Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 1 of 10

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

Karen Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Octavio D. Gonzalez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 16, 2017

Court of Appeals Case No.

49A04-1701-CR-151

Appeal from the Marion Superior 

Court

The Honorable Grant W. 

Hawkins, Judge

Trial Court Cause No.

49G05-1407-MR-35467

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 2 of 10

Case Summary

[1] Following a jury trial, Octavio Daniel Gonzalez appeals his conviction for

murder. He asserts that the State presented insufficient evidence to support his 

conviction and that the trial court committed fundamental error in admitting

DNA evidence. Finding the evidence sufficient and no fundamental error, we 

affirm. 

Facts and Procedural History

[2] Dexter Smith and Quashawnda Wagner were married with three children and 

lived in a single-story house in Indianapolis. Wagner’s cousin introduced the 

couple to Gonzalez, resulting in a close friendship between Gonzalez and 

Smith. Gonzalez was such a frequent visitor at Smith’s house that “[h]e was 

over [at the house] ninety-eight percent of the time.” Tr. at 30. On July 11, 

2014, Wagner, Smith, and Gonzalez rented a car and drove to Kentucky and 

back while the children stayed with Smith’s mother in Indianapolis. The next 

morning, at approximately 6:00 a.m., Wagner left her house and drove the 

rental car to her mother-in-law’s residence. Only Smith and Gonzalez, who 

was sleeping on a sofa in the sun room, remained in the house. 

[3] At approximately 9:30 a.m., Smith used Gonzalez’s cell phone to call Wagner

and said that he was looking for a pair of his earrings. Wagner looked for the 

earrings in the rental car but did not find them. About twenty to thirty minutes 

later, Wagner called Smith at Gonzalez’s cell phone number and Smith’s three 

cell phone numbers, but he did not answer. She decided to return to their 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 3 of 10

house, and Wagner’s mother-in-law followed in her vehicle. When Wagner 

arrived at the house, she went to the front door, which was locked, and opened 

it with her keys. Upon entering the house, she noticed that the house was silent 

and Gonzalez was no longer there. Wagner found Smith lying on the bedroom 

floor with a pool of blood around his head. She quickly exited the house and 

informed her mother-in-law of Smith’s condition. Tyron Belton, the next-door 

neighbor, was mowing the grass when he heard Wagner’s wails. Belton called 

911, and shortly thereafter the police and emergency medical personnel arrived. 

Smith was declared dead. An autopsy determined that his death was caused by 

a single gunshot to the back of the head. 

[4] Around 10:30 a.m., prior to Wagner’s arrival, Belton had driven to a nearby gas 

station to purchase gas for his lawn mower. As Belton drove back to his house 

he recognized Gonzalez, by the haircut he had given him a few days earlier, 

walking on the sidewalk away from Smith’s house. Belton thought this was 

strange because “[Gonzalez] never walked anywhere, he was always with 

[Smith].” Id. at 53. Belton did not see anyone else out walking or anyone else 

coming and going from Smith’s house that morning. 

[5] Wagner informed the police that Smith’s handgun was missing from its holster 

on top of the bedroom dresser and that $15,000 in cash, which Wagner had 

seen Smith count the previous night, was also missing from Smith’s sweatpants

pocket. The police noticed that the back doors were closed but unlocked and 

that the rear security gate was open. Wagner attempted to locate Gonzalez, but 

her phone calls went unanswered. Wagner’s cousin provided her with the 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 4 of 10

phone number of Gonzalez’s mother-in-law, Shelaime Yamobi, who lived near 

Atlanta, Georgia. Wagner called Yamobi, without mentioning the death of her 

husband, and Yamobi informed her that she had not seen Gonzalez. On the 

same evening as Wagner’s phone call, Gonzalez arrived unannounced at

Yamobi’s house looking to speak with his wife and see their daughter. Yamobi 

asked Gonzalez about the sudden visit, and he responded, “I just need to lay 

low for a little while. I want to spend time with them.” Id. at 106. Gonzalez 

then took his wife and daughter to a hotel.

[6] The following morning Wagner called Yamobi a second time and asked her 

whether she had seen or spoken to Gonzalez. Wagner explained why she was 

calling and informed Yamobi about the death of her husband. Yamobi

immediately called her daughter and drove over to the hotel. At the hotel, 

Yamobi told Gonzalez about Wagner’s phone call, specifically, that Wagner 

believed that Gonzalez was responsible for Smith’s death. Gonzalez 

responded, “[T]he less you know the better.” Id. at 109. Gonzalez and his wife 

started arguing. Yamobi heard Gonzalez tell her daughter that “it was either 

him or me. That’s all you need to know.” Id. at 110. Yamobi told Gonzalez to 

stay away from them and left the hotel with her daughter and granddaughter. 

[7] On July 15, 2014, Yamobi contacted the detective assigned to Smith’s case and 

informed him of Gonzalez’s whereabouts and what he had said when he was 

confronted. Federal marshals searched the Atlanta area for Gonzalez but were 

unable to find him. Gonzalez was charged with murder, murder in the 

commission of a robbery, level 2 felony robbery, and a firearm enhancement, 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 5 of 10

and a warrant was issued for his arrest. In March 2016, Gonzalez was

apprehended in Atlanta under a false name. 

[8] A two-day jury trial was held in November 2016. The jury found Gonzalez 

guilty of murder, and he was sentenced to a term of fifty-five years. Gonzalez 

now appeals. 

Discussion and Decision

Section 1 – The State presented sufficient evidence to support 

Gonzalez’s murder conviction. 

[9] Gonzalez contends that the State failed to present sufficient evidence to support 

his murder conviction. The standard of review for sufficiency of the evidence is 

well settled. We neither reweigh the evidence nor assess the credibility of 

witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). Rather, we look to the 

evidence and reasonable inferences drawn therefrom that support the 

conviction. Id. The evidence need not “overcome every reasonable hypothesis 

of innocence.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). We will affirm 

if there is probative evidence from which a reasonable factfinder could have 

found the defendant guilty beyond a reasonable doubt. Bell, 31 N.E.3d at 499. 

In sum, the reviewing court will not disturb the conviction when the testimony 

believed by the trier of fact is sufficient to support it. Id. at 500. 

[10] To convict Gonzalez of murder, the State was required to prove that he 

knowingly or intentionally killed Smith. Ind. Code § 35-42-1-1(1). Gonzalez 

argues that there was no evidence regarding the specific time of the murder and 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 6 of 10

therefore no way to positively identify him as the perpetrator.1 He suggests that 

the evidence merely places him “in the vicinity” of the murder along with any 

number of neighbors or strangers who could have been present at the 

undetermined time of death. Appellant’s Br. at 13. 

[11] “Elements of offenses and identity may be established entirely by circumstantial 

evidence and the logical inferences drawn therefrom.” Holloway v. State, 983 

N.E.2d 1175, 1178 (Ind. Ct. App. 2013). Gonzalez was the only person in the 

house with Smith after Wagner left the house at 6:00 a.m. At 9:30 a.m., Smith 

called Wagner using Gonzalez’s cell phone, which suggests that Gonzalez was 

still present in the house. Belton identified Gonzalez walking on the sidewalk 

away from Smith’s house around 10:30 a.m. This was “strange” because

Belton had never seen Gonzalez walking, much less without Smith. Tr. at 53. 

Smith’s body was discovered around 11:00 a.m., and Belton did not see anyone 

else walking on the streets or coming into or out of Smith’s house while he 

mowed the grass next door. Although the exact time of Smith’s death is 

unknown, the short time frame in which the murder must have been committed

suggests that Gonzalez alone had the opportunity to commit it. 

 

1 Gonzalez also argues that there was no forensic evidence that supported the conviction and no evidence of 

motive. These arguments are immaterial. Although such evidence can be helpful to prove the identity of a 

perpetrator, it is not essential to sustain a murder conviction. See, e.g., Ellis v. State, 725 N.E.2d 411, 412 (Ind. 

2000) (finding sufficient evidence to support murder conviction despite complete lack of forensic evidence); 

Moore v. State, 653 N.E.2d 1010, 1016 (Ind. Ct. App. 1995) (“[I]t is not necessary for the prosecution to offer 

evidence of motive, although it may do so.”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 7 of 10

[12] Also, Gonzalez’s actions after Smith’s murder are indicative that he committed 

it. Gonzalez immediately stopped answering his cell phone, fled the state 

within a day or two of the murder, and assumed an alias while evading police 

for over a year and a half. Our supreme court has stated that “flight may be 

considered as circumstantial evidence of consciousness of guilt.” Jones v. State, 

485 N.E.2d 627, 628 (Ind. 1985). 

[13] Gonzalez’s comments to his mother-in-law and wife also suggest his guilt. He 

told Yamobi that he “need[ed] to lay low for a little while.” Tr. at 106. When 

Yamobi confronted him with Wagner’s accusation that he was responsible for 

Smith’s death, he simply responded that “the less you know the better.” Id. at 

109. Furthermore, when his wife insisted on knowing what happened,

Gonzalez defended his actions by stating that “it was either him or me. That’s 

all you need to know.” Id. at 110. The jury, as factfinder, could reasonably 

infer from these comments that Gonzalez was guilty. Gonzalez’s argument is 

an invitation to this Court to reweigh the evidence, which we cannot do. Bell, 

31 N.E.3d at 499. Based on the foregoing, we conclude that the State presented 

sufficient evidence to identify Gonzalez as the murderer. 

Section 2 – The trial court did not commit fundamental error 

in admitting DNA evidence. 

[14] At trial, Shannin Guy, a forensic scientist at the Marion County Forensic 

Services Agency, testified regarding DNA samples. Specifically, Guy testified 

that four swabs from Smith’s sweatpants pocket contained a mixture of DNA 

from several individuals from which Gonzalez and Smith could not be 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 8 of 10

excluded as possible contributors. More than “possible contribut[ion]” could 

not be established due to the lack of “exclusionary information.” Id. at 155. 

Guy provided further statistical data about the significance of the analysis.2 

Gonzalez argues that the trial court erred in admitting this evidence. Notably, 

however, Gonzalez did not object to the admission of the testimony during 

trial. Thus, he has waived this issue on appeal. This is because “[a] trial court 

cannot be found to have erred as to an issue or argument that it never had an 

opportunity to consider.” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004).

[15] Accordingly, Gonzalez asserts that the trial court committed fundamental error

in admitting the DNA evidence. “The fundamental error doctrine is an 

exception to the general rule that the failure to object at trial constitutes 

procedural default precluding consideration of the issue on appeal.” Halliburton 

v. State, 1 N.E.3d 670, 678 (Ind. 2013). As an exception it is “extremely 

narrow, and applies only when the error constitutes a blatant violation of basic 

principles, the harm or potential for harm is substantial, and the resulting error 

 

2 Regarding the first swab, Guy testified that “[t]he DNA profile ... is a mixture of at least three individuals. 

[Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. It is estimated that 1 in 

3,000 unrelated individuals could be a contributor to the mix sample.” Tr. at 145. For the second swab,

“[t]he DNA profile ... is a mixture of at least four individuals. [Smith and Gonzalez] cannot be excluded as 

possible contributors to the mix sample. It is estimated that one in forty unrelated individuals could be a 

contributor to the mix sample.” Id. at 148. For the third swab, “[t]he DNA profile ... is the mixture of at 

least three individuals. [Smith and Gonzalez] cannot be excluded as possible contributors to the mix sample. 

It is estimated that 1 in 1,700 unrelated individuals could be a contributor to the mix sample.” Id. For the 

fourth swab, “[t]he DNA profile ... is the mixture of at least three individuals. [Smith and Gonzalez] could 

not be excluded as possible contributors to the mix sample. It is estimated that one in seven unrelated 

individuals could be a contributor to the mix sample.” Id. 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 9 of 10

denies the defendant fundamental due process.” Id. In sum, it is available only 

in “egregious circumstances.” Id. 

[16] Here, the DNA evidence, albeit inconclusive, did not substantially harm

Gonzalez or deny his right to due process. Significantly, at closing argument, 

the State conceded that Guy’s testimony was inconclusive and was presented 

for the purpose of “[showing that DNA sampling] was done . . . [so that there] 

would be no speculation [on the part of the jury] ....” Tr. at 212. The probative 

value of such testimony may be minimal, but it cannot be said to have 

prejudiced Gonzalez’s substantial rights such that a fair trial was impossible.

3

 

Assuming for argument’s sake that the trial court erred in admitting the DNA 

evidence, any error was harmless. “[A]n error of admission of evidence will not 

result in reversal of a conviction if the error is harmless. An error will be 

viewed as harmless if the probable impact of the evidence upon the jury is 

sufficiently minor so as not to affect a party’s substantial rights.” Edmond v. 

State, 790 N.E.2d 141, 144-45 (Ind. Ct. App. 2003) (citation and quotation 

 

3

Indiana Evidence Rule 401 states, “Evidence is relevant if: (a) it has any tendency to make a fact more or 

less probable than it would be without the evidence; and (b) the fact is of consequence in determining the 

action.” Indiana Evidence Rule 402 states, “Irrelevant evidence is not admissible.” Gonzalez asserts that 

because the DNA evidence was inconclusive, it was irrelevant and therefore inadmissible. The State rebuts 

this argument by focusing on Guy’s statistical data, citing Deloney v. State, 938 N.E.2d 724 (Ind. Ct. App. 

2010), trans. denied (2011). In Deloney, this Court held that “DNA evidence that does not constitute a match 

or is not accompanied by statistical data regarding the probability of a defendant’s contribution to a mixed 

sample is not relevant ... and should not be admitted.” Id. at 730. Here, Guy did testify about the statistical 

data, but on cross-examination it became apparent that the statistical weight of the sample, to determine 

whether Gonzalez was an actual contributor, was rather tenuous. We note that the mere mention of 

statistical data does not automatically make such evidence relevant. Deloney does not stand for the 

proposition that any statistical data regarding DNA evidence suffices for the purposes of relevancy and 

admissibility. Rather, the statistical data must have the tendency “to make a fact more or less probable.” 

Ind. Evidence Rule 401. 
Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-151 | August 16, 2017 Page 10 of 10

marks omitted), trans. denied. Here, the State presented evidence that Gonzalez 

had the opportunity to commit the crime and was the last known person to be 

with Smith; he fled the scene and evaded authorities under a false name for 

over a year and a half; and his own damning statements to his mother-in-law 

and wife implicate his guilt. Finding no fundamental error, we affirm 

Gonzalez’s murder conviction. 

[17] Affirmed. 

Baker, J., and Barnes, J., concur.