      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                              Oct 21 2016, 7:39 am
      regarded as precedent or cited before any                               CLERK
      court except for the purpose of establishing                        Indiana Supreme Court
                                                                             Court of Appeals
      the defense of res judicata, collateral                                  and Tax Court


      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Mark A. Bates                                            Gregory F. Zoeller
      Lake County Public Defender                              Attorney General of Indiana
      Crown Point, Indiana                                     Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jose Gutierrez,                                          October 21, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A05-1512-CR-2372
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               45G01-1311-MR-11



      Mathias, Judge.


[1]   Jose Gutierrez (“Gutierrez”) was convicted in Lake Superior Court of murder

      and Class C felony battery. On appeal, Gutierrez argues that the evidence is


      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016     Page 1 of 9
      insufficient to support his murder conviction and raises three evidentiary issues.

      Specifically, he claims:

          I.   The State failed prove that Gutierrez intended to commit murder;

          II. The trial court abused its discretion when it admitted a police officer’s
              description of what he observed in a surveillance video;

          III. The trial court abused its discretion when it admitted testimony that
               Gutierrez was asked to take his gun outside and was frisked before he
               was allowed to re-enter the bar; and,

          IV. Allowing an officer to testify that during a recorded jail phone call
              Gutierrez instructed his sister to hide evidence that would establish that
              he was the shooter constituted fundamental error.

      Concluding that the evidence is sufficient to prove that Gutierrez intended to

      commit murder and that Gutierrez has not established any prejudicial

      evidentiary error affecting his substantial rights, we affirm.


                                    Facts and Procedural History

[2]   On or about November 1, 2013, Gutierrez and his friend, Mark Bartell

      (“Bartell”) went to the Michigan Avenue Bar in Hammond, Indiana, where

      they drank several beers and used cocaine. Daniel Juarez (“Juarez”) and Rey

      Sanchez-Guadarrama (“Guadarrama”) were also present in the bar that night.

[3]   At some point that evening, Bartell called Juarez a derogatory name because

      Bartell offered Juarez cocaine and Juarez refused. Cesar Olivares (“Olivares”),

      a bar employee, observed tension between the two groups of men, and told




      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 2 of 9
      Gutierrez that if he had a gun, he needed to take it outside. Gutierrez also

      agreed to be “patted down” before he would be allowed to reenter the bar.

[4]   Gutierrez and Bartell left the bar, and Gutierrez placed a handgun in the

      console by the driver’s side door of his Hummer. Gutierrez and Bartell then

      reentered the bar after they were patted down.


[5]   Shortly thereafter, Gutierrez approached Juarez and removed his jacket,

      intending to fight with Juarez. Bartell and Carlos Ramos (“Ramos”), another

      bar employee, held onto Gutierrez to prevent him from fighting with Juarez.

      Ramos ordered Gutierrez to leave the bar immediately. As Gutierrez and

      Bartell were being escorted from the bar, Gutierrez demanded that Juarez be

      kicked out as well and claimed he would return if Juarez was allowed to remain

      inside. Ramos locked the door to the bar after Gutierrez and Bartell were

      removed.

[6]   Gutierrez and Bartell left the bar in Gutierrez’s vehicle and parked it around the

      corner in an alley. Gutierrez asked Bartell for his hooded sweatshirt and put the

      sweatshirt on. Gutierrez then left the vehicle with the gun that he had earlier

      placed in the console. Bartell saw Gutierrez walk back toward the bar.

[7]   Gutierrez attempted to open the door to the bar but found that it was locked.

      He then fired thirteen shots from his semi-automatic handgun into the outside

      wall of the bar underneath a row of windows. Juarez and Guadarrama had

      been sitting in the area near the windows that evening. Gudarrama, who was

      seated next to Juarez, was struck by a bullet in his foot. Tragically, Jose

      Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 3 of 9
       Herrera, who had been asleep at the table next to Juarez’s, was shot in the head

       and was killed.

[8]    Gutierrez returned to his vehicle, and he and Bartell fled the scene. Gutierrez

       told Bartell that “the dude shouldn’t have disrespected him.” Tr. p. 480.

[9]    They proceeded to another bar in Hammond. The surveillance video taken at

       that bar showed Gutierrez acting like he was shooting a gun. Gutierrez also

       pulled the handgun from his pocket to show to other people in the bar. They

       then returned to Bartell’s residence where Gutierrez gave the hooded sweatshirt

       back to Bartell and gave him the gun after instructing Bartell to hide it.


[10]   On November 6, 2013, Gutierrez was charged with murder and Class C felony

       battery with a deadly weapon.1 A three-day jury trial commenced on March 16,

       2015. The jury found Gutierrez guilty of both charges, and the trial court

       ordered him to serve an aggregate sixty-five-year sentence. Gutierrez failed to

       file a timely notice of appeal but was later granted permission to file this belated

       appeal.


                                             Sufficient Evidence

[11]   Gutierrez argues that the State failed to present sufficient evidence to prove that

       he had the requisite intent to commit murder.




       1
         Gutierrez was also charged with Class A felony attempted murder and Class C felony criminal recklessness
       resulting in serious bodily injury, but those charged were dismissed prior to trial.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016         Page 4 of 9
               When we review a claim challenging the sufficiency of the
               evidence we neither reweigh the evidence nor assess the
               credibility of the witnesses. Instead, we consider only the
               evidence and reasonable inferences drawn therefrom that support
               the verdict. And we will affirm the conviction if there is probative
               evidence from which a reasonable jury could have found the
               defendant guilty beyond a reasonable doubt.


       Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016) (citing Treadway v. State, 924

       N.E.2d 621, 639 (Ind. 2010)).


[12]   The State was required to present evidence that Gutierrez knowingly or

       intentionally killed Herrera. See Ind. Code § 35-42-1-1. “A person engages in

       conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” I.C. § 35-41-2-2(a). “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” I.C. § 35-41-2-2(b). Our supreme court has held

       that “[t]he intent to kill may be inferred from the firing a weapon in a manner

       likely to cause death or serious bodily injury.” Garrett v. State, 714 N.E.2d 618,

       621 (Ind. 1999). Moreover, “a defendant’s intent to kill one person is

       transferred when, by mistake or inadvertence, the defendant kills a third person;

       the defendant may be found guilty of the murder of the person who was killed,

       even though the defendant intended to kill another.” Blanche v. State, 690

       N.E.2d 709, 712 (Ind. 1998).


[13]   Gutierrez argues that the State “may have proved that [he] recklessly and

       dangerously fired a gun into the outside wall of the bar but it failed to show that


       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 5 of 9
       he intentionally killed Herrera while trying to shoot Juarez.” Appellant’s Br. at

       13. Gutierrez claims that “several shots…were sprayed along the exterior wall

       of the bar” that “were not focused on one spot.” Id. at 14.


[14]   The State established that Gutierrez was angry with Juarez and attempted to

       fight with him before he was forcibly escorted from the bar. Gutierrez

       demanded that Juarez be kicked out as well and claimed he would return if

       Juarez was allowed to remain inside. Gutierrez then retrieved his semi-

       automatic handgun and attempted to re-enter the bar. After he discovered that

       the door was locked, he fired thirteen shots at the bar.2


[15]   The State established that Gutierrez concentrated his gunfire into the wall of the

       bar underneath a row of small windows, which were situated toward the top of

       the wall. The table Juarez had been sitting at inside the bar was close to this

       row of windows. Ex. Vols. I & II, State’s Ex. 59, 63, 85, 88, 125; Tr. pp. 610-11.

       Gutierrez and Bartell then fled the scene, and Gutierrez told Bartell that “the

       dude shouldn’t have disrespected him.” Tr. p. 480.

[16]   This evidence is sufficient to prove Gutierrez’s intent to kill Juarez. Gutierrez

       fired a semi-automatic handgun thirteen times into the wall of the bar in the

       area of the small bar that Juarez had been sitting or standing most of the

       evening. Juarez was in that area of the bar when Gutierrez was forcibly




       2
         The police recovered thirteen casings, but only eleven bullets and eleven holes were on the exterior wall of
       the bar. Tr. pp. 222-24.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016             Page 6 of 9
       removed from it. Gutierrez then retrieved the gun from his vehicle and

       attempted to re-enter the bar. The State presented substantial evidence from

       which a reasonable jury could conclude that Gutierrez knowingly or

       intentionally intended to kill Juarez. We therefore conclude that, under the

       doctrine of transferred intent, the evidence is sufficient to support Gutierrez’s

       conviction for murdering Herrera.

                                             Evidentiary Issues

[17]   The trial court has broad discretion to rule on the admissibility of evidence.

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review a trial court’s rulings

       for an abuse of that discretion, and we reverse only when admission is clearly

       against the logic and effect of the facts and circumstances and the error affects a

       party’s substantial rights. Id. See also VanPatten v. State, 986 N.E.2d 255, 267

       (Ind. 2013); Ind. Trial Rule 61.


[18]   In determining whether error in the introduction of evidence affected the

       defendant’s substantial rights, we must assess the probable impact of the

       evidence upon the jury. Id. When a conviction is supported by substantial

       evidence of guilt sufficient to satisfy this court that there is no substantial

       likelihood that the questioned evidence contributed to the conviction, the error

       is harmless. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004).


[19]   Gutierrez challenges the following evidence that was admitted during his jury

       trial. First, he argues that a police officer’s testimony that Gutierrez’s gestures

       recorded on a surveillance tape after the shooting depicted Gutierrez

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 7 of 9
       “demonstrating how he shot into the bar”, Tr. p. 343, was speculative and

       inadmissible. Next, he argues that detective John Suarez should not have been

       allowed to comment on the recorded conversation between Gutierrez and his

       sister, which was also played for and translated for the jury, where the detective

       told the jury that Gutierrez was asking his sister to get rid of the shirt he wore

       the night of the offense. Tr. p. 628, Ex. Vol., State’s Ex. 16. Finally, Gutierrez

       argues that Cesar Olivares, a bar employee, should not have been allowed to

       testify that another bar patron told Olivares that he thought Gutierrez had a

       gun. Tr. pp. 109-10.


[20]   Gutierrez’s defense at trial was two-fold. First, he argued that Bartell was the

       shooter. In the alternative, Gutierrez claimed that the State failed to prove he

       had the intent to commit murder, and therefore, he could only be convicted of

       reckless homicide.

[21]   The evidence that Gutierrez challenges on appeal was introduced to prove that

       Gutierrez, not Bartell, was the shooter. This evidence was merely cumulative of

       other evidence presented at trial, including the photographic and video evidence

       depicting Gutierrez and Bartell inside and outside the bar. Importantly,

       photographs and video evidence established that Gutierrez possessed the gun.

       Gutierrez also argued that Bartell was angry with Juarez and had reason to

       shoot him. However, the State proved that Gutierrez attempted to punch Juarez

       and was therefore forcibly escorted from the bar. Gutierrez demanded that

       Juarez should be kicked out of the bar as well and that he would come back if

       Juarez was not sent out. Tr. p. 143.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 8 of 9
[22]   For these reasons, we conclude that even if the challenged evidence was

       admitted in error, it did not affect Gutierrez’s substantial rights and his

       convictions are supported by substantial evidence of guilt. If we refuse to

       consider the challenged evidence, in addition to proving Gutierrez’s intent to

       commit murder as we discussed above, we are convinced that the State

       presented ample evidence to prove that Gutierrez was the shooter. Notably, on

       appeal, Gutierrez does not argue that the State failed to present sufficient

       evidence that he was the shooter.


                                                  Conclusion

[23]   Gutierrez’s murder conviction is supported by sufficient evidence, and he has

       not established any evidentiary error that would require reversal of his

       convictions and a new trial.

[24]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1512-CR-2372 | October 21, 2016   Page 9 of 9
