Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 1 of 22

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

P. Jeffrey Schlesinger

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead 

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jovanni Torres,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 20, 2019

Court of Appeals Case No.

18A-CR-1643

Appeal from the Lake Superior 

Court

The Honorable Salvador Vasquez, 

Judge

Trial Court Cause No.

45G01-1610-MR-5

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 2 of 22

Case Summary

[1] Jovanni Torres appeals his conviction for murder, asserting that the trial court 

erred when, after granting the State’s Motion to Exclude Alibi Witnesses, it did 

not allow him to call two witnesses. He argues that the two witnesses were 

rebuttal witnesses, not alibi witnesses, and that the trial court abused its 

discretion when it did not permit them to testify. The State maintains that the 

trial court properly determined that the witnesses were alibi witnesses and 

excluded them because Torres failed to file a notice of alibi defense or show 

good cause for not doing so.

[2] We affirm.

Facts & Procedural History

[3] Torres began dating Aimee Giro sometime in early 2016. Giro lived with her 

father, Juan Giro Cruz, but she would sometimes spend overnights and 

weekends with Torres at his residence, which was a home owned by his mother 

located at 2701 New Hampshire Street, in Lake Station, Indiana. 

[4] Torres had previously been in a ten-year relationship with Elizabeth Hooper. 

Torres and Hooper had a child together in 2001, and although their relationship 

ended in 2011, Torres and Hooper remained “close” friends. Transcript Vol. 3 at 

4. Hooper took their daughter to Torres’s home most weekends for their 

daughter to stay with him. During the late afternoon of Friday September 30, 

Hooper dropped off her daughter there for the weekend. 
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[5] On the evening of Friday September 30, 2016, Giro was going to a bachelorette 

party for her best friend, Jaclyn Havens. Cruz dropped off Giro at Havens’s 

house, and from there, a group went by limousine to a Chicago nightclub. The 

group returned by limo to Havens’s home at around 3:00 a.m., and then 

another friend, Tammy McHargue, drove Giro to Torres’s home, dropping off 

Giro around 4:00 or 4:30 a.m. on October 1. McHargue asked Giro if she 

“would be alright” getting dropped off there, which she asked because “[Torres] 

was known to be abusive to her.” Transcript Vol. 2 at 85. 

[6] Around 4:00 a.m., Giro sent a text message to a coworker, Eric Jorgenson. She 

and Jorgenson had worked together at Baker’s Square restaurant for about one 

and one-half years and had become friends. In her text, Giro told Jorgenson 

that she could take his 5:00 p.m. shift that day, Saturday October 1. Jorgenson 

did not see the text until he woke up around noon, and he responded to Giro, 

but did not hear back from her. Giro did not show up for work she had 

offered, so Jorgenson worked the shift.

[7] At around 2:00 p.m. on October 1, Havens tried to contact Giro because Giro 

still had Havens’s ID and some of her money from the bachelorette party, but 

Havens did not hear back from Giro. Havens tried to reach Giro repeatedly on 

October 2 and 3, and Havens’s mother started calling hospitals in search of 

Giro. At some point, Havens contacted Giro’s father, trying to find out if 

anyone knew where Giro was. Giro was on the Baker’s Square work schedule 

for October 2, but she did not show up, which her manager, Linda Vankley, 

found unusual because, while Giro was often late, she did not miss work. 
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Giro’s cousin, Jeannette Hard, who had a close relationship with Giro and saw 

her regularly, expected Giro at a family member’s quinceanera party on the 

afternoon of October 1. Giro never came. 

[8] Hooper picked up her daughter from Torres’s home on Sunday, October 2. 

Torres opened the back door and sort of “pushed” his daughter outside and 

closed the door without speaking to Hooper, which Hooper thought was odd 

since they usually would have a conversation. Transcript Vol. 3 at 18.

[9] On October 5, having not heard from his daughter in days, Cruz, accompanied 

by his friend Enrique Ayala, went to Torres’s home. They saw foil covering the 

windows, flies in the windows, and noticed “a terrible smell” coming from 

around the closed door. Id. at 61. They then went to the home of Torres’s 

mother. Torres was at the home and spoke to Cruz telling him that he had not 

seen Giro in a couple of days. Cruz advised he was going back to Torres’s 

house and contacting police, which he did, after stopping briefly at one more 

possible location in search of his daughter.

[10] Cruz and Ayala returned to Torres’s home, and Ayala called 911 at about 12:50 

p.m. Police responded quickly. They saw flies inside the foil-covered windows 

and smelled what they recognized as decomposing body through the cracks 

around the back-door frame. About the same time, Torres and his brother, in 

separate vehicles, also arrived on the scene. Officers explained that they were 

there on a welfare check, looking for Giro because her family and friends could 

not find her. As captured on the body camera of one of the officers, Torres told 
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police, “I don’t know where Aimee’s at. She’s MIA.” State’s Exhibit 12A. 

Police explained that they wanted to go into the house to look for her, and 

Torres said, “Aimee’s not here. She left. She does this all the time.” Id. When 

asked when he was last at the house and when he last saw Giro, Torres said it 

had been a couple of days. Torres, who appeared to be “nervous,” explained to 

officers that Giro was “tired” of him “popping Adderall,” so she “took off” and 

“hasn’t come back.” Transcript Vol. 5 at 175; State’s Exhibit 12A. An officer 

stated that the family was concerned, and Torres said, “I am too. I was calling 

her.” State’s Exhibit 12A. When officers asked Torres if he had a key, he said 

“Yeah but it’s not my house.” Id. They again asked for the key, and he said 

that he did not have a key “on him.” Id. Thereafter, police entered the home

and found a woman, later determined to be Giro, in a locked bedroom, dead on 

the floor between the bed and the wall, wrapped in a comforter. There was 

blood on the blanket and a bullet hole in the wall. Police found a spent shell 

casing near the lower half of her body. A Hi-Point .45 caliber pistol, which 

police later determined was owned by Torres, was found nearby wrapped in a 

robe. An autopsy revealed that Giro had been shot multiple times, and she was 

estimated to have died on October 1 or 2.

[11] On October 14, 2016, the State charged Torres with one count of murder. In

October 2017, the State filed an amended information adding an enhancement 

for use of a firearm while committing the offense of murder.

[12] A jury trial commenced April 23, 2018, and during opening statements, defense 

counsel made remarks indicating that Torres was not at his home when Giro 
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was killed, stating “He was not in the residence. His family was baby-sitting 

him trying to get him flushed – the drugs flushed out of his system.” Transcript 

Vol. 2 at 30. He continued, “[Torres] was not home when Aimee was picked up 

and taken to the bachelor party or dropped off for [sic] the bachelor party. He 

did not come home at any time while [s]he was missing.” Id. Thereafter, and 

out of the presence of the jury, the State raised the following issue:

The answer that was filed in discovery had nothing to do with an 

alibi.1

 Now [defense counsel’s] clearly . . . arguing defendant 

wasn’t there. He was with his family. 

[I]f he’s going to argue that there’s an alibi defense, the [S]tate 

should have had that information at this point; otherwise, he 

should be precluded from arguing that. So he’s put it out there. 

And now, it’s hey, [S]tate, it’s up to you to prove what? He 

wasn’t there? I mean, we don't even know who the alibi is.

Id. at 33-34. The trial court stated:

I think case law clearly indicates that a defendant may raise alibi 

at any point. And even though it’s -- you know, it’s a defense 

that ought to be raised, it’s improper for a Court to preclude the 

defendant from raising his own alibi should he testify to that 

extent. The remedy would be if he presents late witnesses or witnesses

that may talk of alibi, now maybe we’re talking about something 

 

1 The record reflects that Torres’s Answer to Discovery, filed in October 2017, states as follows with regard to 

“Defenses”: “The Defendant intends to argue insufficient evidence at the trial of this case.” Appellant’s 

Appendix Vol. 2 at 74.
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different at that point, whether an argument exists on whether 

the [S]tate could preclude them from testifying.

Id. at 34 (emphasis added).

[13] Counsel for Torres then stated: 

The two individuals that I named2 may or may not be rebuttal 

witnesses. It just depends what the [S]tate’s evidence is going to

be. If anybody knows them, I thought I had an obligation to

bring it out. They may or may not testify, and [Torres] may or 

may not testify. . . . [T]he law’s clear that any defendant at any 

time can indicate that he was somewhere other than when --

where and when the crime had been committed[.]

Id. at 36. The trial court directed the State to “file a motion” as to its position. 

Id. at 37.

[14] The next day, April 24, 2018, the State filed a motion to exclude alibi witnesses. 

In it, the State asserted:

During jury selection, defense counsel listed a witness whom the 

State was unaware of and who had not been previously tendered 

in discovery. The first time the State was learning of this witness 

was during jury selection.

In opening statements, defense counsel discussed the defendant’s 

alibi defense which was that the defendant was not present when 

 

2 Torres appears to have named two individuals as possible defense witnesses in jury selection, but this 

portion of jury selection is not included in the record before us. 
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Aimee Giro was killed, and further that the defendant was with 

his relatives at the time the crime was committed.

The defendant has never filed an alibi defense, has never listed 

any alibi witnesses, and has never given the State any 

information regarding the defense or witnesses.

The cure at this point is to exclude all witnesses that pertain to an 

alibi defense. Waiting until opening statements to mention an 

alibi defense does not give the State any time to investigate such 

claims. Simply deposing said witnesses is not a cure. The only 

remedy at this point should be for the Court to exclude said 

witnesses.

Appellant’s Appendix Vol. 2 at 109-110. 

[15] The jury trial continued through April 27, 2018, during which the State 

presented investigative and forensic evidence showing that Giro was shot five 

times. A shell casing was found near her body, and it came from the Hi-Point 

.45 caliber pistol found in the home, which gun Torres had purchased in 2007. 

The last outgoing text from Giro’s phone was her text to Jorgenson at 4:13 a.m. 

on October 1. All incoming texts messages after that time remained unread. 

There were frequent calls and messages from Torres’s cell phone to Giro up 

until September 27, but not thereafter.

[16] The State also presented evidence from friends, family members, and 

coworkers. Jorgenson testified that, a couple of weeks before she was killed, he

observed Giro at work with a black eye. He said that, on that day, Torres came 

into the restaurant, sat in a booth, ate, and then stayed the entire shift. Giro’s 
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manager at work, Vankley, also recalled that Giro had come into work with a 

black eye a couple of weeks before her death. She testified that Giro was 

generally a happy person but got “pissed off” when asked how she got the black 

eye. Transcript Vol. 2 at 144. She further testified that Giro told her that she and 

Torres had gotten into a fight because Giro had found child porn on Torres’s

computer and smashed it. McHargue, who was the last to see Giro alive,

testified that she knew that when she dropped off Giro on October 1 that Giro 

was “in the process of trying to break up with him and leave him because of the 

abuse.” Id. at 85.

[17] Giro’s cousin, Hard, testified that she and Giro were very close and talked or 

saw each other most days, although that became less frequent during the time 

that Giro was dating Torres. Hard testified that she was concerned about 

Giro’s relationship with Torres, recalling that she saw a bruise on Giro’s face 

about six months after they started dating and, another time, she saw marks on 

Giro’s arm. Hard testified to an occasion about a month before Giro’s death, 

when Giro had called Hard around 2:00 a.m. and asked Hard to pick her up

from Torres’s home. Hard found Giro walking on the side of the road, about 

two blocks from Torres’s house. According to Hard, Giro was crying 

hysterically and wearing only a t-shirt and underwear and carrying flip flops. 

Giro told Hard that she “want[ed] to go home” to her father’s house, so Hard 

took her there, but did not question Giro at that time, thinking Giro would talk 

about it when she was ready to do so. Id. at 175. Hard described that Giro 
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“changed” after about seven months of dating Torres, becoming more distant 

and making excuses why she could not spend time with Hard. Id. at 177.

[18] Hooper testified that, while she and Torres remained “close” friends, she found 

him to be jealous and controlling. Transcript Vol. 3 at 4. Hooper had met Giro 

a couple of times. She testified that she observed a fight between them, about a 

month before Giro’s death, when Hooper and her boyfriend at the time, and 

Torres and Giro were all at a park together, and a man came up and spoke to 

Giro. Torres did not like it and told Hooper that Giro “should have walked 

away.” Id. at 6. On another occasion, Hooper said that Torres told her that he 

“didn’t trust” Giro. Id. at 7. Hooper testified that, a couple of weeks before 

Giro’s death, Torres told her that Giro had broken his laptop because she found 

him looking at child porn. He told Hooper that he “didn’t want [Giro] around 

no more,” that she “knew too much” and that he “doesn’t know what to do and 

[] has to get rid of her.” Id. at 12-13.

[19] With regard to picking up her daughter from Torres’s house on October 2, 

Hooper testified that it was 7:00 or 8:00 p.m. and that Torres’s car was in the 

driveway. She did not remember seeing foil or flies in the windows. She 

recalled asking her daughter, “[W]here’s Aimee?” – Hooper said she often 

would ask that – and the daughter replied that she was sleeping. Id. at 34, 52. 

Hooper was not made aware by her daughter of anything usual having

happened at the house that weekend. Hooper acknowledged telling police after 

the murder that, according to Torres, Giro had found child porn on his 

computer and that he told Hooper, “I’m going to end up killing this bitch.” Id. 
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at 43. When asked why she continued to take her daughter to his house, 

Hooper replied that “I don’t see him ever hurting her,” and “[h]e was a good 

dad.” Id. at 46-47.

[20] Officer Michael Smith, a patrol sergeant with the Lake County Police 

Department testified that on Sunday October 2, he was working traffic 

enforcement on the 6:00 a.m. to 6:00 p.m. shift and was parked much of the 

day at the intersection of 27th Avenue and New Hampshire, facing north, 

watching for people to run the stop sign. Officer Smith recalled that on October 

2, he saw Torres leave his residence at about 11:00 a.m. He was walking a 

small dog and walked to the road and headed south. Sometime after Giro was 

found dead in the home on October 5, Officer Smith told his senior officer, 

Detective Brian Williams, that “I was just over here a couple days ago . . . and 

saw Jovanni Torres walk out the front door on Sunday [October 2].” Transcript 

Vol. 5 at 20. Officer Smith explained that he was sure of the date as being

October 2 because he also made an unrelated arrest there that day. 

[21] After Officer Smith’s direct testimony, counsel for Torres sought and received a 

side bar conference. He argued to the trial court that Officer Smith’s testimony 

about seeing Torres walk out of his house on October 2 was a “surprise.” Id. at 

16. The State responded that Officer Smith had been on the witness list since 

October 2016 and that a report was never provided to the defense because no 

report was generated. Thereafter, defense counsel proceeded to cross-examine 

Officer Smith who explained that “You cannot write a report about every single 

thing you see,” and that at the time that he saw Torres, “I had no idea that this 
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was even relevant. I wasn’t looking for Jovanni Torres. I had no idea anything 

had even happened in that residence.” Id. at 21. 

[22] After Officer Smith was released as a witness, Torres’s counsel moved for a 

mistrial, arguing that Torres “was never made aware that this witness, Officer 

Smith, was going to testify to this,” noting there had been no reference 

anywhere in discovery to it. Id. at 28. The State responded that “there is no 

rule that requires us to tell the defense every single thing a witness is going to be 

testifying to.” Id. at 29. The State noted that Hooper’s testimony about picking 

up her daughter on October 2 corroborated Officer Smith’s testimony and 

advised that it had another witness who would be testifying to seeing the same 

thing that Officer Smith saw. The trial court denied Torres’s motion for 

mistrial, noting “You being surprised at this testimony is simply not sufficient 

to grant your request.” Id. at 31.

[23] Next, the State presented the testimony of Tina Anderson. Anderson’s 

boyfriend’s mother lived near Torres, and Anderson sometimes lived there with 

her boyfriend and his mother. She did not know Torres personally, but was 

familiar with him generally, having seen him around the neighborhood. 

Anderson testified that on Sunday October 2, she was riding as a passenger 

with her boyfriend in a car and they stopped at the stop sign in front of Torres’s 

home. Anderson said she saw Officer Smith, who she knows, sitting in his 

police car near the stop sign. Anderson testified that she and her boyfriend saw 

Torres come out of his house and walk toward a car. She did not recall whether 

he had a dog with him at the time. When asked how she was sure that it was 
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October 2, Anderson explained that she knew it was the Sunday right before 

Giro’s body had been found, and she knew it was a Sunday because she and her 

boyfriend were going down the street to buy beer illegally (due to no Sunday 

alcohol sales). Anderson recalled that not long after October 5, she ran into 

Officer Smith, who she knew, and mentioned to him that she had seen him at 

the stop sign on October 2, noting to him that “it was a shame that there was 

somebody laying in that house dead when we were both passing it[.]” Id. at 43. 

[24] Counsel for Torres renewed his motion for a mistrial, arguing that, like Officer 

Smith, he did not know Anderson was going to testify that she saw Torres on 

October 2. The trial court denied the motion. 

[25] On the fourth day of trial, when the State had two witnesses left, the trial court 

addressed whether defense intended to call witnesses, determining that “we

need to take up the [State’s] motion to exclude at this point. The State sees 

these [witnesses] as, [] based on your opening statement, as alibi witnesses” and 

“they’re moving to exclude them.” Id. at 109. Counsel for Torres argued that 

he wanted to call two witnesses, namely Torres’s brother, Joel, and mother,

Ivette, not to state where Torres was during a period of time, but in order to 

rebut the testimony of Officer Smith and Anderson, who testified to having seen 

Torres walk out of his house on October 2. Torres’s counsel suggested that he 

suspected that “there was an attempt on somebody’s part . . . to hide these 

witnesses.” Id. The State asserted that it was “offensive” to suggest that the 

State was trying to hide witnesses, “when they have been tendered in discovery, 

that he’s had all this time to depose them[.]” Id. at 110.
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[26] The trial court noted its concern that defense had not filed a notice of alibi nor 

named the two potential witnesses until jury selection. Torres’s counsel 

responded that Joel and Ivette would be rebuttal witnesses, although Ivette

“could also place [Torres] someplace other than at that residence during the 

time periods mentioned” if allowed to so testify. Id. at 112. With regard to 

Ivette, the State indicated, “[I]f she wants to testify . . . about anything other 

than an alibi . . ., fine,” but if she would be testifying that “he was with me and 

we were at a specific place,” then “that is not fair to do . . . to the State[.]” Id. 

at 114. 

[27] After hearing argument, the trial court determined that defense counsel’s 

remarks during opening statements, indicating that Torres was not at the 

residence, constituted an alibi and that Torres had not shown good cause for 

failing to timely file an alibi defense. Therefore, it granted the State’s motion to 

exclude the testimony of Joel and Ivette and did not allow Torres to call them 

for any purpose, alibi or rebuttal.

[28] Torres’s counsel then made an offer of proof that Joel would testify that, 

contrary to Hooper’s testimony, Hooper did not drop off her daughter with 

Torres on September 30 and pick her up on October 2, and that, instead, 

Hooper dropped off her daughter with Joel and his girlfriend for the weekend. 

Joel would also testify that Hooper contacted Joel after she testified at trial and 

told him that she had lied about this in court. With regard to Ivette, the offer of 

proof was that she would testify that she had Torres’s dog at her house for the 
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weekend in question, such that Officer Smith could not have seen Torres exit 

his house walking a dog. The trial court thereafter observed: 

You know, having all that information, that just tells me that you 

should have listed them as potential witnesses from the onset of 

the case, if not during the course of the almost year and a half 

you’ve had this case. Your request is denied.

Id. at 118.

[29] The State presented additional witnesses and then rested. Torres rested without 

presenting any evidence. The jury found Torres guilty of murder, and in a 

second phase, the jury found him guilty of use of a firearm during the 

commission of murder. The trial court sentenced Torres to sixty years 

enhanced by ten years for use of a firearm. Torres now appeals.

Discussion & Decision

[30] Torres claims that the trial court abused its discretion when it refused to allow 

him to call Joel and Ivette to testify. The trial court has broad discretion in 

ruling on the admissibility of evidence. Edwards v. State, 930 N.E.2d 48, 49

(Ind. Ct. App. 2010), trans. denied. We will reverse such a ruling only when the 

trial court abuses its discretion. Id. An abuse of discretion occurs when the trial 

court’s action is clearly erroneous and against the logic and effect of the facts 

and circumstances before it. Washington v. State, 840 N.E.2d 873, 879 (Ind. Ct. 

App. 2006), trans. denied. To reverse, there must be (1) error by the court, (2) 

that affects the defendant’s substantial rights, and (3) the defense must have 
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made an offer of proof or the evidence must have been clear from the context. 

Edwards, 930 N.E.2d at 50.

[31] On appeal, Torres argues that the trial court did not allow the witnesses to 

testify “due to defense counsel’s failure to file a notice of alibi pursuant to 

Indiana statute,” but that the trial court “was incorrect because the testimony of 

the witnesses did not constitute an alibi within the legal definition[,]” and 

instead, the two proposed witnesses “contradicted specific facts in the testimony 

of the [S]tate’s witnesses who claimed to have seen Torres at the residence.” 

Appellant’s Brief at 9-10. That is, he maintains that he sought to call them, not as 

alibi witnesses to place him at a location other than the scene of the crime, but 

as witnesses to rebut the testimony of the State’s witnesses who said that they 

saw Torres at his residence on October 2 and that the trial court should have 

allowed them to testify. The State, on the other hand, argues that the witnesses’

proposed testimony was intended to prove that Torres was not at the house, 

i.e., he was somewhere else, such that “[t]he witnesses were clearly alibi 

witnesses.” Appellee’s Brief at 19. The State continues that, because “the defense 

did not disclose the witnesses through discovery prior to trial as required[] and 

[] did not give notice of its alibi defense prior to trial,” the trial court was correct 

to grant the State’s Motion to Exclude them as alibi witnesses. Id. 

[32] Alibi has been defined as:

(1) a defense based on the physical impossibility of a defendant’s 

guilt by placing the defendant in a location other than the scene 

of the crime at the relevant time;
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(2) the fact or state of having been elsewhere when an offense 

was committed.

Edwards, 930 N.E.2d at 50 (quoting Black’s Law Dictionary 84 (9th ed. 2009)). 

Our Supreme Court has observed:

In criminal law ‘alibi’ means elsewhere or in another place. It is 

a mode of defense to a criminal prosecution, where the party 

accused, in order to prove he could not have committed the 

crime with which he is charged offers evidence to show that he 

was in another place at the time the alleged crime was 

committed.

Edwards, 930 N.E.2d at 50 (quoting Freeman v. State, 231 N.E.2d 246, 250 (Ind. 

1967)). Ind. Code § 35-36-4-1 requires that when a defendant, who is charged 

with a felony, intends to offer in his defense evidence of an alibi, he must file 

with the court and serve upon the prosecutor, no later than twenty days prior to 

the omnibus date, a written statement of his intention to offer such a defense. A 

defendant who does not timely file the notice of alibi defense may show good 

cause for not doing so. If the defendant fails to show good cause, the trial court 

“shall exclude evidence offered by the defendant to establish an alibi. Ind. 

Code § 35-36-4-3(b); Washington, 840 N.E.2d at 879. 

[33] Here, the first mention of the two witnesses appears to have been during jury 

selection. This timing casts doubt on Torres’s claim that the two were rebuttal 

witnesses because at that point nothing had been presented to rebut. Further, 

defense counsel’s comments during opening statements – that Torres was not at 

the residence when Giro was dropped off after the bachelorette party and “[h]e 
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did not come home at any time when [Giro] was missing” – indicated that 

defense would be pursuing the theory that Torres was somewhere else and 

therefore could not have been the person who killed Giro. Transcript Vol. 2 at 

30. Given this record, we understand the trial court’s decision to exclude alibi 

testimony from those wtinesses. However, after the trial court granted the 

State’s Motion to Exclude Alibi Witnesses, Torres’s counsel presented an offer 

of proof as to each witness’s proposed testimony. According to that offer, Joel’s 

testimony was going to be that Hooper did not drop off her daughter with 

Torres but, instead, dropped her off with Joel and his girlfriend, the implication 

being that Hooper did not see Torres on October 2 as she had testified. Ivette’s 

testimony was going to be that Torres’s dog was with her all weekend, the 

implication being that Officer Smith could not have seen Torres walking his dog 

on October 2 as he had testified. Torres argues that this evidence, to refute the 

State’s witnesses who said they saw him at the house, is not alibi evidence 

under Indiana law. We agree with him in this regard. 

[34] In Edwards, the defendant sought to call witnesses who were at the scene of the 

crime and would testify that they did not see Edwards there. The State moved 

to exclude the witnesses on the ground that Edwards had not provided proper 

notice of an alibi defense. Defense counsel made an offer of proof as to the two 

witnesses, stating that each would have testified that he or she was at the crime 

scene and Edwards was not. The trial court granted the State’s request to 

exclude the two witnesses because Edwards had not filed an alibi notice. 

Ultimately, Edwards was found guilty of felony reckless homicide and 
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appealed. On appeal, this court held that “evidence of a defendant’s absence 

from a crime scene is not an ‘alibi’ defense. Rather, it is a rebuttal of the 

prosecution’s contention that the defendant was present and thus capable of 

committing the crime.” 930 N.E.2d at 52. Therefore, the Edwards court held 

that the trial court should not have excluded the witnesses on the ground that 

they were alibi witnesses. Torres maintains that, as in Edwards, Joel and Ivette 

were going to testify to rebut the State’s contention that Torres was present at 

his home on October 2 and thus capable of committing the crime, and, 

therefore, the testimony of his two witnesses should not have been excluded as 

alibi witnesses. We agree and find that the offer of proof shows that Ivette and 

Joel would have provided rebuttal evidence, and we must decide whether the 

trial court should have admitted it.

[35] As an initial matter, we do not disagree with the trial court’s observation that, 

given the information that those witnesses had to offer, they should have been 

disclosed to the State prior to trial as potential witnesses. That being said, we 

observe that, when the trial court was receiving argument on the State’s Motion 

to Exclude Alibi Witnesses, the prosecutor did not oppose Ivette being called as 

a witness if her testimony was limited to rebuttal only, stating as follows: “[I]f 

she wants to testify . . . about anything other than an alibi,” then that would be 

“fine,” but if she would be testifying that Torres was with her at a specific place, 

then “that is not fair to do . . . to the State[.]” Transcript Vol. 5 at 114. Based on 

the State’s position that limited rebuttal evidence would be “fine,” as well as the 

substance of the offer of proof, we find that Torres should have been permitted 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 20 of 22

to present the testimony of Ivette and Joel. However, we find that such error 

was harmless. “An error in the exclusion of evidence is harmless if its probable 

impact on the jury, in light of all the evidence in the case, is sufficiently minor 

so as not to affect the defendant’s substantial rights.” Washington, 840 N.E.2d 

at 884 (citing Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999), cert. denied, 528 

U.S. 1170 (2000)).

[36] Here, aside from the testimony of Officer Smith, Anderson, and Hooper who

each testified to seeing Torres at his house on October 2, the State presented 

substantial evidence of Torres’s guilt. Giro’s coworker and manager saw her

come to work with a black eye about two weeks before her murder. About a 

month before Giro’s death, Giro called and asked Hard to pick her up at 2:00 

a.m.; Hard found Giro about two blocks from Torres’s home, walking along the 

road, crying and hysterical, and wearing only a shirt and underwear. Hooper, 

who considered Torres to be a close friend, testified that Torres was controlling 

and jealous. Hooper had witnessed a fight between Giro and Torres about a 

month before Giro’s death, in which Torres was mad that Giro was speaking to 

another man at a park and told Hooper that he did not trust Giro. He also told 

Hooper that Giro had discovered child porn on his computer and that she knew 

too much and he had to get rid of her. Giro had told her manager that she 

found child porn on Torres’s computer and that they fought, resulting in her 

black eye. When McHargue dropped off Giro at Torres’s home in the early 

morning hours of October 1, she asked Giro if she would be alright because 

McHargue knew that Torres was known to be abusive. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 21 of 22

[37] When police went to Torres’s home in response to the 911 call, Torres and his 

brother also arrived. Torres, who appeared nervous, stated that he had not been 

to the house in couple of days, yet he insisted Giro was not there. He said that 

he too was concerned about Giro’s whereabouts and that he had been trying to 

call her, although phone records showed that Torres’s last call to Giro on her 

phone was a call on September 27. Torres stated that he wanted to find her, but 

when police asked him for a key to the house, he first said that it was not his 

house and then he stated that he did not have a key on him.

[38] Giro was shot and killed by multiple gunshots from a .45 caliber Hi-Point

pistol, which Torres owned and which was in the house. During the 

investigation that followed Giro’s death, police saw that one or more walls had 

been patched to cover bullet holes. Given the wealth of evidence against 

Torres, even if it was error to have excluded Joel and Ivette as witnesses, any 

such error was harmless.3

 

3 Torres also claims that the trial court’s decision violated his state and federal constitutional rights, arguing

that “[t]he decision by the trial court to exclude these witnesses violated Torres’[s] right to compulsory 

process under the Sixth Amendment to the United States Constitution and violated his right to due process of 

law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 12 of the 

Indiana Constitution.” Appellant’s Brief at 15. Torres concedes that he did not raise any constitutional issue 

to the trial court. He has thus waived his claim. Washington v. State, 840 N.E.2d 873, 880 (Ind. Ct. App. 

2006) (finding that defendant waived argument that trial court violated his Sixth Amendment rights when it 

excluded witnesses’ alibi testimony because defendant failed to raise that argument to trial court), trans. 

denied. Waiver notwithstanding, any error was harmless because, as discussed above, even if Ivette had 

testified that Torres’s dog was with her for the weekend and if Joel had testified that Hooper dropped off her 

daughter with him for the weekend, the probable impact on the jury would have been minimal in light of all 

the other evidence presented.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1643 | May 20, 2019 Page 22 of 22

[39] Judgment affirmed.

Kirsch, J. and Vaidik, C.J., concur.