Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Dec 23 2014, 10:01 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                       GREGORY F. ZOELLER
Public Defender of Indiana                             Attorney General of Indiana

CORY LIGHTNER                                          JODI KATHRYN STEIN
Deputy Public Defender                                 Deputy Attorney General
Indianapolis, Indiana                                  Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


JOSE RODRIGUEZ,                                   )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
               vs.                                )   No. 49A05-1406-PC-289
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marc T. Rothenberg, Judge
                         The Honorable Amy J. Barbar, Magistrate
                            Cause No. 49G02-0811-PC-264751
                                       December 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Jose Rodriquez (“Rodriquez”) appeals the denial of his petition for post-conviction

relief, which challenged his convictions for Attempted Murder, a Class A felony, 1 and

Carrying a Handgun without a License, a Class A misdemeanor.2 He presents the single

issue of whether he was denied the effective assistance of trial counsel. We affirm.

                                 Facts and Procedural History

          The relevant facts were recited by a panel of this Court on direct appeal:

          The evidence most favorable to the verdict reveals that Rodriquez, his friend
          Mehn Mon Sorn, and Sorn’s brother Chai were all members of a criminal
          gang known as the “West Side 13.” The West Side 13 is a local chapter of
          the “Surenos” or “Sur 13” gang based in Southern California. To join the
          Sur 13, prospective members must commit a felony and/or sustain a battery
          from current members for an allotted period of time. The West Side 13 has
          a longstanding rivalry with another local Indianapolis gang known as “18th
          Street.” Typical practice of the gangs is to commit violent crimes against
          one another.

          One night Rodriquez, Sorn, and Chai attended a house party in Indianapolis.
          Both Rodriquez and Sorn were armed with .380 caliber handguns. Sorn
          brought an additional rifle which he stored underneath his car.

          Also attending the party was Elesvan Cabrales-Cantreras and his friend
          Rogelio Rojas. Cabrales-Cantreras and Rojas were believed to be members
          of the rival 18th Street gang.

          At some point Sorn became involved in a dispute with Rojas in the backyard.
          Soon they resulted to fisticuffs. Sorn revealed his pistol to Rojas. Rojas said
          he was going to retrieve his own gun, and he began running toward the front
          of the house.


1
  Ind. Code §§ 35-42-1-1, 35-41-5-1. The offense is now a Level 1 felony. We refer to the version of the
statute in effect at the time of Rodriquez’s offenses.
2
    Ind. Code § 35-47-2-1.

                                                   2
Sorn informed Rodriquez that Rojas was getting a gun. Rodriquez
responded, “Let’s go get them.” Sorn instructed Chai to retrieve the rifle
from underneath his car. Rojas ran to the front of the house and called out
for Cabrales-Cantreras. Cabrales-Cantreras was inside. He announced to his
friends, “Let’s get out.” The partygoers made their way out the front door.

Rojas and several other people – also alleged to be 18th Street gang members
– assembled in the middle of the street. The West Side 13 members remained
in front of the house.

Police Officer David Moore was driving nearby to assist a traffic stop when
he observed the hubbub. He saw two distinct lines of people forming in the
street, as in a Civil War scene. Officer Moore made a u-turn to investigate.

Rodriquez began discharging his handgun. Chai fired into the crowd using
the rifle. Sorn drew his own gun when Cabrales-Cantreras approached and
punched him. Sorn fell to the ground. The two then started to wrestle over
Sorn’s gun. Sorn called out to Rodriquez, “Get this dude.”

Rodriquez stood three to five feet away, aimed at Cabrales-Cantreras, and
shot him in the back of the leg. Cabrales-Cantreras continued to fight with
Sorn. Rodriquez started to run away but stopped and turned back. He shot
Cabrales-Cantreras twice more. Then his gun jammed, so he took the rifle
from Chai and shot Cabrales-Cantreras again. Rodriquez and Chai heard
police sirens and fled.

Officer Moore approached on foot and observed Sorn and Cabrales-
Cantreras still wrestling. Officer Moore identified himself and ordered them
to stop. Sorn rolled away in the prone position. Cabrales-Cantreras shot four
times in Moore’s direction. Moore fired three shots back. Cabrales-
Cantreras aimed at Moore again, at which time Moore discharged four more
rounds. Cabrales-Cantreras fell over dead, having sustained a total of
fourteen gunshot wounds. Moore inflicted seven of them.

The State charged Rodriquez with, among other things, the Class A felony
attempted murder of Cabrales-Cantreras. The State also sought a sentencing
enhancement for attempted murder, alleging that Rodriquez had acted at the
direction of or in affiliation with a criminal gang.

The State filed notice of intent to offer evidence of Rodriquez’s gang
membership during the guilt phase of trial. The State sought to introduce the
evidence as proof of motive. The trial court granted the State’s request
                                     3
       following a hearing and over the defense’s motion to exclude. Evidence of
       Rodriquez’s gang membership was introduced in the State’s case-in-chief.

       A jury found Rodriquez guilty as charged, and in a bifurcated sentencing
       proceeding, the jury found that Rodriquez was a criminal gang member and
       that he had acted at the direction of or in affiliation with the gang.

       The trial court sentenced Rodriquez to twenty-five years for attempted
       murder plus an additional twenty-five years due to the gang-affiliation
       enhancement.

Rodriquez v. State, No. 49A05-1006-CR-410, slip op. at 2-5 (Ind. Ct. App. September 9,

2011), trans. denied.

       Rodriquez appealed his convictions, contending that the admission of evidence of

his gang affiliation was irrelevant and unfairly prejudicial, there was insufficient evidence

to sustain his attempted murder conviction and the sentencing enhancement, and his

sentence was inappropriate. Id. at 5. The convictions were affirmed. Id. at 14.

       On August 30, 2012, Rodriquez filed a pro-se petition for post-conviction relief.

Subsequently, with the assistance of counsel, he filed an amended petition. Therein, he

alleged that he had been denied the effective assistance of trial counsel because counsel

failed to tender appropriate jury instructions. On October 16, 2013, the post-conviction

court conducted a hearing. On May 28, 2014, the post-conviction court entered its findings,

conclusions, and order denying Rodriquez relief. He now appeals.

                                 Discussion and Decision

                                    Standard of Review

       The petitioner in a post-conviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
                                             4
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. On review, we will not reverse the judgment of the post-conviction court

unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite

that reached by the post-conviction court. Id. A post-conviction court’s findings and

judgment will be reversed only upon a showing of clear error, that which leaves us with a

definite and firm conviction that a mistake has been made. Id. In this review, findings of

fact are accepted unless they are clearly erroneous and no deference is accorded to

conclusions of law. Id. The post-conviction court is the sole judge of the weight of the

evidence and the credibility of witnesses. Id.

                              Effectiveness of Trial Counsel

       Effectiveness of counsel is a mixed question of law and fact.        Strickland v.

Washington, 466 U.S. 668, 698 (1984).            We evaluate Sixth Amendment claims of

ineffective assistance under the two-part test announced in Strickland. Id. To prevail on

an ineffective assistance of counsel claim, a defendant must demonstrate both deficient

performance and resulting prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999)

(citing Strickland, 466 U.S. at 687). Deficient performance is that which falls below an

objective standard of reasonableness. Strickland, 466 U.S. at 687; see also Douglas v.

State, 663 N.E.2d 1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.        A reasonable probability is a

                                             5
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). The two prongs of the

Strickland test are separate and independent inquiries. Strickland, 466 U.S. at 697. Thus,

“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.” Id.

       We “strongly presume” that counsel provided adequate assistance and exercised

reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d

389, 392 (Ind. 2002). Counsel is to be afforded considerable discretion in the choice of

strategy and tactics. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel’s

conduct is assessed based upon the facts known at the time and not through hindsight. State

v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). We do not “second-guess” strategic

decisions requiring reasonable professional judgment even if the strategy in hindsight did

not serve the defendant’s interests. Id. In sum, trial strategy is not subject to attack through

an ineffective assistance of counsel claim, unless the strategy is so deficient or

unreasonable as to fall outside the objective standard of reasonableness. Autrey v. State,

700 N.E.2d 1140, 1141 (Ind. 1998).

       Rodriquez claims that his trial counsel should have tendered two jury instructions:

a limiting instruction with regard to gang affiliation evidence and an instruction on defense

of others.

       Limiting Instruction. At a pretrial hearing held on May 13, 2009, the trial court

advised the parties that evidence of gang affiliation would be permitted as to motive, and

                                               6
suggested to the Prosecutor that he needed to prepare an instruction for the jury. The

Prosecutor agreed to provide an instruction “that they’re receiving this evidence for the

limited purpose of motive.” (Pretrial Tr. at 6.) However, the Prosecutor did not provide

such an instruction. Neither did defense counsel. According to Rodriquez, defense

counsel’s failure to correct the Prosecutor’s omission amounted to ineffective assistance of

counsel.

       The failure to tender an instruction does not automatically amount to ineffectiveness

of counsel. Rather, according to Strickland, Rodriquez must show there is a reasonable

probability that, but for the error or omission, the result of the proceeding would have been

different.

       In his opening statement, defense counsel conceded that Rodriquez was a gang

member. Rodriquez testified and admitted his gang affiliation. The record is replete with

evidence of a gang rivalry between West Side 13, to which Rodriquez belonged, and 18 th

Street, to which Cabrales-Cantreras belonged. In light of this, the jury received Final

Instruction 6, which provided:

       Neither sympathy nor prejudice for or against either the complaining witness
       or the Defendant in this case should be allowed to influence you in whatever
       verdict you may find.

(App. 43.) In his closing statement, the Prosecutor referenced gang membership as having

relevance to motive. Defense counsel also argued: “The gang thing is to try to supply a

motive for what happened. Well, we also supplied the motive for what happened and that

was jealousy[.]” (Tr. at 584.)

                                             7
       The post-conviction court concluded that, under these circumstances, Rodriquez did

not suffer prejudice from the lack of a limiting instruction such that he was deprived of the

effective assistance of trial counsel. Although the better practice would have included

submission of a limiting instruction, Rodriquez was not denied a fair trial. The combatants

were gang members, the jury was advised to refrain from allowing sympathy or prejudice

to influence their verdict, and the evidence of gang membership was presented and

discussed in the context of motive. The post-conviction court did not reach a clearly

erroneous conclusion when it determined that a limiting instruction would not likely have

changed the outcome of Rodriquez’s trial.

       Defense of Others Instruction.

       Rodriquez also claims that his trial counsel was ineffective for his failure to tender

an instruction on defense of others. At the post-conviction hearing, trial counsel testified

that there was evidence that “possibly” could have supported the defense, but he did not

tender such an instruction. (P.C.R. Tr. at 10.)

       Defense of self or others as an affirmative defense is established by Indiana Code

Section 35-41-3-2(a): “A person is justified in using reasonable force against another

person to protect the person or a third person from what the person reasonably believes to

be the imminent use of unlawful force.”

       To support a claim of self-defense, a defendant must have acted without fault,
       been in a place where he had a right to be, and been in reasonable fear or
       apprehension of bodily harm. Brewer v. State, 646 N.E.2d 1382, 1386 (Ind.
       1995). The defendant’s belief … must be reasonable and in good faith, and
       his “reaction to that belief must be reasonable based upon the surrounding

                                             8
       circumstances under which the events have occurred.” Geralds v. State, 647
       N.E.2d 369, 373 (Ind. Ct. App. 1995).

White v. State, 699 N.E.2d 630, 635 (Ind. 1998).

       Rodriquez’s testimony belies a defense of others claim. He testified that he shot

one shot into the ground and three shots into the air. He also testified: “I told Chai, Don’t

shoot, and he shot at [Cabrales-Cantreras].” (Tr. at 504.) Rodriquez denied personally

shooting Cabrales-Cantreras, testifying he “had the opportunity but I didn’t want to.” (Tr.

at 510.) In sum, he claimed that he fired warning shots and attempted to diffuse the

situation; he did not claim to have used reasonable force against Cabrales-Cantreras.

       Testimony offered by other witnesses was that Rodriquez shot Cabrales-Cantreras

multiple times before his gun jammed. He then took Chai’s gun and shot Cabrales-

Cantreras again before fleeing. It is well-settled that firing multiple shots undercuts a claim

of self-defense. Randolph v. State, 755 N.E.2d 572, 576 (Ind. 2001).

       The State’s witnesses described an intentional shooting. Rodriquez denied shooting

the victim at all. Trial counsel’s decision not to tender a defense of others instruction

represented a reasonable trial strategy given the evidence presented.

                                     Conclusion

       Rodriquez has not overcome the presumption that he received the effective

assistance of trial counsel.    Accordingly, the post-conviction court properly denied

Rodriquez’s petition for post-conviction relief.

       Affirmed.

ROBB, J., and BROWN, J., concur.
                                              9
