Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                Jun 10 2014, 9:16 am
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:

BRIAN R. CHASTAIN                                GREGORY F. ZOELLER
Dillman Chastain Byrd, LLC                       Attorney General of Indiana
Corydon, Indiana
                                                 ANDREW FALK
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT F. PETTY,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 72A05-1310-CR-538
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                       APPEAL FROM THE SCOTT CIRCUIT COURT
                        The Honorable Bruce Markel, III, Special Judge
                               Cause No. 72C01-1106-FB-23


                                       June 10, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                      STATEMENT OF THE CASE
        Appellant-Defendant, Robert Petty (Petty), appeals his conviction for unlawful

possession of a firearm by a serious violent felon, a Class B felony, Ind. Code § 35-47-4-5.

        We affirm.

                                                         ISSUES

        Petty raises three issues on appeal which we restate as follows:

        (1) Whether the State presented sufficient evidence to negate Petty’s defenses of

             entrapment, mistake of fact, self-defense, and legal authority;

        (2) Whether the sentencing statement was sufficient; and

        (3) Whether Petty’s sentence was inappropriate.

                                     FACTS AND PROCEDURAL HISTORY

        In August 2010, Nina Keown (Keown), also Petty’s ex-wife, was reported missing.

On August, 7, 2010, Sheriff John Lizenby (Sheriff Lizenby) of the Scott County Sheriff’s

Department went to Petty’s home, located on 7168 East Plymouth Road, Lexington,

Indiana, to locate Keown. Sheriff Lizenby questioned Petty on Keown’s whereabouts but

Petty provided no forthright answer. Instead, Petty told Sheriff Lizenby that he had been

receiving threats from people who suspected that he was involved in Keown’s

disappearance.1 Petty also stated that he was “thinking about getting a gun” to which Sheriff

1
 The Pre-Sentencing Investigation report shows that on September 29, 2010, Petty was charged with the murder of
Keown, removal of body from scene, and for being a habitual offender. On February 13, 2013, the jury returned a
guilty verdict for voluntary manslaughter, the lesser included offense of murder. In addition, the jury found him
guilty of the other two charges. On April 17, 2013, the trial court sentenced Petty to twenty years on voluntary
manslaughter enhanced by thirty years due to his habitual offender status; three years for removal of body from
scene; and three years for obstruction of justice. Petty’s aggregate sentence was therefore fifty-six years.

                                                         2
Lizenby responded, “I think that’s alright as long as you ain’t out running around with it.”

(Transcript p. 125). On August 13, 2010, Chief Deputy Wayne Williams (Chief Deputy

Williams) also questioned Petty about Keown’s disappearance. Like before, he gave no

information regarding her whereabouts, but reiterated that he was “thinking about getting a

gun.” (Tr. p. 69). However, Chief Deputy Williams never responded to Petty’s comment.

        At least a week after Keown was reported missing, Petty went to visit his father, Jerry

Petty (Jerry), and repeated that some people were threatening him. Petty requested to

borrow Jerry’s shotgun. In spite of his request, Jerry told him that “well you know you’re

a felon, you need to find out something from somebody before you [] do something like

that.” (Tr. p. 106). Petty explained that he spoke to Sheriff Lizenby, who informed him

that it was okay to obtain one. Thereafter, Jerry gave Petty the shotgun, and Petty took it

home.

        On August 21, 2010, Sheriff Lizenby received an arrest warrant from Clark County

to arrest Petty for a probation violation. Alongside other officers, Sheriff Lizenby went over

to Petty’s house to arrest him. During Petty’s arrest, the officers found Petty in possession

of a shotgun loaded with one round of live ammunition.

        On June 7, 2013, the State filed an Information charging Petty with Count I, unlawful

possession of a firearm by a serious violent felon, I.C. § 35-47-4-5, a Class B felony, and

Count II, habitual offender, I.C. § 35-50-2-8(a). On January 4, 2013, the State filed a motion

to dismiss the habitual offender charge and subsequently amended the Information on




                                               3
March 6, 2013, to include only the unlawful possession of a firearm by a serious violent

felon. On June 19, 2013, Petty filed a motion to waive the jury trial and a bench trial was

conducted on September 13, 2013. At the close of the evidence, the trial court found Petty

guilty as charged. On October 13, 2013, the trial court held Petty’s sentencing hearing and

sentenced him to fifteen years consecutive to his fifty-six year sentence.

         Petty now appeals. Additional information will be provided as necessary.

                                   DECISION AND DISCUSSION

                                 I. Sufficiency of the Evidence

         Petty contends that the State failed to present sufficient evidence beyond a reasonable

doubt to sustain his conviction for unlawful possession of a firearm by a serious violent

felon.

         Our standard of review for sufficiency claims is well-settled. When we review a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility

of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App. 2009) (citing Jones

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the probative evidence

supporting the judgment and the reasonable inferences therefrom to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.

Id. If there is substantial evidence of probative value to support the conviction, it will not

be set aside. Id. It is the function of the trier of fact to resolve conflicts of testimony and to

determine the weight of the evidence and the credibility of the witnesses. Yowler v. State,

894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).


                                                4
      Petty contends that the State failed to present sufficient evidence to sustain his

conviction for unlawful possession of a firearm by a serious violent felon. Specifically,

Petty states that when he cited his safety concerns to Sheriff Lizenby, he was told it was

okay to possess a firearm.

      The offense of possession of a firearm by a serious violent felon is governed by

Indiana Code section 35-47-4-5, which provides that “[a] serious violent felon who

knowingly or intentionally possesses a firearm commits unlawful possession of a firearm

by a serious violent felon, a Class B felony.” Indiana Code section 35-47-4-5(a) defines a

“serious violent felon” as a person who has been convicted of committing a serious violent

felony, and subsection (b) defines robbery as “serious violent felony.” The amended

Charging Information alleged that Petty had two previous convictions of robbery, Class B

felonies, under “Cause No. 72C01-9912-CF-73” and “Cause No. 10C01-0107-CF-77” and

that he knowingly or intentionally possessed a “firearm.” (Appellant’s App. p. 29). Thus,

the State was required to prove beyond a reasonable doubt that Petty had a previous

conviction for robbery, and that he knowingly or intentionally possessed a firearm.

      At trial, Petty admitted that he had been convicted of two serious violent crimes; as

such, this leaves us with one issue to determine: whether Petty knowingly or intentionally

possessed a firearm. Before the trial court and again on appeal, Petty cited four defenses

negating the fact that he knowingly or intentionally possessed a firearm: entrapment,

mistake of fact, self-defense, and legal authority. As such, Petty states that he was not

culpable of the instant offense. We shall address each defense in turn.


                                             5
                                        A. Entrapment

         When we review a claim of entrapment, we use the same standard that applies to the

sufficiency of evidence claims. Lahr v. State, 640 N.E.2d 756, 760 (Ind. Ct. App. 1994),

trans. denied.

         I.C. § 35-41-3-9 defines the defense of entrapment and provides:

         (a) It is a defense that
              (1) the prohibited conduct of the person was the product of a law enforcement
              officer, or his agent, using persuasion or other means likely to cause the person
              to engage in the conduct; and
              (2) the person was not predisposed to commit the offense.
         (b) Conduct merely affording a person an opportunity to commit the offense does
         not constitute entrapment.

         When an accused raises this defense, the prosecution must prove that he was not

innocently lured and enticed into the criminal activity. Williams v. State, 274 Ind. 94, 97,

409 N.E.2d 571, 574 (Ind. 1980). The defense of entrapment turns upon the defendant’s

state of mind, or whether the criminal intent originated with the defendant. Kats v. State,

559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied.

         The defense of entrapment may be rebutted by showing the defendant had a

predisposition to commit the crime. Lahr, 640 N .E.2d at 760. The following factors are

important in determining whether a defendant was predisposed to commit the charged

crime:

         1) the character or reputation of the defendant, 2) whether the suggestion of criminal
         activity was originally made by the government, 3) whether the defendant was
         engaged in criminal activity for a profit, 4) whether the defendant evidenced


                                               6
       reluctance to commit the offense, overcome by government persuasion, and 5) the
       nature of the inducement or persuasion offered by the government.


Ferge v. State, 764 N.E.2d 271 (Ind. Ct. App. 2002). Whether a defendant was predisposed

to commit the crime charged is a question for the trier of fact. Id. The State must prove the

defendant’s predisposition beyond a reasonable doubt. Id.

       Petty contends that Sheriff Lizenby’s statement allowing him to possess a firearm

was “mere enticement” only to be used against him. (Appellant’s Br. p. 11). We disagree.

Even if the statement might amount to inducement, the State provided sufficient evidence

to allow the tier of fact determine that Petty was predisposed to commit the crime. Here,

the suggestion of criminal activity came from Petty, who, during his conversation with

Sheriff Lizenby, first brought it up. Furthermore, Petty did not show reluctance, but rather

was persistent in obtaining a firearm. Petty never communicated to Sheriff Lizenby that he

was a convicted felon when making the inquiry.

       While Sheriff Lizenby provided Petty with the opportunity to commit the crime of

unlawful possession of firearm, he did not importune Petty to commit that crime. We find

that Petty demonstrated a predisposition to commit the offense. As a result, we conclude

that the State presented sufficient evidence to rebut Petty’s claim of entrapment.

                                    B. Mistake of Fact

       Next, Petty argues that his possession of the firearm was justified due to a mistake

of fact. Pursuant to Indiana Code section 35-41-3-7, a mistake of fact defense “is a defense

that the person who engaged in the prohibited conduct was reasonably mistaken about a


                                             7
matter of fact, if the mistake negates the culpability required for commission of the offense.”

When the State has made a prima facie case of guilt, the burden is on the defendant to

establish an evidentiary predicate of his mistaken belief of fact. Saunders v. State, 848

N.E.2d 1117, 1121 (Ind. Ct. App. 2006) (citing Hoskins v. State, 563 N.E.2d 571, 575 (Ind.

1990)). Upon invoking mistake of fact as a defense, the burden shifts to the defendant to

satisfy three elements: “(1) that the mistake be honest and reasonable; (2) that the mistake

be about a matter of fact; and (3) that the mistake negate the culpability required to commit

the crime.” Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) (citing Smith v. State, 477

N.E.2d 857, 863 (Ind. 1985)).

       The State, however, retains the ultimate burden of proving beyond a reasonable doubt

every element of the charged crime, including culpability or intent, which would in turn

entail proof that there was no reasonably held mistaken belief of fact. Saunders, 848 N.E.2d

at 1121 (citing Hoskins, 563 N.E.2d at 575-76). The State may meet its burden by directly

rebutting evidence, by affirmatively showing that the defendant made no such mistake, or

by simply relying upon evidence from its case-in-chief. Id. (citing Bergmann v. State, 486

N.E.2d 653, 660 (Ind. Ct. App. 1985)).

       Petty argues by relying on Sheriff Lizenby’s statement, it created a mistaken belief

that he had the right to possess a firearm. In analyzing the reasonableness of Petty’s

mistaken belief, we find no indication that the mistake was honest or that it negates

culpability for the offense. At trial, Petty admitted that he had been convicted of two

robbery convictions, both Class B felonies; and that his probation officer had also explained


                                              8
to him that he was not allowed to possess a firearm while on probation. Furthermore, Sheriff

Lizenby testified that when he made the statement to Petty, had no direct knowledge of

Petty’s criminal history nor did he inquire into it.

       It is well-settled that ignorance of the law is no excuse for criminal behavior. See

Scalpelli v. State, 827 N.E.2d 1193, 1198 (Ind. Ct. App. 2005), trans. denied. Even if Petty

reasonably believed Sheriff Lizenby’s statement, and even if facts actually existed to

support his adoption of such a belief, it did not excuse his actions. Nothing about Petty’s

made-up mistaken belief would excuse or negate the fact that he went over to Jerry’s

house—knowing he was a convicted felon—borrowed a firearm, and took it home.

       Lastly, we find Petty’s request to consider his testimony over that of Sheriff

Lizenby’s amounts to an invitation for this court to reweigh the evidence or judge the

credibility of the witnesses, which we will not do. See Parahams, 908 N.E.2d at 691. As

such, we find that the State provided sufficient evidence to disprove Petty’s mistake of fact

defense.

                                       C. Self-Defense

        Indiana’s self-defense statute provides:

        (a) A person is justified in using reasonable force against another person to protect
       the person or a third person from what the person 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 that force is necessary to prevent serious bodily
       injury to the person or a third person or the commission of a forcible felony. No
                                               9
       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.
I.C § 35-41-3-2.

        “A valid claim of self-defense is a legal justification for an act that is otherwise

defined as criminal.” Harmon v. State, 849 N.E.2d 726, 730 (Ind. Ct. App. 2006). To

prevail on a self-defense claim, a defendant must demonstrate that he was in a place where

he had a right to be; did not provoke, instigate, or participate willingly in the violence; and

had a reasonable fear of death or great bodily harm. Id. The amount of force a person may

use to protect himself depends on the urgency of the situation. Id. at 730-31. However, if

a person uses “more force than is reasonably necessary under the circumstances,” his self-

defense claim will fail. Id. at 731.

        When a defendant claims he acted in self-defense, the State bears the burden of

disproving his claim beyond a reasonable doubt. Hood v. State, 877 N.E.2d 492, 497 (Ind.

Ct. App. 2007), trans. denied. To meet this burden, the State may rebut the defense directly,

affirmatively demonstrate the defendant did not act in self-defense, or simply rely on the

sufficiency of its case in chief. Id. Whether the State has met this burden is a question for

the fact finder. Id. We may not reweigh the evidence or assess witness credibility, and if

sufficient evidence of probative value supports the trial court’s conclusion, we will affirm.

Id.

        Turning to the facts and circumstances of this case, we find that even though Petty

may have reasonably feared for his life, he had no reason to obtain the firearm. The record

shows that Petty created the situation requiring him to possess the firearm. At trial, the State

                                              10
negated Petty’s defense of self-defense by questioning Petty about his voluntary

manslaughter conviction. Petty admitted that he had killed Keown. Petty also admitted that

if he had confessed to killing Keown, he would have probably stopped the threats. Based

on the foregoing, we find that the trial court was not required to believe Petty’s self-serving

testimony regarding the alleged threats. Furthermore, we find that Petty’s perceived

concern for his own safety did not justify his failure to comply with the law. We therefore

conclude that the State provided sufficient evidence to disprove Petty’s self-defense claim.

                                     D. Legal Authority

        Lastly, Indiana Code section § 35-41-3-1, provides that “[a] person is justified in

engaging in conduct otherwise prohibited if he has legal authority to do so.” Petty interprets

this provision of the statute to mean that since Sheriff Lizenby communicated to him that it

was acceptable to obtain a firearm, he had legal authority to be in possession of it. However

we find Petty’s application of the statute contrary to the spirit of the law. Looking at

precedent cases, the defense of legal authority has not been interpreted to give a police

officer legal authority to override the law. So far, the defense of legal authority has only

been interpreted to legally allow a parent to engage in reasonable discipline of a child, even

if such conduct would otherwise constitute battery. See State v. Fettig, 884 N.E.2d 341,

345 (Ind. Ct. App. 2008). Furthermore, Petty cites no case law to support his defense of

legal authority. Based on the foregoing, Petty’s defense of legal authority fails.

                                      II. Sentencing Statement



                                              11
       Petty argues that the trial court abused its discretion by failing to adequately support

its imposition of a fifteen year sentence consecutive to his current sentence of fifty-six years.

“A trial court’s sentencing determination is within its discretion, and we will reverse only

for an abuse of that discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

clarified on reh’g by 875 N.E.2d 218 (Ind. 2007). The trial court abuses its discretion when

its decision is clearly against the logic and effect of the facts and circumstances before it, or

the reasonable, probable, and actual deductions to be drawn therefrom. Id. We may find

an abuse of discretion if the trial court does not provide a sentencing statement, the

sentencing statement is not supported by the record, the sentencing statement omits reasons

clearly supported by the record and advanced by the defendant, or the trial court’s reasons

for sentencing are improper as a matter of law. Id. at 490-91. In a felony case, the trial

court must give a reasonably detailed recitation of the reasons for the sentence imposed. Id.

at 490. In reviewing sentencing decisions, we consider both the written and oral sentencing

statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002).

        Here, we find that the sentencing statement was sufficient. The trial court cited

multiple aggravating factors—offense was committed while on probation, Petty had an

extensive criminal history involving six felony convictions, Petty had never completed

probation since 1999, and was currently incarcerated for voluntary manslaughter. We

therefore conclude that the trial court did explain its reason for imposing a consecutive

sentence, and affirm the sentence imposed.

                                      III. Inappropriate Sentence


                                               12
       In his last argument, Petty claims that his fifteen year sentence is inappropriate in

light of the nature of the offense and the character of the offender. Indiana Appellate Rule

7(B) provides that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” The burden is on the

defendant to persuade the appellate court that his or her sentence is inappropriate. Childress

v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Ultimately the length of the aggregate

sentence and how it is to be served are the issues that matter.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). Whether we regard a sentence as appropriate at the end of the day

turns on our sense of the culpability of the defendant, the severity of the crime, the damage

done to others, and a myriad of other considerations that come to light in a given case. Id.

        The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019 (Ind.

2012). The advisory sentence for a Class B felony is ten years, with a minimum of six and

a maximum of twenty years. Here, the trial court imposed a fifteen year sentence.

        In reviewing the nature of the offense, despite Petty’s claim that the motivation

behind possessing the firearm was for protection, the record shows he was a convicted felon

and he should not have possessed a firearm. When Sheriff Lizenby and other police officers

went over to Petty’s house to effect an arrest warrant, they found him in possession of a

shotgun loaded with one round of live ammunition. When asked if it was his, he answered

in the affirmative and also stated that he had obtained the firearm from Jerry.


                                             13
        As for Petty’s character, the Pre-Sentence Investigation report reveals that he has a

significant criminal history which includes armed robbery, burglary, theft, battery, domestic

battery, voluntary manslaughter, removal of body from scene, and obstruction of justice. In

addition, Petty committed the instant offense while on probation.

        Based on the foregoing, we cannot say that his fifteen-year sentence is

inappropriate. In light of the nature of the offense and his character, we cannot say that

Petty’s sentence is such an outlier that we should exercise our discretion to reduce it.

                                           CONCLUSION

        In sum, we find that the State presented sufficient evidence to rebut Petty’s

defenses of entrapment, mistake of fact, self-defense and legal authority. We further hold

that the trial court issued a sufficient sentencing statement, and that it did not abuse its

discretion when it sentenced Petty.

        Affirmed.

ROBB, J. and BRADFORD, J. concur




                                              14
