MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 16 2020, 9:19 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 Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Oscar Orozco, April 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2408 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff Judge Trial Court Cause No. 71D03-1902-MR-2
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 1 of 7 [1] Oscar Orozco appeals his conviction for Murder.1 He argues that the evidence
is insufficient to disprove his claim of self-defense beyond a reasonable doubt.
Finding the evidence sufficient, we affirm.
Facts [2] On June 10, 2017, Miguel Rosales and a group of his friends, including Orozco
and George Martinez, went to a bar in Mishawaka. At the bar, several groups
of friends met up; the gathering included Bennie Bueno and Joe Caballero.
After last call at the bar, the large group got up and left, walking out to the
parking lot. Once in the parking lot, a fight broke out. “It was a rumble,” with
everyone fighting, including Orozco. Tr. Vol. III p. 91. At some point, Orozco
punched Caballero.
[3] Rosales punched Bueno, knocking him down, and Bueno pulled out a gun.
Martinez grabbed the gun, and he and Bueno struggled for possession of the
firearm. Rosales and another individual jumped on Bueno and began hitting
him. As the struggle continued, Rosales hit Bueno on the head with a beer
bottle, knocking him to the ground. The blow caused a huge cut in Bueno’s
head that bled profusely and caused a hemorrhage around his brain. Rosales
continued to “beat[] [Bueno] up” after Bueno fell to the ground. Tr. Vol. II p.
1 Ind. Code § 35-42-3-1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 2 of 7 191. Martinez was holding the barrel part of the gun, and the gun was going
“up and down.” Tr. Vol. IV p. 64.
[4] At that point, Bueno was no longer fighting. He was leaned up against the
truck with Martinez at his side. Martinez had two hands on the gun and
Rosales had his hands on Bueno’s forearms. Orozco then ran up and shot
Bueno five times in the right side of his back and one time underneath his arm
on the right side of his body. Bueno staggered away, bleeding profusely, and
fell into his friend’s arms and onto the pavement, where he died. After Orozco
shot Bueno, Orozco, Rosales, and Martinez ran to a vehicle, yelling “let’s go,
get out of here,” and drove away. Id. at 30. The gun was “thrown out,” and
Orozco and his friends decided to drive back to Chicago and no one talked
about what had happened because they “didn’t want to know.” Id. at 31, 92.
[5] On February 15, 2019, the State charged Orozco with murder and a firearm
enhancement.2 Orozco’s jury trial began on September 9, 2019, at which he
raised a claim that he had acted in self-defense. The jury found Orozco guilty
of murder on September 12, 2019. Orozco waived his right to have a jury
consider the firearm enhancement, and the trial court found him guilty of the
enhancement. On October 11, 2019, the trial court sentenced Orozco to forty-
five years, enhanced by five years for the firearm use, for an aggregate sentence
of fifty years imprisonment. Orozco now appeals.
2 It is unclear why there was a lengthy delay between the shooting and the filing of the criminal charges.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 3 of 7 Discussion and Decision [6] Orozco’s sole argument on appeal is that the State did not disprove his claim of
self-defense beyond a reasonable doubt. The standard of review for a challenge
to the sufficiency of evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency of the evidence claim. Wallace v. State, 725 N.E.2d
837, 840 (Ind. 2000). Thus, we will neither reweigh the evidence nor assess
witness credibility. Id. If there is sufficient probative evidence supporting the
factfinder’s conclusion, then we will affirm. Id.
[7] A person is justified in using deadly force against another person if he
“reasonably believes that that force is necessary to prevent seriously bodily
injury” to himself or a third person. Ind. Code § 35-41-3-2(c). To assert a
successful claim of self-defense, a defendant must show that he (1) was in a
place he had a right to be; (2) did not provoke, instigate, or participate willingly
in the violence; and (3) had a reasonable fear of death or great bodily harm.
McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). When the defense is raised and
supported by the evidence, the State bears the burden of negating one of the
elements. Id. We will reverse a conviction despite a claim of self-defense only
if no reasonable person could say that the claim was negated by the State
beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999).
[8] The General Assembly has decreed that a person is not justified in using force if,
among other things, “the person has entered into combat with another
person . . . unless the person withdraws from the encounter and communicates
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 4 of 7 to the other person the intent to do so and the other person nevertheless
continues or threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3).
[9] In this case, there was a melee in the parking lot involving many people,
including Orozco. Witnesses testified that “everybody just started fighting,” tr.
vol. II p. 174, “everybody [was] fighting” and it was a “rumble,” tr. vol. III p.
91, “[e]verybody was fighting and running around” and no one was trying to
stop it, tr. vol. II p. 149, and “once the fight broke out, it was just like a domino
effect. Everybody just started fighting,” tr. vol. IV p. 68. Orozco was part of
the melee and punched Joe Caballero during the fight. Tr. Vol. III p. 150.
[10] In other words, Orozco was not an innocent bystander. He was a willing and
active participant. Orozco points out that there is no evidence that he was
involved in combat with Bueno, but in the situation of a large melee we do not
believe that is a relevant fact. Orozco was part of a large group of people and
was, therefore, part of the “everybody” who was fighting. We believe that a
reasonable factfinder could have inferred from these circumstances that Orozco
was a mutual combatant who had not withdrawn and communicated an intent
to do so before he shot Bueno.
[11] Moreover, we also note that before Orozco shot Bueno, Bueno had already
stopped fighting.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 16 2020, 9:19 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 Scott H. Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Oscar Orozco, April 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2408 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff Judge Trial Court Cause No. 71D03-1902-MR-2
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 1 of 7 [1] Oscar Orozco appeals his conviction for Murder.1 He argues that the evidence
is insufficient to disprove his claim of self-defense beyond a reasonable doubt.
Finding the evidence sufficient, we affirm.
Facts [2] On June 10, 2017, Miguel Rosales and a group of his friends, including Orozco
and George Martinez, went to a bar in Mishawaka. At the bar, several groups
of friends met up; the gathering included Bennie Bueno and Joe Caballero.
After last call at the bar, the large group got up and left, walking out to the
parking lot. Once in the parking lot, a fight broke out. “It was a rumble,” with
everyone fighting, including Orozco. Tr. Vol. III p. 91. At some point, Orozco
punched Caballero.
[3] Rosales punched Bueno, knocking him down, and Bueno pulled out a gun.
Martinez grabbed the gun, and he and Bueno struggled for possession of the
firearm. Rosales and another individual jumped on Bueno and began hitting
him. As the struggle continued, Rosales hit Bueno on the head with a beer
bottle, knocking him to the ground. The blow caused a huge cut in Bueno’s
head that bled profusely and caused a hemorrhage around his brain. Rosales
continued to “beat[] [Bueno] up” after Bueno fell to the ground. Tr. Vol. II p.
1 Ind. Code § 35-42-3-1.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 2 of 7 191. Martinez was holding the barrel part of the gun, and the gun was going
“up and down.” Tr. Vol. IV p. 64.
[4] At that point, Bueno was no longer fighting. He was leaned up against the
truck with Martinez at his side. Martinez had two hands on the gun and
Rosales had his hands on Bueno’s forearms. Orozco then ran up and shot
Bueno five times in the right side of his back and one time underneath his arm
on the right side of his body. Bueno staggered away, bleeding profusely, and
fell into his friend’s arms and onto the pavement, where he died. After Orozco
shot Bueno, Orozco, Rosales, and Martinez ran to a vehicle, yelling “let’s go,
get out of here,” and drove away. Id. at 30. The gun was “thrown out,” and
Orozco and his friends decided to drive back to Chicago and no one talked
about what had happened because they “didn’t want to know.” Id. at 31, 92.
[5] On February 15, 2019, the State charged Orozco with murder and a firearm
enhancement.2 Orozco’s jury trial began on September 9, 2019, at which he
raised a claim that he had acted in self-defense. The jury found Orozco guilty
of murder on September 12, 2019. Orozco waived his right to have a jury
consider the firearm enhancement, and the trial court found him guilty of the
enhancement. On October 11, 2019, the trial court sentenced Orozco to forty-
five years, enhanced by five years for the firearm use, for an aggregate sentence
of fifty years imprisonment. Orozco now appeals.
2 It is unclear why there was a lengthy delay between the shooting and the filing of the criminal charges.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 3 of 7 Discussion and Decision [6] Orozco’s sole argument on appeal is that the State did not disprove his claim of
self-defense beyond a reasonable doubt. The standard of review for a challenge
to the sufficiency of evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency of the evidence claim. Wallace v. State, 725 N.E.2d
837, 840 (Ind. 2000). Thus, we will neither reweigh the evidence nor assess
witness credibility. Id. If there is sufficient probative evidence supporting the
factfinder’s conclusion, then we will affirm. Id.
[7] A person is justified in using deadly force against another person if he
“reasonably believes that that force is necessary to prevent seriously bodily
injury” to himself or a third person. Ind. Code § 35-41-3-2(c). To assert a
successful claim of self-defense, a defendant must show that he (1) was in a
place he had a right to be; (2) did not provoke, instigate, or participate willingly
in the violence; and (3) had a reasonable fear of death or great bodily harm.
McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). When the defense is raised and
supported by the evidence, the State bears the burden of negating one of the
elements. Id. We will reverse a conviction despite a claim of self-defense only
if no reasonable person could say that the claim was negated by the State
beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999).
[8] The General Assembly has decreed that a person is not justified in using force if,
among other things, “the person has entered into combat with another
person . . . unless the person withdraws from the encounter and communicates
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 4 of 7 to the other person the intent to do so and the other person nevertheless
continues or threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3).
[9] In this case, there was a melee in the parking lot involving many people,
including Orozco. Witnesses testified that “everybody just started fighting,” tr.
vol. II p. 174, “everybody [was] fighting” and it was a “rumble,” tr. vol. III p.
91, “[e]verybody was fighting and running around” and no one was trying to
stop it, tr. vol. II p. 149, and “once the fight broke out, it was just like a domino
effect. Everybody just started fighting,” tr. vol. IV p. 68. Orozco was part of
the melee and punched Joe Caballero during the fight. Tr. Vol. III p. 150.
[10] In other words, Orozco was not an innocent bystander. He was a willing and
active participant. Orozco points out that there is no evidence that he was
involved in combat with Bueno, but in the situation of a large melee we do not
believe that is a relevant fact. Orozco was part of a large group of people and
was, therefore, part of the “everybody” who was fighting. We believe that a
reasonable factfinder could have inferred from these circumstances that Orozco
was a mutual combatant who had not withdrawn and communicated an intent
to do so before he shot Bueno.
[11] Moreover, we also note that before Orozco shot Bueno, Bueno had already
stopped fighting. He had been repeatedly punched by Rosales and Martinez.
Rosales hit him with a beer bottle and knocked him to the ground, causing a
large head wound that was bleeding profusely. The jury heard testimony that
this significant head trauma “likely would have caused some type of disability
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 5 of 7 of the brain function” that would be potentially severe. Tr. Vol. III p. 17. In
addition to the large wound caused by the bottle, Bueno also sustained the
following injuries before he was shot: a black eye, an abrasion on his back,
multiple abrasions on his face, and multiple small lacerations and tearing of the
tissue in the back of his head. At the time Orozco shot him, Bueno was on the
ground, leaned up against a vehicle. Martinez had control of Bueno’s gun and
Rosales was holding Bueno’s forearms.
[12] A reasonable factfinder could infer from this evidence that it was no longer
objectively reasonable for Orozco to believe that Bueno still posed a risk of
serious bodily injury to anyone because Bueno was simply too incapacitated by
his injuries. Additionally, Orozco shot Bueno five times in the back and once
in the side. See Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007) (“Firing
multiple shots undercuts a claim of self-defense.”). Therefore, even if Orozco
had been justified in using some level of force, the jury could have reasonably
determined that he used excessive force under the circumstances.
[13] Finally, we note that after Orozco shot Bueno, he got in the vehicle with his
friends and fled the state, throwing out the gun at some point in the process.
See Banks v. State, 257 Ind. 530, 538, 276 N.E.2d 155, 159 (1971) (holding that
evidence of a defendant’s flight from the scene and subsequent disposition of
the weapon was competent evidence of consciousness of guilt). In other words,
Orozco’s own conduct shows that he did not believe he had acted in self-
defense. Rather than calling for medical assistance or contacting law
enforcement, he fled the state and disposed of the murder weapon. This is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 6 of 7 probative evidence from which a reasonable factfinder could have concluded
that the murder was not committed in self-defense.
[14] For all these reasons, we find that there is sufficient evidence supporting the
jury’s conclusion that the State disproved Orozco’s claim of self-defense beyond
a reasonable doubt.
[15] The judgment of the trial court is affirmed.
Bradford, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2408 | April 16, 2020 Page 7 of 7