                                                                                 FILED
                                                                           Mar 24 2016, 9:06 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Neil L. Weisman                                           Gregory F. Zoeller
      South Bend, Indiana                                       Attorney General of Indiana

                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carlos Villaruel,                                         March 24, 2016
      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                71A03-1506-CR-544
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      State of Indiana,                                         The Honorable John M.
      Appellee-Plaintiff.                                       Marnocha, Judge
                                                                Trial Court Cause No.
                                                                71D02-1404-FD-255



      Barnes, Judge.


                                              Case Summary
[1]   Carlos Villaruel appeals his convictions for Class D felony intimidation and

      Class A misdemeanor battery. We reverse and remand.
      Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016                     Page 1 of 11
                                                      Issues
[2]   The restated issues are:


              I.       whether the trial court erred by failing to analyze Villaruel’s
                       Batson objection; and

              II.      Whether the evidence is sufficient to support Villaruel’s
                       conviction for intimidation and allow him to be retried on
                       that charge.

                                                      Facts
[3]   On April 3, 2014, Officers Jeffrey Cummins and Timothy Cichowicz of the

      South Bend Police Department responded to a 911 call from Shayla Swank.

      When the officers arrived, they encountered Swank, who was crying and had a

      bloody lip and a mark next to her eye. Villaruel later admitted that he hit

      Swank. Officer Cichowicz escorted Swank to Villaruel’s residence, where the

      incident between Villaruel and Swank took place. Officer Cichowicz knocked

      on the door, and Villaruel invited the officers into his residence. Officer

      Cichowicz observed Villaruel “had been drinking a little bit, but nothing

      major.” Tr. p. 119. He was calm and “able to function and understand [the

      officers].” Id. at 119, 156. Officer Cummins noted Villaruel slurred his words,

      smelled of alcohol, and had glassy eyes. See id at 182.


[4]   The officers arrested Villaruel, and Officer Cummins placed him in handcuffs

      and transported him to the St. Joseph County Jail. During the ride to the jail,

      Villaruel “progressively got more belligerent” and called Officer Cummins

      names. Id. at 160. “He told me repeatedly that he was going to kick me in the

      balls . . . Then as I was pulling up to the jail, that’s when he started telling me
      Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016      Page 2 of 11
      he was going to kill me.” Id. at 161. “Then he started saying that he makes

      deliveries and if he sees me, he’ll remember my face. If he sees my face again,

      he’ll put out my face, he would kill me. He would remember my face and put

      out your [sic] lights.” Id. Villaruel testified he did not remember making some

      of the foregoing statements to Officer Cummins but admitted he threatened to

      kill him. See id. at 241-43. While Officer Cummins and Villaruel were in the

      jail vestibule, Villaruel continued to threaten Officer Cummins. He said the

      Spanish word for “gun” and repeatedly said he was going to kill Officer

      Cummins. Id. at 162-63.


[5]   While waiting in the jail’s vestibule, there was an altercation, and Villaruel was

      injured. Officer Cummins transported him to the hospital for treatment. On

      the way to the hospital, “he threatened [Officer Cummins’s] family then. He

      talked about how he worked landscaping and he would see them sometime and

      pretty much kill my family before me.” Id. at 168.


[6]   The State charged Villaruel with Class D felony intimidation and Class A

      misdemeanor domestic battery. On July 23, 2014, the State added a third

      charge—resisting law enforcement, a Class A misdemeanor. That same date,

      Villaruel pled guilty to domestic battery and resisting law enforcement, but he

      withdrew his plea on September 24, 2014. On April 15, 2015, the State

      amended the language of Count I and amended Count II so that it charged

      Villaruel with Class A misdemeanor battery.




      Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016   Page 3 of 11
[7]   Villaruel’s jury trial was held on April 27, 2015. During jury selection, the State

      moved to strike for cause the only Hispanic venireperson, Ms. V., from the

      panel. The State ultimately used a peremptory strike on Ms. V., and Villaruel

      objected citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The trial

      court allowed the strike after stating, “There is no Batson issue for Hispanics.”

      Tr. p. 77. The jury found Villaruel guilty of Counts I and II.1 On May 12,

      2015, the trial court sentenced Villaruel to an aggregate sentence of two and

      one-half years in the Department of Correction. Villaruel now appeals.


                                                     Analysis
                                                  I. Batson claim

[8]   Villaruel first argues the trial court erred by overruling his Batson objection. It is

      well-settled that using a peremptory challenge to strike a potential juror solely

      on the basis of race violates the Equal Protection Clause of the Fourteenth

      Amendment to the United States Constitution. Jeter v. State, 888 N.E.2d 1257,

      1262 (Ind. 2008) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986)),

      cert. denied. The constitutional interests at stake in Batson “‘are not limited to

      the rights possessed by the defendant on trial, nor to those citizens who desire

      to participate in the administration of the law, as jurors,’ but extend to the

      entire community . . . .” United States v. Stephens, 421 F.3d 503, 510 (7th Cir.




      1
       It appears the State dismissed the resisting law enforcement charge, but it is not clear when. Nonetheless,
      Villaruel was tried only on the charges of intimidation and battery.

      Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016                          Page 4 of 11
      2005) (quoting Johnson v. California, 545 U.S. 162, 171-72, 125 S. Ct. 2410, 2418

      (2005)), cert. denied.


[9]   Batson adopted a procedure for “ferreting out discrimination in the exercise of

      peremptory challenges.” Davis v. Ayala, __ U.S. __, 135 S. Ct. 2187, 2208

      (2015).

              First, the party contesting the peremptory challenge must make a
              prima facie showing of discrimination on the basis of race.
              Second, after the contesting party makes a prima facie showing
              of discrimination, the burden shifts to the party exercising its
              peremptory challenge to present a race-neutral explanation for
              using the challenge. Third, if a race-neutral explanation is
              proffered, the trial court must then decide whether the challenger
              has carried its burden of proving purposeful discrimination.


      Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citation omitted),

      trans. denied.


              [T]his procedure places great responsibility in the hands of the
              trial judge, who is in the best position to determine whether a
              peremptory challenge is based on an impermissible factor. This
              is a difficult determination because of the nature of peremptory
              challenges: They are often based on subtle impressions and
              intangible factors.


      Davis, 135 S. Ct. at 2208. “[T]he trial court’s decision as to whether a

      peremptory challenge was discriminatory is given ‘great deference’ on appeal

      and will be set aside only if found to be clearly erroneous.” Collier v. State, 959

      N.E.2d 326, 329 (Ind. Ct. App. 2011) (quoting Killebrew, 925 N.E.2d at 401).


      Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016   Page 5 of 11
[10]   The following is the conversation related to striking Ms. V.:


               THE COURT:         As far as cause challenges are concerned,
               State has moved to strike number 13 for cause, Ms. [V.]


               What’s the reason for that?


               [THE STATE]:        Your Honor, we believe because of the
               timing, and if we go into tomorrow, we have a concern.


               THE COURT:                It will be done today.


               [THE STATE]:              Okay.


               THE COURT:                So do you want her for cause or not?


               [THE STATE]:              If it will be done today, then I would use her
               as a peremptory.


               THE COURT:                You want to use her with a peremptory?


               [THE STATE]:              Yes.


               THE COURT:                Okay.


               [THE DEFENSE]:                     May I respond with regard to Ms. [V]?


               I mean, I guess my concern … I would raise a Batson issue.


               THE COURT:         There is no Batson issue for Hispanics, it’s
               only race and gender. That’s what the Supreme Court has
               determined . . . .

       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016           Page 6 of 11
                  [DEFENSE COUNSEL]:                  Your Honor, I believe my issue
                  is that she’s the sole juror on the panel that is or what appears to
                  be Hispanic.


                  THE COURT:           That’s not a suspect class under the
                  Constitution. And so it doesn’t rise to a Batson issue . . . you
                  could say the same about anybody that has any other national
                  origin. It does not rise to that level.


                  As far as I know, the U.S. Supreme Court has determined . . .
                  and I don’t think there is any Indiana cases on point, but that is
                  essentially the old suspect class designation from the ‘60’s, ‘70’s
                  and ‘80’s that dealt with race, white or black; gender, male or
                  female.


                  Okay?


                  So we’re not there yet . . . .


       Tr. pp. 77-78 (first and third ellipses in original).


[11]   We observe that “[s]ince the Batson decision prohibiting race-based peremptory

       challenges, the United States Supreme Court has added challenges based upon

       ethnicity . . . . In Hernandez [v. New York], the challenge was made to Latino

       jurors, and the Supreme Court analyzed the discriminatory aspects of the case

       in terms of a race-based challenge.” Pryor v. Hoskins, 774 N.E.2d 943, 954 n.5

       (Ind. Ct. App. 2002) (citing Hernandez v. New York, 500 U.S. 352, 111 S. Ct.

       1859 (1991)).2


       2
           The State does not challenge the applicability of Batson in this case. See Appellee’s Br. p. 13.


       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016                               Page 7 of 11
[12]   This case is similar to Ashabraner v. Bowers, 753 N.E.2d 662 (Ind. 2001), in

       which our supreme court reversed a jury verdict on Batson grounds. In that

       case, the plaintiff made a Batson objection, but the trial court failed to analyze

       that objection as required by Batson. See id.at 665-66. Our supreme court

       concluded that failure indicated “the court did not follow Batson even though it

       applies to civil cases.” Id. at 666. On appeal, this Court conducted its own

       Batson analysis without relying on the trial court’s misunderstanding of the law.

       See id. We concluded the plaintiff failed to make a prima facie case of

       discrimination and affirmed the trial court. See id. Our supreme court held that

       that conclusion, which we reached after an incomplete Batson analysis, was

       error:

                The trial court and the Court of Appeals did not reach the issue
                of whether [the defendant] could offer a race neutral explanation.
                Because the trial court applied the wrong standard and the Court
                of Appeals held that [the plaintiff] had not made out a prima
                facie case, we reverse and remand for a new trial.


       Id. at 667-68.


[13]   The colloquy related to Villaruel’s Batson objection “demonstrates that the trial

       court did not adhere fully to the principles enunciated in Batson and subsequent

       cases.” Id. at 666. Like the trial court in Ashabraner, the trial court did not

       analyze Villaruel's objection to the peremptory challenge and did not follow

       Batson, even though it applies to challenges based on ethnicity. See id. at 666.




       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016   Page 8 of 11
[14]   We acknowledge that Ashabraner is a civil case and this is a criminal case.

       However, Batson applies equally to criminal3 and civil cases, and this case

       cannot be distinguished from Ashabraner on that ground. See Edmonson v.

       Leesville Concrete Co., Inc. 500 U.S. 614, 111 S. Ct. 2077 (1991) (holding “in a

       civil trial exclusion on account of race violates a prospective juror’s equal

       protection rights”). Therefore, Ashabraner’s mandate that the trial court, and

       not an appellate court, must conduct a complete Batson analysis when a litigant

       objects to a peremptory strike on Batson grounds, applies squarely in this

       criminal case. Likewise, it is clear the Batson analysis must be conducted when

       a litigant challenges a peremptory strike of a Hispanic juror. See Hernandez, 500

       U.S. 352, 111 S. Ct. 395. The trial court did not perform the requisite Batson

       analysis related to the State’s use of a peremptory strike of Ms. V., a Hispanic

       juror, and we may not conduct the analysis ourselves. Instead, we reverse

       Villaruel’s convictions.


                                         II. Sufficiency of the Evidence

[15]   “When, as here, reversal is required because of trial error, and a defendant

       presents a claim of insufficient evidence, an acquittal instead of a new trial is

       required if the proof of guilt is insufficient in light of the evidence presented at

       trial.” Miller v. State, 916 N.E.2d 193, 198 (Ind. Ct. App. 2009) (citation

       omitted), trans. denied. When reviewing the sufficiency of the evidence,


       3
        In light of the liberty interest at stake in this criminal case, the protections afforded by Batson may be of
       heightened importance in order to safeguard the defendant’s and juror’s rights and the public’s confidence in
       our jury system.

       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016                          Page 9 of 11
       “appellate courts must consider only the probative evidence and reasonable

       inferences supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007) (quotations omitted) (citation omitted) (emphasis omitted). It is the fact

       finder’s role to assess the credibility of the witnesses and weigh the evidence.

       Id. Appellate courts must consider conflicting evidence most favorably to the

       trial court’s ruling and affirm the conviction unless “no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt.” Id.

       (quotations omitted) (citation omitted).


[16]   Villaruel contends the evidence was not sufficient to support his intimidation

       conviction.4 Under the version of Indiana Code Section 35-42-2-1 (b)(1) in

       effect at the time Villaruel committed this offense, the State was required to

       prove he communicated a threat to a law enforcement officer with the intent

       that the officer be placed in fear of retaliation for a prior lawful act in order to

       convict him of intimidation as a Class D felony. Villaruel contends only that

       the evidence is not sufficient to prove he knowingly committed this offense.

       Specifically, he argues he did not recall or had little recall of threatening Officer

       Cummins. He also argues he was intoxicated at the time. Finally, he argues,

       “his statements were angry rants and abusive language that should not have

       been taken seriously, that at the time he engaged in the conduct and

       communications complained of, he was not aware of a high probability he was

       doing so . . . .” Appellant’s Br. p. 16. However, voluntary intoxication is not a



       4
           Villaruel does not challenge the sufficiency of the evidence with regard to his battery conviction.


       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016                             Page 10 of 11
       defense in a criminal prosecution. Manzano v. State, 12 N.E.3d 321, 327 n.2

       (Ind. Ct. App. 2014), trans. denied; see also Berry v. State, 969 N.E.2d 35, 38 (Ind.

       2012).


[17]   Officer Cummins testified Villaruel “progressively got more belligerent.” Tr. p.

       161. His statements escalated from name calling to relatively minor threats of

       physical harm and then to threats to Officer Cummins’s life and, finally, to the

       lives of Officer Cummins’s family. Villaruel’s threats were specific with regard

       to how he would encounter Officer Cummins and his family in order to carry

       out the threats. From this evidence a reasonable fact finder could find Villaruel

       intended to place Officer Cummins in fear for his lawful acts. The evidence is

       thus sufficient to support Villaruel’s conviction, and double jeopardy presents

       no bar to retrial on this charge. See Slayton v. State, 755 N.E.2d 232, 237 (Ind.

       Ct. App. 2001).


                                                  Conclusion
[18]   The trial court erred by not undertaking the required Batson analysis. Double

       jeopardy does not bar the State from retrying Villaruel. We reverse and remand

       for a new trial.


       Reversed and remanded.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016   Page 11 of 11
