MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Jun 11 2015, 8:36 am
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
Michael R. Fisher                                         Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Keith Brown,                                             June 11, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1411-CR-774
        v.                                               Appeal from the Marion Superior
                                                         Court;
                                                         The Honorable Sheila Carlisle,
State of Indiana,                                        Judge;
Appellee-Plaintiff.                                      49G03-1307-MR-43238




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015     Page 1 of 9
[1]   Keith Brown appeals his conviction of and sentence for murder, a felony. 1 We

      affirm.


                                     Facts and Procedural History
[2]   On the evening of June 27, 2013, Maria Rodriguez saw Brown carrying a gun.

      When asked why he had a gun, Brown replied he was “tired of these people

      talking shit” about him. (Tr. at 277.) Later that evening, Brown arrived at the

      apartment of Maria’s next door neighbor, Angela Meadors, asking if Angela

      had heard a rumor about Brown. Angela told Brown he needed to talk to

      Maria. Brown went next door and brought Maria to Angela’s apartment.


[3]   At the time, Angela was hosting a birthday party for her fiancé, Jimmy Fesler.

      There were multiple people present, including children. Brown entered the

      kitchen to confront Angela about the rumor. He told Angela to “keep . . . his

      fucking name out of her mouth.” (Id. at 286.) Fesler then stood up and told

      Brown to “quit . . . disrespecting [his] old lady.” (Id. at 65.) Brown took the

      gun from his pocket, cocked it, and shot Fesler twice, once in the face and once

      in the neck. Fesler died from his injuries.


[4]   Brown fled, and police arrested him in Detroit, Michigan on August 4, 2013.

      The State charged Brown with murder and the State requested a sentencing

      enhancement because Brown used a handgun in the commission of the crime. 2



      1
          Ind. Code § 35-42-1-1 (2007).
      2
          Ind. Code § 35-50-2-11(c) (2005).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 2 of 9
      On September 30, 2014, a jury found Brown guilty of murder and the State

      declined to proceed with the sentencing enhancement. On October 8, the trial

      court sentenced Brown to sixty years.


                                     Discussion and Decision
                                    1.      Sufficiency of the Evidence

[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the ruling. Id. We affirm a conviction unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Id. It is therefore not necessary that the evidence overcome

      every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference reasonably may be drawn from it to support the decision. Id. at 147.


      A.      Voluntary Manslaughter


[6]   To prove Brown committed murder, the State had to present evidence he

      knowingly or intentionally killed Fesler. See Ind. Code § 35-42-1-1(1). Brown

      admits he killed Fesler. He argues, however, he did not do so knowingly or

      intentionally, but instead acted in sudden heat, which would require that he be

      convicted of Class A felony voluntary manslaughter. See Ind. Code § 35-42-1-3

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 3 of 9
      (1997) (“existence of sudden heat is a mitigating factor that reduces what

      otherwise would be murder under section 1(1) of this chapter to voluntary

      manslaughter.”).


[7]   Words alone are not sufficient provocation for voluntary manslaughter

      especially when they are not intentionally designed to provoke. Suprenant v.

      State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied. “Sudden heat”

      requires

              [s]ufficient provocation to engender passion which is demonstrated by
              anger, rage, sudden resentment, or terror that is sufficient to obscure
              the reason of an ordinary person, prevent deliberation and
              premeditation, and render the defendant incapable of cool reflection.
      Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).


[8]   Brown argues his anger was originally directed at Angela and Maria, whom he

      accused of gossiping about him, and he did not focus on Fesler until Fesler told

      Brown to stop “disrespecting [Fesler’s] old lady.” (Tr. at 65.) He claims “[i]n

      that split second, the anger, rage and resentment engendered by [Fesler’s]

      comment obscured [Brown’s] reason and prevented any deliberation,

      premeditation, or cool reflection . . . . Nothing else explains this irrational,

      impulsive act.” (Br. of Appellant at 13.).


[9]   The State presented evidence Brown did not act in sudden heat. Brown carried

      a gun the night of the murder because he was “tired of these people talking shit”

      about him. (Tr. at 277.) Brown went to multiple apartments in search of the

      people he thought were gossiping about him. Finally, the only possible act of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 4 of 9
       provocation from Fesler would be his statement asking Brown to stop

       disrespecting Angela, which we have held is not sufficient provocation for

       sudden heat. See Suprenant, 925 N.E.2d at 1282. Brown’s arguments are

       invitations for us to reweigh the evidence, which we cannot do. See Drane, 867

       N.E.2d at 146 (appellate court cannot reweigh evidence or judge the credibility

       of witnesses). 3


       B.      Self-Defense


[10]   Our standard of review regarding a claim of self-defense is well-settled:

               “Self-defense is recognized as a valid justification for an otherwise
               criminal act.” “A person is justified in using reasonable force against
               another person to protect himself . . . from what he reasonably believes
               to be the imminent use of unlawful force.” Self[-]defense is established
               if a defendant (1) was in a place where the defendant had a 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. . . . [O]nce
               a defendant claims self-defense, the State bears the burden of
               disproving at least one of the elements beyond a reasonable doubt.
               The State may meet its burden of proof by “rebutting the defense
               directly, by affirmatively showing that the defendant did not act in self
               [-]defense, or by simply relying upon the sufficiency of its evidence in
               chief.”
       Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000) (citations omitted).




       3
         Brown also argues he should be convicted only of Class C felony reckless homicide because he did not
       knowingly shoot Fesler. However, as we hold the State presented sufficient evidence Brown knowingly and
       intentionally shot Fesler and did not do so in sudden heat, we have already decided Brown committed the act
       knowingly, and thus Brown’s argument fails.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015             Page 5 of 9
[11]   Brown argues he acted in self-defense when shooting Fesler because Fesler

       spoke to him in a threatening manner, Fesler was much larger than Brown, and

       Fesler grabbed Brown’s wrist after Brown drew his gun. However, the State

       presented evidence Brown was the initial aggressor when he pulled a gun from

       his pocket after Fesler asked Brown to stop disrespecting Angela, and thus the

       State properly rebutted Brown’s claim of self-defense. See id. (State rebuts

       defendant’s claim of self-defense upon proving defendant was initial aggressor

       in confrontation). Brown’s arguments to the contrary are invitations for us to

       reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).


                                       2.       Inappropriate Sentence

[12]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

       the aggravators and mitigators found by the trial court, but also any other

       factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

       App. 2007), trans. denied. The appellant bears the burden of demonstrating his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[13]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       advisory sentence for murder is fifty-five years, with a range of forty-five to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 6 of 9
       sixty-five years. Ind. Code § 35-50-2-3. The trial court sentenced Brown to

       sixty years.


[14]   One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense accounted for by the legislature when it set the advisory

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

       Brown argues his sentence is inappropriate based on the nature of the offense

       because the “shooting here was not motivated by greed or self-interest, but

       rather arose out of Mr. Brown’s distress that people might be talking about

       him.” (Br. of Appellant at 15.) However, the fact he shot a man who asked

       him to stop disrespecting that man’s fiancé without additional provocation from

       the victim and in the presence of children is noteworthy when considering the

       nature of the offense.


[15]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. Brown was twenty-two years at the time he

       committed murder. As a juvenile, he had been adjudicated a delinquent for

       committing acts that would be Class D felony theft, Class A misdemeanor

       criminal mischief, and Class A misdemeanor criminal conversion if committed

       by an adult. As an adult, Brown had been convicted of Class C felony battery

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 7 of 9
       for battering a pregnant woman and had twice violated his probation for that

       offense. His criminal history shows an escalation in the seriousness of his

       crimes. See Mills v. State, 536 N.E.2d 290, 291 (Ind. 1989) (a “pattern of steadily

       escalating offenses” justified sentence beyond advisory sentence).


[16]   Brown argues his mental health problems and his difficult childhood make his

       sentence inappropriate. Brown alleges he suffers from bipolar disorder and

       ADHD. However, the record does not reflect he has been diagnosed with a

       mental disorder, only that he self-reported the afflictions and other symptoms of

       paranoia. 4 Regarding his difficult childhood, Brown testified he was left in the

       care of his grandmother after his mother was incarcerated and he had to protect

       himself and his sister from abuse. However, we are not convinced Brown’s

       undiagnosed mental illness or his difficult childhood should have warranted a

       reduction in sentence. See Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013)

       (holding sentence appropriate despite undiagnosed mental disorders and

       difficult childhood). Brown shot a man at close range twice, in the presence of

       others, including children, and then walked calmly from the scene. He evaded

       capture for approximately one month. Neither Brown’s character nor his

       offense lead us to believe his sentence is inappropriate.




       4
        The pre-sentence report also indicates Brown receives disability payments for ADHD and asthma.
       However, this information is also self-reported and was not verified.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015          Page 8 of 9
                                                 Conclusion
[17]   The State presented sufficient evidence Brown committed murder, and it

       rebutted his claim of self-defense. His sentence was not inappropriate based on

       his character and the nature of the offense. Accordingly, we affirm.


[18]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-774 | June 11, 2015   Page 9 of 9
