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Galindo v. State

Court of Appeals of Indiana

November 15, 2016

Marco A. Galindo, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Hendricks Circuit Court, The Honorable Daniel F. Zielinski, Judge. Trial Court Cause No. 32C01-1509-MR-1

          Attorney for Appellant Paula M. Sauer Danville, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] Marco Galindo appeals his conviction for murder, a felony, following a jury trial. He presents a single issue for our review, namely, whether the trial court abused its discretion when it refused to instruct the jury on involuntary manslaughter. We affirm.

         Facts and Procedural History

         [¶2] During the early morning hours of November 21, 2002, Galindo and Natalie Horsley went to a vacant apartment in Hendricks County and had sexual intercourse.[1] At some point while they were in the apartment, Galindo became angry and viciously beat and strangled Horsley for at least ninety seconds. Galindo kicked or stomped Horsley's face multiple times in addition to strangling her. Galindo then left the apartment. Galindo left Horsley severely battered on the floor without seeking medical treatment for her injuries.

         [¶3] Later that morning, between 7:00 and 8:00 a.m., a construction crew found

         Horsley's dead body lying on the floor of the vacant apartment[2] and called 9-1-1. Horsley's face was covered in blood, her shirt and bra were pulled up toward her neck, exposing her bare breasts, and her underwear and pants were pulled down to her ankles, exposing her genitals. An electrician named Dylan Vaughn knew how to perform CPR, but he explained to the 9-1-1 operator that he was unable to attempt CPR on Horsley "because there appeared to be not enough face left to . . . administer it properly." Tr. Vol. I at 236. When EMTs arrived at the scene, they confirmed that Horsley was dead.

         [¶4] Deputies with the Hendricks County Sheriff's Department arrived at the scene and found: blood spatter throughout the apartment and bloody footprints; semen on Horsley's abdomen; footprints in the mud outside of the apartment; and two partially-burned cigarettes. Detectives collected a DNA sample from the semen, but they could not find a match in the DNA database. An autopsy revealed that Horsley's death was caused by a combination of having been strangled and severely beaten. Detectives were unable to find a suspect. In the meantime, approximately one month after the murder, Galindo saw a poster about Horsley's death in a bar, but he did not contact law enforcement to discuss his relationship with Horsley or what had happened the night of the murder. And in 2004 or 2005, he moved to California and assumed an alias, Amado Trejo Saludes.

         [¶5] In 2015, detectives "received information on a hit on a database" regarding the Horsley murder. Id. at 155. In particular, they "learn[ed] that a possible person with [the same DNA] profile [as matched the semen found on Horsley's body] had been found" in California. Id. Accordingly, detectives requested and obtained oral swabs from the person, Galindo a/k/a Saludes. Thereafter, Hendricks County Sheriff's Detective Scott Larsen interviewed Galindo. Galindo told Detective Larsen that he and Horsley had known each other and had occasionally engaged in sexual intercourse. Galindo stated that, the night of the murder, he and Horsley had consumed drugs and alcohol. He said that Horsley had threatened to tell Galindo's girlfriend about their relationship, and he became angry. Galindo admitted that he punched her, kicked her, and "had her in the choke[-]type hold standing behind her with his arm around her." Id. at 157. Galindo denied any intent to kill Horsley, and he stated that he did not know she was dead when he left the apartment that morning. In any event, Galindo admitted that he left Horsley severely beaten on the floor of the vacant apartment without seeking medical treatment for her.

         [¶6] The State charged Galindo with murder. At trial, Galindo proffered jury instructions on both voluntary manslaughter and involuntary manslaughter. The trial court agreed to the voluntary manslaughter instruction, but refused to instruct the jury on involuntary manslaughter, finding that there was no serious evidentiary dispute on the issue of Galindo's intent to kill Horsley. A jury convicted Galindo of murder, as charged. The trial court entered judgment of conviction and sentenced Galindo to sixty-five years executed. This appeal ensued.

         Discussion and Decision

         [¶7] Galindo contends that the trial court abused its discretion when it refused his proffered jury instruction on involuntary manslaughter. In particular, Galindo maintains that there is a serious evidentiary dispute whether he intended to kill Horsley when he beat and strangled her. We cannot agree.

         [¶8] At trial, Galindo proffered the following instruction:

The crime of involuntary manslaughter is defined by statute as follows:
A person who kills another human being while committing or attempting a battery, commits involuntary manslaughter, a Class C felony.
Before you may convict the accused, the State must have proved each of the following elements:
1. Marco Galindo
2. killed Natalie Horsley
3. while committing or taking a substantial step to commit
4. a knowing or intentional
5. touching of Natalie Horsley in a rude, insolent, or angry manner.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the accused not guilty of involuntary manslaughter, a Class C felony.

Appellant's App. at 88.

         [¶9] As we explained in Erlewein v. State, 775 N.E.2d 712, 714 (Ind.Ct.App. 2002), trans. denied,

[w]hen called upon by a party to instruct a jury on a lesser included offense of the crime charged, a trial court must perform a three-step analysis. First, it must compare the statute defining the crime charged with the statute defining the alleged lesser included offense to determine if the alleged lesser included offense is inherently included in the crime charged. Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). Second, if a trial court determines that an alleged lesser included offense is not inherently included in the crime charged under step one, then it must determine if the alleged lesser included offense is factually included in the crime charged. Id. at 567. Third, if a trial court has determined that an alleged lesser included offense is either inherently or factually included in the crime charged, it must look at the evidence presented in the case by both parties to determine if there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater. Id. It is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense if there is such an evidentiary dispute. Id. "If the evidence does not so support the giving of a requested instruction on an inherently or factually included lesser offense, then a trial court should not give the requested instruction." Id.
"Involuntary manslaughter is not an inherently included lesser offense of murder." Evans v. State, 727 N.E.2d 1072, 1081 (Ind. 2000). "But it is a 'factually included' lesser offense if the charging instrument alleges that a battery accomplished the killing." Id. Here, the State does not challenge Erlewein's assertion that involuntary manslaughter was factually included in the murder charge against him because the information alleged that he killed A.E. by battering her, i.e. knowingly or intentionally touching A.E. in a rude, insolent, or angry manner. See Ind. Code § 35-42-2-1(a). Instead, the State focuses its argument on whether there was a serious evidentiary dispute regarding the element distinguishing involuntary manslaughter from murder. "The critical element distinguishing involuntary manslaughter from murder in this case is intent-the intent to kill or the intent to batter." See Evans, 727 N.E.2d at 1081.
We note that in deference to the trial court's proximity to the evidence, we review a decision whether to instruct the jury on lesser included offenses for an abuse of discretion if the court makes a finding as to the existence or lack of a "serious evidentiary ...

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