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
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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