Benjamin E. Faulk 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
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
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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?”
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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.
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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.
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[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
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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.
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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.
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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.
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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
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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
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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.
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