MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Feb 06 2020, 7:34 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
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David C. Rojas,                                          February 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1184
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1707-MR-24646



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020                Page 1 of 16
                                       Statement of the Case
[1]   David C. Rojas appeals his conviction for murder, a felony. Rojas raises two

      issues for our review, which we revise and restate as follows:


              1. Whether the trial court committed fundamental error when it
                 failed to act upon instances of prosecutorial misconduct
                 during the State’s closing argument at trial.


              2. Whether the trial court acted improperly and, thus,
                 committed fundamental error when it instructed the jury.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In February 2017, Rojas was living with his friend and co-worker, Abel

      Campos. On the evening of February 17, Campos and Rojas were drinking at

      Campos’ apartment. At around 9:00 p.m., Jose Garcia-Lopez joined the men,

      and the three of them drank “two to three cases” of beer throughout the night.

      Tr. Vol. III at 7. At around 12:30 or 1:00 a.m. on the 18th, Campos went

      upstairs to go to sleep, and Rojas and Garcia-Lopez remained downstairs and

      continued to drink.


[4]   Thereafter, at approximately 3:00 a.m., Rojas went into Campos’ bedroom and

      woke Campos up. Campos felt “threatened” by Rojas because Rojas had a

      knife, so he went downstairs. Tr. Vol. II at 240. Campos saw Garcia-Lopez,

      who appeared to be dead, “wrapped in a tarp.” Id. Rojas then asked if Campos

      would help throw Garcia-Lopez’s body in the dumpster. Campos complied

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 2 of 16
      because he felt that Rojas “would hit” him if he did not help. Id. at 242. After

      the men disposed of Garcia-Lopez’s body, Campos went back upstairs inside

      his apartment and went to sleep.


[5]   Later that morning, Garcia-Lopez’s fiancée, Melissa Bershell, woke up to

      discover that Garcia-Lopez had not returned home. She attempted to call

      Garcia-Lopez, but his phone was “shut off.” Id. at 112. At around 7:30 a.m.,

      Bershell and her friend, Priscilla Provincial, went to Campos’ apartment to look

      for Garcia-Lopez. When Bershell and Provincial arrived at Campos’

      apartment, Campos and Rojas were standing outside drinking beer. Provincial

      then went into Campos’ apartment. Provincial noticed that the apartment was

      “disgusting,” and “there w[ere] cockroaches everywhere[.]” Id. at 128.

      However, the apartment smelled strongly of “a cleaning type of smell.” Id.

      While she was in the apartment, Provincial noticed that Rojas was “jittery,”

      and he was “[p]acing back and forth,” which was “odd.” Id.


[6]   After Bershell and Provincial left the apartment, Bershell and Campos went to

      McDonalds, and Provincial sat outside drinking beer. When Provincial

      finished one of her beers, she walked over to the dumpster to throw the beer can

      away. Provincial saw that there was “blood on the dumpster” and that there

      was a knife blade on the ground. Id. at 132. Provincial called Bershell, who

      had returned from McDonalds and was at the apartment’s main office, and told

      Bershell about the blood.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 3 of 16
[7]   After she talked to Provincial, Bershell approached Detective Charles King with

      the Indianapolis Metropolitan Police Department, who was at the office for an

      unrelated reason. Detective King accompanied Bershell to the dumpster.

      Detective King observed that “there was a substantial amount of blood around

      the dumpster” and “what appeared to be a kitchen knife blade on the ground.”

      Id. at 136. At that point, Detective King looked in the dumpster and started

      “[m]oving things.” Id. at 137. Detective King saw a pair of jeans that “were in

      fairly good condition” but that “smelled very strongly of bleach.” Id. Detective

      King also observed “what appeared to be a person’s knee” in the dumpster. Id.

      Officers then discovered Garcia-Lopez’s body. And officers observed a

      “possible blood trail” that led from the dumpster to Campos’ apartment. Id. at

      144. At that point, officers took Rojas and Campos into custody and collected

      DNA samples from them. Officers also took possession of their shoes, which

      had blood on them.


[8]   Officers then searched Campos’ apartment. There, officers found a white

      sweatshirt on the couch that had a blood stain on the sleeve. Officers also

      found a utility knife that had Rojas’ fingerprint on it. And officers found a

      trashcan in the apartment that had bloodstains on it. A crime scene specialist

      then swabbed the dumpster, the knife blade, the jeans, the sweatshirt, the

      trashcan, and Rojas’ and Campos’ shoes to be tested for DNA. The crime

      scene specialist also swabbed the inside of the jeans and the sweatshirt in order

      to “determine who the possible wearer may have been.” Tr. Vol. III at 66.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 4 of 16
[9]    Thereafter, on February 20, the coroner performed an autopsy on Garcia-

       Lopez. Doctor Christopher Poulos, a forensic pathologist, reviewed the

       coroner’s report. 1 Dr. Poulos noted that Garcia-Lopez had “a lot more external

       injuries then [he] can talk about.” Id. at 214. Those injuries included

       “multiple” blunt and sharp force injuries that were located “primarily” in the

       head and chest. Id. at 212. Dr. Poulos also observed several stab wounds,

       including a stab wound that severed the carotid artery. Based on Garcia-

       Lopez’s injuries, Dr. Poulos concluded that his death was a homicide. Id. at

       222.


[10]   Shelly Crispin, the DNA technical manager at the Indianapolis Marion County

       Forensic Services Agency, tested the swabs that the crime scene specialist had

       prepared. Crispin concluded that the blood stain on the ground in front of the

       dumpster contained both Garcia-Lopez’s and Rojas’ DNA. Crispin was also

       able to determine that the DNA from the knife blade found in front of the

       dumpster matched Garcia-Lopez’s DNA. As for the jeans located in the

       dumpster, Crispin determined that the DNA from “multiple” blood stains on

       the outside of the jeans matched Garcia-Lopez’s DNA. Tr. Vol. III at 67. And

       Crispin concluded that the DNA from the “inside of the knee area of the pants”

       matched Rojas’ DNA. Id. at 66.




       1
           During the pendency of the case, the coroner moved to another state.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 5 of 16
[11]   Crispin also determined that a blood stain on the sleeve of the white sweatshirt

       contained Garcia-Lopez’s DNA. And Crispin concluded that the DNA from

       the inside of the sweatshirt matched Rojas’ DNA. Crispin then tested the blood

       stain on the trash can. Crispin could not exclude Rojas as a contributor, but she

       “excluded” Garcia-Lopez and Campos as possible contributors. Id. at 62.

       Crispin then tested the blood stains on Rojas’ and Campos’ shoes. She

       determined that the blood stains on both men’s shoes matched Garcia-Lopez’

       DNA


[12]   The State charged Rojas with murder, a felony. 2 The trial court held a jury trial

       on April 8 and April 9, 2019. In his opening statement, Rojas argued to the

       jury that Compos was not a credible witness and that his testimony would raise

       serious doubts as to his version of the events. During the trial, the State

       presented Campos’ testimony as evidence. After Campos testified, the court

       held a hearing on the final jury instructions. During that hearing, the following

       colloquy occurred:


               THE COURT: I assume there’s no need for accomplice liability?


               [The State]: I don’t think so.




       2
         The State also charged Campos with murder, a felony. However, Campos and the State entered into a plea
       agreement in which Campos agreed to plead guilty to assisting a criminal, as a Level 5 felony, in exchange
       for testifying at Rojas’ trial. The trial court accepted Campos’ plea, entered judgment of conviction
       accordingly, and sentenced him to six years in the Department of Correction. See Tr. Vol. III at 5.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020              Page 6 of 16
        THE COURT: Okay. I’m just—let me rephrase that. Is there a
        need for [an] accomplice liability instruction?


        [The State]: I mean, actually I mean, it’s possible that they could
        decide that both of them did it and maybe it’s a good idea to
        instruct them in that case what the law is.


                                               * * *


        [Rojas]: I guess in summary Judge, I guess based on the
        evidence that the State has presented, their case is—they haven’t
        presented any evidence [that] this is an accomplice situation.
        The State’s case is that one person killed Mr. Garcia.


        THE COURT: And you’re not going to argue that it was Mr.
        Campos, are you?


        [Rojas]: And that’s obviously the case that we’re going to argue,
        but the State kind of by virtue of how they decided to proceed
        with this case—


        [The State]: Well, and I think we’re going to argue and even if
        Mr. Campos isn’t telling the truth and participated more than he
        says, that doesn’t make the other person not guilty, in which case
        we’re talking about accomplice liability type of situation.


        THE COURT: That’s just what I was thinking.


                                               * * *


        THE COURT: . . . But I do think the evidence supports, that’s
        been given thus far, may support an accomplice liability theory as
        well. Or I think it does, not may.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 7 of 16
       Id. at 23-24. The State then asked the court to instruct the jury on accomplice

       liability. Rojas objected to that instruction on the ground that it did not

       “match[] the State’s theory of the case[.]” Id. at 25. The court stated that the

       instruction is “a correct statement of law” and that it believed “that it is an issue

       in the case, that the jurors may have a question about[.]” Id. at 30.

       Accordingly, the court overruled Rojas’ objection and agreed to instruct the

       jury on accomplice liability.


[13]   After the parties had concluded the presentation of evidence, they gave their

       closing arguments. During Rojas’ closing argument, Rojas argued that the jury

       could not believe Campos’ testimony because it contained numerous

       inconsistencies. In its rebuttal closing argument, the State argued that any

       inconsistencies in Campos’ testimony could be explained by the fact that he was

       testifying through an interpreter. At the conclusion of the trial, the jury found

       Rojas guilty of murder, a felony. The trial court entered judgment of conviction

       accordingly and sentenced Rojas to sixty years in the Department of

       Correction. This appeal ensued.


                                      Discussion and Decision
                                  Issue One: State’s Closing Argument

[14]   Rojas first contends that the trial court committed fundamental error during the

       State’s closing argument at trial. The prosecutor stated in relevant part as

       follows:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 8 of 16
               We can fight all day about what Abel Campos said or didn’t say.
               He’s testifying through a language barrier. I don’t know what to
               say to him in Spanish. He said upset, upset, upset. I said, do
               you mean angry. He said yes, angry. Did you go to a restaurant,
               he was asked by [Rojas] at one point. Hey, did you go to any
               restaurants? We got a no. More specifically asked, do you recall
               going to a McDonalds. We got a yes. He doesn’t speak English.
               He’s testifying through someone else, relying on the person
               who’s standing here, hopefully translating things correctly.
               There’s such things as lost in translation. There’s a movie titled
               Lost in Translation. That’s a saying. Things get lost in translation.


       Id. at 92-93. Rojas maintains that the prosecutor’s reference to Campos’

       testimony getting lost in translation “undermined the integrity of our justice

       system,” was unsupported by any evidence, and improperly bolstered Campos’

       testimony. Appellant’s Br. at 21. Rojas also asserts that the prosecutor

       improperly vouched for Campos when the prosecutor told the jury during

       closing argument that Campos “told you the truth.” Tr. Vol. III at 84. And

       Rojas contends that those statements constituted prosecutorial misconduct.


[15]   As our Supreme Court has explained,


               [i]n reviewing a claim of prosecutorial misconduct properly
               raised in the trial court, we determine (1) whether misconduct
               occurred, and if so, (2) “whether the misconduct, under all of the
               circumstances, placed the defendant in a position of grave peril to
               which he or she would not have been subjected” otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. “Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 9 of 16
               probable persuasive effect of the misconduct on the jury’s
               decision rather than the degree of impropriety of the conduct.”
               To preserve a claim of prosecutorial misconduct, the defendant
               must—at the time the alleged misconduct occurs—request an
               admonishment to the jury, and if further relief is desired, move
               for a mistrial.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citations omitted).


[16]   Here, Rojas did not object to the prosecutor’s statements during closing

       argument. Thus, to prevail on appeal, Rojas


               must establish not only the grounds for prosecutorial misconduct
               but must also establish that the prosecutorial misconduct
               constituted fundamental error. Fundamental error is an
               extremely narrow exception to the waiver rule where the
               defendant faces the heavy burden of showing that the alleged
               errors are so prejudicial to the defendant’s rights as to “make a
               fair trial impossible.” In other words, to establish fundamental
               error, the defendant must show that, under the circumstances,
               the trial judge erred in not sua sponte raising the issue because
               alleged errors (a) “constitute clearly blatant violations of basic
               and elementary principles of due process” and (b) “present an
               undeniable and substantial potential for harm.” The element of
               such harm is not established by the fact of ultimate conviction
               but rather “depends upon whether [the defendant’s] right to a fair
               trial was detrimentally affected by the denial of procedural
               opportunities for the ascertainment of truth to which he
               otherwise would have been entitled.”


       Id. at 667-68 (citations and footnote omitted). In evaluating the issue of

       fundamental error, our task is to look at the alleged misconduct in the context

       of all that happened and all relevant information given to the jury—including


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 10 of 16
       evidence admitted at trial, closing argument, and jury instructions—to

       determine whether the misconduct had such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. See id.


[17]   On appeal, Rojas contends that the trial court committed fundamental error

       when it did not “act[] sua sponte to mitigate” the errors in the prosecutor’s

       statements because those statements “went straight to the very heart of the issue

       the jury was asked to decide—whether Campos testified truthfully about

       Rojas’s role in the murder of Garcia-Lopez.” Appellant’s Br. at 26-27. In

       essence, Rojas contends that the prosecutor’s statements during closing

       arguments “invaded the province of the jury to determine witness credibility in

       a case without overwhelming proof of Rojas as the murderer,” which Rojas

       contends “denied [him] a fair trial.” Id. at 28. We cannot agree.


[18]   Even assuming that the prosecutor’s statements were improper, we cannot say

       that they amounted to fundamental error. In addition to the challenged

       statements, the prosecutor also told the jury: “Even if you think Abel Campos

       did more than he admitted to, that doesn’t make David Rojas any less guilty.”

       Tr. Vol. III at 85. The prosecutor also argued that the case against Rojas “isn’t

       based on Abel Campos telling us anything.” Id. at 91. The prosecutor further

       told the jury that it should “question the integrity” of Campos and that Campos

       is only “a small piece of the puzzle. He only confirms things we already know

       based on what we can tell from all the physical evidence about who was

       involved.” Id. at 92. And the prosecutor stated to the jury that it was “entitled

       to believe” that Campos “isn’t telling you the whole truth.” Id. at 95. In other

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 11 of 16
       words, while the prosecutor argued that Campos told the jury the truth and that

       any inconsistencies in his testimony could be explained by the fact that his

       testimony was translated, the prosecutor also told the jury that it should

       question Campos’ integrity and that it could decide that Campos was not telling

       the truth.


[19]   Further, the court instructed the jury that “[w]hen the evidence is completed the

       attorneys may make final arguments. These final arguments are not evidence.

       The attorney’s [sic] are permitted to characterize the evidence, discuss the law,

       and attempt to persuade you to a particular verdict. You may accept or reject

       those arguments as you see fit.” Tr. Vol. II at 102. The court also instructed

       the jury as follows: “You are the exclusive judges of the evidence, which may

       be either witness testimony or exhibits.” Id. at 100. And the court instructed

       the jury that “[s]tatements made by the attorneys are not evidence,” and “[y]our

       verdict should be based on the law and the facts as you find them.” Tr. Vol. III

       at 99.


[20]   Under those circumstances, we cannot say that the prosecutor’s statements

       during closing argument that some of Campos’ testimony was lost in translation

       or that Campos was telling the truth had such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. See Ryan, 9 N.E.3d

       at 668. Accordingly, the trial court did not commit fundamental error during

       the State’s closing argument.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 12 of 16
                                           Issue Two: Jury Instruction

[21]   Rojas next contends that the trial court demonstrated bias when it instructed the

       jury. It is well settled that the law “presumes that a judge is unbiased and

       unprejudiced.” Woods v. State, 98 N.E.3d 656, 664 (Ind. Ct. App. 2018), trans.

       denied. Judges require broad latitude to run their courtrooms and to maintain

       discipline and control. See id. A defendant asserting judicial bias “must show

       that the trial judge’s actions and demeanor showed partiality and prejudiced the

       case.” Id. “If a judge is biased, fundamental error exists because trial before an

       impartial judge is an essential element of due process.” Id.


[22]   On appeal, Rojas contends that the trial court demonstrated bias and, thus,

       committed fundamental error when it instructed the jury on accomplice

       liability. 3 Specifically, Rojas asserts that the trial court “encourag[ed]” the State

       to ask for that jury instruction even though the evidence did not support giving

       the instruction, which was “tantamount” to the court expressing its opinion that

       “the case against [Rojas] would be stronger if the jury had the option to convict

       him as an accomplice.” Appellant’s Br. at 33, 34. In other words, Rojas

       contends that the trial court demonstrated bias against him when it persuaded

       the State to ask for a jury instruction that was not supported by the evidence.4




       3
         Rojas did not object to the jury instruction on the ground of bias. Rather, Rojas only objected on the
       ground that that instruction did not “necessarily match[] the State’s theory of the case[.]” Tr. Vol. III at 25.
       4
         To the extent Rojas contends that the court acted partially when it in essence sua sponte raised the issue of
       an accomplice liability jury instruction, we cannot agree. The Indiana Rules of Criminal Procedure explicitly
       allow a court to give jury instructions “on its own motion.” Ind. Crim. Rule 8(A).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020                    Page 13 of 16
       But we hold that the court did not commit any error, let alone fundamental

       error, when it instructed the jury.


[23]   It is well settled that 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) (quoting Munford v.

       State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010)). In reviewing a trial court’s

       decision to give a tendered jury instruction, we consider whether the instruction

       correctly stated the law, is supported by the evidence in the record, and is not

       covered in substance by other instructions. See id.


[24]   Indiana’s accomplice liability statute provides that a person “who knowingly or

       intentionally aids, induces, or causes another person to commit an offense

       commits that offense.” Ind Code. § 35-41-2-4 (2019). Under that statute, “an

       individual who aids another person in committing a crime is as guilty as the

       actual perpetrator.” Schaaf v. State, 54 N.E.3d 1041, 1043 (Ind. Ct. App. 2016).

       Here, at the time the court discussed the accomplice liability statute, the State

       had not yet presented any DNA evidence. Accordingly, Rojas argues that the

       only evidence that had been admitted showed that “Rojas acted alone in the

       murder” and that there was no evidence to demonstrate that he had aided,

       induced, or caused another person to commit the offense. Appellant’s Br. at 35.


[25]   However, when the State asked for the jury instruction, the evidence

       demonstrated that one night, Rojas, Campos, and Garcia-Lopez drank at


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 14 of 16
       Campos’ apartment, which was where Rojas was living at the time. And the

       evidence showed that, sometime during that night, Garcia-Lopez was

       murdered. Further, the State had presented Provincial’s testimony that

       Campos’ apartment was “disgusting” but smelled strongly of “a cleaning type

       of smell.” Tr. Vol. II at 128. And Provincial testified that Rojas was acting

       “jittery” and “odd” while she was in the apartment. Id. at 129. In addition,

       there was a blood trail leading from Campos’ apartment to the dumpster where

       Garcia-Lopez’ body was found, and officers collected several items with blood

       stains from inside of Compos’ apartment. In addition, the State presented

       evidence that Garcia-Lopez had been stabbed and that Rojas’ fingerprint was

       found on a utility knife officers had located in a trashcan in the apartment.

       And, when Campos and Rojas were arrested, both men had blood on their

       shoes.


[26]   Further, the State presented Campos’ testimony that Rojas had murdered

       Garcia-Lopez and that he had simply helped dispose of the body. But the State

       also presented evidence that it had initially charged Campos with murder but

       that Campos pleaded guilty to assisting a criminal in exchange for testifying at

       Rojas’ trial. Based on that evidence, a reasonable jury could infer that Campos

       had done more than simply help dispose of the body and that Rojas had aided

       Campos in murdering Garcia-Lopez. Accordingly, we agree with the trial court

       that the issue of accomplice liability was “an issue in the case” and that the

       jurors “may have [had] a question about” it. Tr. Vol. III at 30. The court

       therefore properly informed the jury of the law applicable to the facts. See


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 15 of 16
       Phillips, 22 N.E.3d at 761. Because the evidence supported instructing the jury

       on accomplice liability, we cannot say that the court demonstrated any bias

       against Rojas when it gave that instruction. The trial court therefore did not

       commit fundamental error on this issue.


[27]   In sum, the trial court did not commit fundamental error during the State’s

       closing argument. And the trial court did not demonstrate bias when it

       instructed the jury. We therefore affirm Rojas’ conviction.


[28]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1184 | February 6, 2020   Page 16 of 16
