David C. Rojas v. State of Indiana (mem. dec.)

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

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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.

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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.

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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:

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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

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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

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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

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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.

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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).

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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

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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

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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.

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