MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 09 2017, 5:48 am

court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose Tinajero-Garcia,                                    August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1701-CR-39
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1004-MR-30036



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017           Page 1 of 11
[1]   Jose Tinajero-Garcia (“Garcia”) was convicted in Marion Superior Court of

      murder, a felony, and ordered to serve a fifty-five-year sentence executed in the

      Department of Correction. Garcia presents two issues on appeal:


          1. Whether the State presented evidence sufficient to support his conviction
             for murder; and
          2. Whether the fifty-five-year sentence is inappropriate in light of the nature
             of his offense and his character.

[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 13, 2010, Garcia met Fabian Gutierrez-Barcenas (“Barcenas”). The

      men drank beer at Garcia’s apartment with a third individual, a mutual friend

      named Ariel Reyes Hernandez (“Hernandez”). One or more of the men used

      cocaine in Garcia’s apartment that night. At some point, Garcia and Barcenas

      walked Hernandez to his nearby apartment and returned to Garcia’s apartment,

      where they continued to drink beer and talk. An argument between the men

      turned violent when Barcenas punched Garcia, who responded by slicing

      Barcenas’s neck with a kitchen knife. Garcia brutally and repeatedly stabbed

      Barcenas in the neck, the face, the upper chest, the arm, the back, the finger and

      the ankle. At least four of the many stab wounds Barcenas suffered were

      sufficient to cause his death.


[4]   Garcia called 911 shortly before 6:00 a.m. on April 14, 2010, and reported that

      he had killed a man in self-defense. Indianapolis Metropolitan Police

      Department Patrol Officer David Hutson (“Hutson”) arrived at the apartment

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 2 of 11
      complex and found Garcia standing outside with a bloodied knife at his feet

      and with blood-stained clothes, hands, and face. Garcia cooperated when

      Hutson handcuffed him and responded when Hutson asked where the victim’s

      body could be found.


[5]   In April 2011, Garcia entered a plea of guilty to murder pursuant to an

      agreement with the State. The Marion Superior Court sentenced Garcia to

      forty-five years executed in the Department of Correction. He filed a petition

      for post-conviction relief and in March 2016 the post-conviction court

      determined Garcia received ineffective assistance of counsel and did not enter

      the plea agreement intelligently and voluntarily. His guilty plea, conviction, and

      sentence were vacated.


[6]   Garcia proceeded to a jury trial in November 2016. At trial, the Chief Forensic

      Pathologist of the Marion County Coroner’s Office presented evidence of the

      extent of Barcenas’s injuries. Several wounds to his neck severed the carotid

      and jugular vessels and were fatal. Deep, fatal stab wounds to his chest

      overlapped and intersected, making them impossible to count. Stab wounds to

      his back caused fatal damage to the aorta, lung, liver, and diaphragm. There

      was also evidence of numerous non-fatal injuries, some of which were described

      as defensive injuries Barcenas received in the struggle with Garcia. Garcia’s

      injuries were limited to cuts on his hands sustained from the knife slipping

      during the attack on Barcenas.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 3 of 11
[7]   Garcia testified in his own defense. He admitted to drinking beers the night of

      April 13, 2010, but denied smoking the cocaine that was recovered from his

      apartment. He described how an argument with Barcenas escalated when

      Barcenas punched and threatened to kill him. Because the men had been talking

      about weapons, Garcia assumed Barcenas had a gun or a knife, although he

      never saw Barcenas with either and no other weapon was recovered in the

      apartment. Garcia believed Barcenas’s threat was serious and testified that he

      was scared. He used a kitchen knife to attack Barcenas and did not stop his

      attack until Barcenas stopped moving.


[8]   On November 29, 2016, the jury found Garcia guilty of murder and the trial

      court entered a judgment of conviction. At the December 15, 2016, sentencing

      hearing, the State argued that the nature of Garcia’s crime was an aggravating

      circumstance. Garcia countered that his gainful employment, lack of criminal

      history, and remorse were mitigating circumstances and requested the court

      order a sentence of no more than forty-five years, in accordance with his prior

      plea agreement. Garcia also told the court that his attack on Barcenas was due

      to an unwanted advance Barcenas made on him. Garcia received the advisory

      sentence of fifty-five years executed in the Department of Correction. This

      appeal follows.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 4 of 11
                                      Discussion and Decision
                                     I. Sufficiency of the Evidence

[9]    Garcia argues insufficient evidence was presented to support his conviction for

       murder, a felony. First, Garcia asserts that the State failed to rebut his claim of

       self-defense. Second, Garcia asserts that the jury could not reasonably find that

       he did not act in sudden heat. The standard of review for a challenge to the

       sufficiency of evidence to rebut a claim of self-defense is the same as the

       standard for any sufficiency of the evidence claim. Wilson v. State, 770 N.E.2d

       799, 801 (Ind. 2002). The Court neither reweighs the evidence nor assesses the

       credibility of the witnesses. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind.

       2010). If any reasonable juror could find the defendant guilty beyond a

       reasonable doubt when considering all the facts and inferences in favor of the

       conviction, the defendant’s conviction will be affirmed. McHenry v. State, 820

       N.E.2d 124, 126 (Ind. 2005).


                                                 A. Self-Defense

[10]   To convict a defendant of murder, the State must prove beyond a reasonable

       doubt that the defendant knowingly and intentionally killed another human

       being. Ind. Code § 35-42-1-1(1). A valid claim of self-defense of oneself is legal

       justification for an otherwise criminal killing. Wallace v. State, 725 N.E.2d 837,

       840 (Ind. 2000). Self-defense is defined by Indiana Code § 35-41-3-2(c) in

       relevant part as follows:


               (c) A person is justified in using reasonable force against any
               other person to protect the person…from what the person
       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 5 of 11
               reasonably believes to be the imminent use of unlawful force.
               However, a person:


                        (1) is justified in using deadly force, and


                        (2) does not have a duty to retreat;


               if the person reasonably believes that force is necessary to prevent
               serious bodily injury to the person... No person in this state shall
               be placed in legal jeopardy of any kind whatsoever for protecting
               the person…by reasonable means necessary.


[11]   A defendant makes a valid claim of self-defense when he shows that he: 1) was

       in a place where he had the right to be; 2) did not provoke, instigate, or

       participate willingly in the violence; and 3) had a reasonable fear of death or

       great bodily harm. McEwan v. State, 695 N.E.2d 79, 90 (Ind. 1998). The State

       has the burden of negating at least one of the necessary elements to rebut a

       claim of self-defense. Id. If a defendant is convicted despite his claim of self-

       defense, the Court will reverse the conviction only if no reasonable person

       could say that self-defense was negated by the State beyond a reasonable doubt.

       Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999).


[12]   Citing his own testimony, Garcia argues that Barcenas’s threat caused him to

       fear death or great bodily harm and that he subsequently acted in self-defense.

       Appellant’s Br. at 10. However, it is the use of reasonable force in self-defense

       that is justified by statute, not the use of any force. Ind. Code § 35-41-3-2(c).

       This is related to the requirement that the amount of force used to protect

       oneself is proportionate to the threat posed by the situation. McKinney v. State,
       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 6 of 11
       873 N.E.2d 630, 643 (Ind. Ct. App. 2007). Barcenas suffered stab wounds so

       numerous that they could not be counted by the pathologist performing his

       autopsy. Tr. Vol. II p. 137. Any one of four sets of injuries Garcia inflicted

       would have been fatal. Tr. Vol. II pp. 132-147. Moreover, Garcia suffered only

       minor cuts to his hands due to the knife slipping during his attack on Barcenas.

       Ex. Vol. 1, State’s Exs. 11, 12, 77, 78. A reasonable juror could conclude that

       Garcia’s use of force was unreasonably disproportionate to the threat posed.

[13]   Additionally, Garcia has not shown that the State failed to rebut at least one

       element of the defense. McEwan, 695 N.E.2d at 90. Self-defense requires that

       the first response of a defendant who fears death or great bodily harm is an

       unwilling response. Ballard v. State, 808 N.E.2d 729, 732 (Ind. Ct. App. 2004).

       The State presented evidence from which a reasonable juror could conclude

       that Garcia willingly participated in the violence and that he willingly

       continued his attack on Barcenas long after the any threat posed had passed. Tr.

       Vol. II pp. 139-142. The State sufficiently rebutted Garcia’s claim that he acted

       in self-defense in killing Barcenas.


                                                B. Sudden Heat

[14]   In the alternative, Garcia argues that the State failed to negate the presence of

       “sudden heat.” Appellant’s Br. at 14-15. Voluntary manslaughter is an

       inherently included lesser offense of murder, distinguished from murder by the

       presence of sudden heat. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998). A

       person commits voluntary manslaughter when he knowingly kills another

       human being “while acting under sudden heat.” Ind. Code § 35-42-1-3(a).
       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 7 of 11
       Sudden heat is defined as provoked anger, rage, resentment, or terror sufficient

       to obscure the reason of an ordinary person. Dearman v. State, 743 N.E.2d 757,

       760 (Ind. 2001). Whether sudden heat exists is a question of fact to be

       determined by a jury. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999).


[15]   Garcia claimed that Barcenas threatened him and provoked Garcia to fear for

       his life. Tr. Vol. III pp. 14, 28. It is within the province of the jury to decide the

       credibility of witness testimony. Dillard v. State, 755 N.E.2d 1085, 1090 (Ind.

       2001). Therefore, the jury was free to evaluate Garcia’s credibility regarding

       whether he attacked Barcenas out of fear. The brutal nature of the attack belies

       Garcia’s argument that he acted in terror under sudden heat. Garcia requests

       this Court reweigh the evidence, which we will not do.


                                 II. Appropriateness of the Sentence

[16]   Garcia argues that his sentence is inappropriate and requests appellate review

       and revision of the trial court’s sentence, as authorized by Article 7, Section 6 of

       the Indiana Constitution. Indiana Appellate Rule 7(B) provides that “[t]he

       Court may revise a sentence authorized by statute if, after due consideration of

       the trial court's decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Review of

       sentences under Appellate Rule 7(B) is deferential to the trial court’s judgment.

       Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should

       prevail unless overcome by compelling evidence portraying in a positive light

       the nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant's character (such as substantial virtuous traits or
       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 8 of 11
       persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015). Garcia bears the burden of establishing that his sentence is

       inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[17]   The sentencing range for murder is between forty-five and sixty-five years. Ind.

       Code § 35-50-2-3. Sentences at the extremes of the lawful range are more often

       (but not always) clearly, plainly, and obviously inappropriate. Williams v. State,

       782 N.E.2d 1039, 1050 (Ind. Ct. App. 2003). The trial court ordered Garcia to

       serve the advisory sentence for murder, fifty-five years.


[18]   Garcia’s 2011 plea agreement with the State was for forty-five years, at the low

       end of the sentencing range. Garcia contends that “principles of fairness”

       implied under Indiana Post-Conviction Rule 1(10) should guide how this Court

       determines whether the imposition of the more severe penalty was

       inappropriate. Appellant’s Br. at 19. Post-Conviction Rule 1(10) provides in

       relevant part:


               (b) If a sentence has been set aside pursuant to this rule and the
               successful petitioner is to be resentenced, then the sentencing
               court shall not impose a more severe penalty than that originally
               imposed unless the court includes in the record of the sentencing
               hearing a statement of the court’s reasons for selecting the
               sentence that it imposes which includes reliance upon identifiable
               conduct on the part of the petitioner that occurred after the
               imposition of the original sentence.


[19]   However, Post-Conviction Rule 1(10)(c) creates an exception for cases where 1)

       a conviction based upon a plea agreement is set aside; 2) the State subsequently


       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 9 of 11
       re-offers a sentence in accordance with the original terms of the plea agreement;

       and 3) the defendant ultimately fails to accept the State’s re-offer. This

       exception applies to Garcia. He denied the State’s re-offer of a forty-five-year

       sentence, and therefore, the restriction on imposing a more severe penalty

       established in Post-Conviction Rule 1(10)(b) does not apply. The trial court was

       not restricted from imposing the more severe sentence of fifty-five years by any

       rule of law.

[20]   Whether Garcia’s sentence is inappropriate, then, depends on his ability to

       provide compelling evidence that shines a positive light on the nature of his

       offense and on his character. Stephenson, 29 N.E.3d at 122. Under Appellate

       Rule 7(B), “character of the offender” refers in part to the trial court’s balancing

       of aggravating and mitigating circumstances under Indiana Code Section 35-38-

       1-7.1. Here, the trial court considered Garcia’s remorse as a mitigating

       circumstance, and the brutal nature of Garcia’s offense as an aggravating

       circumstance. Tr. Vol. III pp. 97-98.


[21]   Regarding the nature of the offense, Garcia does not dispute that the attack was

       brutally violent. Appellant’s Br. at 19. Paradoxically, he argues that because the

       offense was brutal in nature, it was an “incomprehensible” act by Garcia, a man

       with no prior criminal history. Id. According to Garcia’s testimony at

       sentencing, the extraordinarily violent nature of the offense was a result of his

       aberrant state of mind after Barcenas made an unwanted advance on him. Id.

       While the offense may have been uncharacteristic of Garcia’s prior conduct and

       may have been motivated by a perceived advance from Barcenas, Garcia’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 10 of 11
       arguments do little to portray the nature of this offense in a positive light or

       reduce the aggravated nature of the attack. Garcia’s offense was clearly not

       accompanied by restraint, regard, or lack of brutality. Ex. Vol. I, State’s Exs.

       57-67.


[22]   From the nature of Garcia’s offense, the Court learns much about the nature of

       Garcia’s character. If the attack was instigated by an unwanted advance from

       Barcenas, this Court agrees with the State’s conclusion that Garcia grossly

       overreacted with fatal consequences. Appellee’s Br. at 21. Evidence that Garcia

       was employed and had no prior criminal history does not compellingly portray

       Garcia’s nature in a positive light sufficient to overcome the trial court’s

       judgment. Indeed, our review leads us to the conclusion that the trial court was

       generous in its judgment that Garcia’s remorse was a mitigating factor. Tr. Vol.

       III pp. 97-98.


                                                 Conclusion
[23]   Garcia’s conviction for murder was supported by sufficient evidence. Fifty-five

       years is the advisory sentence for murder, and Garcia has not established that

       the advisory sentence is inappropriate.


[24]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017   Page 11 of 11
