Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision sh all 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 : ATTORNEY FOR APPELLEE : THOMAS W. VANES GREGORY F. ZOELLER Crown Point, Indiana Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana 

## IN THE COURT OF APPEALS OF INDIANA

AL BERTO R. MELENDEZ CRUZ, ) ) Appellant

- Defendant, ) ) vs. ) No. 45A05

- 1203

- CR

- 150 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell , Judge Cause No. 45G03

- 1010

- MR

- 13 November 30, 201 2 MEMORANDUM DECIS ION

– NOT FOR PUBLICATION BARNES, Judge2 Case Summary Alberto Melendez

- Cruz appeals his conviction for murder. We affirm. Issue The sole issue before us is whether the trial court properly denied Melendez

Cruz’s request to instruct t he jury that it could convict him of reckless homicide as a lesser included offense of murder. Facts In the early morning hours of October 23, 2010, Christine Hernandez went to a bar in Hammond to have a drink with her half

- brother, Ruben Cabello. S he wa s not permitted to enter the bar. When Cabello exited the bar to see Hernandez , he began arguing with another man, Rito Hernandez Aldana . Several other pe ople

— including Melendez

- Cruz

—

joined C abello in surrounding and yelling at Aldana, and the confrontat ion soon became physical

. T he group of people began attacking Aldana , and

o ne person threw Aldana onto the ground . While Aldana was on the ground, Hernandez saw Melendez

- Cruz approach Aldana and heard him say, “You’re going to die.” Tr. p. 62. Melendez

- Cruz then fired several shots at Aldana with a .25 caliber gun, with three of the shots striking Aldana in the head or neck , causing his death. Melendez

- Cruz and the rest of the group fled the scene before police arrived. Cabello later told Melendez

Cru z that he was stupid for shooting Aldana, and Melendez

- Cruz responded that he had done it because he “couldn’t get a punch or a kick in.” Id. at 101.3

When investigating the scene, police recovered five .25 caliber shell casings in the area. They also fo und a nine

- millimeter shell casing at the scene, but an officer testified that this casing appeared to be weathered, i.e. slightly rusted and bent, and did not appear to have been used that night. After identifying Melendez

- Cruz as a suspect, police inter viewed him. Melendez

- Cruz admitted that he shot Aldana as many as six times with a .25 caliber handgun. The coroner identified two direct gunshot wounds to Aldana’s head, a third gunshot wound to the neck that further injured Aldana’s head, and two or th ree additional gunshot wounds to Aldana’s right shoulder and arm. 1 On October 29, 2010, the State charged Melendez

- Cruz with one count of murder. During Melendez

- Cruz’s jury trial held on January 3

- 5, 2012, he requested that the jury be instructed that i t had the option of convicting him of reckless homicide rather than murder. The trial court denied this request , and the jury convicted him as charged

. Melendez

- Cruz now appeals. Analysis Melendez

- Cruz only challenges the trial court’s refusal to give a lesser included offense instruction regarding reckless homicide. Trial courts must perform a three

- part test when asked by a party to instruct on a lesser included offense to the charged crime. Webb v. State , 963 N.E.2d 1103, 1106 (Ind. 2012) . First, b y comparing the statute defining the charged crime with the statute defining the alleged lesser included offense, the court must determine if the alleged lesser included offense is inherently included in

1 The coroner’s findings were read int o evidence as part of a joint stipulation by the parties, and it is not entirely clear whether the coroner found five or six bullet entry wounds.4

the charged crime. Id. Second, if the alleged less er included offense is not inherently included in the charged crime, then the trial court must determine whether the alleged lesser included offense is factually included in the charged crime. Id. If the alleged lesser included offense is neither inheren tly nor factually included in the charged crime, the trial court should not give a lesser included offense instruction

. Id. If an alleged lesser

- included offense is either inherently or factually included in the charged crime, then the trial court must p erform the third part of the test, which is to determine if there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in light of this dispute, a jury could conclude that the lesser offe nse was committed but not the greater. Id. A trial court must give an instruction for an inherently or factually included offense if there is a serious evidentiary dispute. Id. By contrast, a lesser included offense instruction should not be given if t here is no serious evidentiary dispute. True v. State , 954 N.E.2d 1105, 1108 (Ind. Ct. App. 2011). When the decision to give or not give a lesser included offense depends upon whether there is a serious evidentiary dispute, and the trial court has made a n express finding on the existence or lack of such a dispute, we review a trial court’s decision to give or refuse a lesser included offense instruction for an abuse of discretion. Id. “ If a trial court makes no explicit finding regarding a serious evide ntiary dispute, we review the ruling de novo. ” Id. Here, there is no doubt that reckless homicide is an inherently included offense of murder because the only element distinguishing the two offenses is the lesser mens rea5

required for reckless homicide. See Webb , 963 N.E.2d at 1106. Reckless homicide occurs when a defendant “recklessly” kills another human being, while murder requires that the killing was done “knowingly” or “intentionally.” Id. (citing Ind. Code §§ 35

- 42

- 1

- 5 & 35

- 42

- 1

- 1(1)). Thus, t he only question before us is whether the trial evidence establishes a serious evidentiary dispute regarding Melendez

- Cruz’s mens rea in the shooting of Aldana that would have supported giving a reckless homicide instruction. Additionally, in refusing to give a reckless homicide instruction the trial court expressly stated, “there’s no evidence of recklessness.” Tr. p. 203. This constitutes an express finding of a lack of a serious evidentiary dispute, and so we review the trial court’s refusal to give a reckless homicide instruction for an abuse of discretion. The evidence at trial firmly establishe d that Melendez

- Cruz intended Aldana’ s death or that he knew Aldana would die. M elendez

- Cruz fired at least five, possibly six shots directly at Aldana whi le he lay on the ground. Even though Melendez

- Cruz argues there is no evidence as to precisely how far away he was standing from Aldana when he opened fire, t hree of the shots struck Aldana in the head or neck, which is indicative of an intention to kill Aldana rather than the random shooting of a spray of bullets. Additionally, although there was a crowd of people standing near Aldana at the time of shooting, only Aldana was shot, which further demonstrates that Melendez

- Cruz was aiming directly at Aldan a rather than firing recklessly into a crowd. Despite Melendez

Cruz’s argument to the contrary, there is no evidence that anyone else shot at Aldana. Police did indeed recover a nine

- millimeter shell casing at the scene, but they did not6

believe that she ll had been used that night, based on how it was weathered. All of the other five shells recovered at th e scene were .25 caliber shells , and Melendez

- Cruz admitted shooting Aldana as many as six times with a .25 caliber gun. Testimony from Hernandez and Cabello implicated Melendez

- Cruz as the only shooter at the scene. Indeed, neither mentioned that they saw anyone else with a firearm that night. Finally, Hernandez testified that before shooting Aldana, Melendez

- Cruz said, “You’re going to die.” Tr. p. 62. Given this evidence, we agree with the trial court that there was no serious evidentiary dispute regarding whether Melendez

- Cruz knowingly or intentionally, rather than recklessly, killed Aldana. Conclusion The trial court did not abuse its discretio n in finding that there was no evidence to support the giving of a reckless homicide instruction , and it therefore properly refused to give such an instruction

. We affirm. Affirmed. BAKER, J., and RILEY, J., concur.