MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Dec 31 2019, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carlos Martin Uc,                                       December 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1133
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G04-1808-F3-28648



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019              Page 1 of 8
                                            Case Summary
[1]   Carlos Martin Uc (“Uc”) appeals his conviction of Battery, as a Level 5 felony.1

      We affirm.



                                                     Issues
[2]   Uc presents two issues for review:


              I.       Whether there is sufficient evidence to support his
                       conviction; and


              II.      Whether the trial court’s response to a juror’s concern over
                       the translation provided by the victim’s interpreter denied
                       Uc due process.


                             Facts and Procedural History
[3]   On July 28, 2018, Mario Mejia (“Mejia”) and his wife, Sarah Mejia (“Sarah”),

      were leaving a friend’s Indianapolis home after a visit when Selene Balan

      (“Balan”) approached the couple’s truck and asked Sarah for a ride. Mejia

      insisted that his wife should not give a ride to “basura” or “trash.” (Tr. Vol. II,

      pg. 111.) Balan began striking Mejia. He displayed a small roofing knife and

      Balan backed away. After the altercation, Sarah gave Balan a ride home and




      1
        Ind. Code § 35-42-2-1(g)(1). He was also adjudicated a habitual offender, based upon his admission. See
      I.C. § 35-50-2-8.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019                Page 2 of 8
      Sarah heard Balan making a telephone call to complain that Mejia had pulled a

      knife on her.


[4]   The next evening, Mejia and Sarah were attending a neighborhood cookout

      when Sarah saw Balan arrive in a vehicle, accompanied by Uc and Uc’s

      brother, Luis Nick (“Nick”). Balan singled out Mejia, saying “that’s him, go

      beat him up.” Id. at 138. Nick hit Mejia repeatedly and he fell to the ground.

      When Nick “stopped to catch his breath,” Uc “came from the car and started

      stomping on [Mejia]’s stomach with full force.” Id. at 119. Balan yelled “that’s

      enough” and the trio fled. Id.


[5]   Mejia was treated at a nearby hospital and released. His pain persisted for a

      few days and he returned to the hospital, where it was discovered that he had

      internal bleeding and a ruptured intestine. Mejia underwent surgery to remove

      several inches of his intestines.


[6]   On August 28, 2018, the State charged Uc with Battery, as a Level 3 felony.

      On February 27, 2019, the State filed an additional charge of Battery Resulting

      in Serious Bodily Injury, a Level 5 felony. On March 1, 2019, the State alleged

      that Uc is a habitual offender. On March 4, 2019, the charge of Battery, as a

      Level 3 felony, was dismissed and Uc was brought to trial before a jury on the

      Level 5 felony charge. He was convicted and admitted his status as a habitual

      offender. On April 24, 2019, Uc was sentenced to an aggregate term of ten

      years imprisonment. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019   Page 3 of 8
                                  Discussion and Decision
                                   Sufficiency of the Evidence
[7]   To convict Uc of Battery, as a Level 5 felony, as charged, the State was required

      to establish beyond a reasonable doubt that Uc knowingly or intentionally

      touched Mejia in a rude, angry, or insolent manner, by hitting or kicking Mejia,

      resulting in serious bodily injury2 to Mejia, or that Uc knowingly aided,

      induced, or caused another person to commit that offense. I.C. §§ 35-42-2-1,

      35-41-2-4. Uc concedes that Mejia suffered serious bodily injury from a beating

      but claims that there is insufficient evidence of his identity as one of the

      perpetrators.


[8]   Our standard of review for sufficiency claims is well settled; we do not reweigh

      evidence or assess the credibility of witnesses. Gray v. State, 903 N.E.2d 940,

      943 (Ind. 2009). Rather, we look to the evidence and reasonable inferences

      drawn therefrom that support the judgment and we will affirm the conviction if

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

      the defendant guilty beyond a reasonable doubt. Id.


[9]   Uc concedes that the State presented identification evidence but argues that

      “the identification of [Uc] as being the perpetrator of this action is confusing




      2
       Pursuant to Indiana Code Section 35-31.5-2-292, “serious bodily injury” is a bodily injury that creates a
      substantial risk of death or causes serious permanent disfigurement, unconsciousness, extreme pain,
      permanent or protracted loss or impairment of the function of a bodily member or organ, or loss of a fetus.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019                  Page 4 of 8
       and contradictory.” Appellant’s Brief at 9. He points to Mejia’s testimony in

       which he alternately refers to his second attacker as either “Oscar” or “Carlos”

       and to Mejia’s admission that he became intoxicated at the cookout. Sarah

       testified that she did not drink alcohol, and she saw Uc drive up to the cookout

       in his vehicle with his brother and Balan as passengers. Sarah also testified that

       she saw Uc stomp on Mejia “with full effect.” (Tr. Vol. II, pg. 119.) The State

       elicited testimony that both Sarah and Mejia had selected Uc’s photograph

       from a photo array prepared by Indianapolis Metropolitan Police. Sarah made

       an in-court identification of Uc as one of the perpetrators of the attack. Uc is

       simply asking that we re-assess the credibility of witnesses and discard all

       identification evidence favorable to the verdict. This we cannot do. Gray, 903

       N.E.2d at 943. Sufficient evidence supports Uc’s conviction.


                                               Due Process
[10]   At the outset of the second day of trial, the trial court advised the parties:


               One of the jurors has indicated to my bailiff that a – one of the
               other jurors is a Spanish speaker. The juror who’s a Spanish
               speaker has told the rest of the panel that the court’s interpreter
               did not interpret word for word, the testimony that was
               presented. Now we all know that interpreters do not interpret
               word for word, they interpret meaning, right. Nonetheless, the
               panel’s been given this information from someone who speaks
               Spanish and so I would ask the parties for your input.


       (Tr. Vol. II, pg. 193.) Defense counsel asked that the juror who had spoken

       with the bailiff be called into court and interviewed; the trial court ceded to the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019   Page 5 of 8
       request. Juror No. 6 clarified that the Spanish-speaking juror did not appear to

       be attacking the competency of the interpreter; rather, the other juror had

       indicated that “a few things were spoken differently” and she had been “thrown

       off” by the reference to “Oscar.” Id. at 196. At bottom, the concern centered

       around whether Mejia had been using a “nickname” for his attacker and Juror

       No. 6 appeared to believe that the concept of use of nicknames in general could

       have been better clarified.


[11]   When the juror interview concluded, the State asked for an admonishment to

       advise the jury that the role of a certified interpreter is to interpret the meaning

       of language used, but he or she does not necessarily translate language

       verbatim. Defense counsel responded: “I think that’s sufficient as well.” Id. at

       198. The trial court then admonished the jury:


               It’s come to my attention that one of you is a fluent Spanish
               speaker. I want to talk about briefly the court’s interpreter that
               was presented during – that helped present testimony yesterday.
               The court’s interpreter was – is a certified interpreter and their
               goal as an interpreter is to interpret the meaning of a sentence,
               not necessarily word for word what was said. So given that,
               there may have been some differences in the word used by the
               witness and the word presented in the sentence by the court’s
               interpreter. However, the meaning should have been the same,
               all right.


       Id. at 199. In closing, defense counsel argued that Mejia’s confusing testimony

       had created reasonable doubt. He also criticized the State for its failure to call a

       witness to clarify any discrepancy between a given name and a nickname. The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019   Page 6 of 8
       trial court admonished defense counsel that he could not use closing argument

       to allege bad faith on the part of the State in its selection of witnesses.


[12]   On appeal, Uc concedes that his counsel agreed to the procedure employed. To

       circumvent the waiver doctrine, he advances a claim of fundamental error.

       Fundamental error is “a clearly blatant violation of basic and elementary

       principles, and the harm or potential for harm therefrom must be substantial

       and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993). According to Uc,

       “the interpreter should have been examined to ensure the testimony was being

       accurately reported.” Appellant’s Brief at 14. He makes a cursory allegation

       that the trial court’s failure to do so, coupled with the restriction on defense

       closing argument, “denied [him] due process of law.” Id. at 15.


[13]   Generally, a party’s failure to object to an alleged error at trial results in waiver.

       Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). When a passive lack of

       objection is coupled with a counsel’s active requests, “it becomes a question of

       invited error.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014). Pursuant to

       the invited error doctrine, which is grounded in estoppel, a party is not

       permitted to take advantage of an error that he or she commits, invites, or

       which is the natural consequence of her own neglect or misconduct. Id. at 975.

       Invited error “precludes relief from counsel’s strategic decisions gone awry.”

       Id.


[14]   Whereas waiver generally leaves open an appellant’s claim to fundamental-

       error review, invited error typically forecloses appellate review. Batchelor v.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019   Page 7 of 8
       State, 119 N.E.3d 550, 556 (Ind. 2019) (citing Brewington, 7 N.E.3d at 974-75).

       But more than mere neglect to lodge an objection is required to foreclose

       appellate review; that is, to establish invited error, there must be some evidence

       that the error resulted from the appellant’s affirmative actions as part of a

       deliberate, “well-informed” trial strategy. Id. at 558 (citing Brewington, 7 N.E.3d

       at 954).


[15]   Uc requested in-court examination of Juror No. 6. At the conclusion of that

       juror interview, Uc affirmatively agreed that an admonishment concerning an

       interpreter’s role was the appropriate procedure. He then argued in closing that

       confusion surrounded Mejia’s identification testimony and thus there was

       reasonable doubt that Uc was Mejia’s attacker. In sum, Uc actively requested

       the trial court’s response and any error in prematurely terminating the

       investigation is invited error, which we do not address.



                                               Conclusion
[16]   Sufficient evidence supports Uc’s conviction. He has not shown a deprivation

       of due process.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1133 | December 31, 2019   Page 8 of 8
