Jose Tinajero-Garcia v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 09 2017, 5:48 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jose Tinajero-Garcia, August 9, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1701-CR-39
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1004-MR-30036
Mathias, Judge.
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[1] Jose Tinajero-Garcia (“Garcia”) was convicted in Marion Superior Court of
murder, a felony, and ordered to serve a fifty-five-year sentence executed in the
Department of Correction. Garcia presents two issues on appeal:
1. Whether the State presented evidence sufficient to support his conviction
for murder; and
2. Whether the fifty-five-year sentence is inappropriate in light of the nature
of his offense and his character.
[2] We affirm.
Facts and Procedural History
[3] On April 13, 2010, Garcia met Fabian Gutierrez-Barcenas (“Barcenas”). The
men drank beer at Garcia’s apartment with a third individual, a mutual friend
named Ariel Reyes Hernandez (“Hernandez”). One or more of the men used
cocaine in Garcia’s apartment that night. At some point, Garcia and Barcenas
walked Hernandez to his nearby apartment and returned to Garcia’s apartment,
where they continued to drink beer and talk. An argument between the men
turned violent when Barcenas punched Garcia, who responded by slicing
Barcenas’s neck with a kitchen knife. Garcia brutally and repeatedly stabbed
Barcenas in the neck, the face, the upper chest, the arm, the back, the finger and
the ankle. At least four of the many stab wounds Barcenas suffered were
sufficient to cause his death.
[4] Garcia called 911 shortly before 6:00 a.m. on April 14, 2010, and reported that
he had killed a man in self-defense. Indianapolis Metropolitan Police
Department Patrol Officer David Hutson (“Hutson”) arrived at the apartment
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complex and found Garcia standing outside with a bloodied knife at his feet
and with blood-stained clothes, hands, and face. Garcia cooperated when
Hutson handcuffed him and responded when Hutson asked where the victim’s
body could be found.
[5] In April 2011, Garcia entered a plea of guilty to murder pursuant to an
agreement with the State. The Marion Superior Court sentenced Garcia to
forty-five years executed in the Department of Correction. He filed a petition
for post-conviction relief and in March 2016 the post-conviction court
determined Garcia received ineffective assistance of counsel and did not enter
the plea agreement intelligently and voluntarily. His guilty plea, conviction, and
sentence were vacated.
[6] Garcia proceeded to a jury trial in November 2016. At trial, the Chief Forensic
Pathologist of the Marion County Coroner’s Office presented evidence of the
extent of Barcenas’s injuries. Several wounds to his neck severed the carotid
and jugular vessels and were fatal. Deep, fatal stab wounds to his chest
overlapped and intersected, making them impossible to count. Stab wounds to
his back caused fatal damage to the aorta, lung, liver, and diaphragm. There
was also evidence of numerous non-fatal injuries, some of which were described
as defensive injuries Barcenas received in the struggle with Garcia. Garcia’s
injuries were limited to cuts on his hands sustained from the knife slipping
during the attack on Barcenas.
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[7] Garcia testified in his own defense. He admitted to drinking beers the night of
April 13, 2010, but denied smoking the cocaine that was recovered from his
apartment. He described how an argument with Barcenas escalated when
Barcenas punched and threatened to kill him. Because the men had been talking
about weapons, Garcia assumed Barcenas had a gun or a knife, although he
never saw Barcenas with either and no other weapon was recovered in the
apartment. Garcia believed Barcenas’s threat was serious and testified that he
was scared. He used a kitchen knife to attack Barcenas and did not stop his
attack until Barcenas stopped moving.
[8] On November 29, 2016, the jury found Garcia guilty of murder and the trial
court entered a judgment of conviction. At the December 15, 2016, sentencing
hearing, the State argued that the nature of Garcia’s crime was an aggravating
circumstance. Garcia countered that his gainful employment, lack of criminal
history, and remorse were mitigating circumstances and requested the court
order a sentence of no more than forty-five years, in accordance with his prior
plea agreement. Garcia also told the court that his attack on Barcenas was due
to an unwanted advance Barcenas made on him. Garcia received the advisory
sentence of fifty-five years executed in the Department of Correction. This
appeal follows.
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Discussion and Decision
I. Sufficiency of the Evidence
[9] Garcia argues insufficient evidence was presented to support his conviction for
murder, a felony. First, Garcia asserts that the State failed to rebut his claim of
self-defense. Second, Garcia asserts that the jury could not reasonably find that
he did not act in sudden heat. 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). The Court neither reweighs the evidence nor assesses the
credibility of the witnesses. Kiplinger v. State, 922 N.E.2d 1261, 1266 (Ind.
2010). If any reasonable juror could find the defendant guilty beyond a
reasonable doubt when considering all the facts and inferences in favor of the
conviction, the defendant’s conviction will be affirmed. McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005).
A. Self-Defense
[10] To convict a defendant of murder, the State must prove beyond a reasonable
doubt that the defendant knowingly and intentionally killed another human
being. Ind. Code § 35-42-1-1(1). A valid claim of self-defense of oneself is legal
justification for an otherwise criminal killing. Wallace v. State, 725 N.E.2d 837,
840 (Ind. 2000). Self-defense is defined by Indiana Code § 35-41-3-2(c) in
relevant part as follows:
(c) A person is justified in using reasonable force against any
other person to protect the person…from what the person
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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 force is necessary to prevent
serious bodily injury to the person... No person in this state shall
be placed in legal jeopardy of any kind whatsoever for protecting
the person…by reasonable means necessary.
[11] A defendant makes a valid claim of self-defense when he shows that he: 1) was
in a place where he had the 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. McEwan v. State, 695 N.E.2d 79, 90 (Ind. 1998). The State
has the burden of negating at least one of the necessary elements to rebut a
claim of self-defense. Id. If a defendant is convicted despite his claim of self-
defense, the Court will reverse the conviction only if no reasonable person
could say that self-defense was negated by the State beyond a reasonable doubt.
Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999).
[12] Citing his own testimony, Garcia argues that Barcenas’s threat caused him to
fear death or great bodily harm and that he subsequently acted in self-defense.
Appellant’s Br. at 10. However, it is the use of reasonable force in self-defense
that is justified by statute, not the use of any force. Ind. Code § 35-41-3-2(c).
This is related to the requirement that the amount of force used to protect
oneself is proportionate to the threat posed by the situation. McKinney v. State,
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873 N.E.2d 630, 643 (Ind. Ct. App. 2007). Barcenas suffered stab wounds so
numerous that they could not be counted by the pathologist performing his
autopsy. Tr. Vol. II p. 137. Any one of four sets of injuries Garcia inflicted
would have been fatal. Tr. Vol. II pp. 132-147. Moreover, Garcia suffered only
minor cuts to his hands due to the knife slipping during his attack on Barcenas.
Ex. Vol. 1, State’s Exs. 11, 12, 77, 78. A reasonable juror could conclude that
Garcia’s use of force was unreasonably disproportionate to the threat posed.
[13] Additionally, Garcia has not shown that the State failed to rebut at least one
element of the defense. McEwan, 695 N.E.2d at 90. Self-defense requires that
the first response of a defendant who fears death or great bodily harm is an
unwilling response. Ballard v. State, 808 N.E.2d 729, 732 (Ind. Ct. App. 2004).
The State presented evidence from which a reasonable juror could conclude
that Garcia willingly participated in the violence and that he willingly
continued his attack on Barcenas long after the any threat posed had passed. Tr.
Vol. II pp. 139-142. The State sufficiently rebutted Garcia’s claim that he acted
in self-defense in killing Barcenas.
B. Sudden Heat
[14] In the alternative, Garcia argues that the State failed to negate the presence of
“sudden heat.” Appellant’s Br. at 14-15. Voluntary manslaughter is an
inherently included lesser offense of murder, distinguished from murder by the
presence of sudden heat. Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998). A
person commits voluntary manslaughter when he knowingly kills another
human being “while acting under sudden heat.” Ind. Code § 35-42-1-3(a).
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Sudden heat is defined as provoked anger, rage, resentment, or terror sufficient
to obscure the reason of an ordinary person. Dearman v. State, 743 N.E.2d 757,
760 (Ind. 2001). Whether sudden heat exists is a question of fact to be
determined by a jury. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999).
[15] Garcia claimed that Barcenas threatened him and provoked Garcia to fear for
his life. Tr. Vol. III pp. 14, 28. It is within the province of the jury to decide the
credibility of witness testimony. Dillard v. State, 755 N.E.2d 1085, 1090 (Ind.
2001). Therefore, the jury was free to evaluate Garcia’s credibility regarding
whether he attacked Barcenas out of fear. The brutal nature of the attack belies
Garcia’s argument that he acted in terror under sudden heat. Garcia requests
this Court reweigh the evidence, which we will not do.
II. Appropriateness of the Sentence
[16] Garcia argues that his sentence is inappropriate and requests appellate review
and revision of the trial court’s sentence, as authorized by Article 7, Section 6 of
the Indiana Constitution. Indiana Appellate Rule 7(B) provides that “[t]he
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.” Review of
sentences under Appellate Rule 7(B) is deferential to the trial court’s judgment.
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should
prevail unless overcome by compelling evidence portraying in a positive light
the nature of the offense (such as accompanied by restraint, regard, and lack of
brutality) and the defendant's character (such as substantial virtuous traits or
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persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122
(Ind. 2015). Garcia bears the burden of establishing that his sentence is
inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
[17] The sentencing range for murder is between forty-five and sixty-five years. Ind.
Code § 35-50-2-3. Sentences at the extremes of the lawful range are more often
(but not always) clearly, plainly, and obviously inappropriate. Williams v. State,
782 N.E.2d 1039, 1050 (Ind. Ct. App. 2003). The trial court ordered Garcia to
serve the advisory sentence for murder, fifty-five years.
[18] Garcia’s 2011 plea agreement with the State was for forty-five years, at the low
end of the sentencing range. Garcia contends that “principles of fairness”
implied under Indiana Post-Conviction Rule 1(10) should guide how this Court
determines whether the imposition of the more severe penalty was
inappropriate. Appellant’s Br. at 19. Post-Conviction Rule 1(10) provides in
relevant part:
(b) If a sentence has been set aside pursuant to this rule and the
successful petitioner is to be resentenced, then the sentencing
court shall not impose a more severe penalty than that originally
imposed unless the court includes in the record of the sentencing
hearing a statement of the court’s reasons for selecting the
sentence that it imposes which includes reliance upon identifiable
conduct on the part of the petitioner that occurred after the
imposition of the original sentence.
[19] However, Post-Conviction Rule 1(10)(c) creates an exception for cases where 1)
a conviction based upon a plea agreement is set aside; 2) the State subsequently
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re-offers a sentence in accordance with the original terms of the plea agreement;
and 3) the defendant ultimately fails to accept the State’s re-offer. This
exception applies to Garcia. He denied the State’s re-offer of a forty-five-year
sentence, and therefore, the restriction on imposing a more severe penalty
established in Post-Conviction Rule 1(10)(b) does not apply. The trial court was
not restricted from imposing the more severe sentence of fifty-five years by any
rule of law.
[20] Whether Garcia’s sentence is inappropriate, then, depends on his ability to
provide compelling evidence that shines a positive light on the nature of his
offense and on his character. Stephenson, 29 N.E.3d at 122. Under Appellate
Rule 7(B), “character of the offender” refers in part to the trial court’s balancing
of aggravating and mitigating circumstances under Indiana Code Section 35-38-
1-7.1. Here, the trial court considered Garcia’s remorse as a mitigating
circumstance, and the brutal nature of Garcia’s offense as an aggravating
circumstance. Tr. Vol. III pp. 97-98.
[21] Regarding the nature of the offense, Garcia does not dispute that the attack was
brutally violent. Appellant’s Br. at 19. Paradoxically, he argues that because the
offense was brutal in nature, it was an “incomprehensible” act by Garcia, a man
with no prior criminal history. Id. According to Garcia’s testimony at
sentencing, the extraordinarily violent nature of the offense was a result of his
aberrant state of mind after Barcenas made an unwanted advance on him. Id.
While the offense may have been uncharacteristic of Garcia’s prior conduct and
may have been motivated by a perceived advance from Barcenas, Garcia’s
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arguments do little to portray the nature of this offense in a positive light or
reduce the aggravated nature of the attack. Garcia’s offense was clearly not
accompanied by restraint, regard, or lack of brutality. Ex. Vol. I, State’s Exs.
57-67.
[22] From the nature of Garcia’s offense, the Court learns much about the nature of
Garcia’s character. If the attack was instigated by an unwanted advance from
Barcenas, this Court agrees with the State’s conclusion that Garcia grossly
overreacted with fatal consequences. Appellee’s Br. at 21. Evidence that Garcia
was employed and had no prior criminal history does not compellingly portray
Garcia’s nature in a positive light sufficient to overcome the trial court’s
judgment. Indeed, our review leads us to the conclusion that the trial court was
generous in its judgment that Garcia’s remorse was a mitigating factor. Tr. Vol.
III pp. 97-98.
Conclusion
[23] Garcia’s conviction for murder was supported by sufficient evidence. Fifty-five
years is the advisory sentence for murder, and Garcia has not established that
the advisory sentence is inappropriate.
[24] Affirmed.
Kirsch, J., and Crone, J., concur.
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