                                                                         FILED
                                                                    Nov 15 2016, 11:49 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court



      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Paula M. Sauer                                          Gregory F. Zoeller
      Danville, Indiana                                       Attorney General of Indiana

                                                              Chandra K. Hein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Marco A. Galindo,                                       November 15, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              32A05-1607-CR-1541
              v.                                              Appeal from the Hendricks Circuit
                                                              Court
      State of Indiana,                                       The Honorable Daniel F. Zielinski,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              32C01-1509-MR-1



      Najam, Judge.


                                       Statement of the Case
[1]   Marco Galindo appeals his conviction for murder, a felony, following a jury

      trial. He presents a single issue for our review, namely, whether the trial court



      Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016           Page 1 of 15
      abused its discretion when it refused to instruct the jury on involuntary

      manslaughter. We affirm.


                                    Facts and Procedural History
[2]   During the early morning hours of November 21, 2002, Galindo and Natalie

      Horsley went to a vacant apartment in Hendricks County and had sexual

      intercourse.1 At some point while they were in the apartment, Galindo became

      angry and viciously beat and strangled Horsley for at least ninety seconds.

      Galindo kicked or stomped Horsley’s face multiple times in addition to

      strangling her. Galindo then left the apartment. Galindo left Horsley severely

      battered on the floor without seeking medical treatment for her injuries.


[3]   Later that morning, between 7:00 and 8:00 a.m., a construction crew found

      Horsley’s dead body lying on the floor of the vacant apartment2 and called 9-1-

      1. Horsley’s face was covered in blood, her shirt and bra were pulled up toward

      her neck, exposing her bare breasts, and her underwear and pants were pulled

      down to her ankles, exposing her genitals. An electrician named Dylan Vaughn

      knew how to perform CPR, but he explained to the 9-1-1 operator that he was

      unable to attempt CPR on Horsley “because there appeared to be not enough

      face left to . . . administer it properly.” Tr. Vol. I at 236. When EMTs arrived

      at the scene, they confirmed that Horsley was dead.




      1
          There is no evidence that Horsley had consented to sexual intercourse with Galindo.
      2
          The crew had been working on that same apartment the day before.


      Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016              Page 2 of 15
[4]   Deputies with the Hendricks County Sheriff’s Department arrived at the scene

      and found: blood spatter throughout the apartment and bloody footprints;

      semen on Horsley’s abdomen; footprints in the mud outside of the apartment;

      and two partially-burned cigarettes. Detectives collected a DNA sample from

      the semen, but they could not find a match in the DNA database. An autopsy

      revealed that Horsley’s death was caused by a combination of having been

      strangled and severely beaten. Detectives were unable to find a suspect. In the

      meantime, approximately one month after the murder, Galindo saw a poster

      about Horsley’s death in a bar, but he did not contact law enforcement to

      discuss his relationship with Horsley or what had happened the night of the

      murder. And in 2004 or 2005, he moved to California and assumed an alias,

      Amado Trejo Saludes.


[5]   In 2015, detectives “received information on a hit on a database” regarding the

      Horsley murder. Id. at 155. In particular, they “learn[ed] that a possible person

      with [the same DNA] profile [as matched the semen found on Horsley’s body]

      had been found” in California. Id. Accordingly, detectives requested and

      obtained oral swabs from the person, Galindo a/k/a Saludes. Thereafter,

      Hendricks County Sheriff’s Detective Scott Larsen interviewed Galindo.

      Galindo told Detective Larsen that he and Horsley had known each other and

      had occasionally engaged in sexual intercourse. Galindo stated that, the night

      of the murder, he and Horsley had consumed drugs and alcohol. He said that

      Horsley had threatened to tell Galindo’s girlfriend about their relationship, and

      he became angry. Galindo admitted that he punched her, kicked her, and “had


      Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 3 of 15
      her in the choke[-]type hold standing behind her with his arm around her.” Id.

      at 157. Galindo denied any intent to kill Horsley, and he stated that he did not

      know she was dead when he left the apartment that morning. In any event,

      Galindo admitted that he left Horsley severely beaten on the floor of the vacant

      apartment without seeking medical treatment for her.


[6]   The State charged Galindo with murder. At trial, Galindo proffered jury

      instructions on both voluntary manslaughter and involuntary manslaughter.

      The trial court agreed to the voluntary manslaughter instruction, but refused to

      instruct the jury on involuntary manslaughter, finding that there was no serious

      evidentiary dispute on the issue of Galindo’s intent to kill Horsley. A jury

      convicted Galindo of murder, as charged. The trial court entered judgment of

      conviction and sentenced Galindo to sixty-five years executed. This appeal

      ensued.


                                    Discussion and Decision
[7]   Galindo contends that the trial court abused its discretion when it refused his

      proffered jury instruction on involuntary manslaughter. In particular, Galindo

      maintains that there is a serious evidentiary dispute whether he intended to kill

      Horsley when he beat and strangled her. We cannot agree.


[8]   At trial, Galindo proffered the following instruction:

              The crime of involuntary manslaughter is defined by statute as
              follows:

              A person who kills another human being while committing or

      Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 4 of 15
              attempting a battery, commits involuntary manslaughter, a Class
              C felony.

              Before you may convict the accused, the State must have proved
              each of the following elements:

                       1. Marco Galindo

                       2. killed Natalie Horsley

                       3. while committing or taking a substantial step to
                       commit

                       4. a knowing or intentional

                       5. touching of Natalie Horsley in a rude, insolent, or
                       angry manner.

              If the State failed to prove each of these elements beyond a
              reasonable doubt, you must find the accused not guilty of
              involuntary manslaughter, a Class C felony.


      Appellant’s App. at 88.


[9]   As we explained in Erlewein v. State, 775 N.E.2d 712, 714 (Ind. Ct. App. 2002),

      trans. denied,


              [w]hen called upon by a party to instruct a jury on a lesser
              included offense of the crime charged, a trial court must perform
              a three-step analysis. First, it must compare the statute defining
              the crime charged with the statute defining the alleged lesser
              included offense to determine if the alleged lesser included
              offense is inherently included in the crime charged. Wright v.
              State, 658 N.E.2d 563, 566 (Ind. 1995). Second, if a trial court
              determines that an alleged lesser included offense is not

      Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 5 of 15
        inherently included in the crime charged under step one, then it
        must determine if the alleged lesser included offense is factually
        included in the crime charged. Id. at 567. Third, if a trial court
        has determined that an alleged lesser included offense is either
        inherently or factually included in the crime charged, it must look
        at the evidence presented in the case by both parties to determine
        if there is a serious evidentiary dispute about the element or
        elements distinguishing the greater from the lesser offense and if,
        in view of this dispute, a jury could conclude that the lesser
        offense was committed but not the greater. Id. It is reversible
        error for a trial court not to give an instruction, when requested,
        on the inherently or factually included lesser offense if there is
        such an evidentiary dispute. Id. “If the evidence does not so
        support the giving of a requested instruction on an inherently or
        factually included lesser offense, then a trial court should not give
        the requested instruction.” Id.

        “Involuntary manslaughter is not an inherently included lesser
        offense of murder.” Evans v. State, 727 N.E.2d 1072, 1081 (Ind.
        2000). “But it is a ‘factually included’ lesser offense if the
        charging instrument alleges that a battery accomplished the
        killing.” Id. Here, the State does not challenge Erlewein’s
        assertion that involuntary manslaughter was factually included in
        the murder charge against him because the information alleged
        that he killed A.E. by battering her, i.e. knowingly or
        intentionally touching A.E. in a rude, insolent, or angry manner.
        See Ind. Code § 35-42-2-1(a). Instead, the State focuses its
        argument on whether there was a serious evidentiary dispute
        regarding the element distinguishing involuntary manslaughter
        from murder. “The critical element distinguishing involuntary
        manslaughter from murder in this case is intent—the intent to kill
        or the intent to batter.” See Evans, 727 N.E.2d at 1081.

        We note that in deference to the trial court’s proximity to the
        evidence, we review a decision whether to instruct the jury on
        lesser included offenses for an abuse of discretion if the court
        makes a finding as to the existence or lack of a “serious
Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 6 of 15
               evidentiary dispute.” McEwen v. State, 695 N.E.2d 79, 84 (Ind.
               1998).


[10]   Here, it is undisputed that involuntary manslaughter is a factually lesser-

       included offense of murder in light of the charging information, which alleged

       that Galindo caused Horsley’s death by battering her. The only issue is whether

       there is a serious evidentiary dispute that Galindo intended to kill Horsley.

       Galindo acknowledges that, “[w]hile a verbal denial of the requisite criminal

       intent does not automatically create a serious evidentiary dispute . . . , it is a

       factor this Court should consider when reviewing the denial of a lesser-included

       instruction.” Appellant’s Br. at 18. And Galindo contends that his “statements

       denying his intent to kill, in conjunction with evidence which supported his

       description of events, establishes a serious dispute concerning [his] intent.” Id.

       at 18-19. In particular, Galindo maintains that the evidence shows: “the

       choking incident may have occurred before the couple had sex”; “when

       precisely Horsley died could not be determined by the State’s experts”; “while

       Horsley was badly bloodied and bruised, her skull was not fractured and her

       teeth were intact”; the apartment was dark, “making it difficult for Galindo to

       know how badly Horsley was hurt”; and Galindo “heard Horsley groan and

       say something to him” as he left the apartment. Id. at 16-18.


[11]   This court’s opinion in Erlewein is instructive here. In that case, the defendant

       had beaten his victim “with sufficient force to knock out her partial dental plate

       and to leave numerous contusions on her head and body.” Erlewein, 775

       N.E.2d at 713. In addition, the evidence showed that Erlewein

       Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 7 of 15
               got behind A.E., placed his right arm around her neck, and
               choked her until she died. He made no effort to resuscitate her or
               contact emergency medical personnel. [He subsequently] called
               his mother-in-law, his pastor, and his own mother . . . before he
               called 911 . . . to report that he had killed A.E.


       Id.


[12]   After his conviction for murder, Erlewein appealed and argued that the trial

       court abused its discretion when it did not give an involuntary manslaughter

       jury instruction. There, as here, the sole issue on appeal was whether there was

       a serious evidentiary dispute regarding the defendant’s intent to kill his victim.

       Erlewein contended that his denial that he had intended to kill A.E., combined

       with the physical evidence of the battery resulting in her death, showed a

       serious evidentiary dispute to support the involuntary manslaughter instruction.

       But the evidence showed that A.E. died of asphyxiation by strangulation,

       which, the State’s expert testified, “would have taken a minimum of forty-five

       seconds to as much as four minutes. Choking someone for a minimum of forty-five

       seconds clearly evinces an intent to kill or, at the very least, an awareness of a high

       probability that death would result.” Id. at 715.


               Additional evidence of Erlewein’s mens rea [came] from his
               failure to take any action to try to resuscitate A.E. and waiting
               nearly two hours to call 911[] and his beating of A.E. before he
               choked her. . . . Erlewein’s initial interviews with law
               enforcement were also deceptive, as he denied having any
               recollection of what occurred other than finding himself with his
               arm around A.E.’s neck and her not moving, in contradiction to
               Erlewein’s trial testimony. He also denied having beaten A.E.
               prior to her strangulation, claiming he remembered nothing in
       Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016        Page 8 of 15
               between the time when he and A.E. were talking and when he
               removed his arm from around her neck.


       Id. (emphasis added). Given that evidence, we held that there was no serious

       evidentiary dispute that Erlewein intended to kill A.E. and the trial court did

       not abuse its discretion when it refused to instruct the jury on involuntary

       manslaughter.


[13]   The evidence here is analogous to that in Erlewein and shows that Horsley died

       from a combination of being severely beaten and strangled for at least ninety

       seconds. In particular, the State presented the following evidence:

               Q: So, doctor, you had indicated that one of the causes of death
               was strangulation. Is that correct?

               A: Correct.

                                                      ***

               Q: Approximate[ly] how long does it take someone to strangle
               another human being to death?

               A: It can be as little as one and [a] half minutes.

                                                      ***

               Q: Okay, but it is your testimony that at least ninety seconds,
               by your studies, would have to occur before someone be
               strangled to death?

               A: That’s correct.

                                                      ***

       Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 9 of 15
        Q: Okay. In addition to the abrasion which you see to the neck
        and to the bruising, do you look for anything else to determine
        the cause of death of strangulation?

        A: Yes, you do.

        Q: Okay. I’m going to show you. I’ll put up both of these. I’m
        going to put two photos up here of 93 and 94. Now we’re
        looking at her eye, and obviously not her neck, could you explain
        the significance of these two photographs?

        A: Yes, these are uh magnified images of both left and right
        eyes. This is the right eye here, and what we’re seeing is that
        there are blood vessels that have hemorrhaged within the uh
        (inaudible) or the white portion of the eye. It’s (inaudible). We
        look for these signs in strangulation cases. We also see this in the
        left eye, these hemorrhages. This is from small vessels under
        pressure that rupture . . . from pressure.

        Q: Is this very consistent in a strangulation death?

        A: Yes, it is.

        Q: Okay, and this is what you commonly find? Can you tell by
        this, the amount of force that was used to strangle her to death?

        A: Again, this is uh extensive force, and it’s prolonged to have these
        blood vessels rupture to this degree.

        Q: Okay. Is there anything internally you look at to, inside the
        body also to look for uh strangulation?

        A: Yes, you want to examine the neck.

                                               ***


Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 10 of 15
        Q: Okay. Is there any damage here to the larynx?

        A: There’s some bruising here. This is on the uh left side in the
        back, and there’s some bruising where the (inaudible) is on top of
        the uh larynx. So here’s an area of bruising there.

        Q: Does this help you also determine that one of the causes of
        death was strangulation?

        A: Yes sir.

        Q: Okay. Now I’m going to show you photos now of the brain
        area of 96 and 97, and I guess I would like to start here, kind of
        out of order. Could you explain 97, what we’re looking at?

        A: 97 is uh the right side of the head. . . . First of all, you have
        large areas of bruising here within the scalp tissue itself. The
        skull has been removed. This is what we call the dura mater or
        the dura lining, and just under this dura, there’s what we call sub-
        dura uh hemorrhage. That means blood’s out of the vascular
        space, and actually on the brain itself, and it can cause pressure
        on the brain, and this picture also shows that the brain actually is
        swollen, or what we call cerebral edema.

        Q: But what does that mean about swollen? Can you explain
        that a little more?

        A: One of the brain’s reactions to any insult is to swell,
        increasing its circulation, increasing blood to get oxygen. That’s
        one thing that happens, and it becomes a vicious cycle, the brain
        trying to get more oxygen. Uh so we see the swelling by these
        areas here looking flat. Uh and then the other insult would be to
        have blood out of the uh vessel that will cause direct pressure
        onto the brain itself.

        Q: Is this representative of blunt force trauma, or strangulation,
        or of both?

Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 11 of 15
        A: This is a combination of both. You have blunt force trauma
        with the bleeding, and the injury to the scalp. You also have
        uh swelling as a reaction to lack of oxygen.

        Q: Okay. And on this particular injury right here, could you
        please explain this on State’s 96?

        A: Uh this is representative of bl[unt] force trauma. This is the
        left side of the head. Again, you see the scalp tissue, multiple
        areas of bruising, and then you actually have bruising on the uh
        tissue that’s right on the uh skull itself. So you have multiple
        impact sites where trauma has been received, uh, impact to the
        skull itself.

        Q: Would this be consistent if someone was being injured to
        their face, and they were on a hard surface of the (inaudible)
        of the back of the head hitting the hard surface?

        A: Uh that could be, yes.

                                               ***

        Q: Okay, and regardless of the injury of the blunt force to the
        face, there’s a total second cause of death of strangulation? Is that
        correct?

        A: Yes.

        Q: Did you look at different graphs here, and I’m going to show
        you now 99. I’m going to show you 99 and 100, and ask you to
        explain these images to the jury.

        A: These are diagrams normally used, as [the] pathologist take[s]
        notes while they’re doing examinations. Uh this one is of the
        head. We have on the right side . . . notes as to multiple uh
        contusions, this is uh a drawing of what we’ve seen earlier from
        the photographs. This is also drawing the injury to the lip. This
Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016    Page 12 of 15
        area is encompassing the nose and both eyes. On the left side,
        there’s a contusion that we’re actually seeing on the skull itself,
        or that bruising there, and then the back of the uh skull on the left
        side is a very large area that we just saw on the photograph of
        that uh deep contusion to the uh back of the left side of the head,
        the skull.

        Q: And Dr. Carter, if I understand correctly, you are talking
        about multiple injuries. Is that fair to say?

        A: Multiple impact sites.

        Q: Can you uh make a total determination of how many?

        A: There are more than five impact sites to the head region.

        Q: Okay. Any idea the amount of force that was used?

        A: Again, this is tremendous force. Many of these injuries are
        overlapping. You see some patterns of dark discoloration in the
        photographs, and uh you can see that the injuries are bilateral
        and at the back of the head as well.

                                               ***

        Q: Okay. Now doctor you had indicated there’s two causes of
        death, blunt force trauma and strangulation. Are you able to
        determine which came first?

        A: No.

        Q: And why is that?

        A: Uh we have to be practical in what we see. It’s difficult to
        say which one came first. They are at the same time, due to the
        coloration of the injuries on the skin, and so they are rightfully
        combined as uh strangulation and blunt force trauma to the head.
Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 13 of 15
               Q: Could either one of them by themselves have been a source of
               the cause of her death?

               A: Yes.

               Q: Okay, but in this case you determined that as a combination.
               Is that correct?

               A: That is correct.


       Tr. Vol. II at 181-89 (emphases added). That evidence shows more than an

       intent to merely batter Horsley. That evidence shows Galindo’s intent to kill

       her both through battery and by strangulation. In addition, the undisputed

       evidence shows that Galindo did not seek medical treatment for Horsley after

       he beat and strangled her, and he did not contact the police after he heard about

       Horsley’s death.


[14]   Horsley died as a result of both the “tremendous force” of the beating and being

       strangled for at least ninety seconds. Id. at 187. As we held in Erlewein,

       “[c]hoking someone for a minimum of forty-five seconds clearly evinces an

       intent to kill or, at the very least, an awareness of a high probability that death

       would result.” Erlewein, 775 N.E.2d at 715. The evidence here clearly supports

       the trial court’s determination that there is no evidentiary dispute regarding

       Galindo’s intent to kill Horsley.


[15]   We reject Galindo’s attempt to distinguish these facts from those in Erlewein

       because, as he alleges, the evidence does not show “whether Horsley died from


       Court of Appeals of Indiana | Opinion 32A05-1607-CR-1541 | November 15, 2016   Page 14 of 15
       strangulation or beating.” Reply Br. at 5. In essence, Galindo argues that, if

       Horsley died from the beating, that evidence is consistent with his version of

       events leading up to her death, and, as he stated in his interview with Detective

       Larsen, he did not intend to kill her. But the evidence shows that Horsley died

       from a combination of the strangulation and the beating, and the evidence

       showed further that Galindo used “extensive” and “prolonged” force in

       strangling Horsley. Tr. Vol. II at 183. The undisputed evidence also shows that

       either the blunt force trauma or the strangulation would have been sufficient to

       kill Horsley.


[16]   Galindo kicked or stomped Horsley in the head multiple times and strangled

       her with extensive and prolonged force. All of the evidence in this case

       contradicts Galindo’s general denial that he did not knowingly or intentionally

       kill Horsley. See Erlewein, 775 N.E.2d at 716. Galindo’s contentions on appeal

       amount to a request that we reweigh the evidence, which we will not do. The

       trial court did not abuse its discretion when it refused to instruct the jury on

       involuntary manslaughter.


[17]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




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