MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 11 2018, 10:05 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                    Curtis T. Hill, Jr.
Columbus, Indiana                                       Attorney General of Indiana

                                                        Angela N. Sanchez
                                                        Assistant Section Chief for
                                                        Criminal Appeals
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Edwin A. Castro,                                        December 11, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-502
        v.                                              Appeal from the Bartholomew
                                                        Superior Court
State of Indiana,                                       The Honorable James D. Worton,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        03D01-1603-F6-1700



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018                  Page 1 of 7
                                             Case Summary
[1]   Edwin A. Castro appeals his convictions for level 6 felony domestic battery,

      level 6 felony strangulation, level 6 felony criminal confinement, and level 6

      felony battery on a person less than fourteen years old. Castro, who was born

      in Honduras, asserts that the trial court erred in admitting his recorded

      statement to police by declining to conduct a suppression hearing on whether

      he knowingly and voluntarily waived his Miranda rights, which had been read

      to him in English rather than Spanish. We conclude that if there was any error

      in admitting the recorded statement, that error was harmless beyond a

      reasonable doubt. Therefore, we affirm.


                                 Facts and Procedural History
[2]   On March 18, 2016, Castro’s ex-wife Rosa Serrano Diaz went to work with the

      understanding that Castro was going to watch their children. Diaz had

      previously obtained a protective order against Castro. When Diaz returned

      home, she found Castro in the guest room and asked him to leave because of

      the protective order. He refused, and they got into an argument about child

      support. When Diaz attempted to give Castro the child support documents, he

      threw them aside. She asked him again to leave, and he again refused. She

      tried to go to the children’s room, but Castro would not let her pass. Castro hit

      her and pushed her against a wall. She fell backwards and landed in a laundry

      basket. Diaz got up and said, “[P]lease leave, if you are going to start again,

      please leave.” Tr. Vol. 2 at 76. Diaz tried to move away, but Castro pushed

      her down three times. Diaz begged him to leave, but Castro was “furious.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018   Page 2 of 7
      at 78. He grabbed her by the hair, threw her against the wall, and put both his

      hands on her neck. Diaz pleaded with him to let her go and tried to fight back.

      She tried hitting him with her knee and her fist and scratched him, but she

      could not get away. When she felt like she was unable to breathe any more, she

      yelled for their son (“Son”). Son responded and started hitting Castro on the

      head and telling him “let go of mommy.” Id. at 85. Diaz’s daughter

      (“Daughter”) also arrived and started “begging” Castro to let her mother go or

      she would call the police. Id. at 86. Castro kept one hand on Diaz and used his

      other hand to grab Son and throw him. Son landed on the bed, rolled off, and

      hit the closet door. Diaz kept fighting Castro, scratching and hitting him

      without success. Daughter continued to beg Castro to let her mother go, to no

      avail, and Daughter ultimately called the police. Castro then threw Diaz out of

      his way and ran out of the home.


[3]   Columbus Police Officer Angela Owens responded to a domestic disturbance

      report and was advised that the male party had left the scene of the disturbance.

      Officer Owens went to the address where the male party had reportedly gone

      and encountered Castro, who had red marks on his face and blood on his lip.

      Officer Owens placed Castro under arrest for battery and violation of the

      protective order. Officer Owens read him his Miranda rights in English. She

      asked him if he understood his rights, and he replied affirmatively. Id. at 220;

      State’s Ex. 27. She asked him if he wished to speak with her, and he said yes.

      Tr. Vol. 2 at 221; State’s Ex. 27. Officer Owens recorded their conversation,

      during which Castro explained in English that Diaz had attacked and injured


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018   Page 3 of 7
      him and that he had not touched her or the children. Tr. Vol. 2 at 225-28;

      State’s Ex. 27. When this conversation took place, Castro had been in the

      United States for approximately nine years.1


[4]   The State charged Castro with level 6 felony domestic battery, level 6 felony

      strangulation, level 6 felony criminal confinement, and level 6 felony battery on

      a person less than fourteen years old. At Castro’s jury trial, the State sought to

      admit Castro’s recorded statement as State’s Exhibit 27. Defense counsel

      requested that a foundation be laid to establish that Castro understood his

      Miranda rights. Officer Owens testified that she read a full Miranda advisement

      in English from a card she had in her pocket. She also testified that she carried

      a card with the Miranda rights in Spanish, but she chose to read them in English

      because Castro had been communicating with her in English and she believed

      that he knew English. Tr. Vol. 2 at 215-16. She further testified that she

      believed that Castro understood her when she advised him of his Miranda rights

      and that she had asked him if he understood his rights and he indicated that he

      did. Id. at 217. Officer Owens also testified that she asked Castro if he wished

      to speak with her and he indicated that he did. Id. at 218. Defense counsel

      requested that the trial court conduct a suppression hearing. The trial court

      denied the request, and the recording was played for the jury. Tr. Vol. 2 at 225-

      28; State’s Ex. 27.




      1
        At his sentencing hearing in February 2018, Castro testified that he had been in the United States for eleven
      years. Tr. Vol. 3 at 151.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018                   Page 4 of 7
[5]   In closing argument, defense counsel made the following statements:


              [I]f … Castro was the aggressor [Diaz] would have been hurt.
              She would have been in worse shape than she was, because he’s a
              man, supposedly according to her she is so scared of him, so
              fearful of him, but he is so much stronger than she is, you saw
              that lie, well look at her injuries versus his. He’s bleeding, when
              Police arrive and take pictures of him, he’s crying, he’s crying
              because he’s just been abused, it just happened.


              ….


              [Castro] is not the aggressor, [Castro] is trying to escape the, the
              room and she is blocking every exit. He doesn’t testify today, for
              a reason, it’s his right. You are going to get an instruction that
              says, you cannot hold that against him, as jurors, I know I would
              too, he didn’t talk, he must be hiding something. He doesn’t
              have to talk, he’s the one who is being accused, in fact, it is a
              right not to talk. In fact, he did talk, he talked on a recording
              when it happened fresh that day. And he decided he was going
              to rest on that, that’s enough, I am not going to do this, I don’t
              need, he doesn’t need to subject himself to the interrogation of
              the Prosecutor, who is going to try and tear him apart. He is on
              trial, when maybe in fact [Diaz] should be the one.


              ….


              You will get an instruction, you can’t hold it against [Castro] that
              he didn’t testify, but he did, he testified to that Police Officer that
              showed up. And he is the most creditable person, so far, that
              we’ve heard from, in that video, in that audio.


      Tr. Vol. 3 at 81, 90-91, 99.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018   Page 5 of 7
[6]   The jury found Castro guilty as charged. The trial court sentenced Castro to a

      four-year aggregate term. This appeal ensued.


                                     Discussion and Decision
[7]   Castro challenges the admission of his recorded statement in the absence of a

      suppression hearing on whether he knowingly and voluntarily waived his

      Miranda rights. Statements made by those in police custody in response to

      police interrogation are inadmissible at trial unless the State proves beyond a

      reasonable doubt that the defendant knowingly and voluntarily waived his

      privilege against self-incrimination and his right to counsel and that the

      statements themselves were voluntarily given. Johnson v. State, 584 N.E.2d

      1092, 1098-99 (Ind. 1992) (citations omitted), cert. denied. We review a trial

      court’s decision to admit a defendant’s custodial statement for an abuse of

      discretion. Horan v. State, 682 N.E.2d 502, 509 (Ind. 1997).


[8]   However, we need not address whether any error occurred in admitting the

      recording because if any error occurred it was harmless. “Statements obtained

      in violation of Miranda and erroneously admitted are subject to harmless error

      analysis.” Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998).


              A federal constitutional error is reviewed de novo and must be
              harmless beyond a reasonable doubt. The State bears the burden
              of demonstrating that the improper admission of a defendant’s
              statement did not contribute to the conviction. To say that an
              error did not contribute to the verdict is ... to find that error
              unimportant in relation to everything else the jury considered on
              the issue in question, as revealed in the record. If the State has
              presented other overwhelming evidence of the defendant’s guilt,
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018   Page 6 of 7
               then an erroneously admitted statement may be deemed
               harmless.


       Finney v. State, 786 N.E.2d 764, 768 (Ind. Ct. App. 2003) (citations and

       quotations omitted).


[9]    In his recorded statement, Castro did not say anything inculpatory, but rather

       asserted that his ex-wife was the aggressor and consistently denied touching her

       or his children. Moreover, in closing argument, defense counsel relied on the

       recording to advocate for Castro’s innocence and to argue that his version of

       events was the most credible. Accordingly, we have no difficulty concluding

       that the recording did not contribute to the guilty verdicts and was harmless

       beyond a reasonable doubt. Therefore, we affirm Castro’s convictions.


[10]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-502 | December 11, 2018   Page 7 of 7
