      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Dec 18 2019, 9:10 am
      court except for the purpose of establishing
                                                                                    CLERK
      the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Matthew D. Anglemeyer                                    Attorney General of Indiana
      Marion County Public Defender –
                                                               Josiah J. Swinney
      Appellate Division                                       Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Saul Morales,                                            December 18, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-633
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Grant W.
      Appellee-Plaintiff.                                      Hawkins, Judge
                                                               Trial Court Cause No.
                                                               49G05-1702-F1-4285



      Mathias, Judge.


[1]   Saul Morales (“Morales”) was convicted in Marion Superior Court of Level 1

      felony attempted murder. Morales appeals his conviction and argues that the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019                  Page 1 of 11
      trial court abused its discretion when it tendered to the jury a self-defense

      instruction that was not supported by the evidence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Morales and Juan Velez (“Juan”) were friends for many years, and they worked

      together. Morales lived with the Velez family in their home in Indianapolis.

      When Juan and his family temporarily moved to Mississippi, Morales moved

      with them. In December 2016, the Velez family and Morales returned to

      Indianapolis. Juan informed Morales that they would no longer rent a room in

      their apartment to him. But Morales had trouble finding a place to live, and

      Juan told Morales he could live with them for approximately one more month

      while he found a new home.


[4]   Four or five days before January 28, 2017, Morales left the apartment and took

      most of his belongings with him. He left two shirts, shoes, bed sheets, and a

      small suitcase in the bedroom he had been using. After the Velez family did not

      see Morales for several days, Juan and his girlfriend, Sindy, believed that

      Morales had found another place to live. Sindy cleaned the bedroom and began

      to prepare it for Juan’s two sons’ visits. Sindy packed Morales’s remaining

      belongings in his suitcase.


[5]   On January 29, 2017, Sindy and her daughter were alone in the apartment at

      approximately 12:00 p.m. Juan had taken his sons shopping for toys. Juan

      locked the front door when he and the boys left. Sindy was vacuuming when
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 2 of 11
      she heard noises coming from the spare bedroom. Sindy was frightened and

      took her daughter to the master bedroom.


[6]   Minutes later, Morales knocked on Sindy’s bedroom door. Morales sounded

      upset and asked who had been in his bedroom. Through the locked door, Sindy

      told Morales not to speak with her and that he could speak to Juan when he

      returned home.


[7]   Sindy called Juan, and he returned home ten to fifteen minutes later. When

      Juan and his sons arrived at the apartment, Juan told Sindy to come out into

      the living room. Juan asked Sindy what had happened with Morales. As they

      talked, the spare bedroom door opened. Morales came out of the bedroom.

      Sindy could see Morales, but Juan had his back to him. Morales touched Juan

      on the shoulder and angrily stated, “I don’t wanna kill you from the back.” Tr.

      p. 59. As Juan turned toward Morales, Morales called Juan a “dog,” pulled a

      knife out of his pocket and stabbed Juan in the middle of his lower chest. Tr.

      pp. 60–61.


[8]   The two men then engaged in a struggle over the knife, and Morales tried to

      stab Juan again. Eventually, Juan was able to gain control over the knife.

      Morales ran out of the apartment building, and Juan attempted to follow but

      returned to the apartment where he collapsed to the floor.


[9]   Morales was apprehended shortly thereafter. He gave a statement to the police

      and admitted that he had stabbed Juan. Ex. Vol., State’s Ex. 53. He claimed he



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 3 of 11
       acted in self-defense because Juan spoke harshly to him and treated him badly.

       Id. He stated that Juan offended him but did not touch him. Id.


[10]   As a result of the stab wound, Juan was hospitalized for ten days to two weeks.

       He suffered a collapsed lung and underwent multiple surgeries.


[11]   On February 1, 2017, Morales was charged with Level 1 felony attempted

       murder. A two-day jury trial commenced on January 14, 2019. Morales argued

       that he acted in self-defense when he stabbed Juan. A self-defense instruction

       was tendered to the jury. Morales objected to the instruction and argued that it

       was misleading. Tr. pp. 194–96. He requested that the trial court give the

       pattern jury instruction on self-defense. The trial court denied his request and

       gave the challenged instruction.


[12]   Morales was convicted as charged. The trial court ordered him to serve twenty-

       five years executed in the Department of Correction. Morales now appeals.

       Additional facts will be provided as necessary.


                                      Discussion and Decision
[13]   Morales argues that the trial court abused its discretion when it tendered a self-

       defense instruction to the jury that was not supported by the evidence and did

       not follow Indiana’s pattern self-defense instruction. The manner of instructing

       a jury is left to the sound discretion of the trial court. Albores v. State, 987 N.E.2d

       98, 99 (Ind. Ct. App. 2013), trans. denied. We review the trial court’s decision

       only for an abuse of that discretion. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 4 of 11
[14]   “The purpose of jury instructions 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.” Phillips v. State, 22 N.E.3d

       749, 761 (Ind. Ct. App. 2014), trans. denied. When reviewing jury instruction

       decisions for an abuse of discretion, we consider: (1) whether the instruction

       correctly states the law; (2) whether there was evidence in the record to support

       the instruction; and (3) whether the substance of the instruction is covered by

       other instructions given. Id. To constitute an abuse of discretion, “the

       instructions given must be erroneous, and the instructions taken as a whole

       must misstate the law or otherwise mislead the jury.” Id.


[15]   The trial court gave the following self-defense1 instruction to the jury:


                An issue has been raised as to whether the Defendant was acting
                in self-defense. The defense of Self Defense allows that a person is
                justified in using reasonable force against another person to
                protect him/herself, or a third party, from what (s)he reasonably



       1
        Self-defense is statutorily defined in Indiana Code section 35-41-3-2, and the subsection relevant to this
       appeal provides:

                (c) A person is justified in using reasonable force against any other person to protect the
                person or a third person from what the person reasonably believes to be the imminent use
                of unlawful force. However, a person:

                         (1) is justified in using deadly force; and

                         (2) does not have a duty to retreat;

                if the person reasonably believes that that force is necessary to prevent serious bodily
                injury to the person or a third person or the commission of a forcible felony. No person,
                employer, or estate of a person in this state shall be placed in legal jeopardy of any kind
                whatsoever for protecting the person or a third person by reasonable means necessary.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019                       Page 5 of 11
        believes to be the imminent use of unlawful force. In such
        circumstances a person does not have a duty to retreat and is
        justified in using all reasonably necessary force including, if
        appropriate, deadly force, if (s)he reasonably believes that such
        force is necessary to prevent serious bodily injury to him/herself
        or a third person, or to prevent the commission of a forcible
        felony.


        No person in this State shall be placed in legal jeopardy of any
        kind whatsoever for protecting him/herself, or another, by
        reasonably necessary means.


        It is the State’s burden to disprove a claim of self-defense by
        proof beyond a reasonable doubt. The State may satisfy this
        burden by proving any one of the following bulleted points
        beyond a reasonable doubt:


            • That the Defendant was in a place where (s)he had no
              right to be; or


            • That the Defendant acted improperly in that (s)he was the
              initial aggressor and did not make clear his/her desire to
              withdraw from the conflict; or


            • That the Defendant used a degree of force that was
              excessive and unreasonable under the circumstances, or


            • If the Defendant used deadly force, (s)he did not act
              reasonably or did not reasonably believe that such force
              was necessary to prevent death or serious bodily injury to
              him/herself or a third person, or to prevent the
              commission of a forcible felony.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 6 of 11
                If the State proves any one of these bulleted points beyond a
                reasonable doubt, then you may disregard the claim of self-
                defense. The State is not required to present rebuttal evidence to
                disprove a claim of self-defense; it may rely upon any evidence
                introduced during the course of the trial.


                The question of the existence of an apparent danger and the
                amount of force necessary to resist force can only be determined
                from the standpoint of the defendant at the time of his/her
                actions and under the then existing circumstances. The defendant
                may use such force as may reasonably be necessary to resist such
                attack or apparent attack. (S)He will not be accountable for an
                error in judgment as to the amount of force necessary, provided
                (s)he acted reasonably and honestly.


                One who was in no apparent danger and had no reasonable
                ground for apprehension of danger cannot raise this defense.


       Appellant’s App. pp. 78–79 (emphasis in original).


[16]   Morales’s challenge to the instruction on appeal is focused on the first bulleted

       statement (i.e. “the Defendant was in a place where (s)he had no right to be”).

       He does not claim that the instruction misstated the law. 2 Rather, he argues that

       the substance of the instruction was not supported by the evidence at trial.




       2
        When a defendant raises a claim of self-defense using deadly force, he is required to show three facts: (1) he
       was in a place where he had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death
       or serious bodily harm. Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007) (citing Wallace v. State, 725
       N.E.2d 837, 840 (Ind. 2000)), trans. denied; see also Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct. App.
       2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019                   Page 7 of 11
[17]   Morales contends that the evidence at trial established that Juan temporarily

       allowed him to live in the apartment, that he was absent from the apartment for

       a few days but left his personal belongings in the bedroom, and that Juan

       merely assumed that he had found another place to live. Morales argues he

       entered the apartment through the sliding glass door, which had been his

       custom. There were no signs of forced entry to the apartment. Juan never

       denied Morales access to the apartment, and on the date of the offense, Juan

       did not tell Morales to vacate the premises.


[18]   However, approximately two weeks before Morales stabbed Juan, Juan

       reminded Morales that he needed to find another place to live. Tr. p. 55.

       Morales told Juan that he was looking for a place to live. Tr. p. 73. At the end

       of January 2017, Juan and Sindy assumed Morales found another place to live

       because he was gone for several days.


[19]   At trial, Morales argued that the court should delete the challenged language

       from the instruction because it was not “appropriate to mislead the jury by

       suggesting that somehow [Morales] did not have a right to be there.” Tr. p. 195.

       The trial court disagreed and stated, “there’s some degree of disagreement as to

       whether your client had . . . left on his own, had been told to leave and left

       voluntarily, or whether there was some confusion between the parties, but

       certainly [Sindy] wasn’t expecting him to be there.” Id.


[20]   We agree with the trial court that the parties presented conflicting evidence

       concerning Morales’s right to be in Juan’s apartment on the date of the offense.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 8 of 11
       Therefore, the trial court acted within its discretion when it included the

       challenged language in its self-defense instruction.


[21]   Even if we concluded that the challenged language misled the jury, as Morales

       suggests, errors in jury instructions are harmless where “a conviction is clearly

       sustained by the evidence and the jury could not properly have found

       otherwise.” Cardosi v. State, 128 N.E.3d 1277, 1288 (Ind. 2019) (citation

       omitted). Here, the State proved beyond a reasonable doubt that 1) Morales was

       the initial aggressor, 2) the level of force Morales used was excessive and

       unreasonable under the circumstances, and 3) Morales’s use of deadly force was

       not reasonable or he did not have a reasonable belief that such force was

       necessary to prevent death or serious bodily injury to him.


[22]   Morales’s statement to the police was admitted into evidence. Morales told the

       police that Juan came into his bedroom while he was sleeping, treated Morales

       badly, and spoke harshly to him. Ex. Vol, State’s Ex. 53. Morales said that Juan

       was angry and “challenged” him. Id. Morales stated he reacted by going into

       the kitchen, grabbing a knife and “mess[ing] him up.” Id. Morales admitted that

       Juan did not have a weapon of any sort. Id. Morales alleged that Juan offended

       him and tried to push him. Id. But Morales contradicted himself and also stated

       that Juan did not touch him. Id.


[23]   Even if the jury believed Morales’s version of the events and believed that

       Morales had a right to be in the apartment, it was not reasonable for Morales to

       react to Juan’s anger by stabbing the unarmed man in the lower chest with a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 9 of 11
       knife. Moreover, the jury reasonably credited Juan’s and Sindy’s testimonies

       that Juan did not speak to Morales when Juan returned to the apartment,

       Morales exited the bedroom and approached Juan from behind, he touched

       Juan on the shoulder and stated that he did not want to kill Juan from the back,

       and Morales pulled a knife from his pocket and stabbed Juan in the lower chest

       as Juan turned towards him. For these reasons, we conclude that even if the

       trial court had erred when it tendered the instruction with the challenged

       language, any error would be harmless.


[24]   Finally, Morales argues that the challenged language should have been omitted

       from the instruction because it is not included in the pattern jury instruction for

       self-defense. Tr. p. 195. “The Indiana Pattern Jury Instructions are prepared

       under the auspices of the Indiana Judges Association in conjunction with the

       Indiana Judicial Conference Criminal and Civil Instruction Committees.

       Although they are not formally approved for use, they are tacitly recognized by

       Indiana Trial Rule 51(E).” Campbell v. State, 19 N.E.3d 271, 275 n.3 (Ind. 2014).

       Although the Pattern Jury Instructions have not been formally approved by our

       supreme court, and certain pattern instructions have even been held to be

       incorrect statements of the law, pattern jury instructions are given “preferential

       treatment” during litigation, and the preferred practice is to use the pattern

       instructions. Harrison v. State, 32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015),

       trans. denied.


[25]   But trial courts are not required to tender pattern instructions to the jury. See

       Washington v. State, 997 N.E.2d 342, 350 (Ind. 2013) (concluding that “[t]rial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 10 of 11
       courts continue to have the discretion to augment the pattern instructions

       whenever they deem appropriate and to refuse any tendered instructions

       consistent with the requirements of Walden [v. State, 895 N.E.2d 1182 (Ind.

       2008)]. Their decisions will be reviewed for an abuse of discretion.”). And

       Morales has not presented us with a compelling argument or citation to any

       authority that would lead us to conclude that the trial court abused its discretion

       by failing to give the self-defense pattern jury instruction in this case.


[26]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it instructed the jury on the law of self-defense.


[27]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-633 | December 18, 2019   Page 11 of 11
