Gary Chavez v. State of Indiana (mem. dec.)

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).

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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

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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

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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.

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