      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any
                                                                      Feb 26 2018, 10:20 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                              CLERK
                                                                       Indiana Supreme Court
      estoppel, or the law of the case.                                   Court of Appeals
                                                                            and Tax Court




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



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Benjamin E. Faulk,                                       February 26, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1706-CR-1255
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Marc T.
      Appellee-Plaintiff.                                      Rothenberg, Judge
                                                               Trial Court Cause No.
                                                               49G02-1507-MR-23572



      Mathias, Judge.

[1]   Benjamin Faulk (“Faulk”) was convicted of murder and ordered to serve sixty

      years executed in the Department of Correction. Faulk appeals and argues that


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 1 of 11
      the State failed to rebut his claim of self-defense. Faulk also argues that the trial

      court abused its discretion in its consideration of the mitigating and aggravating

      circumstances and that his sixty-year sentence is inappropriate in light of the

      nature of the offense and the character of the offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Faulk and Jamie Hines (“Hines”) lived together in a home in Indianapolis with

      several other individuals. Only Hines’s name was on the lease of the residence,

      but Faulk was dating Hines’s sister, and he allowed them to live with him. Tara

      Lillard (“Tara”) also lived at the residence with her two daughters and their

      young children.


[4]   On July 2, 2015, Faulk and Hines got into an argument because Hines

      purchased chicken for Tara. Hines owed Faulk five dollars, and Faulk was

      upset that Hines had purchased Tara’s chicken, but had not paid Faulk the

      money owed to him. The two men exchanged words and got into a physical

      altercation on the porch of their residence. Tara was also struck in the eye

      during the fight.


[5]   Eventually, the fighting stopped, and Hines told Faulk that he needed to move

      out of the house. Both Tara and Hines walked into the house and proceeded

      upstairs to the second floor. Hines entered Faulk’s bedroom, gathered his

      clothing and threw them down the staircase. Faulk entered the house, and

      when he saw his clothing, yelled to Hines, “That’s how you going to do me?”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 2 of 11
      Tr. Vol. II, p. 27. Faulk proceeded up the stairs to his room and passed Hines

      who was coming down the stairs.


[6]   Hines remained at the bottom of the staircase, and when Faulk came back

      down the stairs, he grabbed Hines with his left hand. With his right hand, he

      stabbed Hines in the back of the neck with his pocket knife. Faulk then began to

      walk out of the house, and Hines tried to shut the front door. But Faulk turned

      around, kicked the door open, and stabbed Hines in the chest three times. One

      of the stab wounds penetrated Hines’s ribcage and entered the right ventricle of

      his heart. The wound caused significant blood loss and ultimately Hines’s

      death.


[7]   On July 6, 2015, Faulk was charged with murder. A jury trial was held on April

      17, 2017. Faulk argued that he acted in self-defense. The jury did not find his

      claim of self-defense credible and found him guilty of murder.


[8]   On May 17, 2017, the trial court held Faulk’s sentencing hearing. The court

      considered Faulk’s criminal history and the circumstances of the offense as

      aggravating circumstances, and his remorse as a mitigating circumstance. After

      concluding that the aggravating circumstances, and particularly Faulk’s

      criminal history, outweighed the mitigating circumstance, the trial court

      ordered Faulk to serve sixty years executed in the Department of Correction.

      Faulk now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 3 of 11
                                                Self-Defense
[9]    Faulk argues that the State failed to rebut his claim of self-defense. 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). We neither reweigh the

       evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence

       of probative value to support the conclusion of the trier of fact, then the verdict

       will not be disturbed. Id.


[10]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “A person is justified in using

       reasonable force against any other person to protect the person or a third person

       from what the person reasonably believes to be the imminent use of unlawful

       force.” Ind. Code § 35-41-3-2(c).


               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 that force is necessary to
               prevent serious bodily injury to the person or a third person or
               the commission of a forcible felony. No person in this state shall
               be placed in legal jeopardy of any kind whatsoever for protecting
               the person or a third person by reasonable means necessary.


       Id.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 4 of 11
[11]   To prevail on a self-defense claim, the defendant must show that he: (1) was in

       a place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear of death or great bodily harm. Henson v. State, 786 N.E.2d 274,

       277 (Ind. 2003). “When a claim of self-defense is raised and finds support in the

       evidence, the State has the burden of negating at least one of the necessary

       elements.” Wilson, 770 N.E.2d at 800. “The State may meet this burden by

       rebutting the defense directly, by affirmatively showing the defendant did not

       act in self-defense, or by simply relying upon the sufficiency of its evidence in

       chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). “If a defendant is

       convicted despite his claim of self-defense, this Court will reverse only if no

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

       reasonable doubt.” Wilson, 770 N.E.2d at 800–01.


[12]   Faulk’s self-defense claim is based on his own self-serving testimony at trial.

       Faulk testified that as he came down the stairs, Tara Sue Woods (“Sue”)

       handed Hines a fireplace poker, and Faulk feared for his safety. Sue

       unequivocally testified that she did not give the fireplace poker to Hines. Tr.

       Vol. 2, p. 104. The witnesses to the murder testified that Hines was unarmed

       when Faulk came down the stairs, grabbed Hines, and stabbed him. Id. at 28,

       104.


[13]   Although Faulk was in a place where he had a right to be, the State presented

       sufficient evidence to rebut Faulk’s claim that he acted without fault and was in

       reasonable fear of bodily harm. Faulk was upset that Hines purchased chicken

       for Tara when Hines owed him five dollars. Faulk started an argument with

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 5 of 11
       Hines and the physical fight that followed. Shortly thereafter, he stabbed Hines,

       who was unarmed, in the neck. Faulk started to leave the house but then kicked

       open the door Hines was attempting to close and stabbed Hines three times in

       the chest. One of the stab wounds penetrated Hines’s heart resulting in his

       death. This evidence is sufficient to rebut Faulk’s claim of self-defense and is

       sufficient evidence that Faulk murdered Hines.


                                                    Sentencing
[14]   Faulk also argues that the trial court abused its discretion in its consideration of

       the mitigating and aggravating circumstances at the sentencing hearing and that

       his sixty-year sentence is inappropriate in light of the nature of the offense and

       the character of the offender.1


                          A. Aggravating and Mitigating Circumstances

[15]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g. So long as

       the sentence is within the statutory range, it is subject to review only for an

       abuse of discretion. Id. 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




       1
        Throughout Faulk’s argument challenging his sentence, he argues that his sentence should be reduced
       because his crime was more akin to voluntary manslaughter than murder and that he acted under strong
       provocation. However, Faulk did not request a lesser-included instruction on voluntary manslaughter at trial,
       and we will not consider the sentencing range for that crime as we consider his sentence for murder. The trial
       court also rejected Faulk’s claim that he acted under strong provocation or that Hines humiliated him. The
       court noted that Faulk escalated a minor disagreement into murder. Tr. Vol. III, p. 44.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018          Page 6 of 11
       reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial

       court abuses its discretion during sentencing by: (1) failing to enter a sentencing

       statement at all; (2) entering a sentencing statement that includes aggravating

       and mitigating factors that are unsupported by the record; (3) entering a

       sentencing statement that omits reasons that are clearly supported by the

       record; or (4) entering a sentencing statement that includes reasons that are

       improper as a matter of law. Id. at 490–91.


[16]   First, Faulk argues that the trial court abused its discretion when it considered

       the nature and circumstances of the crime as an aggravating circumstance. If

       the trial court relies upon an aggravating factor that is also a material element of

       the offense, then the trial court abuses its discretion; but if something is unique

       about the circumstances of the crime, then there is no abuse of discretion in

       relying upon these circumstances as an aggravating factor. See Gomillia v. State,

       13 N.E.3d 846, 852–53 (Ind. 2014) (stating “[w]here a trial court’s reason for

       imposing a sentence greater than the advisory sentence includes material

       elements of the offense, absent something unique about the circumstances that

       would justify deviating from the advisory sentence, that reason is improper as a

       matter of law”).


[17]   The trial court considered as aggravating that Faulk murdered Hines because of

       an argument over a five-dollar debt, and more specifically, that Hines

       purchased chicken for Tara Lillard instead of paying Faulk the five dollars that

       Hines owed to him. The trial court stated that the fact that Hines “lost his life . .

       . over a bucket of chicken, is one of the saddest things in this entire world.” Tr.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 7 of 11
       Vol. 3, p. 43. The trial court acted within its discretion when it identified this

       unique circumstance of the offense and considered it to be aggravating.


[18]   Faulk also argues that the trial court abused its discretion when it failed to

       consider Faulk’s tragic childhood as a mitigating circumstance. Importantly, the

       trial court is not obligated to accept the defendant’s argument concerning what

       constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct.

       App. 2012), trans. denied. Moreover, if the trial court does not find the existence

       of a mitigating factor after it has been argued by counsel, the court is not

       obligated to explain why it found the circumstance not to be mitigating.

       Anglemyer, 868 N.E.2d at 493.


[19]   Although the trial court never specifically identified Faulk’s childhood as a

       mitigating factor, the trial court discussed his childhood when it imposed his

       sentence. The only evidence of Faulk’s tragic childhood was his own testimony

       at the sentencing hearing. Therefore, the trial court acted within its discretion

       when it either rejected Faulk’s childhood as a mitigating circumstance or when

       it assigned it little weight.


                                        B. Inappropriate Sentence

[20]   Finally, Faulk argues that his sixty-year sentence is inappropriate. Although a

       trial court may have acted within its lawful discretion in imposing a sentence,

       Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Alvies v.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 8 of 11
       State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer, 868 N.E.2d at

       491).


[21]   This appellate authority is implemented through Indiana Appellate Rule 7(B),

       which provides that a 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.” Nevertheless, “we must and should exercise deference to a

       trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the burden

       of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). Importantly, the principal role of such review is to

       attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008).


[22]   In this case, the trial court was statutorily authorized to impose a sentence

       between forty-five and sixty-five years, and the advisory sentence for murder is

       fifty-five years. See Ind. Code § 35-50-2-3. Therefore, Faulk’s sixty-year sentence

       is less than the maximum, but more than the advisory.


[23]   Faulk started an argument with Hines over a five-dollar debt. The argument

       resulted in a physical altercation after which Hines told Faulk to move out of

       his house. Shortly thereafter, Faulk grabbed Hines and stabbed him in the neck


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 9 of 11
       with his pocket knife. Faulk started to leave the house, but turned around, came

       through the door Hines was attempting to shut, and stabbed Hines three more

       times in the chest. One of the stab wounds penetrated the right ventricle of

       Hines’s heart, which resulted in Hines’s death. Nothing about the

       circumstances of this offense persuades us that Faulk’s sentence is

       inappropriate.


[24]   Faulk’s character is reflected in the offense but also in his prior criminal history.

       Faulk has four prior felony convictions: retail fraud, possession of a short

       shotgun, fleeing law enforcement, and dealing marijuana. He also has a

       misdemeanor conversion conviction. Faulk has not demonstrated that he is able

       to live a law-abiding life. We acknowledge that Faulk expressed remorse, has a

       steady employment history, and suffered a tragic childhood. But when those

       factors are considered against his criminal history, Faulk has not persuaded us

       his character is such that his sixty-year sentence is inappropriate.


[25]   For all of these reasons, we conclude that Faulk’s sixty-year sentence is not

       inappropriate in light of the nature of the offense and the character of the

       offender.


                                                 Conclusion
[26]   Faulk’s claim that he acted in self-defense is simply a request to reweigh the

       evidence and the credibility of the witnesses, which our court will not do. The

       trial court acted within its discretion in imposing Faulk’s sentence, and his




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 10 of 11
       sixty-year sentence is not inappropriate in light of the nature of the offense and

       the character of the offender.


[27]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1255 | February 26, 2018   Page 11 of 11
