Opinion
22A-CR-2807
08-28-2023
Heriberto De Jesus Hernandez- Zuluaga, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Yvette M. LaPlante LaPlante LLP Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause No. 82C01-2203-F1-1420
ATTORNEY FOR APPELLANT
Yvette M. LaPlante
LaPlante LLP
Evansville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Heriberto De Jesus Hernandez-Zuluaga appeals his conviction of Level 4 felony child molesting, asserting the sole issue of whether the trial court committed fundamental error by failing to give a specific jury instruction on unanimity. Finding no error, we affirm.
Facts and Procedural History
[¶2] Hernandez-Zuluaga was alleged to have repeatedly molested M.C., his stepdaughter, over a period of years. The State charged him with four counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting. A jury found him guilty of Count 5, a Level 4 felony, and he now appeals.
Discussion and Decision
[¶3] Hernandez-Zuluaga contends the trial court's failure to give a specific unanimity instruction constitutes fundamental error. Instructing the jury lies solely within the discretion of the trial court, and we will reverse only upon an abuse of that discretion. Ellis v. State, 194 N.E.3d 1205, 1214 (Ind.Ct.App. 2022), trans. denied. In order to conclude the trial court abused its discretion, this Court must find that the instructions taken as a whole misstate the law or otherwise mislead the jury. Proffit v. State, 817 N.E.2d 675, 683 (Ind.Ct.App. 2004), trans. denied. We consider the jury instructions as a whole and in reference to each other, not in isolation. Fuentes v. State, 10 N.E.3d 68, 73 (Ind.Ct.App. 2014), trans. denied.
[¶4] We first address the State's allegation that Hernandez-Zuluaga has waived his argument because he has not provided us with a record that definitively indicates the final instructions given to the jury. We acknowledge the defendant bears the burden of presenting us with an adequate record clearly showing the alleged error, and a failure to do so waives the argument. Davis v. State, 935 N.E.2d 1215, 1217 (Ind.Ct.App. 2010), trans. denied. Nevertheless, we will address Hernandez-Zuluaga's contention with the record we have and assume, for the sake of this appeal, that the trial court did not give a specific unanimity instruction.
[¶5] To begin, Hernandez-Zuluaga acknowledges that he neither objected to the court's instructions nor tendered his own instruction on unanimity and must therefore establish fundamental error. Failure to timely object to a jury instruction results in waiver on appeal, unless giving the instruction was fundamental error. Barthalow v. State, 119 N.E.3d 204, 211 (Ind.Ct.App. 2019) (quoting Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000)). An error is fundamental if it amounts to a blatant violation of basic principles that is so prejudicial to the defendant's rights that a fair trial is impossible. Id. (quoting Moreland v. State, 701 N.E.2d 288, 294 (Ind.Ct.App. 1998)). The fundamental error exception to the general rule requiring a contemporaneous objection is narrow and provides relief only in egregious circumstances. Id. (quoting Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016)).
[¶6] The jury heard evidence that Hernandez-Zuluaga committed multiple acts of molestation against M.C. over a period of several years. Although Hernandez-Zuluaga was charged with multiple counts, the jury found him guilty only of Count 5. The jury instruction defining Count 5 did not designate which specific act the State relied on to support the charge. Consequently, Hernandez-Zuluaga contends that some jurors may have relied on different evidence than other jurors to convict him. And because the jury was not instructed as our Supreme Court directed in Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011), he claims fundamental error resulted.
[¶7] In Baker, the defendant was charged with three counts of molestation, each with a different victim. At trial, the jury heard evidence of multiple acts of molestation concerning each victim, and Baker was found guilty as charged. On appeal, Baker asserted his convictions must be vacated because they were not the product of unanimous jury verdicts. The court recognized that where there is evidence of a greater number of separate criminal offenses than the defendant is charged with and the charging information does not designate the specific act underlying each of the offenses, a basic unanimity instruction is insufficient. See id. at 1175-79. Absent a specific unanimity instruction, the jury could unanimously agree the defendant was guilty, yet, in doing so, rely on different acts in evidence. Id.
[¶8] To remedy this issue, our Supreme Court held that the State may, in its discretion, designate a specific act or acts on which it relies to prove a particular charge. Id. at 1177. However, if the State does not do so, the jury should be instructed that in order to convict the defendant it must either unanimously agree upon the act or acts committed by the defendant or unanimously agree the defendant committed all of the acts described by the victim and included within the time period charged. Id. Although neither of these procedures was followed, the Court nevertheless determined that Baker waived the issue because he neither objected to the court's instructions nor offered an instruction of his own. Id. at 1178. The Court then reviewed the record for fundamental error and found none, stating that the only issue at trial was the credibility of the victims which the jury resolved against Baker such that it would have convicted him of any of the offenses shown by the evidence. Id. at 1179.
[¶9] The same is true here. The State did not designate the specific act of molestation it relied on to support the charge in Count 5, and the instructions did not properly advise the jury as to the requirement of unanimity. Further, Hernandez-Zuluaga neither objected to the court's instructions nor tendered his own instruction, and the key issue in the case was the credibility of M.C.
[¶10] Nevertheless, to buttress his claim of fundamental error, Hernandez-Zuluaga points to the jury's questions. During deliberations, the jury asked the court: "Can we please have clarification written down for each count?" Appellant's App. Vol. 2, p. 134. By agreement of the parties, the court responded that the jury had all the instructions it was going to receive. Next, the jury asked, "What happens if we can't come to a unanymous [sic] decision? What happens if we are unanynmous [sic] on some charges?" Id. Again, by agreement of the parties, the court responded that the jury was to continue deliberating.
[¶11] In his brief, Hernandez-Zuluaga contends, "Both times, the court declined to issue a supplemental instruction and, instead, sent the jury back to deliberate without additional guidance." Appellant's Br. p. 15. To the extent Hernandez-Zuluaga asserts the court acted erroneously in responding to the jury's questions and that this in some way supports his allegation of fundamental error, we will not consider the claim because he invited the alleged error by agreeing to the court's responses. See Bush v. State, 208 N.E.3d 605, 611 (Ind.Ct.App. 2023) (invited error is more than passive lack of objection and typically forecloses appellate review), trans. denied.
[¶12] Further, Hernandez-Zuluaga speculates on the root of the jury's questions and declares they are a "clear indication that the erroneous jury instruction" made a fair trial impossible. Appellant's Br. p. 15. However, there is no evidence to support this theory and thus his claim of fundamental error. The jury's questions concerning unanimity could just as easily relate to the fact that they had reached a unanimous decision on one charge but not on any of the other charges. This is likely, as the jury found Hernandez-Zuluaga guilty of only one of six charges. Therefore, we are not persuaded by this speculation.
Conclusion
[¶13] We conclude that Hernandez-Zuluaga has not demonstrated that the instructional error in this case so prejudiced him that he was denied a fair trial.
[¶14] Affirmed.
Riley, J., and Kenworthy, J., concur.