MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 16 2017, 8:38 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Octavio D. Gonzalez,                                     August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1701-CR-151
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff                                       Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1407-MR-35467



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017          Page 1 of 10
                                             Case Summary
[1]   Following a jury trial, Octavio Daniel Gonzalez appeals his conviction for

      murder. He asserts that the State presented insufficient evidence to support his

      conviction and that the trial court committed fundamental error in admitting

      DNA evidence. Finding the evidence sufficient and no fundamental error, we

      affirm.


                                 Facts and Procedural History
[2]   Dexter Smith and Quashawnda Wagner were married with three children and

      lived in a single-story house in Indianapolis. Wagner’s cousin introduced the

      couple to Gonzalez, resulting in a close friendship between Gonzalez and

      Smith. Gonzalez was such a frequent visitor at Smith’s house that “[h]e was

      over [at the house] ninety-eight percent of the time.” Tr. at 30. On July 11,

      2014, Wagner, Smith, and Gonzalez rented a car and drove to Kentucky and

      back while the children stayed with Smith’s mother in Indianapolis. The next

      morning, at approximately 6:00 a.m., Wagner left her house and drove the

      rental car to her mother-in-law’s residence. Only Smith and Gonzalez, who

      was sleeping on a sofa in the sun room, remained in the house.


[3]   At approximately 9:30 a.m., Smith used Gonzalez’s cell phone to call Wagner

      and said that he was looking for a pair of his earrings. Wagner looked for the

      earrings in the rental car but did not find them. About twenty to thirty minutes

      later, Wagner called Smith at Gonzalez’s cell phone number and Smith’s three

      cell phone numbers, but he did not answer. She decided to return to their


      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017   Page 2 of 10
      house, and Wagner’s mother-in-law followed in her vehicle. When Wagner

      arrived at the house, she went to the front door, which was locked, and opened

      it with her keys. Upon entering the house, she noticed that the house was silent

      and Gonzalez was no longer there. Wagner found Smith lying on the bedroom

      floor with a pool of blood around his head. She quickly exited the house and

      informed her mother-in-law of Smith’s condition. Tyron Belton, the next-door

      neighbor, was mowing the grass when he heard Wagner’s wails. Belton called

      911, and shortly thereafter the police and emergency medical personnel arrived.

      Smith was declared dead. An autopsy determined that his death was caused by

      a single gunshot to the back of the head.


[4]   Around 10:30 a.m., prior to Wagner’s arrival, Belton had driven to a nearby gas

      station to purchase gas for his lawn mower. As Belton drove back to his house

      he recognized Gonzalez, by the haircut he had given him a few days earlier,

      walking on the sidewalk away from Smith’s house. Belton thought this was

      strange because “[Gonzalez] never walked anywhere, he was always with

      [Smith].” Id. at 53. Belton did not see anyone else out walking or anyone else

      coming and going from Smith’s house that morning.


[5]   Wagner informed the police that Smith’s handgun was missing from its holster

      on top of the bedroom dresser and that $15,000 in cash, which Wagner had

      seen Smith count the previous night, was also missing from Smith’s sweatpants

      pocket. The police noticed that the back doors were closed but unlocked and

      that the rear security gate was open. Wagner attempted to locate Gonzalez, but

      her phone calls went unanswered. Wagner’s cousin provided her with the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017   Page 3 of 10
      phone number of Gonzalez’s mother-in-law, Shelaime Yamobi, who lived near

      Atlanta, Georgia. Wagner called Yamobi, without mentioning the death of her

      husband, and Yamobi informed her that she had not seen Gonzalez. On the

      same evening as Wagner’s phone call, Gonzalez arrived unannounced at

      Yamobi’s house looking to speak with his wife and see their daughter. Yamobi

      asked Gonzalez about the sudden visit, and he responded, “I just need to lay

      low for a little while. I want to spend time with them.” Id. at 106. Gonzalez

      then took his wife and daughter to a hotel.


[6]   The following morning Wagner called Yamobi a second time and asked her

      whether she had seen or spoken to Gonzalez. Wagner explained why she was

      calling and informed Yamobi about the death of her husband. Yamobi

      immediately called her daughter and drove over to the hotel. At the hotel,

      Yamobi told Gonzalez about Wagner’s phone call, specifically, that Wagner

      believed that Gonzalez was responsible for Smith’s death. Gonzalez

      responded, “[T]he less you know the better.” Id. at 109. Gonzalez and his wife

      started arguing. Yamobi heard Gonzalez tell her daughter that “it was either

      him or me. That’s all you need to know.” Id. at 110. Yamobi told Gonzalez to

      stay away from them and left the hotel with her daughter and granddaughter.


[7]   On July 15, 2014, Yamobi contacted the detective assigned to Smith’s case and

      informed him of Gonzalez’s whereabouts and what he had said when he was

      confronted. Federal marshals searched the Atlanta area for Gonzalez but were

      unable to find him. Gonzalez was charged with murder, murder in the

      commission of a robbery, level 2 felony robbery, and a firearm enhancement,

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017   Page 4 of 10
       and a warrant was issued for his arrest. In March 2016, Gonzalez was

       apprehended in Atlanta under a false name.


[8]    A two-day jury trial was held in November 2016. The jury found Gonzalez

       guilty of murder, and he was sentenced to a term of fifty-five years. Gonzalez

       now appeals.


                                      Discussion and Decision

        Section 1 – The State presented sufficient evidence to support
                       Gonzalez’s murder conviction.
[9]    Gonzalez contends that the State failed to present sufficient evidence to support

       his murder conviction. The standard of review for sufficiency of the evidence is

       well settled. We neither reweigh the evidence nor assess the credibility of

       witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). Rather, we look to the

       evidence and reasonable inferences drawn therefrom that support the

       conviction. Id. The evidence need not “overcome every reasonable hypothesis

       of innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). We will affirm

       if there is probative evidence from which a reasonable factfinder could have

       found the defendant guilty beyond a reasonable doubt. Bell, 31 N.E.3d at 499.

       In sum, the reviewing court will not disturb the conviction when the testimony

       believed by the trier of fact is sufficient to support it. Id. at 500.


[10]   To convict Gonzalez of murder, the State was required to prove that he

       knowingly or intentionally killed Smith. Ind. Code § 35-42-1-1(1). Gonzalez

       argues that there was no evidence regarding the specific time of the murder and

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017   Page 5 of 10
       therefore no way to positively identify him as the perpetrator.1 He suggests that

       the evidence merely places him “in the vicinity” of the murder along with any

       number of neighbors or strangers who could have been present at the

       undetermined time of death. Appellant’s Br. at 13.


[11]   “Elements of offenses and identity may be established entirely by circumstantial

       evidence and the logical inferences drawn therefrom.” Holloway v. State, 983

       N.E.2d 1175, 1178 (Ind. Ct. App. 2013). Gonzalez was the only person in the

       house with Smith after Wagner left the house at 6:00 a.m. At 9:30 a.m., Smith

       called Wagner using Gonzalez’s cell phone, which suggests that Gonzalez was

       still present in the house. Belton identified Gonzalez walking on the sidewalk

       away from Smith’s house around 10:30 a.m. This was “strange” because

       Belton had never seen Gonzalez walking, much less without Smith. Tr. at 53.

       Smith’s body was discovered around 11:00 a.m., and Belton did not see anyone

       else walking on the streets or coming into or out of Smith’s house while he

       mowed the grass next door. Although the exact time of Smith’s death is

       unknown, the short time frame in which the murder must have been committed

       suggests that Gonzalez alone had the opportunity to commit it.




       1
         Gonzalez also argues that there was no forensic evidence that supported the conviction and no evidence of
       motive. These arguments are immaterial. Although such evidence can be helpful to prove the identity of a
       perpetrator, it is not essential to sustain a murder conviction. See, e.g., Ellis v. State, 725 N.E.2d 411, 412 (Ind.
       2000) (finding sufficient evidence to support murder conviction despite complete lack of forensic evidence);
       Moore v. State, 653 N.E.2d 1010, 1016 (Ind. Ct. App. 1995) (“[I]t is not necessary for the prosecution to offer
       evidence of motive, although it may do so.”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017                   Page 6 of 10
[12]   Also, Gonzalez’s actions after Smith’s murder are indicative that he committed

       it. Gonzalez immediately stopped answering his cell phone, fled the state

       within a day or two of the murder, and assumed an alias while evading police

       for over a year and a half. Our supreme court has stated that “flight may be

       considered as circumstantial evidence of consciousness of guilt.” Jones v. State,

       485 N.E.2d 627, 628 (Ind. 1985).


[13]   Gonzalez’s comments to his mother-in-law and wife also suggest his guilt. He

       told Yamobi that he “need[ed] to lay low for a little while.” Tr. at 106. When

       Yamobi confronted him with Wagner’s accusation that he was responsible for

       Smith’s death, he simply responded that “the less you know the better.” Id. at

       109. Furthermore, when his wife insisted on knowing what happened,

       Gonzalez defended his actions by stating that “it was either him or me. That’s

       all you need to know.” Id. at 110. The jury, as factfinder, could reasonably

       infer from these comments that Gonzalez was guilty. Gonzalez’s argument is

       an invitation to this Court to reweigh the evidence, which we cannot do. Bell,

       31 N.E.3d at 499. Based on the foregoing, we conclude that the State presented

       sufficient evidence to identify Gonzalez as the murderer.


        Section 2 – The trial court did not commit fundamental error
                        in admitting DNA evidence.
[14]   At trial, Shannin Guy, a forensic scientist at the Marion County Forensic

       Services Agency, testified regarding DNA samples. Specifically, Guy testified

       that four swabs from Smith’s sweatpants pocket contained a mixture of DNA

       from several individuals from which Gonzalez and Smith could not be

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017   Page 7 of 10
       excluded as possible contributors. More than “possible contribut[ion]” could

       not be established due to the lack of “exclusionary information.” Id. at 155.

       Guy provided further statistical data about the significance of the analysis.2

       Gonzalez argues that the trial court erred in admitting this evidence. Notably,

       however, Gonzalez did not object to the admission of the testimony during

       trial. Thus, he has waived this issue on appeal. This is because “[a] trial court

       cannot be found to have erred as to an issue or argument that it never had an

       opportunity to consider.” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004).


[15]   Accordingly, Gonzalez asserts that the trial court committed fundamental error

       in admitting the DNA evidence. “The fundamental error doctrine is an

       exception to the general rule that the failure to object at trial constitutes

       procedural default precluding consideration of the issue on appeal.” Halliburton

       v. State, 1 N.E.3d 670, 678 (Ind. 2013). As an exception it is “extremely

       narrow, and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error




       2
         Regarding the first swab, Guy testified that “[t]he DNA profile … is a mixture of at least three individuals.
       [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. It is estimated that 1 in
       3,000 unrelated individuals could be a contributor to the mix sample.” Tr. at 145. For the second swab,
       “[t]he DNA profile … is a mixture of at least four individuals. [Smith and Gonzalez] cannot be excluded as
       possible contributors to the mix sample. It is estimated that one in forty unrelated individuals could be a
       contributor to the mix sample.” Id. at 148. For the third swab, “[t]he DNA profile … is the mixture of at
       least three individuals. [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample.
       It is estimated that 1 in 1,700 unrelated individuals could be a contributor to the mix sample.” Id. For the
       fourth swab, “[t]he DNA profile … is the mixture of at least three individuals. [Smith and Gonzalez] could
       not be excluded as possible contributors to the mix sample. It is estimated that one in seven unrelated
       individuals could be a contributor to the mix sample.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017             Page 8 of 10
       denies the defendant fundamental due process.” Id. In sum, it is available only

       in “egregious circumstances.” Id.


[16]   Here, the DNA evidence, albeit inconclusive, did not substantially harm

       Gonzalez or deny his right to due process. Significantly, at closing argument,

       the State conceded that Guy’s testimony was inconclusive and was presented

       for the purpose of “[showing that DNA sampling] was done . . . [so that there]

       would be no speculation [on the part of the jury] ….” Tr. at 212. The probative

       value of such testimony may be minimal, but it cannot be said to have

       prejudiced Gonzalez’s substantial rights such that a fair trial was impossible.3

       Assuming for argument’s sake that the trial court erred in admitting the DNA

       evidence, any error was harmless. “[A]n error of admission of evidence will not

       result in reversal of a conviction if the error is harmless. An error will be

       viewed as harmless if the probable impact of the evidence upon the jury is

       sufficiently minor so as not to affect a party’s substantial rights.” Edmond v.

       State, 790 N.E.2d 141, 144-45 (Ind. Ct. App. 2003) (citation and quotation




       3
         Indiana Evidence Rule 401 states, “Evidence is relevant if: (a) it has any tendency to make a fact more or
       less probable than it would be without the evidence; and (b) the fact is of consequence in determining the
       action.” Indiana Evidence Rule 402 states, “Irrelevant evidence is not admissible.” Gonzalez asserts that
       because the DNA evidence was inconclusive, it was irrelevant and therefore inadmissible. The State rebuts
       this argument by focusing on Guy’s statistical data, citing Deloney v. State, 938 N.E.2d 724 (Ind. Ct. App.
       2010), trans. denied (2011). In Deloney, this Court held that “DNA evidence that does not constitute a match
       or is not accompanied by statistical data regarding the probability of a defendant’s contribution to a mixed
       sample is not relevant … and should not be admitted.” Id. at 730. Here, Guy did testify about the statistical
       data, but on cross-examination it became apparent that the statistical weight of the sample, to determine
       whether Gonzalez was an actual contributor, was rather tenuous. We note that the mere mention of
       statistical data does not automatically make such evidence relevant. Deloney does not stand for the
       proposition that any statistical data regarding DNA evidence suffices for the purposes of relevancy and
       admissibility. Rather, the statistical data must have the tendency “to make a fact more or less probable.”
       Ind. Evidence Rule 401.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017             Page 9 of 10
       marks omitted), trans. denied. Here, the State presented evidence that Gonzalez

       had the opportunity to commit the crime and was the last known person to be

       with Smith; he fled the scene and evaded authorities under a false name for

       over a year and a half; and his own damning statements to his mother-in-law

       and wife implicate his guilt. Finding no fundamental error, we affirm

       Gonzalez’s murder conviction.


[17]   Affirmed.


       Baker, J., and Barnes, J., concur.




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