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

• Court: Indiana Court of Appeals
• Decided: August 9, 2017
• Docket: 49A02-1701-CR-39
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 1 of 11 [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

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 2 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 3 of 11 [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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 4 of 11 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 5 of 11 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, Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 6 of 11 873 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). Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 7 of 11 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 8 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 9 of 11 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-39 | August 9, 2017 Page 10 of 11 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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