MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be                        Dec 02 2016, 7:58 am
regarded as precedent or cited before any
                                                                  CLERK
court except for the purpose of establishing                  Indiana Supreme Court
                                                                 Court of Appeals
the defense of res judicata, collateral                            and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Timothy J. Lemon                                        Gregory F. Zoeller
Knox, Indiana                                           Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gary Chavez,                                            December 2, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        75A05-1509-CR-1460
        v.                                              Appeal from the Starke Circuit
                                                        Court
State of Indiana,                                       The Honorable Kim Hall, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        75C01-1406-MR-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 1 of 7
[1]   Gary Chavez appeals his conviction of murder. 1 Chavez argues there was

      insufficient evidence to support his conviction. He also argues his sentence is

      inappropriate. We affirm.



                                Facts and Procedural History
[2]   Chavez and Kim Chavez married in the early 1990s. After two to four years,

      the marriage began to fall apart. They lived separately several times during

      their marriage but never divorced. Kim dated other men during their marriage,

      but Chavez did not date. In June of 2014, Kim was living with her boyfriend of

      one year.


[3]   Chavez texted Kim on the morning of June 6, 2014, saying he was sick. Kim

      replied that she would call him after work. A few hours later, Chavez texted

      Kim that he could not breathe and thought he was dying. Kim called Chavez’s

      telephone, but he did not answer. Kim decided to drive to Chavez’s house to

      check on him. When she arrived, Kim left her purse and phone in her car and

      went into Chavez’s house.


[4]   Chavez viciously beat Kim and stabbed her multiple times, puncturing her

      carotid artery. Chavez continued to beat Kim and fractured her skull in

      multiple places. Chavez dragged Kim’s body outside, leaving visible blood




      1
          Ind. Code § 35-42-1-1(1) (2007).


      Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 2 of 7
      stains. Chavez placed a grill cover over Kim’s body and put her next to his

      house.


[5]   Chavez went back into his house, grabbed a revolver and ammunition, and

      drove to a store’s parking lot. An employee of the store, Bryant Wagner, was

      about to leave for lunch and had his car door open. Chavez walked toward

      Wagner while pointing the gun at him and told him to get back into the car.

      Chavez told Wagner that he was taking the car. Wagner slid into the passenger

      seat, and Chavez got into the driver’s seat. Chavez drove away from the store

      while continuously aiming the gun at Wagner. Chavez told Wagner he killed

      Kim and he was going to Valparaiso to kill Kim’s son.


[6]   When Wagner’s car became low on fuel, Chavez began to look for another

      vehicle to steal. Chavez followed an SUV into a residential driveway. After the

      SUV parked, Chavez got out of Wagner’s car, pointed his gun at the SUV’s

      driver, and stole the SUV. One of the victims called the police.


[7]   Shortly after stealing the SUV, its engine began to smoke. Chavez pulled over

      and turned off the car. Two men started to walk towards Chavez to see if they

      could help. Chavez told them he had a gun, and he stole one of their trucks.

      The wife of one of the men called the police. A police chase ensued, and the

      police were able to stop the truck Chavez was driving by using a tire deflation

      device. Before police could detain Chavez, he shot himself in the face.

      Paramedics arrived and took Chavez to the hospital.




      Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 3 of 7
[8]   The State charged Chavez with murder, Class A felony kidnapping, 2 and Class

      B felony carjacking. 3 On July 31, 2015, the jury found Chavez guilty of all

      three charges. Chavez’s sentencing hearing occurred on August 27, 2015.

      Kim’s family testified about their enormous grief following Kim’s death. The

      trial court found an aggravator in the violent and savage way Chavez beat and

      stabbed Kim. The court found mitigating factors in Chavez’s lack of criminal

      history and the hardship on his family. The trial court sentenced Chavez to

      sixty-five years for murder, thirty years for Class B felony kidnapping, and ten

      years for Class C felony carjacking. The trial court ordered Chavez to serve his

      sentences consecutively.



                                     Discussion and Decision
                                             I. Sufficiency of the Evidence

[9]   “[A] reviewing court does not reweigh the evidence or judge the credibility of

      the witnesses.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). “[A]ppellate

      courts must consider only the probative evidence and reasonable inferences

      supporting the verdict.” Id. If a reasonable fact-finder could find guilt beyond a

      reasonable doubt, reviewing courts must affirm. Id.




      2
          Ind. Code § 35-42-3-2(a)(2) (1978).
      3
          Ind. Code § 35-45-5-2(2) (1993).


      Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 4 of 7
[10]   Chavez challenges only his conviction of murder. Because the State charged

       Chavez with an intentional killing, to obtain a conviction, it had to prove

       beyond a reasonable doubt that he intentionally killed Kim. See Ind. Code § 35-

       42-1-1(1) (2007). “A person engages in conduct ‘intentionally’ if, when he

       engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-

       41-2-2(a). Intent to kill can be inferred from the circumstances of the crime and

       type of the attack. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans.

       denied. One might also infer the intent to kill from the use of a deadly weapon

       in the commission of the crime. Id. Harming an unconscious victim

       strengthens the inference of intent to kill. Zickefoose v. State, 388 N.E.2d 507,

       509 (Ind. 1979).


[11]   Chavez asks us to reweigh the evidence, which we cannot do. See McHenry, 820

       N.E.2d at 126. Chavez argues that a reasonable fact-finder could not find

       beyond a reasonable doubt that he intentionally killed Kim. However, Chavez

       texted Kim, saying he felt ill. Kim tried to comfort him through texting, but he

       said he thought he was dying. Kim then attempted to call him, but Chavez did

       not answer his phone. Kim, worried about Chavez’s health, went to his house.

       Chavez then brutally beat Kim and stabbed her multiple times. Chavez caused

       fatal injuries to Kim by stabbing her, but he continued his brutal attack and

       fractured her skull in multiple areas. This is sufficient evidence from which a

       finder of fact could infer Chavez intentionally killed Kim. See, e.g., Torres v.

       State, 673 N.E.2d 472, 473 (Ind. 1996) (holding there was sufficient evidence to




       Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 5 of 7
       infer intent because defendant returned to the area of an altercation and stabbed

       the victim).


                                      II. Appropriateness of Sentence

[12]   “The 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.” Ind. App. Rule 7(b). “[A] defendant must persuade the appellate

       court that his or her sentence has met this inappropriateness standard of

       review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). A court

       reviewing the sentence must give some deference to a trial court’s decision.

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

       was “particularly egregious” can be considered when determining the

       appropriateness of a sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App.

       2008), trans. denied.


[13]   Chavez challenges only his sentence for murder. Murder has a sentencing

       range between forty-five and sixty-five years and an advisory sentence of fifty-

       five years. Ind. Code § 35-50-2-3 (2007). The trial court sentenced Chavez to

       sixty-five years in prison for the murder. During the sentencing hearing, the

       judge noted Chavez


               planned to kill her. He lured the victim to his home by
               manipulating her sympathy and her concern for his well-being.
               Then, the Court finds the defendant brutally beat and stabbed the
               victim in order to inflict the maximum amount of pain so that


       Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 6 of 7
               she would suffer a painful death. Then, the defendant hid the
               victim’s body, which demonstrates his criminal intent.

       (Sentencing Tr. at 43.)


[14]   Chavez murdered Kim in a particularly heinous and egregious manner.

       Chavez planned the murder, took advantage of Kim’s sympathy for him,

       brutally inflicted painful and deadly injuries, and hid her body outside his house

       in a grill cover. Chavez’s lack of criminal history and the effect of the

       sentencing on his family do not overcome his atrocious acts. We see nothing

       inappropriate about his receiving the maximum sentence for murder. See

       Rhoton v. State, 938 N.E.2d 1240, 1248 (Ind. Ct. App. 2010) (holding a sixty-five

       year sentence for murder was appropriate because the heinous nature of killing

       someone who was sleeping or lying down outweighed the mitigating factors of

       age, poor health, and previous kind acts to victim), trans. denied.



                                               Conclusion
[15]   There was sufficient evidence for a reasonable fact-finder to conclude beyond a

       reasonable doubt Chavez intentionally killed Kim. His sixty-five year sentence

       for murder is appropriate in light of the egregious way Chavez murdered Kim.

       Accordingly, we affirm.


[16]   Affirmed.


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



       Court of Appeals of Indiana | Memorandum Decision 75A05-1509-CR-1460 | December 2, 2016   Page 7 of 7
