      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Feb 12 2015, 10:19 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
      Frederick Vaiana                                         Gregory F. Zoeller
      Voyles Zahn & Paul                                       Attorney General of Indiana
      Indianapolis, Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Fatima Mays,                                             February 12, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1407-CR-310
              v.                                               Appeal from the Marion Superior
                                                               Court
                                                               The Honorable Barbara Cook
      State of Indiana,                                        Crawford, Judge
      Appellee-Plaintiff                                       The Honorable Shatrese Flowers,
                                                               Commissioner
                                                               Case No. 49F09-1305-FD-30328




      Bradford, Judge.



                                            Case Summary
[1]   On March 29, 2013, Appellant-Defendant Fatima Mays engaged in a

      confrontation with Danella Winfield when she attempted to pick her nephew
      Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 1 of 9
      up from Winfield’s home. During this confrontation, Mays pointed a gun at

      Winfield. Mays was subsequently charged with and convicted of Class D

      felony pointing a firearm.


[2]   In challenging her conviction on appeal, Mays contends that Appellee-Plaintiff

      the State of Indiana (the “State”) failed to provide sufficient evidence to rebut

      her assertion that she acted in self-defense. Mays also contends that the trial

      court abused its discretion in sentencing her. We affirm.



                              Facts and Procedural History
[3]   The facts most favorable to the trial court’s judgment are as follows: On March

      29, 2013, Winfield was caring for her grandsons G.S. and A.S. (collectively,

      “the boys”), at her home in Marion County. At approximately noon, Mays

      arrived at Winfield’s home to pick up her nephew, G.S. 1 At some point earlier

      that day, Mays had been told that she could not pick up one of the boys without

      taking both of the boys.


[4]   Upon arriving at Winfield’s home, Mays started “beatin’” on the front door.

      Tr. p. 19. Before Winfield could answer the door, Mays, who was upset that

      Winfield had said she could not take G.S. unless she also took A.S., walked

      around to the back of Winfield’s home. Winfield and the boys met Mays at the




              1
                  The record demonstrates that G.S. is Mays’s nephew, A.S. is not.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 2 of 9
      back door. Mays was “outraged” and “cussin’.” Tr. p. 20. In an attempt to get

      Mays to lower her voice, Winfield “started cussin’ at her back.” Tr. p. 20.


[5]   Eventually, Mays, Winfield, and the boys walked around to the front of

      Winfield’s house and approached Mays’s vehicle. Upon reaching the vehicle,

      Mays, who was still enraged, sat down in the driver’s seat. In a continued

      attempt to calm Mays down, Winfield, who was standing between the open

      door and the driver’s seat, lightly placed her hands on Mays’s shoulders and

      told her that she needed to leave. A.S. was standing on Winfield’s right side

      and G.S. was standing on Winfield’s left side.


[6]   Mays leaned over and, upon sitting back up, was holding a gun—a black Ruger

      9 mm—in her right hand. Mays pointed the gun directly at Winfield and said,

      “I will kill you ole bitch. Get up off of me.” Tr. p. 23. Mays continued to

      point the gun at Winfield as she started kicking her. Mays told G.S. to “[s]tand

      back. I’m going to run this ole bitch over.” Tr. p. 26. Mays then put her

      vehicle in reverse as A.S. and G.S. pulled Winfield out of the way of the

      vehicle.


[7]   On May 23, 2013, the State charged Mays with Class D felony pointing a

      firearm and Class A misdemeanor battery. On March 5, 2014, the trial court

      conducted a bench trial. The trial resumed on April 16, 2014. During trial,

      Mays argued that her act of pointing the gun at Winfield was justified because

      she was acting in self-defense. At the conclusion of trial, the trial court found

      Mays guilty of Class D felony pointing a firearm and not guilty of Class A


      Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 3 of 9
      misdemeanor battery. On June 11, 2014, the trial court sentenced Mays to a

      term of 545 days, with 180 days executed on home detention and the remaining

      365 days suspended to probation.



                                 Discussion and Decision
        I. Whether the State Sufficiently Rebutted Mays’s Self-
                           Defense Claim
[8]   Mays argued at trial that she was justified in pointing a gun at Winfield because

      she was acting in self-defense. On appeal, Mays contends that the State failed

      to sufficiently rebut her self-defense claim.

              We note that the standard of review for a challenge to the sufficiency
              of the 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). Self-defense is governed by Indiana
              Code section 35-41-3-2, which provides that “a person is justified in
              using reasonable force against another person to protect the person ...
              from what the person reasonably believes to be the imminent use of
              unlawful force.” A valid claim of self-defense is a legal justification for
              an otherwise criminal act. Wilson, 770 N.E.2d at 800.
              To prevail on a self-defense claim, a defendant must demonstrate that
              he: was in a place 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 that a person may use
              to protect himself or herself depends on the urgency of the situation.
              Harmon v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006).
              However, if an individual uses “more force than is reasonably
              necessary under the circumstances,” his self-defense claim will fail. Id.
              at 731. A mutual combatant, whether or not the initial aggressor,
              must communicate the desire to stop fighting, and the other individual
              must continue fighting before self-defense can be successfully claimed.
              See [Indiana Code] § 35-41-3-2(e)(3).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 4 of 9
               When a defendant claims self-defense, the State has the burden of
               disproving at least one of the elements of the defense beyond a
               reasonable doubt. Wilson, 770 N.E.2d at 800. If a defendant is
               convicted despite his claim of self-defense, we will reverse only if no
               reasonable person could say that self-defense was negated by the State
               beyond a reasonable doubt. Id. at 800-01.
       Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012). Further, in reviewing

       the defendant’s claim, “[w]e neither reweigh the evidence nor assess the

       credibility of witnesses but look solely to the evidence most favorable to the

       judgment will all reasonable inferences to be drawn therefrom.” Miller v. State,

       720 N.E.2d 696, 699 (Ind. 1999) (citations omitted).


[9]    The version of Indiana Code section 35-47-4-3(b) in effect on the date in

       question provided that “[a] person who knowingly or intentionally points a

       firearm at another person commits a Class D felony.” In alleging that Mays

       committed Class D felony pointing a firearm, the State alleged that Mays “did

       knowingly point a firearm, to wit: a Ruger 9mm black semi-automatic pistol, at

       [Winfield].” Appellant’s App. p. 17 (underlining in original). Mays does not

       challenge the sufficiency of the evidence to prove that she pointed a firearm at

       Winfield. Instead, Mays argues that she was justified in doing so because she

       acted in self-defense and that the State failed to present sufficient evidence to

       rebut her self-defense claim. We disagree.


[10]   In this case, the State presented sufficient evidence to rebut Mays’s self-defense

       claim. The evidence most favorable to the trial court’s judgment indicates that

       Mays instigated the confrontation with Winfield. Further, even if Winfield

       instigated the confrontation, Mays can reasonably be considered a mutual

       Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 5 of 9
       combatant, and the evidence most favorable to the trial court’s judgment does

       not indicate that Mays communicated a desire to withdraw from combat but

       rather continued on in a combative state. In addition, the evidence indicates

       that Mays used more force than was reasonably necessary under the

       circumstances when she pulled a gun, pointed the gun at Winfield, and

       threatened to kill Winfield.


[11]   In arguing that the State failed to provide sufficient evidence to rebut her self-

       defense claim, Mays relies on her own testimony regarding the events in

       question. The trial court, however, was not obligated to believe Mays’s self-

       serving testimony. See McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct.

       App. 2013) (providing that the trier of fact was under no obligation to credit

       defendant’s version of the events in question as evidence that he acted without

       fault or that his actions were reasonable). Mays’s claim to the contrary merely

       amounts to an invitation for this court to reweigh the evidence and reassess

       witness credibility, which we will not do. See Miller, 720 N.E.2d at 699.


[12]   For all of these reasons, we conclude that the State properly rebutted Mays’s

       claim of self-defense.2




                2
                    Furthermore, we disagree with Mays’s assertion that the State should not have been permitted to
       rely on its case-in-chief to rebut her self-defense claim but rather should have been required to present rebuttal
       evidence and note that relevant authority provides otherwise. See Wilcher v. State, 771 N.E.2d 113, 116 (Ind.
       Ct. App. 2002) (citing Mariscal v. State, 687 N.E.2d 378, 381 (Ind. Ct. App. 1997), trans. denied) (providing
       that the State may rebut a claim of self-defense by affirmatively showing that the defendant did not act to
       defend himself or another by relying on the evidence elicited in the case-in-chief).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015               Page 6 of 9
           II. Whether the Trial Court Abused Its Discretion in
                            Sentencing Mays
[13]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218

       (Ind. 2007). “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

       reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       (quotation omitted).

               One way in which a trial court may abuse its discretion is failing to
               enter a sentencing statement at all. Other examples include entering a
               sentencing statement that explains reasons for imposing a sentence-
               including a finding of aggravating and mitigating factors if any-but the
               record does not support the reasons, or the sentencing statement omits
               reasons that are clearly supported by the record and advanced for
               consideration, or the reasons given are improper as a matter of law.
               Under those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the trial
               court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.
       Id. at 490-91. A single aggravating factor may support an enhanced sentence.

       Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).


[14]   Mays claims that the trial court abused its discretion in imposing an enhanced

       sentence because the trial court erroneously found her employment and school

       enrollment status to be aggravating during sentencing. Initially, we note that

       the trial court imposed a 545 day sentence which is less than the one-and-one-



       Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 7 of 9
       half-year advisory sentence for a Class D felony conviction.3 As such, the trial

       court did not impose an enhanced sentence.


[15]   In addition, we need not consider whether the trial court erred in finding

       Mays’s employment and school enrollment status to be aggravating because the

       trial court found two other aggravating factors at sentencing, i.e., the nature and

       circumstances of the crime and Mays’s lack of remorse, and Mays does not

       challenge either of these factors on appeal. The record demonstrates that Mays

       pointed a gun directly at Winfield in the immediate presence of two children,

       A.S. and G.S. Mays also threatened to kill Winfield, kicked Winfield, and

       seemingly attempted to run over Winfield with her vehicle. In light of these

       facts, we can say with confidence that the trial court would have imposed the

       same sentence—545 days with 180 days executed on home detention and 365

       days suspended to probation—had the trial court properly considered only

       reasons that enjoy support in the record. See Anglemyer, 868 N.E.2d at 491.


[16]   Furthermore, to the extent that Mays also claims that the trial court abused its

       discretion in applying weight to the aggravating and mitigating factors, we

       observe that the Indiana Supreme Court has long held that a trial court is not

       required to weigh or credit aggravating and mitigating factors the way an



                3
                   We note that Indiana’s sentencing structure for felony convictions was amended effective July 1,
       2014. However, the sentencing structure that was effective on the date Mays committed her criminal offense
       applies in the instant matter. See Bell v. State, 654 N.E.2d 856, 858 (Ind. Ct. App. 1995) (providing that
       “[g]enerally, the statute to be applied when arriving at the proper criminal penalty should be the one in effect
       at the time the crime was committed.”).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015              Page 8 of 9
       appellant suggests it should be weighed or credited. Fugate, 608 N.E.2d at

       1374. Further, because the trial court no longer has any obligation to “weigh”

       aggravating and mitigating factors against each other when imposing a

       sentence, unlike the pre-Blakely statutory regime, a trial court cannot now be

       said to have abused its discretion in failing to “properly weigh” such factors.

       Anglemyer, 868 N.E.2d at 491. As such, the trial court did not abuse its

       discretion in this regard.



                                               Conclusion
[17]   In sum, we conclude that the State presented sufficient evidence to rebut Mays’s

       self-defense claim. We also conclude that the trial court acted within its

       discretion in sentencing Mays. Accordingly, we affirm the judgment of the trial

       court.


[18]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1407-CR-310 | February 12, 2015   Page 9 of 9
