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 : ATTORNEYS FOR APPELLEE : STEVEN KNECHT GREGORY F. ZOELLER Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

RAY A. CHAMORRO , ) ) Appellant

- Defendant , ) ) vs. ) No. 91A05

- 1309

- CR

- 445 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE WHITE SUPERIOR COURT The Honorable Robert B. Mrzlack , Judge Cause No. 91D01

- 1210

- MR

- 1 3 6
May 29, 2014 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Ray Chamorro (Chamorro), appeals his conviction for Count I, murder, Ind. Code § 35

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- 3. We affirm.
ISSUES Chamorro raises two issues on appeal whi ch we re state as follows: (1) Whether the trial court abused its discretion in refusing to instruct the jury on self

- defense; and (2) Whether the trial court abused its discretion by admitting two autopsy photographs

. FACTS AND PROCEDURAL HISTORY

On Oc tober 1, 2012, Alexandria Chapman (Chapman) communicated to David Jones (Jones) that she wanted to “ get high .” ( Transcript p. 53). On the same day, Jones called Robert Breeden (Breeden), a drug supplier, met with him , and purchase d a quarter gram of methamphetamine

. Jones took it back to Chapman ’s house. Also present at the house was Robby Brown (Brown) and Chamorro. According to Jones, he gave a little bit of the methamphetamine to Brown , Chamorro , and Chapman. He then used the rest of the metham phetamine

. Jones never felt a rush

. Th e next day, Jones received a phone call from Chris Martin (Martin) , also a friend to Breeden, who told him that Breeden had sold him bad drugs. Soon after, Jones placed a ca ll to Breeden and complained of the bad drugs.
Breeden promised Jones he would take care of him the next time he cooked a batch.3

On October 3, 2012, Chamorro, Jones, Brown, Chapman , and LaShae Ramsey (Ramsey) were hanging out at Brown’s house. That evening, Jones called Breeden several times, demanding that he delivers on his promise and replace the bad drugs

. During one of the m any phone calls that Jones made to Breeden , Tye Rentfrow (Rentfrow) , a friend to
Breeden and who also helped to manufacture the methamphetamine, grabbed the phone from Breeden and told Jones, “ [y] ou’ll get it at [7:00] a.m.” (Tr

. p. 58). Jones asked who he was talking to , and Rentfrow responded, “I t ’ s your daddy, bitch.” Id

. The comment angered Jones , and he started arguing with Rentfrow. Jones kept calling Breeden’s phone , but every time either Rentfrow or Breeden would hang up. On one of the c alls that went through, Chamor ro grabbed the phone from Jones and started yel ling at Rentfrow, asking him, “D o you know who the fuck you’re talking to, bitch? [] Where the fuck you at?” (Tr. p. 185)

. After the heated exchange, Chamorro and Jones decided to go find Rentfrow. Before that though, Chamorro wanted to go back to his house to obtain his gun . At the time, Ramsey was the only person who had a car. At first she refused to take Chamorro , but she eventually agreed

. All five got in the car and drove to Chamorro’s house. After Chamorro retrieve d his gun , Ramsey dro ve the men to Martin’s house. Martin ’s house , to some extent, operated as a flop house where people, including Breeden spent time. On their way their way to Martin’s house, according to Ramsey, Jones asked Chamorro why he needed the gun and Chamorro responded by saying “I’m tired of people out here thinking I’m a bitch. I’m going to show them I ain’t a bitch.” (Tr. p. 498). Ramsey4

dropped off Chamorro, Jones, and Brown at Martin’s house and then she left with Chapman.
Once Chamorro, Jones, and Brown were in side the house , th ey found a passed out Martin i n the hallway. Jo nes shook him aggressively until he woke up. Next, C hamorro pointed a gun to Martin’s head and asked him to call Breeden. Martin called Breeden and asked him to bring back his car which Breeden had been borrowing

. Breeden promised Martin that he would be at Martin’s house in about ten minutes. T hey waited for about ten
to fifteen minutes before Martin suggested tha t Breeden and Rentfrow might be down at “Tioga Bridge,” cooking methamphetamine

. (Tr. p. 194). Just as the men were leaving Martin’s house, Breeden and Rentfrow pulled into the driveway in Martin’s car . Jones and Chamorro saw the car as they were walking away from the house, so they changed their course and ran toward Martin’s car. Rentfrow hopped out from the passenger seat. Once outside the car , Jones asked Ren t frow if he had called him a bitch , but Rentfrow denied having said that . At that moment , Jones punched Rentfrow i n the face . Rentfrow s taggered back toward the car but caught his balance and came right back. A t that point, Chamorro pulled out his gun and shot straight at Rentfrow

. Rentfrow ran from the scene scream ing, clutch ing his chest but later fell at the corner of the Martin’s house. Chamorro also fired
two additional shots toward the house as he was running away from the scene. During the
same time or c lose to the end of the third shot, Jones, Brown , and Chamorro took off running in different directions but soon reunited at a high school nearby

. Brown then called Ramsey and asked her to pick them up . Before Chamorro got in side the car, he hid the gun under a garbage can

. While in the car, Chamorro admitted that he had shot Rentfrow in5

the ches t

. Ramsey drove Chamorro and Jones to Chicago and returned to Indiana with Brown and Chapman . Meanwhile , at the crime scene, Breeden called 911 , and shortly thereafter the police arrived , arrested Breeden and started their investigation. On October 26 , 2012, the S tate filed an I nformation charging C hamorro with Count I, murder, I. C

. § 35

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- 3. On November 2, 2012, the State filed an amendment, adding , Count II, felony murder, I.C. § 35

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- 1(3). However, on June 4, 2013, the State move d to dismiss the felony murder C ount. A four

- day jury trial was conducted from July 15 through July 18, 2013. At trial, Chamorro requested a jury instruction for self

- defense , which the trial court denied. At the close of the evidence, the jury found Chamorro guilty as charged. On Au gust 22, 2013, the trial court sentence d him to sixty years , executed

. Chamorro now appeal s . Additional information will be provided as necessary.
DISCUSSION AND DECISION
I

. Self

- Defense Instruction Chamorro contends that the trial court abused its discretion by refusing to instruct the jury on self

- defense. The giving of jury instructions is a matter within the sound discretion of the trial court, and we review the trial court ’ s refusal to give a tendered instruction for an abuse of that discretion . Creager v. State , 737 N.E.2d 771, 776 (Ind. Ct. App. 2000), trans. denied. Generally, we will reverse a trial court for failure to give a
tendered instruction if: (1) the instruction is a correct statement of the law; (2) it is supported by the evidence; (3) it does not repeat material adequately covered by other instructions; and (4) the substantial rights of the tendering party would be prejudiced by the court’s failure to give it. Id

.6

Moreover, we note that a defendant in a criminal case is entitled to have the jury instructed on any theory of defense that has some foundation in the evidence. Id . at 777. We apply this rule even if the evidence is weak and inconsistent so long as the evidence presented at trial has some probative value to support it. Id

. Further, we recognize it is within the province of the jury to determine whether the defendant ’ s evidence was believable, unbelievable, or sufficient to warrant the use of force. Id

. Additionally, our supreme court set forth three facto rs that a defendant must prove to support his claim for self

- defense: (1) that he was in a place where he had a right to be; (2) that he acted without fault; and (3) that he has a reasonable fear or apprehension of death or great bodily harm . Miller v. S tate , 720 N.E.2d 696, 700 (Ind. 1999). In denying Chamorro’s self

- defense instruction , the trial court noted that Chamorro provoked and instigated the confrontation. We also note that Chamorro ’s claim of self

defense fail ed in two ways

— Chamorro did not act without fault , and he was not in reasonable fear of death or great bodily harm. The evidence shows that it was Chamorro who brandish ed the gun and fired shot s at Rentfrow. P rior to the shooting, Chamorro was angry at Ren tfrow for disrespecting him on the phone. Chamorro and Jones wanted to find Rentfrow and seek revenge. First, they drove to Chamorro’s house, where Chamorro picked up his gun. Afterwards , Ramsey drove the men to Martin’s house. When they were inside Ma rtin’s house, Chamorro pointed his gun at Martin and demanded that he call Breeden. When Breeden and Rentfrow pull ed in to the drive way, both Chamorro and Jones , who were walking away from Martin ’ s house , changed their course and ran toward the car
to confront Breeden and Rentfrow. When Rentfrow jumped out of the vehicle, neither7

Chamorro nor Jones retreated. Instead, Jones punched Rentfrow i n the face, and Chamorro pulled out his gun and shot Rentfrow. Moreover, the evidence does not show that Cha morro was in reasonable fear of death or great bodily harm. Chamorro’s self

- serving testimony that during the altercation, Rentfrow dipped his hands in his sweater as if to reach out for “ something steel” from his pocket , is simply a request for this cour t to reweigh the evidence and credit his version of events, which we will not do. In addition , the trial court ’s decision refusing to tender the self

- defense instructio n was premised on the fact that Chamorro was the initial aggressor and that he first opened fire t o an unarmed Rentfrow

. Lastly , we find that Chamorro’s use of force was excessive,
thus his right to claim self

- defense was extinguished. See Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012), trans. denied

. In sum, because there i s n o evidence to support the tendering of the instruction, we conclude that the trial court did not abuse its discretion in refusing to give a self

- defense instruction.
II

. Autopsy Photographs Lastly, Chamorro argues that the trial court abused its discretion when it admitted into evidence, over his objection , the autopsy photographs at trial. The admission and exclusion of photographic evidence falls within the trial court's sound discretion and we rev iew the admission of said evidence for an abuse of discretion. Alsheik v. Guerrero , 956 N .E.2d 1115, 1128 (Ind. Ct. App. 2011), reh’ g denied . Relevant photographic evidence is admissible unless its probative value is substantially outweighed8

by the danger of unfair prejudice. Id

. Gory and revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally. Id

. Photographs, even those gruesome in nature, are admissible if they a ct as interpretative aids for the jury and have strong probative value. Id

. The potential that passions may be aroused by the gruesomeness of the photograph is not sufficient grounds for exclusion if the photograph is material and relevant. Id

. Further, autopsy photos often present a unique problem because the pathologist has manipulated the corpse in some way during the autopsy. Therefore, autopsy photographs are generally inadmissible if they show the body in an altered condition. Id . This is so because the photographs may impute to the accused the handiwork of the pathologist and thereby render the defendant responsible in the minds of the jurors for the cuts, incisions, and indignity of an autopsy. Custis v. State , 793 N.E.2d 1220, 1225 (In d. Ct. App. 2003), trans. denied

. However, there are situations where some alteration of the body is necessary to demonstrate witness testimony. See id

. The two photographs at issue were State’s Exhibit s 15 and 17. The first showed a metal dowel inserte d into the bullet wound , and the second showed Rentfrow’s heart held outside the body with the metal dowel rod inserted

. Chamorro argues that these photographs were irrelevant in establish ing Rentfrow’s cause of death because it was not dispute d that he died from a bullet wound. Also , Chamorro argues that the photographs were gruesome in nature and had the potential risk of inflaming the passions of the jury

. The State, h owever, maintains that these two photographs were helpful in assisting the jury9

u nderstand Chamorro’s stance during the shooting , and also visualize the trajectory of the bullet fired by Chamorro

. We agree . The record reflects that the photographs were relevant in describing Rentfrow’s autopsy, including the p rocedures and the results. More importantly, the pathologist
testified at trial that the “bullet went straight through the breastbone” and was on a “flat plane.” (Tr. p. 335). Thus , both autopsy photographs revealed that the wound inflicted on Rentfrow was on a level shot , and that Chamorro was standing in front of Rentfrow when he made the shot

. Furthermore, the photographs also dispelled Chamorro’s claim that he fired the shots blindly, and not directly to Rentfrow, as he was running away from the

sce ne. Moreover, the relevance of the photograph s is not lessened b y Chamorro’s claim
that he did not contest Rentfrow ’s cause of death. The State had to prove beyond reasonable doubt that Chamorro intentionally killed Rentfrow. I t is well

- established that

“ ‘the State is entitled to prove its case by evidence of its own choice, and that a criminal defendant may not stipulate his or her way out of the full evidentiary force of the case to be pr esented against him or her [.]’ ” State v. Lewis , 883 N.E.2d 847, 853 (Ind. Ct. App. 2008) (quoting Hines v. State , 801 N.E.2d 634, 635 (Ind. 2004)). Finally, the graphic and gruesome character of the photographs w as not unfairly prejudicial simply because they depicted the autopsy. The pathologist testified in dep th about the autopsy, how it was performed, and that he inserted the dowel rods so as to show the trajectory of the bullet. Further , the jury was not so overcome with passion that it unintelligently convicted Chamorro

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In conclusion, we find that the autopsy photographs were relevant and their probative value outweighed any potential prejudice to Chamorro

. Accordingly, the trial court did not abuse its discretion by admitting these photographs into evidence at Chamorro’s trial.
CONCLUSIO N Based on the foregoing, we find that the trial court did not abuse its discretion in refusing to instruct the jury on self

- defense or by admitting the autopsy photographs into evidence. Affirmed. ROBB, J. and BRADFORD, J. concur