Opinion
23A-CR-1252
05-21-2024
Alexander Miranda Ortiz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brandon Townsend Law Office of Brandon Townsend Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Mark Dudley, Judge Trial Court Cause No. 48C06-2112-MR-3441
ATTORNEY FOR APPELLANT
Brandon Townsend Law Office of Brandon Townsend Anderson, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Alexander Miranda Ortiz appeals his convictions for murder, a felony, and for fraud as a class A misdemeanor. He asserts the trial court abused its discretion in admitting certain evidence at trial and in finding no mitigating factors during sentencing. We affirm.
Facts and Procedural History
[¶2] Andrea Aguirre and Juan Aviana were married and had two children together. They lived at a home on 5th Street in Anderson. Sometime in June 2021, around Father's Day, the couple separated and Aviana moved out of the home. After the separation, Andrea briefly dated a man named Louis Maouris and then she began dating Ortiz.
[¶3] Andrea owned two vehicles, a white Chevrolet Equinox, and a silver Acura. She "always" drove the Equinox, and Ortiz drove the Acura. Transcript Volume II at 157. On the afternoon of December 19, 2021, Ortiz and Andrea argued about finances and also whether Ortiz was cheating on her. The argument continued on December 20, 2021.
[¶4] A little after 8:00 p.m. on December 20, Andrea spoke on the phone with her friend Sheena Rangel. Andrea informed Rangel that Ortiz was at her house, indicating that he had invited himself. Rangel was aware that Andrea and Ortiz had been fighting recently so she replied, "[N]o bueno, not a good idea. You can uninvite him as fast as he invited himself." Transcript Volume III at 70. That same evening, Andrea communicated with one of her sisters, Amanda Whitt, via Facebook. Andrea indicated that Ortiz was with her but she did not want him there.
[¶5] Andrea's cell phone was unlocked and locked for the last time at 12:16 a.m. on December 21, 2021. A neighbor's video surveillance camera and Ortiz's cell phone data indicated that Ortiz left Andrea's house at approximately 12:30 a.m. in the Acura, taking Andrea's bank and credit cards with him. Ortiz drove south on I-69 and stopped at a Love's Travel Center where he used one of Andrea's bank cards. He also searched for flights from Indianapolis to Orlando. Ortiz continued driving south, not seemingly heading to any destination, stopping at gas stations every ten to thirty minutes. This "erratic behavior" continued for hours until around 8:30 a.m., when Ortiz stopped at a rest stop on I-65 in Henryville. Transcript Volume IV at 154. Within minutes of stopping, Ortiz changed his Facebook profile picture, deleted Andrea from his list of Facebook friends, and began searching for flights to Boston. He drove a little further toward Louisville before stopping and again searching for flights to Orlando.
[¶6] That same morning, one of Andrea's sisters, Deanna Aguirre, as well as Andrea's brother, Diego, noticed that Ortiz had changed his Facebook profile picture and deleted all pictures and signs of Andrea from his account. Diego tried to contact Ortiz through Facebook Messenger, but Ortiz did not respond.
[¶7] Meanwhile, Ortiz changed directions and began driving north, stopping at a gas station in Peru, before heading to Grand Rapids, Michigan. Ortiz stopped at a diner and drove around in circles in a residential area, and then drove back to Indiana. He stopped at several more gas stations and, during one stop, he conducted an internet search for "death in Anderson, Indiana, deaths in Anderson, Aguirre Andrea Michelle violence domestica" and "death Andrea Aguirre." Id. at 158. Ortiz eventually traveled to Columbus, Ohio, staying for one day, and then to Massachusetts. He continued to conduct internet searches regarding Andrea's death.
[¶8] Andrea's husband, Aviana, tried contacting Andrea several times on December 21, 2021. He called Deanna, and she advised him to go to Andrea's house to check on her. When Aviana arrived, he knocked on the door and looked in the windows, but he "didn't see anything" so he used his key to open the door. Transcript Volume II at 47. Aviana yelled for Andrea but received no answer. He entered Andrea's bedroom, discovering Andrea on the floor deceased, and the couple's two-year-old son sitting on the bed covered in blood. Aviana removed his son from the home and called 911. Andrea died as a result of multiple stab wounds, including at least two substantial wounds to the neck and face. On December 29, 2021, police officers located and arrested Ortiz at a rest stop in Massachusetts.
[¶9] The State charged Ortiz with murder. The State later added a charge of fraud as a class A misdemeanor. A jury found Ortiz guilty as charged. The trial court held a sentencing hearing on May 5, 2023. The court found six aggravating factors, no mitigating factors, and imposed a sixty-five-year sentence.
Discussion
I.
[¶10] Ortiz challenges the trial court's admission of certain evidence. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
[¶11] Rangel testified that, shortly before Andrea's murder, she was speaking to Andrea on the phone about Ortiz inviting himself over to Andrea's home and Rangel told Andrea, "[N]o bueno, not a good idea. You can uninvite him as fast as he invited himself." Transcript Volume III at 55, 70. Ortiz objected to the admission of this testimony on grounds that its probative value was outweighed by the danger of unfair prejudice. Specifically, he argued that Rangel's "opinion" testimony was simply being offered to show that Ortiz is "a bad guy so to speak" and that the evidence "should not come in." Id. at 60.
[¶12] On appeal, Ortiz cites to Ind. Evidence Rule 403 which provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." The risk of unfair prejudice relates to "the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest [making a] decision on an improper basis." Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009)). Because "all relevant evidence is 'inherently prejudicial' in a criminal prosecution," the weighing test under Evidence Rule 403 "boils down to a balance of probative value against the likely unfair prejudicial impact . . . the evidence may have on the jury." Id. at 1194 (quoting Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)). We afford trial courts wide latitude in weighing probative value against the danger of unfair prejudice. Id. at 1193.
[¶13] The trial court found that Rangel's brief testimony was probative of the state of Ortiz's relationship with his alleged victim which, by all accounts, was not good at the time of the murder. The court concluded, based upon both parties' concessions that additional evidence would be presented demonstrating the existence of an active dispute between Ortiz and Andrea, the probative value of Rangel's testimony corroborating a strained relationship between the two outweighed any prejudicial impact. We will not second-guess the trial court's determination.
[¶14] Ortiz also claims the admission of Rangel's testimony violated Ind. Evidence Rule 701, which provides: "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue." However, he did not object on this basis at trial. A claim of trial court error in admitting evidence may not be presented on appeal unless there is a timely trial objection "stat[ing] the specific ground [of objection], unless it was apparent from the context." Ind. Evidence Rule 103(a)(1); see, e.g., Hale v. State, 976 N.E.2d 119, 123 (Ind.Ct.App. 2012) (noting that to preserve error for review on appeal, specific objection relied upon on appeal must have been stated to trial court as basis for objection). Ortiz's failure to object on the specific ground of Evidence Rule 701 waives the issue.
[¶15] Ortiz next challenges the admission of State's Exhibit 250(C) which consists of "a certified business record of a Facebook conversation" between Andrea and her sister Amanda Whitt. Appellant's Brief at 14. During the testimony of Andrea's other sister, Deanna, the deputy prosecutor handed Deanna the exhibit and she advised that she recognized the exhibit because Amanda had sent the messages to her. The deputy prosecutor requested a bench conference in order to explain the relevance of the exhibit to Andrea's state of mind. Defense counsel objected to the exhibit complaining that the State was trying to have Deanna "authenticat[e] a conversation between another person." Transcript Volume II at 92. The parties discussed the exhibit with the trial court further, and both parties eventually agreed the State would withdraw its offer of the exhibit and submit a redacted version of the exhibit for admission later during trial. Accordingly, the State withdrew its submission of the exhibit and continued with its direct examination of Deanna.
The exhibit indicates that on the night of the murder, Amanda messaged Andrea asking if she had heard from Ortiz. Andrea responded, "He's here," "But I don't want him . . . Here." Exhibits Volume III at 219. During her testimony, while Deanna stated she recognized the exhibit, she did not testify to its contents.
The reason for the redaction is not relevant for the purposes of Ortiz's argument on appeal.
[¶16] Ortiz cites to Ind. Evidence Rule 602 on appeal and claims the exhibit was "admitted improperly" because it was "authenticated improperly" by being offered into evidence during the testimony of a witness who "lacked personal knowledge" of the Facebook communications. Appellant's Brief at 14-15. However, as noted above, Ortiz's trial objection did not mention Evidence Rule 602 and, more importantly, he fails to cogently explain how the trial court abused its discretion as the record reveals that Deanna did not testify to the contents of the exhibit and the exhibit was not admitted into evidence during her testimony. Therefore, his claim is waived both for failure to raise it below and for failure to develop a cogent argument on appeal. See Ind. Evidence Rule 103(a)(1); Hale, 976 N.E.2d at 123; see also Ind. Appellate Rule 46(A)(8)(a) ("The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning."); Keller v. State, 987 N.E.2d 1099, 1121 n.11 (Ind.Ct.App. 2013) (defendant's failure to make cogent argument results in waiver of issue on appeal), trans. denied.
That rule provides:
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. A witness does not have personal knowledge as to a matter recalled or remembered, if the recall or remembrance occurs only during or after hypnosis. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.
Ortiz made no argument below, nor does he make one on appeal, that the Facebook messages were not properly authenticated pursuant to Ind. Evidence Rule 901(a) which provides that "[to] satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Nevertheless, the State responds to his admissibility challenge by arguing that the exhibit was properly "authenticated" pursuant to Evidence Rule 901 because the State submitted "documentation" from Facebook's parent company Meta Platforms, Inc., attesting to the authenticity of the messages. Appellee's Brief at 12-13. However, because Ortiz did not make an Evidence Rule 901 authenticity challenge either below or on appeal, we will not address the State's response and decline to address this issue further. See Conley v. State, 183 N.E.3d 276, 283 (Ind. 2022) (agreeing that appellate court's role is one of impartial adjudicator, not advocate, and noting that the court should not "make up" or address arguments party has not adequately presented).
II.
[¶17] In imposing sentence, the trial court found six aggravating factors and no mitigating factors. Ortiz contends the trial court abused its discretion in failing to find any mitigating factors, arguing the trial court should have found as mitigating that "he lived a law-abiding life for a substantial period" and was "unlikely to commit another crime." Appellant's Brief at 17.
[¶18] We review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. A trial court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. If the trial court has abused its discretion, we will remand for resentencing "if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record." Id. at 491. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. Generally, a single aggravator is sufficient to support an enhanced sentence. See Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).
[¶19] A review of the presentence investigation report reveals that Ortiz has been arrested numerous times since 2009, both in Puerto Rico and in the United States, and has at least one prior domestic violence felony conviction from Puerto Rico. Despite his suggestion on appeal that the trial court should have considered his criminal history as relatively minor and assigned at least some mitigating weight to his self-proclaimed unlikeliness to commit another crime, the trial court was under no obligation to do so. Moreover, the trial court found six aggravating factors, none of which Ortiz challenges on appeal. We find no abuse of discretion.
[¶20] For the foregoing reasons, we affirm Ortiz's convictions and sentence.
[¶21] Affirmed.
Riley, J., and Foley, J., concur.