Court of Appeals of Indiana | Opinion 71A03-1506-CR-544 | March 24, 2016 Page 1 of 11

ATTORNEY FOR APPELLANT

Neil L. Weisman

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Carlos Villaruel,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 24, 2016

Court of Appeals Cause No.

71A03-1506-CR-544

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause No.

71D02-1404-FD-255

Barnes, Judge.

Case Summary

[1] Carlos Villaruel appeals his convictions for Class D felony intimidation and 

Class A misdemeanor battery. We reverse and remand.
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Issues

[2] The restated issues are:

I. whether the trial court erred by failing to analyze Villaruel’s 

Batson objection; and 

II. Whether the evidence is sufficient to support Villaruel’s 

conviction for intimidation and allow him to be retried on 

that charge.

Facts

[3] On April 3, 2014, Officers Jeffrey Cummins and Timothy Cichowicz of the 

South Bend Police Department responded to a 911 call from Shayla Swank. 

When the officers arrived, they encountered Swank, who was crying and had a 

bloody lip and a mark next to her eye. Villaruel later admitted that he hit 

Swank. Officer Cichowicz escorted Swank to Villaruel’s residence, where the 

incident between Villaruel and Swank took place. Officer Cichowicz knocked 

on the door, and Villaruel invited the officers into his residence. Officer 

Cichowicz observed Villaruel “had been drinking a little bit, but nothing 

major.” Tr. p. 119. He was calm and “able to function and understand [the 

officers].” Id. at 119, 156. Officer Cummins noted Villaruel slurred his words, 

smelled of alcohol, and had glassy eyes. See id at 182.

[4] The officers arrested Villaruel, and Officer Cummins placed him in handcuffs 

and transported him to the St. Joseph County Jail. During the ride to the jail, 

Villaruel “progressively got more belligerent” and called Officer Cummins 

names. Id. at 160. “He told me repeatedly that he was going to kick me in the 

balls . . . Then as I was pulling up to the jail, that’s when he started telling me 
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he was going to kill me.” Id. at 161. “Then he started saying that he makes 

deliveries and if he sees me, he’ll remember my face. If he sees my face again, 

he’ll put out my face, he would kill me. He would remember my face and put 

out your [sic] lights.” Id. Villaruel testified he did not remember making some 

of the foregoing statements to Officer Cummins but admitted he threatened to 

kill him. See id. at 241-43. While Officer Cummins and Villaruel were in the 

jail vestibule, Villaruel continued to threaten Officer Cummins. He said the 

Spanish word for “gun” and repeatedly said he was going to kill Officer 

Cummins. Id. at 162-63. 

[5] While waiting in the jail’s vestibule, there was an altercation, and Villaruel was 

injured. Officer Cummins transported him to the hospital for treatment. On 

the way to the hospital, “he threatened [Officer Cummins’s] family then. He 

talked about how he worked landscaping and he would see them sometime and 

pretty much kill my family before me.” Id. at 168.

[6] The State charged Villaruel with Class D felony intimidation and Class A 

misdemeanor domestic battery. On July 23, 2014, the State added a third 

charge—resisting law enforcement, a Class A misdemeanor. That same date, 

Villaruel pled guilty to domestic battery and resisting law enforcement, but he 

withdrew his plea on September 24, 2014. On April 15, 2015, the State 

amended the language of Count I and amended Count II so that it charged 

Villaruel with Class A misdemeanor battery.
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[7] Villaruel’s jury trial was held on April 27, 2015. During jury selection, the State 

moved to strike for cause the only Hispanic venireperson, Ms. V., from the 

panel. The State ultimately used a peremptory strike on Ms. V., and Villaruel 

objected citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The trial 

court allowed the strike after stating, “There is no Batson issue for Hispanics.” 

Tr. p. 77. The jury found Villaruel guilty of Counts I and II.1 On May 12, 

2015, the trial court sentenced Villaruel to an aggregate sentence of two and 

one-half years in the Department of Correction. Villaruel now appeals.

Analysis

I. Batson claim

[8] Villaruel first argues the trial court erred by overruling his Batson objection. It is 

well-settled that using a peremptory challenge to strike a potential juror solely 

on the basis of race violates the Equal Protection Clause of the Fourteenth 

Amendment to the United States Constitution. Jeter v. State, 888 N.E.2d 1257, 

1262 (Ind. 2008) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986)), 

cert. denied. The constitutional interests at stake in Batson “‘are not limited to 

the rights possessed by the defendant on trial, nor to those citizens who desire 

to participate in the administration of the law, as jurors,’ but extend to the 

entire community . . . .” United States v. Stephens, 421 F.3d 503, 510 (7th Cir. 

 

1

It appears the State dismissed the resisting law enforcement charge, but it is not clear when. Nonetheless, 

Villaruel was tried only on the charges of intimidation and battery. 
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2005) (quoting Johnson v. California, 545 U.S. 162, 171-72, 125 S. Ct. 2410, 2418 

(2005)), cert. denied.

[9] Batson adopted a procedure for “ferreting out discrimination in the exercise of 

peremptory challenges.” Davis v. Ayala, __ U.S. __, 135 S. Ct. 2187, 2208 

(2015). 

First, the party contesting the peremptory challenge must make a 

prima facie showing of discrimination on the basis of race. 

Second, after the contesting party makes a prima facie showing 

of discrimination, the burden shifts to the party exercising its 

peremptory challenge to present a race-neutral explanation for 

using the challenge. Third, if a race-neutral explanation is 

proffered, the trial court must then decide whether the challenger 

has carried its burden of proving purposeful discrimination.

Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citation omitted), 

trans. denied. 

[T]his procedure places great responsibility in the hands of the 

trial judge, who is in the best position to determine whether a 

peremptory challenge is based on an impermissible factor. This 

is a difficult determination because of the nature of peremptory 

challenges: They are often based on subtle impressions and 

intangible factors.

Davis, 135 S. Ct. at 2208. “[T]he trial court’s decision as to whether a 

peremptory challenge was discriminatory is given ‘great deference’ on appeal 

and will be set aside only if found to be clearly erroneous.” Collier v. State, 959 

N.E.2d 326, 329 (Ind. Ct. App. 2011) (quoting Killebrew, 925 N.E.2d at 401).
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[10] The following is the conversation related to striking Ms. V.:

THE COURT: As far as cause challenges are concerned, 

State has moved to strike number 13 for cause, Ms. [V.]

What’s the reason for that?

[THE STATE]: Your Honor, we believe because of the 

timing, and if we go into tomorrow, we have a concern. 

THE COURT: It will be done today.

[THE STATE]: Okay.

THE COURT: So do you want her for cause or not?

[THE STATE]: If it will be done today, then I would use her 

as a peremptory.

THE COURT: You want to use her with a peremptory?

[THE STATE]: Yes.

THE COURT: Okay.

[THE DEFENSE]: May I respond with regard to Ms. [V]?

I mean, I guess my concern ... I would raise a Batson issue.

THE COURT: There is no Batson issue for Hispanics, it’s 

only race and gender. That’s what the Supreme Court has 

determined . . . .
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[DEFENSE COUNSEL]: Your Honor, I believe my issue 

is that she’s the sole juror on the panel that is or what appears to 

be Hispanic.

THE COURT: That’s not a suspect class under the 

Constitution. And so it doesn’t rise to a Batson issue . . . you 

could say the same about anybody that has any other national 

origin. It does not rise to that level.

As far as I know, the U.S. Supreme Court has determined . . . 

and I don’t think there is any Indiana cases on point, but that is 

essentially the old suspect class designation from the ‘60’s, ‘70’s 

and ‘80’s that dealt with race, white or black; gender, male or 

female.

Okay?

So we’re not there yet . . . .

Tr. pp. 77-78 (first and third ellipses in original). 

[11] We observe that “[s]ince the Batson decision prohibiting race-based peremptory 

challenges, the United States Supreme Court has added challenges based upon 

ethnicity . . . . In Hernandez [v. New York], the challenge was made to Latino 

jurors, and the Supreme Court analyzed the discriminatory aspects of the case 

in terms of a race-based challenge.” Pryor v. Hoskins, 774 N.E.2d 943, 954 n.5 

(Ind. Ct. App. 2002) (citing Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 

1859 (1991)).2 

 

2 The State does not challenge the applicability of Batson in this case. See Appellee’s Br. p. 13.
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[12] This case is similar to Ashabraner v. Bowers, 753 N.E.2d 662 (Ind. 2001), in 

which our supreme court reversed a jury verdict on Batson grounds. In that 

case, the plaintiff made a Batson objection, but the trial court failed to analyze 

that objection as required by Batson. See id.at 665-66. Our supreme court 

concluded that failure indicated “the court did not follow Batson even though it 

applies to civil cases.” Id. at 666. On appeal, this Court conducted its own 

Batson analysis without relying on the trial court’s misunderstanding of the law. 

See id. We concluded the plaintiff failed to make a prima facie case of 

discrimination and affirmed the trial court. See id. Our supreme court held that 

that conclusion, which we reached after an incomplete Batson analysis, was 

error: 

The trial court and the Court of Appeals did not reach the issue 

of whether [the defendant] could offer a race neutral explanation. 

Because the trial court applied the wrong standard and the Court 

of Appeals held that [the plaintiff] had not made out a prima 

facie case, we reverse and remand for a new trial.

Id. at 667-68.

[13] The colloquy related to Villaruel’s Batson objection “demonstrates that the trial 

court did not adhere fully to the principles enunciated in Batson and subsequent 

cases.” Id. at 666. Like the trial court in Ashabraner, the trial court did not

analyze Villaruel's objection to the peremptory challenge and did not follow 

Batson, even though it applies to challenges based on ethnicity. See id. at 666. 
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[14] We acknowledge that Ashabraner is a civil case and this is a criminal case. 

However, Batson applies equally to criminal3 and civil cases, and this case 

cannot be distinguished from Ashabraner on that ground. See Edmonson v. 

Leesville Concrete Co., Inc. 500 U.S. 614, 111 S. Ct. 2077 (1991) (holding “in a 

civil trial exclusion on account of race violates a prospective juror’s equal 

protection rights”). Therefore, Ashabraner’s mandate that the trial court, and 

not an appellate court, must conduct a complete Batson analysis when a litigant 

objects to a peremptory strike on Batson grounds, applies squarely in this 

criminal case. Likewise, it is clear the Batson analysis must be conducted when 

a litigant challenges a peremptory strike of a Hispanic juror. See Hernandez, 500 

U.S. 352, 111 S. Ct. 395. The trial court did not perform the requisite Batson

analysis related to the State’s use of a peremptory strike of Ms. V., a Hispanic 

juror, and we may not conduct the analysis ourselves. Instead, we reverse 

Villaruel’s convictions.

II. Sufficiency of the Evidence

[15] “When, as here, reversal is required because of trial error, and a defendant 

presents a claim of insufficient evidence, an acquittal instead of a new trial is 

required if the proof of guilt is insufficient in light of the evidence presented at 

trial.” Miller v. State, 916 N.E.2d 193, 198 (Ind. Ct. App. 2009) (citation 

omitted), trans. denied. When reviewing the sufficiency of the evidence, 

 

3

In light of the liberty interest at stake in this criminal case, the protections afforded by Batson may be of 

heightened importance in order to safeguard the defendant’s and juror’s rights and the public’s confidence in 

our jury system.
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“appellate courts must consider only the probative evidence and reasonable 

inferences supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 

2007) (quotations omitted) (citation omitted) (emphasis omitted). It is the fact 

finder’s role to assess the credibility of the witnesses and weigh the evidence. 

Id. Appellate courts must consider conflicting evidence most favorably to the 

trial court’s ruling and affirm the conviction unless “no reasonable fact-finder 

could find the elements of the crime proven beyond a reasonable doubt.” Id.

(quotations omitted) (citation omitted). 

[16] Villaruel contends the evidence was not sufficient to support his intimidation 

conviction.4 Under the version of Indiana Code Section 35-42-2-1 (b)(1) in 

effect at the time Villaruel committed this offense, the State was required to 

prove he communicated a threat to a law enforcement officer with the intent 

that the officer be placed in fear of retaliation for a prior lawful act in order to 

convict him of intimidation as a Class D felony. Villaruel contends only that 

the evidence is not sufficient to prove he knowingly committed this offense. 

Specifically, he argues he did not recall or had little recall of threatening Officer 

Cummins. He also argues he was intoxicated at the time. Finally, he argues, 

“his statements were angry rants and abusive language that should not have 

been taken seriously, that at the time he engaged in the conduct and 

communications complained of, he was not aware of a high probability he was 

doing so . . . .” Appellant’s Br. p. 16. However, voluntary intoxication is not a 

 

4 Villaruel does not challenge the sufficiency of the evidence with regard to his battery conviction.
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defense in a criminal prosecution. Manzano v. State, 12 N.E.3d 321, 327 n.2 

(Ind. Ct. App. 2014), trans. denied; see also Berry v. State, 969 N.E.2d 35, 38 (Ind. 

2012).

[17] Officer Cummins testified Villaruel “progressively got more belligerent.” Tr. p. 

161. His statements escalated from name calling to relatively minor threats of 

physical harm and then to threats to Officer Cummins’s life and, finally, to the 

lives of Officer Cummins’s family. Villaruel’s threats were specific with regard 

to how he would encounter Officer Cummins and his family in order to carry 

out the threats. From this evidence a reasonable fact finder could find Villaruel 

intended to place Officer Cummins in fear for his lawful acts. The evidence is 

thus sufficient to support Villaruel’s conviction, and double jeopardy presents 

no bar to retrial on this charge. See Slayton v. State, 755 N.E.2d 232, 237 (Ind. 

Ct. App. 2001). 

Conclusion

[18] The trial court erred by not undertaking the required Batson analysis. Double 

jeopardy does not bar the State from retrying Villaruel. We reverse and remand 

for a new trial.

Reversed and remanded.

Robb, J., and Altice, J., concur.