MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any
                                                                 Feb 22 2017, 6:32 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alberto Cruz,                                            February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1606-CR-1492
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1505-MR-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Alberto Cruz was convicted of murder. Cruz now

      appeals, raising the sole issue of whether the State presented sufficient evidence

      to support his conviction. Concluding the State presented sufficient evidence to

      support his conviction, we affirm.



                            Facts and Procedural History
[2]   Alberto Cruz and Alma Del Real became acquainted with each other in 2013,

      and had been friends ever since. Their relationship was not romantic, and

      Alma considered Cruz to be just a friend. Around 11:00 p.m. on Saturday,

      April 11, 2015, Cruz picked Alma up at her house and the pair went to Brothers

      Bar & Grill in South Bend, Indiana. Unbeknownst to Cruz, Alma had invited

      other friends to the bar as well, including a man with whom she had a “budding

      relationship,” Edgar Medina. Transcript at 229. According to Medina, Cruz

      was not very sociable that evening and he felt like Cruz had no desire to speak

      to him.


[3]   Alma had also planned on meeting her friend, Dejah Browning, at Brothers.

      Dejah arrived at Brothers a little after midnight and shortly thereafter, Cruz,

      Alma, Medina, and Dejah decided to continue their night at a dance club,

      Studio Rumba’s. Alma previously worked at Studio Rumba’s and was well

      acquainted with the staff and security personnel. Upon arrival, Alma greeted

      Eric Laudeman, a police officer for the City of Mishawaka who often works as


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 2 of 12
      a security guard at Studio Rumba’s. Officer Laudeman noted Cruz seemed

      angry the entire night. As Alma would go around the room and converse with

      different people, Cruz stood behind her scowling and giving dirty looks. Officer

      Laudeman considered it “very awkward” and was “expecting a problem.” Id.

      at 200. As the night progressed, Alma pulled Dejah into the bathroom to ask

      for advice about Cruz. According to Dejah, Alma asked her for advice about

      Cruz because “he kept wanting to further their friendship into a relationship,

      and she didn’t want that.” Id. at 212. Dejah advised Alma to “just tell him

      how you feel.” Id. At 3:00 a.m., Cruz and Alma left Studio Rumba’s in Cruz’s

      truck.


[4]   The next morning, Alma was supposed to drive to Chicago with her friend and

      business partner, Crystal Rangel, but Alma never showed up. Rangel

      attempted to call Alma multiple times and drove to her house and knocked on

      the door, but she received no response. As the day progressed, Alma’s family

      became increasingly worried about her, as she often responded rapidly to phone

      calls and texts. Alma’s aunt also tried to contact her friends to ask if they had

      heard from her, but she had no luck.


[5]   On Monday, April 13, 2015, Alma’s aunt filed a missing person’s report with

      the South Bend Police Department. Later that day, Officer Sienna Valdez

      spoke with Cruz at the police station to inquire about Alma’s disappearance.

      Cruz told Officer Valdez he dropped Alma off at her home shortly after leaving

      Studio Rumba’s, drove home, and went to bed. On April 15, Officer Jennifer

      Gobel interviewed Cruz. Cruz generally repeated the same story he told Officer

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 3 of 12
      Valdez, although this time he added Alma had danced with an “unknown

      Brazilian person” at Studio Rumba’s. Id. at 281. Cruz also stated he received a

      Facetime call from Alma around 3:44 a.m. as he was driving home, which he

      declined to answer.


[6]   On May 18, 2015, Officer Gobel and F.B.I. Special Agent Tom Weber

      interviewed Cruz for a third time. Cruz repeated the same story he told earlier,

      although Officer Gobel recognized a discrepancy. This time, Cruz stated he

      missed Alma’s Facetime call, not that he declined it. On May 20, Officer

      Gobel and Agent Weber interviewed Cruz again and confronted him with

      evidence he was not telling the truth. A search warrant executed on Cruz’s

      phone showed on the morning of April 12, 2015, Cruz was not asleep in his bed

      as he claimed. The cellular data and location services collected from Cruz’s

      phone showed Cruz’s phone remained connected to a cellular tower that

      encompassed an area that included Alma’s home and Studio Rumba’s, but not

      Cruz’s home, from 2:11 a.m. to 6:33 a.m. From 6:33 a.m. to 9:45 a.m., Cruz’s

      phone connected to several other cellular towers in a path leading south out of

      South Bend and ending near Lake Maxincuckee in Culver, Indiana. Cruz

      continued to deny he left South Bend and remained steadfast in his assertion he

      was asleep in bed with his phone in his room.


[7]   After several hours of denial, Cruz requested to speak to Agent Weber alone, a

      discussion Agent Weber later detailed at trial:


              [Agent Weber]:            In the first story, he told me that either her or
                                        her family owed a lot of money to a Mexican

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 4 of 12
                                  cartel. And that the Latin Kings that were
                                  connected with the Mexican cartel, were
                                  waiting for Alma when he dropped her off.
                                  They grabbed Alma and told him just to
                                  leave. Which he then said that he walked
                                  home. Then he said he woke up the next
                                  morning, looked down the street and saw his
                                  truck parked just down the street.

        ***

        [State]:                  And what did his story evolve to from there?

        [Agent Weber]:            I confronted him of the unlikelihood of that
                                  story being true. And then he changed and
                                  went on to several other stories. One story
                                  was that he saw someone . . . or that
                                  someone had drugged him . . . or given Alma
                                  a rophy [sic], and then he watched as that
                                  person carried her out of the house. Another
                                  story was that he tried to accuse the ex-
                                  boyfriend. He said that when they got to
                                  Alma’s house the ex-boyfriend was waiting
                                  there . . . [a]nd he could only assume that the
                                  ex-boyfriend had something to do with it.

        ***

        [State]:                  Did he tell you anything else on that day?

        [Agent Weber]:            Yes, he told me that he stayed at the house a
                                  little while with Alma and they just talked, it
                                  was just the two of them. Then they told me
                                  that she was at a barn, that somebody had
                                  taken her to a barn.

        [State]:                  And did you confront him about that story?

        [Agent Weber]:            Yes, I told him it was very unlikely that that’s
                                  what really occurred. Then he admitted to
                                  me that he had just been lying to me, because
                                  he didn’t know what to say.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 5 of 12
Id. at 360-62. Agent Weber then asked Cruz if he knew where Alma was, to

which he responded he did and he could take Agent Weber there. As they left

the police station, Cruz directed them on a forty-five-minute drive south,

stopping on a dirt road outside of Culver. Cruz pointed into the woods and

stated, “[s]he’s right out there.” Id. at 364. A short distance from the road,

Agent Weber found Alma’s body. When they returned to the police station, the

interview continued.


        [State]:                  So what did he tell you at Metro Homicide?

        [Agent Weber]:            Well, first he told me that he did take the
                                  body down there, but he was directed by a
                                  South American. His story was when they
                                  left the bar, they want [sic] to Alma’s house.
                                  And that this guy he didn’t know, other than
                                  a South American, was there waiting. Then
                                  Alma and the South American went up to her
                                  bedroom and Mr. Cruz stayed in the living
                                  room and fell asleep on the couch. Then at
                                  some point he was woken up from a big
                                  thump coming from Alma’s bedroom. He
                                  ran up to the room and saw the South
                                  American on top of Alma strangling her.

        ***

        [State]:                  Did he come off of that story?

        [Agent Weber]:            Eventually he did, yes.

        [State]:                  And what did he tell you then?

        [Agent Weber]:            He eventually told me that he was the one
                                  who actually . . . that he hit her, and that he
                                  did strangle her.



Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 6 of 12
      Id. at 365-66. Cruz also told Agent Weber when he and Alma arrived at her

      house, they had “rough sex” which was consensual. Exhibit 48 at 62:36. Cruz

      claimed Alma attempted to blackmail him after they had sex and stated she

      would tell the police he raped her unless he paid her five to ten thousand

      dollars. When he tried to leave, she began to scratch, shove, and punch him.

      He became angry and hit her twice in the face and shoved her to the ground.

      He claimed when she fell, she hit the back of her head on the hardwood floor

      and remained unresponsive. Cruz claimed he checked Alma for a pulse and felt

      nothing, so he put his hands around her neck until he left handprints in an

      attempt to cover up his accident.


[8]   On May 22, 2015, the State charged Cruz with murder. At trial, Dr. Elizabeth

      Douglas, the forensic pathologist who examined Alma’s body, stated that due

      to the decomposition of the body she could not verify the cause of death;

      however, the circumstances were sufficiently suspicious to warrant a ruling of

      homicide. She stated she ruled out natural causes and blunt trauma to the liver,

      kidneys, and lungs, although she could not rule out strangulation as a cause of

      death. Dr. Douglas further stated after examining Alma’s skull, she did not

      identify any injuries to her head. When asked if a fall stemming from a shove

      could inflict fatal injury, she stated, “[i]f the force imparted was great enough to

      inflict lethal head trauma, I would expect to see skeletal injuries with it. It’s

      possible that they wouldn’t be there, but in general, if you’re going to have a

      subdural in a young person, that’s usually accompanied by a skull fracture.” Id.

      at 392. The State also offered the testimony of Zachary Gadacz, who met Cruz


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 7 of 12
       in a holding cell while awaiting an arraignment. Gadacz stated Cruz told him

       he choked Alma because “she rejected him sexually.” Id. at 422. When he

       asked Cruz if it was worth it, he stated, “[e]very last second of it.” Id. at 423.


[9]    Cruz also testified at trial and stuck to his same general story but added some

       minor changes. Cruz testified he and Alma returned to her house after leaving

       Studio Rumba’s and recapped the evening. As he walked downstairs to leave,

       he received a Facetime call from Alma, which he declined to answer. As he

       returned upstairs to see why she called him, he claimed she began kissing him

       and they had sexual intercourse. After, as he got dressed to leave, he claimed

       Alma told him he owed her money, which he first assumed was a joke. He

       attempted to leave, but Alma began punching, pushing, and scratching him.

       Cruz then stated he became angry and punched her twice in her face and

       shoved her to the ground as hard as he could. Cruz also stated when he choked

       Alma, he thought she was already dead. When asked how telling the police he

       choked her after he thought she was dead would help him, Cruz stated, “I was

       just . . . just saying stuff. I mean . . . it was too much pressure.” Id. at 507.


[10]   A jury found Cruz guilty of murder.1 Cruz now appeals.



                                     Discussion and Decision



       1
           The jury was instructed on murder, voluntary manslaughter, and reckless homicide.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 8 of 12
[11]   Cruz challenges the sufficiency of the evidence to support his murder

       conviction. The standard of review for sufficiency of the evidence claims is well

       settled. We do not reweigh the evidence or judge the credibility of the

       witnesses, and we respect “the jury’s exclusive province to weigh conflicting

       evidence.” Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001). We “consider

       only the probative evidence and reasonable inferences supporting the verdict.”

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm a conviction

       “if the probative evidence and reasonable inferences drawn from the evidence

       could have allowed a reasonable trier of fact to find the defendant guilty beyond

       a reasonable doubt.” Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).


[12]   To convict Cruz of murder, the State was required to prove beyond a

       reasonable doubt that he knowingly or intentionally killed Alma. Ind. Code §

       35-42-1-1(1). A person’s conduct is intentional if, when he engages in the

       conduct, it is his “conscious objective to do so.” Ind. Code § 35-41-2-2(a). A

       person acts knowingly if, when he engages in the conduct, he is “aware of a

       high probability that he is doing so.” Ind. Code § 35-41-2-2(b).


[13]   Cruz asserts the evidence is insufficient to support his conviction because “[t]he

       State did not produce any evidence suggesting that it was [Cruz’s] conscious

       objective to kill [Alma]. Nor did the State produce any evidence that there was

       a high probability that [Alma] could die as a result of [Cruz] punching her and

       pushing her to the ground.” Brief of Appellant-Defendant at 13. Cruz’s

       argument proceeds on the assumption the jury believed his testimony Alma

       died from being punched and shoved to the ground. The jury was not required

       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 9 of 12
       to believe or give weight to this testimony, and given the numerous lies, half-

       truths, and versions of events told by Cruz, it is not surprising it did not.


[14]   Further, we note it is well-established knowledge or intent may be inferred from

       the facts and circumstances of the case. Johnson v. State, 837 N.E.2d 209, 214

       (Ind. Ct. App. 2005), trans. denied. The evidence supporting the verdict shows

       that on April 11, 2015, Cruz and Alma went out with friends. Cruz was in an

       unsociable and unpleasant mood whenever Alma would talk to other people at

       the bar. At one point in the evening, Alma asked her friend for advice on what

       to do about Cruz because he wanted to transform their friendship into a

       relationship and she did not. When the night was over, Cruz drove Alma back

       to her home and was the last one to see her alive. A month later, following

       several interviews and a number of lies told to the police, Cruz finally admitted

       he punched Alma twice in the face, shoved her to the ground, choked her until

       his handprints were visible on her neck, and dumped her body in a woods out

       of town. In subsequent interviews with police, Cruz repeatedly referenced

       strangling, choking, or placing his hands on Alma’s neck after he shoved her to

       the ground. Cruz then led police to where he dumped Alma’s body in the

       woods near Culver. Dr. Douglas could not pinpoint a cause of death due to

       decomposition of the body, but she could not rule out strangulation. And while

       Cruz claims Alma died after he punched her and shoved her to the ground, Dr.

       Douglas stated she found no injuries to Alma’s skull, as she would expect to

       find in a fatal head injury. We conclude the State presented sufficient evidence




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 10 of 12
       for a jury to conclude beyond a reasonable doubt Cruz knowingly or

       intentionally killed Alma.


[15]   Cruz also claims he acted in sudden heat, and as such, his conviction should be

       reduced to voluntary manslaughter. A person who knowingly or intentionally

       kills another human being while acting under sudden heat commits voluntary

       manslaughter. Ind. Code § 35-42-1-3(a)(1). “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.” Dearman v. State, 743

       N.E.2d 757, 760 (Ind. 2001). The existence of sudden heat is a question of fact

       to be determined by the jury. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999).

       Cruz asserts he acted in sudden heat when he struck Alma and shoved her to

       the ground because she demanded money after they had sex and attacked him

       when he refused. The only testimony supporting this version of events is Cruz’s

       own testimony, which the jury was entitled to credit and weigh. The jury either

       concluded Cruz’s story was not credible, or his version of events did not rise to

       the level of sudden heat. Either way, this determination was for the jury to

       make, and we cannot reweigh the evidence or assess witness credibility on

       appeal. Alkhalidi, 753 N.E.2d at 627.



                                               Conclusion
[16]   We conclude the State presented sufficient evidence to support Cruz’s

       conviction for murder. Accordingly, we affirm his conviction.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 11 of 12
[17]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1492 | February 22, 2017   Page 12 of 12
