MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Oct 04 2016, 5:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jorge Lopez,                                             October 4, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1602-CR-254
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1504-F3-13909



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016      Page 1 of 7
[1]   On April 17, 2015, Appellant-Defendant Jorge Lopez and his girlfriend, Jessica

      Mendoza, were involved in an episode of domestic violence. During this

      episode, their two-month-old son, J.M., was injured and suffered from a broken

      right femur or thigh bone. Lopez was subsequently charged with a number of

      offenses, including Level 3 felony battery resulting in serious bodily injury to a

      person less than fourteen years of age and Level 6 felony domestic battery.

      Following a jury trial, Lopez was found guilty of these offenses. The trial court

      subsequently sentenced Lopez to an aggregate term of thirteen years with eight

      of those years suspended to probation. Lopez challenges his Level 3 felony

      conviction on appeal, arguing that the trial court erred in including an

      instruction on transferred intent in its final instructions to the jury. We affirm.



                            Facts and Procedural History
[2]   Shortly before 6 p.m. on April 17, 2015, Mendoza called 9-1-1 and reported that

      her boyfriend, Lopez, “put his hands on” her and shot her with a BB gun.

      State’s Ex. 2. Mendoza also indicated that Lopez punched her in the mouth.

      Mendoza stated that Lopez would not let her take her son and that she

      “need[ed] somebody to get her son.” State’s Ex. 2.


[3]   Indianapolis Police Sergeant Tim Dowdy was dispatched to the address

      provided by Mendoza. When he arrived on the scene, Mendoza flagged him

      down. Mendoza “was very hysterical” and was saying, “Get my baby, Get my

      baby.” Tr. pp. 54, 55. Sergeant Dowdy noticed round, red marks on



      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 2 of 7
      Mendoza’s right forearm. Mendoza indicated to Sergeant Dowdy that Lopez

      had caused her injuries. Lopez was not at the scene at the time.


[4]   Later that evening, Lopez took the couple’s two-month-old son, J.M., to

      Eskenazi Hospital (“Eskenazi”). J.M. was transferred from Eskenazi to Riley

      Hospital for Children (“Riley”). After being evaluated in the emergency room

      at Riley, J.M. was diagnosed with a broken right femur or thigh bone. The

      fracture had occurred recently and was caused by “a force that twisted it and

      caused it to break.” Tr. p. 99. This type of injury requires “substantial amount

      of force” and would have caused extreme pain. Tr. p. 109.


[5]   On April 20, 2015, Indianapolis Police Detective Greg Norris interviewed

      Lopez. Lopez stated that Mendoza had hit him several times with a BB gun

      and that he had grabbed the gun from Mendoza and shot her four or five times.

      Lopez also provided several explanations as to how J.M.’s leg was broken. One

      explanation was that J.M. was injured when the B.B. gun “bounced” off of a

      bed and hit J.M. in the leg. State’s Ex. 25, p. 19. Another was that J.M. was

      injured when Lopez dropped him in the shower. Finally, Lopez acknowledged

      that J.M. was injured when he “snatched” J.M. from Mendoza’s arms. State’s

      Ex. 25, p. 35.


[6]   Lopez indicated that he “snatched” J.M. from Mendoza because he “was

      angry” and “pissed off” at the time after Mendoza threatened to “call the cops”

      and “leave with the baby.” State’s Ex. 25, p. 35. Lopez said that he “grabbed”

      J.M. by “the foot” and “tried to take him.” State’s Ex. 25, p. 35. Lopez further


      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 3 of 7
      stated that he grabbed J.M. by the leg and pulled him out of Mendoza’s arms.

      Lopez acknowledged that J.M. was crying because he hurt him and admitted

      that J.M. was “really in pain” after he grabbed him. State’s Ex. 25, p. 43.


[7]   On April 22, 2015, Appellee-Plaintiff the State of Indiana (the “State”) charged

      Lopez with Count I – Level 3 felony battery resulting in serious bodily injury to

      a person less than fourteen years of age, Count II – Level 3 felony neglect of a

      dependent resulting in serious bodily injury, Count III – Level 6 felony

      domestic battery, Count IV – Level 6 felony domestic battery, Count V – Level

      6 felony battery in the presence of a child, Count VI – Level 6 felony battery in

      the presence of a child, Count VII – Class B misdemeanor criminal

      recklessness, and Count VIII – Class B misdemeanor battery. The trial court

      conducted a two-day jury trial on November 30 and December 1, 2015. During

      trial, the parties agreed to the dismissal of Count VIII and that Count IV was a

      duplicate charge that should be removed from the jury’s consideration.


[8]   Also during trial, the trial court determined that it was appropriate to give an

      instruction on transferred intent. Lopez objected to the instruction, arguing that

      there was no evidence that Lopez intended to harm Mendoza at the time he

      grabbed J.M. The trial court concluded differently, finding that the jury could

      infer that the domestic incident, during which the evidence suggests that Lopez

      intended to harm Mendoza, was ongoing when J.M. was injured. Following

      trial, the jury found Lopez guilty of Counts I, II, III, VI, and VII, but not guilty

      of Count V.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 4 of 7
[9]    The trial court conducted a sentencing hearing on January 15, 2016. During

       this hearing, the trial court entered judgment of conviction on Counts I and III

       and merged the remaining counts. The trial court then sentenced Lopez to an

       aggregate term of thirteen years with eight years suspended to probation.

       Noting the likelihood that Lopez would be deported as a result of his criminal

       convictions, the trial court included as a condition of Lopez’s probation that

       Lopez must not enter the United States illegally. This appeal follows.



                                  Discussion and Decision
[10]   In challenging his conviction for Level 3 felony battery resulting in serious

       bodily injury to a person less than fourteen years of age, Lopez contends that

       the trial court erred in instructing the jury.

               We review a trial court’s decision on how to instruct a jury for
               abuse of discretion. Forte v. State, 759 N.E.2d 206, 209 (Ind.
               2001). When evaluating the jury instructions on appeal this
               Court looks to whether the tendered instructions correctly state
               the law, whether there is evidence in the record to support giving
               the instruction, and whether the substance of the proffered
               instruction is covered by other instructions. Dye v. State, 717
               N.E.2d 5, 20 (Ind. 1999), reh’g denied. We will reverse a
               conviction only if the appellant demonstrates that the instruction
               error prejudices his substantial rights. Hall v. State, 769 N.E.2d
               250, 254 (Ind. Ct. App. 2002).


       Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 5 of 7
[11]   Lopez argues that the trial court abused its discretion by including Final

       Instruction #5, which defined the doctrine of transferred intent, in its final

       instructions to the jury. We need not decide whether the trial court abused its

       discretion in giving Final Instruction #5 to the jury on review, however,

       because Final Instruction #5 appears to relate only to Count II, which was

       merged into Count I by the trial court. Thus, any potential error in the giving

       of Final Instruction #5 would not likely have affected the outcome of Lopez’s

       trial as the trial court did not enter judgment of conviction for Count II, only

       Count I. As such, we conclude that any error in including Final Instruction # 5

       in the trial court’s final instructions to the jury can, at most, be considered

       harmless. See Sturgis v. State, 654 N.E.2d 1150, 1153 (Ind. Ct. App. 1995)

       (providing that if an alleged error “might not have affected the outcome of the

       trial, such error is deemed harmless”), trans. denied.


[12]   With respect to Count I, Lopez was charged with Level 3 felony battery

       resulting in serious bodily injury to a person less than fourteen years of age. In

       order to prove Lopez committed this crime, the State was required to prove that

       Lopez, being at least eighteen years of age, knowingly or intentionally touched

       J.M., a person under the age of fourteen, in a rude, insolent, or angry manner

       and that the “touching” resulted in serious bodily injury to J.M. See Ind. Code

       § 35-42-2-1(b)(1) & (c)(i). The statute merely requires that Lopez knowingly or

       intentionally committed the “touching,” not the bodily injury. See generally

       Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016) (noting that in

       Maldonado-Morales v. State, 985 N.E.2d 25, 28 (Ind. Ct. App. 2013), we


       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 6 of 7
       concluded that the required culpability of Indiana’s battery statute applies only

       to the prohibited conduct, i.e. touching another in a rude, insolent, or angry

       manner). The evidence at trial demonstrates that Lopez intended to touch J.M.

       when he grabbed J.M. by the foot and pulled him from Mendoza’s arms. The

       evidence is also sufficient to support an inference that Lopez committed this

       touching in a rude, insolent, or angry manner.


[13]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1602-CR-254 | October 4, 2016   Page 7 of 7
