Jose Gutierrez v. State of Indiana (mem. dec.), 45A05-1512-CR-2372

On Nov. 1, 2013, Jose Gutierrez and a friend (Mark Bartell) were at the Michigan Avenue Bar in Hammond, drank and used cocaine; an altercation occurred between Gutierrez and patron Daniel Juarez.
Bar staff escorted Gutierrez and Bartell out after Gutierrez tried to fight Juarez; staff told Gutierrez to take any gun outside and patted him down before reentry.
Gutierrez placed a handgun in his vehicle, returned to the bar area wearing Bartell’s sweatshirt, found the door locked, and fired 13 shots into the exterior wall beneath a row of small windows where Juarez had been sitting.
Jose Herrera, sitting near Juarez, was killed by a gunshot; another patron was wounded in the foot. Gutierrez and Bartell fled; Gutierrez told Bartell the victim had “disrespected him.”
Gutierrez later showed the gun at another bar and gave the gun and sweatshirt back to Bartell, asking him to hide the gun. Police recovered 13 casings and 11 bullets/holes on the wall.
Gutierrez was charged with murder and Class C felony battery; convicted by a jury and sentenced to an aggregate 65 years; he appealed arguing insufficiency of intent and several evidentiary errors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
I. Sufficiency of intent for murder	State: evidence shows Gutierrez intentionally fired into area where Juarez sat, supporting intent to kill (transferred intent to Herrera).	Gutierrez: shots were sprayed; at most reckless conduct, not intent to kill Herrera.	Affirmed — jury could infer intent from firing 13 shots into area where victim was; transferred intent applies.
II. Officer’s description of surveillance gestures	State: officer testimony helped jury interpret video showing defendant mimicking shooting.	Gutierrez: officer’s description was speculative and inadmissible.	Even if erroneous, testimony was cumulative and harmless; no reversal.
III. Testimony about being asked to take gun outside and being frisked	State: testimony showed defendant possessed a gun and was told to remove it, supporting identification as shooter.	Gutierrez: admission prejudiced him by implying consciousness of guilt or possession.	Admission not reversible error — cumulative to other evidence proving he had the gun.
IV. Detective’s comment on recorded jail call asking sister to hide shirt	State: played call (with translation) to show consciousness of guilt and effort to hide evidence.	Gutierrez: translating/commentary by detective improperly commented on conversation and was fundamental error.	Admission did not affect substantial rights; evidence cumulative and harmless.

Suggs v. State, 51 N.E.3d 1190 (Ind. 2016) (standard for reviewing sufficiency of evidence in criminal cases)
Treadway v. State, 924 N.E.2d 621 (Ind. 2010) (consider only evidence and reasonable inferences supporting verdict)
Garrett v. State, 714 N.E.2d 618 (Ind. 1999) (intent to kill may be inferred from firing a weapon in a manner likely to cause death)
Blanche v. State, 690 N.E.2d 709 (Ind. 1998) (doctrine of transferred intent applies when defendant intends to kill one person but kills another)
Guilmette v. State, 14 N.E.3d 38 (Ind. 2014) (trial court has broad discretion over admissibility of evidence)
VanPatten v. State, 986 N.E.2d 255 (Ind. 2013) (review for abuse of discretion and reversal only if error affected substantial rights)
Ware v. State, 816 N.E.2d 1167 (Ind. Ct. App. 2004) (harmless-error analysis when conviction supported by substantial evidence)