Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                  Jul 03 2013, 7:14 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                              GREGORY F. ZOELLER
Appellate Public Defender                          Attorney General of Indiana
Crown Point, Indiana
                                                   ANDREW R. FALK
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ALFRED VELA,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )      No. 45A05-1210-CR-559
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Clarence D. Murray, Judge
                              Cause No. 45G02-1101-MR-1



                                          July 3, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

        Alfred Vela appeals his conviction for voluntary manslaughter, as a Class A

felony, following a jury trial.1 Vela raises a single issue for our review, namely, whether

the trial court’s instruction to the jury on voluntary manslaughter was supported by the

evidence. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        In January 2011, Sheena Tomlinson and Joseph Burton had been in a relationship

for about seven years, and they had two daughters together. However, over the last two

years of that relationship, Tomlinson had also had an intimate relationship with Vela.

Vela took Tomlinson out, bought her gifts, and gave her money. For about five months,

Tomlinson lived with Vela while there was a warrant out for her arrest. Tomlinson told

Vela that she loved him, and, although Vela and Burton knew about each other, “[t]hey

didn’t get along.” Transcript at 324.

        On January 13, 2011, Tomlinson asked to borrow $2,000 from Vela for bail. As a

condition to giving her that money, Vela told Tomlinson to “stay away from your

child[ren]’s father” and away from “Hammond period.” Id. at 367. Vela then bailed

Tomlinson out of jail, and they spent the day together. However, at the end of the day

Tomlinson “br[oke] things off with [Vela] . . . [b]ecause [she] wanted to go home to

[Burton].” Id. at 331. Tomlinson told Vela: “I’m sorry, but I thought I could do this,

and I can’t. I want to go home with Joseph. I love Joseph.” Id. Vela “was upset.” Id.



        1
           Vela does not appeal his conviction for failure to stop and remain at the scene of an accident
resulting in injury or death, as a Class C felony. We also note that Vela’s brief on appeal does not include
a copy of the appealed judgment or order, contrary to Indiana Appellate Rule 46(A)(10).
                                                     2
       Three days later, on January 16, Tomlinson and Burton were walking hand-in-

hand down Michigan Street in Hammond.              Because of recent snowfall, they were

walking on the street rather than the sidewalk. Vela, who was driving a gray Pontiac,

observed Tomlinson and Burton together. He then accelerated his vehicle, hit Tomlinson

and Burton, and drove away. Tomlinson was knocked back, but Burton later died from

his injuries.

       After officers arrived at the scene, Tomlinson informed them that Vela may have

been the driver. Officers located Vela and the gray Pontiac, which had obvious front-side

damage. Using the vehicle’s “airbag control module,” id. at 222, police technicians were

able to determine that, in the five seconds immediately preceding the accident, Vela had

accelerated from thirty-four to thirty-seven miles per hour and that Vela did not activate

his brakes until one second before the accident.

       On January 18, the State charged Vela with murder, involuntary manslaughter,

reckless homicide, and failure to stop and remain at the scene of an accident resulting in

injury or death. At the end of Vela’s jury trial, the court instructed the jury, over Vela’s

and the State’s objections, on voluntary manslaughter, as a lesser-included offense of

murder.         The jury found Vela guilty of voluntary manslaughter, involuntary

manslaughter, reckless homicide, and failure to stop. The court entered its judgment of

conviction on voluntary manslaughter, as a Class A felony, and failure to stop, as a Class

C felony, and sentenced Vela accordingly. This appeal ensued.




                                             3
                           DISCUSSION AND DECISION

      Vela challenges the trial court’s jury instruction on voluntary manslaughter. As

we have discussed:

      “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.’”
      Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
      581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the
      sound judgment of the trial court and will not be disturbed absent an abuse
      of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004),
      trans. denied. Jury instructions are not to be considered in isolation, but as
      a whole and in reference to each other. Id. The instructions must be a
      complete, accurate statement of the law which will not confuse or mislead
      the jury. Id. at 930-31. Still, errors in the giving or refusing of instructions
      are harmless where a conviction is clearly sustained by the evidence and the
      jury could not properly have found otherwise. Id. at 933 (citing Dill, 741
      N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). Further:

      In reviewing a challenge to a jury instruction, we consider: (1) whether the
      instruction is a correct statement of the law; (2) whether there was evidence
      in the record to support giving the instruction; and (3) whether the
      substance of the instruction is covered by other instructions given by the
      court.

Simpson v. State, 915 N.E.2d 511, 519 (Ind. Ct. App. 2009) (quotation omitted), trans.

denied.

      Here, Vela asserts that there was no evidence in the record to support the

instruction on voluntary manslaughter.      Specifically, Vela asserts that there was no

evidence that he acted in “sudden heat.” Appellant’s Br. at 8. Voluntary manslaughter is

an inherently lesser included offense of murder. Washington v. State, 808 N.E.2d 617,

625 (Ind. 2004). The only element distinguishing murder from voluntary manslaughter is

“sudden heat,” which is an evidentiary predicate that allows mitigation of a murder
                                             4
charge to voluntary manslaughter. Id. “Sudden heat” is characterized as anger, rage,

resentment, or terror sufficient to obscure the reason of an ordinary person, preventing

deliberation and premeditation, excluding malice, and rendering a person incapable of

cool reflection. Id. at 625-26. An instruction on voluntary manslaughter is supported if

there exists evidence of sufficient provocation to induce passion that renders a reasonable

person incapable of cool reflection. Id. at 626. Any appreciable evidence of sudden heat

justifies an instruction on voluntary manslaughter. Id.

        Vela’s argument that there was no evidence of sudden heat is as follows:

        While Vela may not have liked Tomlinson being with Burton, the situation
        was not new or a surprise. . . .
               Tomlinson’s words asking Vela to return her to Burton’s home and
        seeing Tomlinson and Burton together were the only possible impetus for
        the attack. The words alone are not sufficiently provocative to merit a
        conviction for voluntary manslaughter instead of murder. Vela may have
        been angered by Tomlinson telling him she wanted to go back to Burton
        even after he had bailed her out of jail. However, there was ample time for
        cool reflection before his actions. Three days passed between the statement
        and the evening that Vela hit Burton with his vehicle.

Appellant’s Br. at 10-11. We cannot agree.

        The trial court did not abuse its discretion when it instructed the jury on voluntary

manslaughter.       While, for obviously different reasons, neither the State nor Vela

requested the instruction,2 the instruction was supported by evidence in the record.

Namely, it was for the jury to decide whether Vela’s observation of Tomlinson and

Burton walking hand-in-hand down the street on January 16 “brought all of [Vela’s]

disappointment and anger to the surface and . . . obscured his reason.” See Appellee’s

        2
            Although both the State and Vela objected to the instruction, it is beyond dispute that, “[i]f it
would be possible for a jury to find that the lesser, but not the greater, offense had been committed, then
the trial court must instruct the jury on both offenses.” Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008)
(emphasis added).
                                                     5
Br. at 12. Vela’s argument that Tomlinson’s relationship with Burton was “not new” to

Vela or that Vela had three days to cool off after Tomlinson ended the relationship seeks

to have this court view the evidence in a manner that is not the most favorable to the trial

court’s judgment, which we will not do.

       Because there was evidence in the record to support giving the instruction on

voluntary manslaughter, the trial court did not abuse its discretion when it instructed the

jury on that lesser-included offense. And because Vela has not shown that the court’s

instruction was not supported by the evidence, we need not consider his additional

argument that the purportedly erroneous instruction prejudiced him. We affirm Vela’s

conviction.

       Affirmed.

BAILEY, J., and BARNES, J., concur.




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