      MEMORANDUM DECISION
                                                                                   FILED
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                   Oct 26 2017, 11:01 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Andrew J. Baldwin                                        Curtis T. Hill, Jr.
      Baldwin Kyle & Kamish, P.C.                              Attorney General of Indiana
      Franklin, Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Candelario Cruz-Trujillo,                                October 26, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               41A01-1612-CR-2723
              v.                                               Appeal from the Johnson Circuit
                                                               Court
      State of Indiana,                                        The Honorable K. Mark Loyd,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               41C01-1510-MR-2



      Mathias, Judge.


[1]   Candelario Cruz-Trujillo (“Candelario”) appeals his conviction for murder. In

      this appeal, Candelario claims that the trial court abused its discretion when it


      Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017          Page 1 of 11
      refused to instruct the jury on involuntary manslaughter, voluntary

      manslaughter, and reckless homicide.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In the fall of 2014, Candelario discovered that his wife Isabel was having an

      affair with Miguel Hernandez (“Hernandez”). Subsequently, Isabel moved out,

      and their children decided to stay with Candelario. In September 2015,

      Candelario and Isabel were having disagreements about where the children

      should live. During this time, Hernandez called Candelario and boasted,

      “[Candelario] was feeling like a big man taking away the children from

      [Isabel].” Tr. Vol. III, p. 55. This angered Candelario and on September 12,

      2015, he went to Hernandez’s apartment “to tell him not to mess with me, that

      if he wanted to say something, to tell me face to face, not to call me on the

      phone.” Id. Candelario waited for Hernandez at his apartment, and when

      Hernandez arrived, he spotted Candelario, quickly exited his car, and retreated

      into his apartment before there was a confrontation.


[4]   In the following weeks, Candelario noticed cars driving slowly by his home,

      and he was informed by a neighbor that a few strange men were walking near

      his property. Because of these events, Candelario illegally purchased a firearm.

      On September 29, Hernandez called Candelario and the following exchange

      took place:



      Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 2 of 11
              I asked him, what do you want? And he told me, are you scared?
              And I said, no, I’m not scared of nobody. I told him I want to see
              him - - I want to see you because I don’t want you to be going
              around my house. And he had fun. He told me that I was stupid,
              an asshole. I told him, you too. And I told him, if you want to
              say something, tell it face to face, don’t call me on the phone.
              And by now, I raised my voice, I was more upset. And I hang
              up.


      Id. at 66 (errors in original). Later that same evening, Candelario went out to

      his truck and began drinking heavily. At some point during the night,

      Candelario severely cut his hand on a broken beer bottle. He went inside and

      his oldest daughter helped him wrap his wound. His daughter also

      communicated with Isabel, encouraging her to come assist with Candelario.


[5]   Isabel arrived and attempted to take Candelario to the hospital. He refused and

      told her, “now I’m going to talk to Miguel.” Id. at 69. Isabel tried to block in

      Candelario’s car, but he maneuvered his truck around her vehicle and traveled

      to the Four Seasons restaurant, where Hernandez was employed as a cook,

      around 5:30 a.m. on September 30.


[6]   Candelario pulled into the Four Seasons and waited in his truck for Hernandez

      to arrive. Soon after, Hernandez pulled in and Candelario exited his truck to

      confront him. Candelario told Hernandez he wanted to talk to him; however,

      Hernandez began backing up and moving towards the restaurant entrance.

      Hernandez appeared to grab for something, and Candelario raised his gun and

      fired several shots at Hernandez. After Hernandez fell to the ground,

      Candelario shot Hernandez once more in the back of the head. Candelario went

      Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 3 of 11
      back to his truck and drove away. He was arrested without incident later that

      day.


[7]   The State charged Candelario with murder on October 7, 2015. A three-day

      jury trial commenced on September 12, 2016, during which the trial court

      found that the evidence did not warrant jury instructions on involuntary

      manslaughter, voluntary manslaughter, and reckless homicide. The jury found

      Candelario guilty, and he was sentenced on November 7 to fifty-six years in the

      Indiana Department of Correction. Candelario now appeals.


                                     Discussion and Decision
[8]   Candelario claims that the trial court abused its discretion when it failed to

      instruct the jury on involuntary manslaughter, voluntary manslaughter, and

      reckless homicide as each is a lesser included offense of murder. Trial courts are

      provided broad discretion when instructing juries. Erlewein v. State, 775 N.E.2d

      712, 714 (Ind. Ct. App. 2002), trans. denied. When determining whether to give

      a lesser included offense instruction, trial courts apply the three-part test our

      supreme court set out in Wright v. State, 658 N.E.2d 563 (Ind. 1995). The

      supreme court succinctly explained this test in Wilson v. State:


              The first two parts require the trial court to determine whether
              the offense is either inherently or factually included in the
              charged offense. If so, the trial court must determine whether
              there is a serious evidentiary dispute regarding any element that
              distinguishes the two offenses. . . . Where a trial court makes
              such a finding, its rejection of a tendered instruction is reviewed
              for an abuse of discretion.


      Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 4 of 11
       765 N.E.2d 1265, 1271 (Ind. 2002) (citations, quotation, and footnote omitted).

       If the evidence in the record does not support giving an instruction on an

       inherently or factually included lesser offense, then the trial court should not

       give it to the jury. Wright, 658 N.E.2d at 567.


                                          I. Involuntary Manslaughter

[9]    Murder and involuntary manslaughter are distinguished by the defendant’s

       intent. Wilson, 765 N.E.2d at 1271. Murder requires an intent to kill, whereas

       involuntary manslaughter requires an intent to batter. Evans v. State, 727 N.E.2d

       1072, 1081 (Ind. 2000). Involuntary manslaughter is not an inherently lesser

       included offense of murder; however, it is a factually included lesser offense if

       the charging information alleges that a battery accomplished the killing. Norris

       v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans. denied. The charging

       information here alleges that “on or about September 30, 2015 in Johnson

       County, State of Indiana, Candelario Cruz-Trujillo did knowingly and/or

       intentionally kill another human being, to-wit: Miguel Hernandez.” Appellant’s

       App. p. 9.


[10]   Candelario does not dispute the fact that the charging information fails to allege

       a battery, rather he argues that the term “charging instrument” as used by the

       Wright court should include both the charging information and the probable

       cause affidavit.1 He contends that because the probable cause affidavit indicates




       1
        Candelario is not the first individual to present this argument, and our courts and legislature have
       consistently separated the probable cause affidavit from the charging instrument. E.g., Ind. Code § 35-34-1-

       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017           Page 5 of 11
       that Candelario committed battery by shooting Hernandez, then the jury should

       have been instructed on involuntary manslaughter. We disagree for two

       reasons.


[11]   First, the wording of the charging information foreclosed the opportunity for

       Candelario to seek an instruction on involuntary manslaughter. The Wright

       court explained, “the State cannot draft an information that forecloses an

       instruction on an inherently lesser included offense of the crime charged . . . .”

       658 N.E.2d at 569. However, “[w]hat is clear . . . is that the State may only

       foreclose instruction on a lesser offense that is not inherently included in the

       crime charged by omitting from a charging instrument factual allegations

       sufficient to charge the lesser offense.” Id. at 570.


[12]   Candelario was charged with “knowingly and/or intentionally” killing

       Hernandez. Appellant’s App. p. 9. There is no reference in the charging

       information to a battery that would provide a basis for an involuntary

       manslaughter instruction. Candelario notes that “the probable cause affidavit

       indicates that [Candelario] both attempted and committed the crime of battery

       by shooting Miguel Hernandez.” Appellant’s Br. at 18. Despite Candelario’s

       reliance on the probable cause affidavit, it was well within the State’s discretion



       2(a) (there is no requirement for a narrative probable cause affidavit in the statute specifying the contents of
       the charging information); Ind. Code § 35-34-1-2.4(a) (separately listing an “indictment, information,
       pleading, motion, petition, probable cause affidavit” when discussing verified documents); Schweitzer v. State,
       531 N.E.2d 1386, 1388 (Ind. 1989) (clarifying that “The probable cause affidavit relates to the pretrial
       detention of the defendant, not to the charging instrument.”); State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct.
       App. 2010) (identifying the different purposes for a charging instrument and the probable cause affidavit),
       trans. denied. We decline to disrupt this precedent here.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017             Page 6 of 11
       to draft the charging information in such a way as to foreclose the opportunity

       for Candelario to seek a conviction on involuntary manslaughter. See Champlain

       v. State, 681 N.E.2d 696, 702 (Ind. 1997) (observing that where the information

       alleged only that defendant “did knowingly kill another human being,” the

       information specifically did not assert a battery, and therefore, involuntary

       manslaughter was not a factually included lesser offense of murder).


[13]   Second, the record before us reveals no evidentiary dispute concerning whether

       Candelario intended to kill or batter Hernandez. We have previously held that

       “The intent to kill may be inferred from the use of a deadly weapon in a manner

       likely to cause death or great bodily injury, in addition to the nature of the

       attack and circumstances surrounding the crime.” Fuentes v. State, 10 N.E.3d 68,

       75 (Ind. Ct. App. 2014), trans. denied. Additionally, our supreme court has held

       that firing a weapon in the direction of a victim is substantial evidence from

       which a jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332 (Ind.

       1988).


[14]   It is undisputed that Candelario raised his firearm and fired several shots at

       Hernandez from close range. After Hernandez fell, Candelario shot him once

       more in the head before fleeing. The evidence thus did not warrant an

       instruction on involuntary manslaughter, and the trial court did not abuse its

       discretion by refusing to give it.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 7 of 11
                                        II. Voluntary Manslaughter

[15]   Murder and voluntary manslaughter are distinguished by evidence of sudden

       heat, “which is an evidentiary predicate that allows mitigation of a murder

       charge to voluntary manslaughter.” Washington v. State, 808 N.E.2d 617, 625

       (Ind. 2004). Our supreme court has characterized sudden heat “as anger, rage,

       resentment, or terror sufficient to obscure the reason of an ordinary person,

       preventing deliberation and premedication . . . and rendering a person

       incapable of cool reflection.” Id. at 626. Voluntary manslaughter is an

       inherently included offense of murder; however, an instruction on voluntary

       manslaughter is appropriate only “if there exists evidence of sufficient

       provocation to induce passion that renders a reasonable personal incapable of

       cool reflection.” Id.


[16]   Candelario argues that “A reasonable person could conclude that [Candelario]

       was terrified” and that “It is certainly reasonable that this terror could obscure

       the judgment of [Candelario] to the point that he even mistook keys for a hand

       gun.” Appellant’s Br. at 20. Candelario classifies the circumstances surrounding

       the shooting as “appreciable evidence of sudden heat” and thus claims the trial

       court abused its discretion when it did not instruct the jury on voluntary

       manslaughter. Id.


[17]   To support his argument, Candelario cites to this court’s decision in Collins v.

       State, 966 N.E.2d 96 (Ind. Ct. App. 2012). In that case, Collins and her husband

       got into a heated argument. Id. at 100–01. The fight escalated quickly to the

       point where Collins’s husband grabbed a knife and slashed his wife, cutting her
       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 8 of 11
       several times. Id. at 101. Collins broke away from her husband, ran upstairs to

       retrieve a gun, and shot and killed him. We held that the trial court properly

       instructed the jury on voluntary manslaughter because there was “sufficient

       evidence from which a jury could conclude that Collins acted in sudden heat.”

       Id. at 103. We do not have similar evidence in the case before us.


[18]   The record here is filled with evidence that Candelario’s impetus to kill did not

       suddenly arise in response to a contemporaneous event. Suprenant v. State, 925

       N.E.2d 1280, 1284 (Ind. Ct. App. 2010), trans. denied. Candelario contemplated

       his actions for several hours before confronting Hernandez. After a sleepless

       night, he consciously drove his truck to wait for Hernandez at his place of

       employment. See Washington, 808 N.E.2d at 626 (holding that an instruction on

       voluntary manslaughter was not warranted where the evidence showed a degree

       of deliberation and cool reflection). When Hernandez saw Candelario,

       Hernandez began backing away to head into the restaurant. It was at this point

       that Candelario raised his gun and shot Hernandez multiple times. Once

       Hernandez fell, Candelario fired a final shot into the back of Hernandez’s head.


[19]   There is nothing in the record to indicate Candelario and Hernandez engaged

       in any type of confrontation prior to the shooting. While Candelario testified

       that he felt Hernandez could have had a gun, he also testified that he never saw

       a weapon. Further, Hernandez did not provoke Candelario prior to the

       shooting. See Suprenant, 925 N.E.2d at 1282–83 (explaining that the provocation

       required for voluntary manslaughter must be something more than mere words

       “sufficient to obscure the reason of an ordinary man.”). Simply put, there is no

       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 9 of 11
       evidence in the record from which a reasonable person could conclude that

       Candelario acted in sudden heat. The trial court properly rejected Candelario’s

       voluntary manslaughter instruction.


                                            III. Reckless Homicide

[20]   Finally, Candelario argues that the trial court should have given the jury an

       instruction on reckless homicide. Our supreme court has explained:


               [T]he only element distinguishing murder and reckless homicide
               is the defendant's state of mind: reckless homicide occurs when
               the defendant “recklessly” kills another human being, and
               murder occurs when the killing is done “knowingly” or
               “intentionally.” Reckless conduct is action taken in plain,
               conscious, and unjustifiable disregard of harm that might result
               and the disregard involves a substantial deviation from
               acceptable standards of conduct. By contrast, a person engages in
               conduct “knowingly” if the person is aware of a “high
               probability” that he or she is doing so. Thus, reckless homicide is
               an inherently included lesser offense of murder. The
               determinative issue here is whether the evidence produced a
               serious evidentiary dispute concerning [the defendant]’s state of
               mind that would justify giving the requested instruction.


       Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citations and footnote

       omitted).


[21]   Candelario reasons that “Confronting a man that is having an affair with your

       wife while intoxicated and armed with a revolver is reckless behavior and a

       genuine issue exists over whether the killing was premediated or reckless.”

       Appellant’s Br. at 22. We disagree.


       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 10 of 11
[22]   The State presented ample evidence that Candelario intentionally killed

       Hernandez. Candelario pointed the gun at Hernandez and shot him multiple

       times. Candelario also admitted that he shot Hernandez in the head after

       Hernandez fell to the ground. Candelario testified:


               I’m going to talk to somebody, and if he resists me, I had the
               gun, and it was to shoot. It was to use it. I’m going to see him.
               But if he wants to fight with me, shoot, I can use the gun. That’s
               why I had it, to shoot.


       Tr. Vol. III, p. 88. The evidence here does not produce an evidentiary dispute

       concerning whether Candelario acted knowingly or recklessly. See Newman v.

       State, 751 N.E.2d 265, 269 (Ind. Ct. App. 2001) (instruction on reckless

       homicide was not warranted where defendant admitted to pointing and firing a

       gun at the victim), trans. denied. Therefore, the trial court properly rejected

       Candelario’s reckless homicide instruction.


                                                 Conclusion
[23]   Under these facts and circumstances, the trial court did not abuse its discretion

       when it refused to instruct the jury on involuntary manslaughter, voluntary

       manslaughter, and reckless homicide.


[24]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1612-CR-2723 | October 26, 2017   Page 11 of 11
