Octavio D. Gonzalez v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 16 2017, 8:38 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Karen Celestino-Horseman Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Octavio D. Gonzalez, August 16, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1701-CR-151 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff Hawkins, Judge Trial Court Cause No. 49G05-1407-MR-35467

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 1 of 10 Case Summary [1] Following a jury trial, Octavio Daniel Gonzalez appeals his conviction for

murder. He asserts that the State presented insufficient evidence to support his

conviction and that the trial court committed fundamental error in admitting

DNA evidence. Finding the evidence sufficient and no fundamental error, we

affirm.

Facts and Procedural History [2] Dexter Smith and Quashawnda Wagner were married with three children and

lived in a single-story house in Indianapolis. Wagner’s cousin introduced the

couple to Gonzalez, resulting in a close friendship between Gonzalez and

Smith. Gonzalez was such a frequent visitor at Smith’s house that “[h]e was

over [at the house] ninety-eight percent of the time.” Tr. at 30. On July 11,

2014, Wagner, Smith, and Gonzalez rented a car and drove to Kentucky and

back while the children stayed with Smith’s mother in Indianapolis. The next

morning, at approximately 6:00 a.m., Wagner left her house and drove the

rental car to her mother-in-law’s residence. Only Smith and Gonzalez, who

was sleeping on a sofa in the sun room, remained in the house.

[3] At approximately 9:30 a.m., Smith used Gonzalez’s cell phone to call Wagner

and said that he was looking for a pair of his earrings. Wagner looked for the

earrings in the rental car but did not find them. About twenty to thirty minutes

later, Wagner called Smith at Gonzalez’s cell phone number and Smith’s three

cell phone numbers, but he did not answer. She decided to return to their

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 2 of 10 house, and Wagner’s mother-in-law followed in her vehicle. When Wagner

arrived at the house, she went to the front door, which was locked, and opened

it with her keys. Upon entering the house, she noticed that the house was silent

and Gonzalez was no longer there. Wagner found Smith lying on the bedroom

floor with a pool of blood around his head. She quickly exited the house and

informed her mother-in-law of Smith’s condition. Tyron Belton, the next-door

neighbor, was mowing the grass when he heard Wagner’s wails. Belton called

911, and shortly thereafter the police and emergency medical personnel arrived.

Smith was declared dead. An autopsy determined that his death was caused by

a single gunshot to the back of the head.

[4] Around 10:30 a.m., prior to Wagner’s arrival, Belton had driven to a nearby gas

station to purchase gas for his lawn mower. As Belton drove back to his house

he recognized Gonzalez, by the haircut he had given him a few days earlier,

walking on the sidewalk away from Smith’s house. Belton thought this was

strange because “[Gonzalez] never walked anywhere, he was always with

[Smith].” Id. at 53. Belton did not see anyone else out walking or anyone else

coming and going from Smith’s house that morning.

[5] Wagner informed the police that Smith’s handgun was missing from its holster

on top of the bedroom dresser and that $15,000 in cash, which Wagner had

seen Smith count the previous night, was also missing from Smith’s sweatpants

pocket. The police noticed that the back doors were closed but unlocked and

that the rear security gate was open. Wagner attempted to locate Gonzalez, but

her phone calls went unanswered. Wagner’s cousin provided her with the

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 3 of 10 phone number of Gonzalez’s mother-in-law, Shelaime Yamobi, who lived near

Atlanta, Georgia. Wagner called Yamobi, without mentioning the death of her

husband, and Yamobi informed her that she had not seen Gonzalez. On the

same evening as Wagner’s phone call, Gonzalez arrived unannounced at

Yamobi’s house looking to speak with his wife and see their daughter. Yamobi

asked Gonzalez about the sudden visit, and he responded, “I just need to lay

low for a little while. I want to spend time with them.” Id. at 106. Gonzalez

then took his wife and daughter to a hotel.

[6] The following morning Wagner called Yamobi a second time and asked her

whether she had seen or spoken to Gonzalez. Wagner explained why she was

calling and informed Yamobi about the death of her husband. Yamobi

immediately called her daughter and drove over to the hotel. At the hotel,

Yamobi told Gonzalez about Wagner’s phone call, specifically, that Wagner

believed that Gonzalez was responsible for Smith’s death. Gonzalez

responded, “[T]he less you know the better.” Id. at 109. Gonzalez and his wife

started arguing. Yamobi heard Gonzalez tell her daughter that “it was either

him or me. That’s all you need to know.” Id. at 110. Yamobi told Gonzalez to

stay away from them and left the hotel with her daughter and granddaughter.

[7] On July 15, 2014, Yamobi contacted the detective assigned to Smith’s case and

informed him of Gonzalez’s whereabouts and what he had said when he was

confronted. Federal marshals searched the Atlanta area for Gonzalez but were

unable to find him. Gonzalez was charged with murder, murder in the

commission of a robbery, level 2 felony robbery, and a firearm enhancement,

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 4 of 10 and a warrant was issued for his arrest. In March 2016, Gonzalez was

apprehended in Atlanta under a false name.

[8] A two-day jury trial was held in November 2016. The jury found Gonzalez

guilty of murder, and he was sentenced to a term of fifty-five years. Gonzalez

now appeals.

Discussion and Decision

Section 1 – The State presented sufficient evidence to support Gonzalez’s murder conviction. [9] Gonzalez contends that the State failed to present sufficient evidence to support

his murder conviction. The standard of review for sufficiency of the evidence is

well settled. We neither reweigh the evidence nor assess the credibility of

witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). Rather, we look to the

evidence and reasonable inferences drawn therefrom that support the

conviction. Id. The evidence need not “overcome every reasonable hypothesis

of innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). We will affirm

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

found the defendant guilty beyond a reasonable doubt. Bell, 31 N.E.3d at 499.

In sum, the reviewing court will not disturb the conviction when the testimony

believed by the trier of fact is sufficient to support it. Id. at 500.

[10] To convict Gonzalez of murder, the State was required to prove that he

knowingly or intentionally killed Smith. Ind. Code § 35-42-1-1(1). Gonzalez

argues that there was no evidence regarding the specific time of the murder and

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 5 of 10 therefore no way to positively identify him as the perpetrator.1 He suggests that

the evidence merely places him “in the vicinity” of the murder along with any

number of neighbors or strangers who could have been present at the

undetermined time of death. Appellant’s Br. at 13.

[11] “Elements of offenses and identity may be established entirely by circumstantial

evidence and the logical inferences drawn therefrom.” Holloway v. State, 983

N.E.2d 1175, 1178 (Ind. Ct. App. 2013). Gonzalez was the only person in the

house with Smith after Wagner left the house at 6:00 a.m. At 9:30 a.m., Smith

called Wagner using Gonzalez’s cell phone, which suggests that Gonzalez was

still present in the house. Belton identified Gonzalez walking on the sidewalk

away from Smith’s house around 10:30 a.m. This was “strange” because

Belton had never seen Gonzalez walking, much less without Smith. Tr. at 53.

Smith’s body was discovered around 11:00 a.m., and Belton did not see anyone

else walking on the streets or coming into or out of Smith’s house while he

mowed the grass next door. Although the exact time of Smith’s death is

unknown, the short time frame in which the murder must have been committed

suggests that Gonzalez alone had the opportunity to commit it.

1 Gonzalez also argues that there was no forensic evidence that supported the conviction and no evidence of motive. These arguments are immaterial. Although such evidence can be helpful to prove the identity of a perpetrator, it is not essential to sustain a murder conviction. See, e.g., Ellis v. State, 725 N.E.2d 411, 412 (Ind. 2000) (finding sufficient evidence to support murder conviction despite complete lack of forensic evidence); Moore v. State, 653 N.E.2d 1010, 1016 (Ind. Ct. App. 1995) (“[I]t is not necessary for the prosecution to offer evidence of motive, although it may do so.”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 6 of 10 [12] Also, Gonzalez’s actions after Smith’s murder are indicative that he committed

it. Gonzalez immediately stopped answering his cell phone, fled the state

within a day or two of the murder, and assumed an alias while evading police

for over a year and a half. Our supreme court has stated that “flight may be

considered as circumstantial evidence of consciousness of guilt.” Jones v. State,

485 N.E.2d 627, 628 (Ind. 1985).

[13] Gonzalez’s comments to his mother-in-law and wife also suggest his guilt. He

told Yamobi that he “need[ed] to lay low for a little while.” Tr. at 106. When

Yamobi confronted him with Wagner’s accusation that he was responsible for

Smith’s death, he simply responded that “the less you know the better.” Id. at

109. Furthermore, when his wife insisted on knowing what happened,

Gonzalez defended his actions by stating that “it was either him or me. That’s

all you need to know.” Id. at 110. The jury, as factfinder, could reasonably

infer from these comments that Gonzalez was guilty. Gonzalez’s argument is

an invitation to this Court to reweigh the evidence, which we cannot do. Bell,

31 N.E.3d at 499. Based on the foregoing, we conclude that the State presented

sufficient evidence to identify Gonzalez as the murderer.

Section 2 – The trial court did not commit fundamental error in admitting DNA evidence. [14] At trial, Shannin Guy, a forensic scientist at the Marion County Forensic

Services Agency, testified regarding DNA samples. Specifically, Guy testified

that four swabs from Smith’s sweatpants pocket contained a mixture of DNA

from several individuals from which Gonzalez and Smith could not be

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 7 of 10 excluded as possible contributors. More than “possible contribut[ion]” could

not be established due to the lack of “exclusionary information.” Id. at 155.

Guy provided further statistical data about the significance of the analysis.2

Gonzalez argues that the trial court erred in admitting this evidence. Notably,

however, Gonzalez did not object to the admission of the testimony during

trial. Thus, he has waived this issue on appeal. This is because “[a] trial court

cannot be found to have erred as to an issue or argument that it never had an

opportunity to consider.” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004).

[15] Accordingly, Gonzalez asserts that the trial court committed fundamental error

in admitting the DNA evidence. “The fundamental error doctrine is an

exception to the general rule that the failure to object at trial constitutes

procedural default precluding consideration of the issue on appeal.” Halliburton

v. State, 1 N.E.3d 670, 678 (Ind. 2013). As an exception it is “extremely

narrow, and applies only when the error constitutes a blatant violation of basic

principles, the harm or potential for harm is substantial, and the resulting error

2 Regarding the first swab, Guy testified that “[t]he DNA profile … is a mixture of at least three individuals. [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. It is estimated that 1 in 3,000 unrelated individuals could be a contributor to the mix sample.” Tr. at 145. For the second swab, “[t]he DNA profile … is a mixture of at least four individuals. [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. It is estimated that one in forty unrelated individuals could be a contributor to the mix sample.” Id. at 148. For the third swab, “[t]he DNA profile … is the mixture of at least three individuals. [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. It is estimated that 1 in 1,700 unrelated individuals could be a contributor to the mix sample.” Id. For the fourth swab, “[t]he DNA profile … is the mixture of at least three individuals. [Smith and Gonzalez] could not be excluded as possible contributors to the mix sample. It is estimated that one in seven unrelated individuals could be a contributor to the mix sample.” Id.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 8 of 10 denies the defendant fundamental due process.” Id. In sum, it is available only

in “egregious circumstances.” Id.

[16] Here, the DNA evidence, albeit inconclusive, did not substantially harm

Gonzalez or deny his right to due process. Significantly, at closing argument,

the State conceded that Guy’s testimony was inconclusive and was presented

for the purpose of “[showing that DNA sampling] was done . . . [so that there]

would be no speculation [on the part of the jury] ….” Tr. at 212. The probative

value of such testimony may be minimal, but it cannot be said to have

prejudiced Gonzalez’s substantial rights such that a fair trial was impossible.3

Assuming for argument’s sake that the trial court erred in admitting the DNA

evidence, any error was harmless. “[A]n error of admission of evidence will not

result in reversal of a conviction if the error is harmless. An error will be

viewed as harmless if the probable impact of the evidence upon the jury is

sufficiently minor so as not to affect a party’s substantial rights.” Edmond v.

State, 790 N.E.2d 141, 144-45 (Ind. Ct. App. 2003) (citation and quotation

3 Indiana Evidence Rule 401 states, “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Indiana Evidence Rule 402 states, “Irrelevant evidence is not admissible.” Gonzalez asserts that because the DNA evidence was inconclusive, it was irrelevant and therefore inadmissible. The State rebuts this argument by focusing on Guy’s statistical data, citing Deloney v. State, 938 N.E.2d 724 (Ind. Ct. App. 2010), trans. denied (2011). In Deloney, this Court held that “DNA evidence that does not constitute a match or is not accompanied by statistical data regarding the probability of a defendant’s contribution to a mixed sample is not relevant … and should not be admitted.” Id. at 730. Here, Guy did testify about the statistical data, but on cross-examination it became apparent that the statistical weight of the sample, to determine whether Gonzalez was an actual contributor, was rather tenuous. We note that the mere mention of statistical data does not automatically make such evidence relevant. Deloney does not stand for the proposition that any statistical data regarding DNA evidence suffices for the purposes of relevancy and admissibility. Rather, the statistical data must have the tendency “to make a fact more or less probable.” Ind. Evidence Rule 401.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 9 of 10 marks omitted), trans. denied. Here, the State presented evidence that Gonzalez

had the opportunity to commit the crime and was the last known person to be

with Smith; he fled the scene and evaded authorities under a false name for

over a year and a half; and his own damning statements to his mother-in-law

and wife implicate his guilt. Finding no fundamental error, we affirm

Gonzalez’s murder conviction.

[17] Affirmed.

Baker, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 10 of 10