “split” on one of the counts. The

trial court has discretion in instructing the jury, and we will reverse only when the

instructions amount to an abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172

(Ind. Ct. App. 2012). To constitute an abuse of discretion, the instructions given must be

erroneous, and the instructions taken as a whole must misstate the law or otherwise



3
   We also note that the police officer who transported Fuentes to jail testified without objection that
Fuentes asked him “if [the police] had found an A.R. rifle in the trunk of the car that [Fuentes] was
driving.” Tr. p. 306. Thus, there was other evidence admitted without objection that Fuentes had an AR-
15 in the trunk of his car. “It is well settled that any error in admission of evidence is harmless if the
same or similar evidence has been admitted without objection.” Lowery v. State, 478 N.E.2d 1214, 1228
(Ind. 1985).

                                                    6
mislead the jury. Id. We will consider jury instructions as a whole and in reference to

each other, not in isolation. Id.

       Here, during the jury’s deliberations, the trial court received a question from the

jury asking, “How do we proceed, if we are split on one Count?” Tr. p. 380. The trial

court conferred with counsel for both parties. The trial court proposed two responses,

and both counsel agreed to the following response, “May I suggest that you continue to

deliberate to see if you are able to reach a verdict?” Id. The trial court gave this response

to the jury, which subsequently returned its verdicts.

       On appeal, Fuentes acknowledges that he did not object at trial to this response by

the trial court. His claim on appeal is therefore waived. See Baker v. State, 948 N.E.2d

1169, 1178 (Ind. 2011) (noting that a defendant who fails to object to an instruction at

trial waives any challenge to that instruction on appeal). Fuentes attempts to avoid the

effect of his waiver by arguing that the trial court’s response constituted fundamental

error. As explained by our supreme court in Baker:

       The fundamental error doctrine provides a vehicle for the review of error
       not properly preserved for appeal. In order to be fundamental, the error
       must represent a blatant violation of basic principles rendering the trial
       unfair to the defendant and thereby depriving the defendant of fundamental
       due process. The error must be so prejudicial to the defendant’s rights as to
       make a fair trial impossible. In considering whether a claimed error denied
       the defendant a fair trial, we determine whether the resulting harm or
       potential for harm is substantial. Harm is not shown by the fact that the
       defendant was ultimately convicted. Rather, harm is determined by
       whether the defendant’s right to a fair trial was detrimentally affected by
       the denial of procedural opportunities for the ascertainment of truth to
       which he would have been entitled.

Id. at 1178-79 (citations omitted).



                                             7
       Fuentes claims that the trial court’s response to the jury constituted an

impermissible “Allen” charge. In Lewis v. State, 424 N.E.2d 107, 109 (Ind. 1981), our

supreme court explained, “The ‘Allen charge,’ a designation given to a supplemental

charge given by a trial judge to an apparently deadlocked jury, is named after the first

major case which considered such a charge, Allen v. United States, [164 U.S. 492

(1896)].” Thus, an Allen charge is an instruction given to urge an apparently deadlocked

jury to reach a verdict. Hero v. State, 765 N.E.2d 599, 604 (Ind. Ct. App. 2002). Such

additional instructions are closely scrutinized to ensure that the court did not coerce the

jury into reaching a verdict that is not truly unanimous. Id.

       There are at least two problems with Fuentes’s claim in this regard. First, there is

no indication that the jury was deadlocked. The jury began deliberations at 3:10 p.m. and

sent its question to the trial court hardly more than an hour later, at 4:20 p.m. The jury’s

question did not mention the word deadlocked, nor did the discussion between the parties

and the trial court.     The jury simply indicated that they had “split,” i.e. were not

unanimous, as to one count and requested instructions on how to proceed.

       Second, and more importantly, the trial court’s response did not coerce the jury

into reaching a non-unanimous verdict; it simply suggested to the jury that they continue

to deliberate to see if they were able to reach a verdict. The trial court’s reply did not

place any pressure on the jury to force it to reach a verdict. Moreover, the jury had been

instructed in the trial court’s final instructions that:

       [t]he verdict must represent the considered judgment of each juror. To
       return any verdict, your decision must be unanimous. As jurors, you have
       the duty to consult with each other, and to deliberate with a view to
       reaching a unanimous agreement, if you can agree without violence to

                                                8
       individual judgment. You must each decide the case for yourself, but
       should do so only after an impartial consideration of the evidence with your
       fellow jurors. During your deliberations, do not hesitate to re-examine your
       own views. Change your opinion if you become convinced that it is wrong.
       But do not surrender your honest belief as to the weight or effect of
       evidence only because of the opinion of your fellow jurors, or merely to
       return a verdict.

Appellant’s App. p. 66 (emphasis added). Under these facts and circumstances, we

cannot say that the trial court’s response to the jury’s question amounted to fundamental

error that made a fair trial impossible.

                             III. Sufficiency of the Evidence

       Lastly, Fuentes claims that the State failed to present evidence sufficient to convict

him of attempted murder. When reviewing a claim of insufficient evidence, we neither

reweigh the evidence nor judge the credibility of the witnesses. Corbin v. State, 840

N.E.2d 424, 428 (Ind. Ct. App. 2006). We consider only the evidence most favorable to

the verdict and the reasonable inferences that can be drawn from this evidence. Id. We

will not disturb the jury’s verdict if there is substantial evidence of probative value to

support it. Id. “[A] reviewing court respects ‘the jury’s exclusive province to weigh

conflicting evidence.’” Id. (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).

       To convict Fuentes of attempted murder, the State was required to prove beyond a

reasonable doubt that Fuentes engaged in conduct that constituted a substantial step

toward intentionally killing another human being. Id. at 429 (citing Ind. Code §§ 35-41-

5-1, 35-42-1-1). The intent to kill may be inferred from the use of a deadly weapon in a

manner likely to cause death or great bodily injury, in addition to the nature of the attack

and circumstances surrounding the crime.         Id.   And our supreme court held that


                                             9
discharging a weapon in the direction of a victim is substantial evidence from which the

jury could infer intent to kill. Id. (citing Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988)).

       On appeal, Fuentes claims that “there is no substantial evidence that Fuentes

discharged his weapon in the direction of Officer Cichowicz.” Appellant’s Br. p. 21.

Fuentes makes much of the fact that Officer Cichowicz did not actually see Fuentes fire

the weapon. However, Fuentes ignores the evidence that Officer Cichowicz saw Fuentes

point a gun at him at “head level,” and that as Officer Cichowicz took cover, he heard

Fuentes fire the gun. Tr. p. 229.

       The fact that the officer did not directly see Fuentes fire the gun is not fatal to the

State’s case. Officer Cichowicz repeatedly testified that Fuentes pointed the gun at him,

and as he took cover, the officer heard a gunshot. From this evidence, the jury could

reasonably conclude that Fuentes discharged his weapon directly at Officer Cichowicz, at

“head level,” and that Fuentes specifically intended to kill Officer Cichowicz. See Leon,

525 N.E.2d at 332 (holding that evidence that defendant discharged a weapon in the

direction of the victim was substantial evidence from which the jury could infer the intent

to kill sufficient to support a conviction for attempted murder); Davis v. State, 558

N.E.2d 811, 811 (Ind. 1990) (holding that evidence was sufficient to support a conviction

for attempted murder where defendant ran from the police, turned, and fired a shot which

struck an automobile directly behind the pursuing officer); Reese v. State, 939 N.E.2d

695, 702 (Ind. Ct. App. 2011) (holding that evidence was sufficient to sustain a

conviction for attempted murder where defendant, in an attempt to flee the police, fired

three shots at the pursuing officer, two of which struck the officer); Perez v. State, 872


                                             10
N.E.2d 208, 214 (Ind. Ct. App. 2007) (holding that evidence that defendant fired his gun

directly at passengers inside a car was substantial evidence supporting inference that

defendant intended to kill the victims).

       Fuentes’s citation to Henley v. State, 881 N.E.2d 639 (Ind. 2008), is unavailing.

In that case, our supreme court held that the defendant had received ineffective assistance

of appellate counsel for failing to properly present a claim of insufficient evidence to

sustain the defendant’s conviction for attempted murder. The court held that, if the claim

had been properly presented, the conviction would have been reversed because there was

no evidence that the defendant was aware of the presence of the police officer or actually

pointed his weapon at the officer when he fired it. Id. at 652. Instead, the defendant was

attempting to ward off an attack by the police dog. Id. This is far from what happened in

the present case, where Fuentes pointed his gun directly at the pursing officer’s head and

fired his weapon.

       In short, the State presented evidence from which the jury could reasonably

conclude that Fuentes specifically intended to kill Officer Cichowicz when he fired the

gun at him. Therefore, Fuentes’s claim that the State did not present evidence sufficient

to support his conviction for attempted murder fails.

                                           Conclusion

       The trial court did not abuse its discretion in admitting evidence that Fuentes had

an AR-15 rifle in the trunk of the car in which he fled from the police. Nor did the trial

court commit fundamental error by encouraging the jury to continue to deliberate to see if

it could reach a unanimous verdict. Lastly, evidence that Fuentes pointed his gun in the


                                              11
direction of the pursuing officer and at the level of the officer’s head, then fired the gun

was sufficient to establish Fuentes’s intent to kill. Accordingly, the State presented

evidence sufficient to support Fuentes’s conviction for attempted murder.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




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