Joshua MARTIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 70A05-0202-CR-94
Court of Appeals of Indiana.
March 12, 2003
We have held that “an ordinance requiring an abutting landowner to repair and maintain a public sidewalk does not create a duty to pedestrians using the sidewalk, absent an express provision to the contrary.” Carroll v. Jobe, 638 N.E.2d 467, 471 (Ind.Ct.App.1994). The reasoning behind this holding is that the municipality that owns the public sidewalks has a duty to pedestrians “to maintain the reasonably safe condition of” municipal sidewalks. Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind.Ct.App.1995). When a sidewalk, however, is not a public sidewalk but is instead privately owned, the owner owes pedestrians a duty to keep the sidewalk in a reasonably safe condition. Poe v. Tate, 161 Ind. App. 212, 215-16, 315 N.E.2d 392, 394 (1974).
The ordinance at issue here, section 8.02.020 of the City of Lafayette Code, reads as follows:
Whenever the Board of Public Works and Safety shall order any sidewalk or part thereof which has been paved, bouldered, graveled, or otherwise improved to be repaired, the Street Commissioner shall forthwith give notice in writing to the owner of the property adjoining the place where the repairs are required to be made, or such owner‘s agent or lessee, to repair the same in accordance with the general plan of improvement of the sidewalk.
Appellants’ App. p. 134. Unquestionably, the ordinance requires that a property owner repair a sidewalk only when given notice by the Street Commissioner. Here, Hutcherson never alleged that the Street Commissioner gave the Framptons a notice obligating repairs. However, even had the Street Commissioner given such notice, no duty to Hutcherson would lie to keep the sidewalk in a reasonably safe condition. As Kuhl‘s uncontroverted affidavit stated, the sidewalk where Hutcherson fell was a public sidewalk, owned by the City of Lafayette. Under Jobe, the Framptons owed Hutcherson no duty. 638 N.E.2d at 471.
CONCLUSION
In light of the disposition of the issues set forth above, we conclude that the trial court erred in denying the Framptons’ motion for summary judgment. No genuine issue of material fact existed as to the location of Hutcherson‘s fall, that location being the sidewalk. Additionally, the Framptons owed Hutcherson no duty to keep the sidewalk in a reasonably safe condition.
Reversed and remanded to the trial court with instructions that it enter summary judgment for the Framptons.
RILEY and MATHIAS, JJ., concur.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys For Appellee.
OPINION
VAIDIK, Judge.
Case Summary
Joshua Martin appeals his conviction of Battery as a Class C felony for beating a man to death. Specifically, he contends that the State failed to rebut his claim of self-defense. He also contends that the
Because the force Joshua used was not proportionate to the requirements or urgency of the situation, we conclude that the State met its burden of negating at least one of the elements of self-defense. Further, because the issue at trial was whether Joshua used excessive force and the photographs, which differed from each other, depicted the nature and extent of the victim‘s injuries, the photographs were relevant and neither unduly prejudicial nor cumulative. The trial court properly denied Joshua‘s Motion to Correct Error because Joshua failed to prove that the result of the trial would have been any different as the jury was already aware of the facts underlying the charges. Because the trial court properly found six aggravators and concluded that they outweighed the four mitigators, we determine that the trial court did not err in sentencing Joshua to the maximum term. Joshua‘s eight-year sentence for battery is not inappropriate because Joshua, who had a history of criminal and delinquent activity as well as arrests, brutally beat a man causing his death. Lastly, because the victim‘s family suffered financial loss as a direct and immediate result of the battery, the trial court did not err in ordering Joshua to pay restitution.
Facts and Procedural History
Leslie Ficklin was a server at Martin‘s Triangle in Rushville, Indiana. On February 28, 2001, Ficklin waited on Joshua, Joshua‘s father Steve Martin, and some of their friends (the Martin party). Although the restaurant had closed for the evening, Connie Martin, the owner of the restaurant and sister to Steve, asked Ficklin to stay late and finish waiting on them. While Ficklin waited on the Martin party, her fiancée Derrick Walker waited in the bar area.
Around 10:30 p.m., one and a half hours after Ficklin‘s shift was supposed to end, Ficklin presented the Martin party with its check. Steve paid the bill and left a ten-dollar tip. As Ficklin and Walker were leaving the restaurant, several members of the Martin party were congregating in the entry way. On their way out the door, Steve said, “See you later, freak.” Tr. p. 144. Walker stopped, but Ficklin pulled him out the door and told him that it was not worth it. Nevertheless, Walker went back inside the restaurant.
When Walker entered the restaurant, he grabbed Steve around the neck and pushed him up against the wall. Steve then punched Walker in the head and told Walker to get off him. As Steve and Walker struggled, Joel Bouslog, a member of the Martin party, unsuccessfully attempted to separate them. As a result, Joshua ran over to Steve and Walker and told Walker not to touch his father again. After pushing his father out of the way, Joshua punched Walker twice in the face and pushed him down to the ground. Joshua then straddled Walker, who was lying on his back, and put his hands on Walker‘s upper chest and lower neck. As Walker swung up and grabbed at Joshua, Joshua punched him in the face at least three times. At this point, Joshua Cooper,
Ficklin stayed outside when Walker went back inside the restaurant. However, upon hearing a lot of noise, she decided to go back inside. Upon entering, Ficklin saw a lot of people cheering and Joshua straddling Walker on the ground. According to Ficklin, Joshua was “repeatedly” punching Walker. Tr. p. 149. Eventually, Joshua got up and left the restaurant. Ficklin called police, and officers arrived minutes later. Emergency medical technicians also arrived, but Walker refused medical treatment at that time. However, shortly thereafter Ficklin took Walker to the emergency room at Rush Memorial Hospital.
When Walker arrived at the emergency room around 11:15 p.m., the emergency room physician observed that Walker had a swollen face, black eyes, his nose was bleeding and appeared broken, his upper teeth were loose, and the bones in his right cheekbone were grinding against each other. The doctor then ordered X-rays and a CAT scan, which revealed multiple fractures to Walker‘s facial bones and sinuses. Concerned about potential damage to Walker‘s brain and spinal cord and because Walker‘s condition had significantly worsened, the doctor summoned Lifeline Helicopter from Methodist Hospital in Indianapolis. Dr. Larry Stevens from Methodist Hospital examined Walker at 1:59 a.m. on March 1, at which time Dr. Stevens pronounced him dead. Dr. Donna Smith and Dr. Dean Hawley performed an autopsy on Walker on March 2. They concluded that the cause of death was “[a]sphyxia with fracture of hyoid bone [d]ue to: blunt force injury of head and neck.” Exhibit 22.
The State subsequently charged Joshua with Murder1 and Aggravated Battery, a Class B felony.2 Following his 2001 jury trial, Joshua was convicted of Battery, a Class C felony,3 as a lesser-included offense of aggravated battery. Following a sentencing hearing, the trial court sentenced Joshua to the maximum term of eight years. The trial court also ordered Joshua to pay Walker‘s funeral expenses. Joshua subsequently filed a Motion to Correct Error, which the trial court denied. This appeal ensued.
Discussion and Decision
Joshua raises six issues on appeal. First, he contends that the State failed to rebut his claim of self-defense. Second, he contends that the trial court erred in admitting into evidence eight photographs of Walker depicting his injuries. Third, he contends that the trial court erred in denying his Motion to Correct Error. Fourth, he contends that the trial court erred in sentencing him to the maximum term of eight years by considering improper aggravators and by not assessing enough weight to the mitigators. Fifth, he contends that his eight-year sentence is manifestly unreasonable. Lastly, he contends that the trial court erred in ordering him to pay Walker‘s funeral expenses. We address each issue in turn.
I. Self-defense
Joshua contends that the State failed to rebut his claim of self-defense. A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act. Wilson v. State, 770 N.E.2d 799, 800 (Ind.2002). When reviewing a question of whether the State negated the defendant‘s claim of self-defense beyond a reasonable doubt, our standard is the same as in any other challenge to the sufficiency of the evidence. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App.1999). We neither reweigh the evidence nor determine the credibility of the witnesses. Whitney v. State, 726 N.E.2d 823, 825 (Ind.Ct.App.2000). We look solely to the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. A defendant‘s conviction, despite a claim of self-defense, will not be reversed unless no reasonable person can say that the State negated the claim beyond a reasonable doubt. Hollowell, 707 N.E.2d at 1021.
A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only 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.
In order to prevail on a claim of self-defense, the defendant must show that he: (1) was in a place where he had a 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. Wilson, 770 N.E.2d at 800. 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. Id.
The State does not dispute that Walker initiated the attack upon Steve and that Joshua had the right to come to his father‘s aid. Instead, the State argues that “the amount of force used by [Joshua] was unreasonable and in excess of that needed for the protection of Steve[.]” Appellee‘s Br. p. 6. Joshua counters that he “responded to Walker‘s aggression with reasonable force.” Appellant‘s Reply Br. p. 2. The amount of force that is reasonably necessary to defend oneself or another person is determined from the standpoint of the defendant in light of the surrounding circumstances. Geralds v. State, 647 N.E.2d 369, 373 (Ind.Ct.App.1995), trans. denied. However, the force used must be proportionate to the requirements or urgency of the situation. Hollowell, 707 N.E.2d at 1021; Geralds, 647 N.E.2d at 373; see also Morrison v. State, 613 N.E.2d 865, 868 (Ind.Ct.App.1993) (“[I]n all self-defense claims, the force employed must not be out of proportion to the apparent urgency of the situation.“), trans. denied. “Where a person has used more force than necessary to repel an attack the right to self-defense is extinguished, and the ultimate result is that the victim then becomes the perpetrator.” Hollowell, 707 N.E.2d at 1021 (quoting Geralds, 647 N.E.2d at 373). In determining whether the degree of force that the defendant exerted exceeded the bounds justified to defend himself or a third person, the extent and severity of the victim‘s injuries are relevant. See Morrison, 613 N.E.2d at 868.
Here, the evidence shows that Joshua approached Walker and Steve as they were fighting and pushed his father out of the way. According to Steve, Joshua then “hit [Walker] and he took him and he put him on the floor.” Tr. p. 426. When asked if he saw Walker hit Joshua, Steve responded “No[.]” Tr. p. 426. Once Joshua had Walker on the floor, Joshua straddled him. Steve testified that at this
- approximately square patterned abrasions of right forehead
- linear contusions of mid and left forehead
- several areas of subgaleal hemorrhage underlying contusions and abrasions and with right and left temporalis muscles
- abrasion on bridge of nose and pinna of left ear
- bilateral contusions around eyes
- contusions inside lips
- fractures of nasal and facial bones
- fracture of the left hyoid bone
- moderate ingestion and slight aspiration of blood
Exhibit 22. In light of the surrounding circumstances, including the injuries to Walker, we cannot conclude that the force Joshua used was proportionate to the requirements or urgency of the situation. The State has met its burden of negating at least one of the elements of self-defense beyond a reasonable doubt.
II. Photographs of Victim
Joshua contends that the trial court erred in admitting into evidence State‘s Exhibits 3-10, which are eight photographs of Walker taken approximately eight hours after his death in the Marion County Coroner‘s Office. Specifically, Joshua argues that there was an inadequate foundation for the photographs and that the photographs were not relevant, unduly prejudicial, and cumulative. We review a trial court‘s admission of photographic evidence for an abuse of discretion. Hulfachor v. State, 735 N.E.2d 214, 217 (Ind.2000).
Joshua first argues that there was an inadequate foundation for the photographs because the State failed to prove that they were a true and accurate representation of Walker. In authenticating a photograph, a witness must establish that the photograph is a true and accurate representation of what it is meant to portray. Cohen v. State, 714 N.E.2d 1168, 1175 (Ind.Ct.App.1999), trans. denied. Here, the State admitted the photographs to show the nature and extent of Walker‘s injuries. Dr. Pafford testified that with the exception of some “[s]lightly increased bruising around the eyes and perhaps a little bit more swelling over the cheeks,” the photographs accurately depicted Walker the last time he saw him at Rush Memorial Hospital. Tr. p. 474-75. Furthermore, Timothy Williams of the Rushville Police Department, who took the photographs of Walker at the Marion County Coroner‘s Office, testified that they “accurately depict[ed] [Derrick] Walker” on March 1, 2001, around 10:00 a.m. Tr. p. 189. Nevertheless, Joshua asserts that the foundation is still improper because “[n]o evidence was presented by the State of Indiana as to what, if anything, happened to Walker between the time Walker left Dr. Pafford‘s care, and the time Williams saw Walker and took the Photographs.” Appellant‘s Br. p. 11. However, this goes to the weight, and not the admissibility, of the photographs. See Russell v. State, 519 N.E.2d 549, 553-54 (Ind.1988). The foundation was proper.
Joshua next argues that the photographs were not relevant, unduly preju-
Joshua asserts that the probative value of the photographs was “de minimis” because “[t]here was no dispute that Walker died” and that the prejudicial effect was “extremely high” because the photographs showed “severe swelling, blood all over his face, an intubation tube in his mouth, and C-spine collar around his neck[.]” Appellant‘s Br. p. 13. “That photographs depict gory, revolting, or inflammatory details of the crime is not sufficient basis for reversal, unless they are without relevance to any material issue.” Hulfachor, 735 N.E.2d at 217 (quotation omitted). “Proving the material issues cannot be done sometimes without presenting disagreeable evidence. Revolting crimes generate revolting evidence.” Id. (quotation omitted). Here, the photographs were indeed prejudicial. However, we note that the photographs, which were taken a day before the autopsy, do not depict Walker‘s body in an altered condition. See Kilpatrick v. State, 746 N.E.2d 52, 56 (Ind.2001) (“As for alleged prejudicial impact, we do not agree the photograph is particularly gruesome. Indeed, because the photograph was taken before the pathologist actually began his internal examination, it shows no incisions and does not portray the gruesome spectacle this Court has previously condemned.“). The probative value of the photographs is strong because the key issue at trial was whether Joshua used excessive force in defending his father. We cannot conclude that the probative value of the photographs is substantially outweighed by the danger of unfair prejudice.
Joshua further asserts that State‘s Exhibits 4, 7, 9, and 10 “were nearly identical to” State‘s Exhibits 3, 5, 6, and 8 and thus were cumulative. Appellant‘s Br. p. 13. Photographs depicting a victim‘s injuries are generally admissible and will not be rejected merely because they are cumulative. Duncan v. State, 735 N.E.2d 211, 213 (Ind.2000). Rather, a defendant must show that unfair prejudice flowing from the evidence outweighs its probative value. Id. Four photographs are at issue here; two of them show Walker‘s injuries with a different exposure/color; one of them shows Walker‘s injuries with a different exposure/color, angle, and closeness; and the last one shows Walker‘s injuries with a different angle and closeness. Thus, they are not wholly cumulative. See id. at 214. As noted above, these photographs are particularly probative inasmuch as the key issue at trial was whether Joshua used excessive force in defending his father. We cannot conclude that unfair prejudice flowing from the photographs outweighs its probative value. Therefore, the trial court did not abuse its discretion in admitting State‘s Exhibits 3-10 into evidence.
III. Motion to Correct Error
Joshua contends that the trial court erred in denying his Motion to Correct Error. The basis of this motion was
A. Brady v. Maryland Violation
Joshua first argues that the State suppressed material exculpatory evidence in violation of Brady v. Maryland. In Brady, the United States Supreme Court held, “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. This holding applies to evidence impeaching the credibility of a State‘s witness. Ben-Yisrayl v. State, 753 N.E.2d 649, 657 (Ind.2001), reh‘g denied, cert. denied, 536 U.S. 918 (2002). “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. (quotation omitted).
We first observe that nothing was suppressed. At the time of Joshua‘s trial and sentencing, Ficklin had not been charged with any crime. Moreover, Joshua concedes that he was aware of the facts underlying the charges before trial. In fact, Ficklin testified on direct examination about her inconsistent statements regarding how many people were involved in the beating of Walker, and defense counsel cross-examined her about these “lies.” Tr. p. 156-57. Although the jury was not aware of the charges because the State did not file them against Ficklin until after Joshua‘s trial and sentencing, the jury was aware that Ficklin had made false statements to police, which was the basis for the eventual charges. Accordingly, there is no reasonable probability that the result of the trial would have been different had the State charged Ficklin earlier and the jury been aware of it.
B. Newly Discovered Evidence
Joshua next argues that the State‘s filing of charges against Ficklin on the day after his sentencing constitutes newly discovered evidence entitling him to a new trial. To obtain a new trial based on newly discovered evidence, a party must establish the following requirements: (1) the evidence was not available at trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result. Godby v. State, 736 N.E.2d 252, 258 (Ind.2000), reh‘g denied. The moving party bears the burden
Here, Joshua has failed to prove at least one of the requirements, that the evidence will probably produce a different result. Our supreme court has called this “the final and critical ninth factor[.]” Reed v. State, 702 N.E.2d 685, 691 (Ind.1998). “[T]he defendant must raise a strong presumption that the result at any subsequent trial in all probability would be different.” Id. In ruling on whether the evidence would produce a different result, the trial court may properly consider the weight that a reasonable trier of fact would give it and while so doing may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case. Id. As discussed above, the jury was aware of the facts underlying the charges against Ficklin as both the State and defense counsel questioned Ficklin about her inconsistent statements. Joshua has failed to raise a strong presumption that the result at any subsequent trial in all probability would be different. The trial court did not abuse its discretion in denying Joshua‘s Motion to Correct Error.
IV. Aggravators and Mitigators
Joshua contends that the trial court erred in sentencing him to the maximum term of eight years by considering improper aggravators and by not assessing enough weight to the mitigators. Generally, sentencing determinations are within a trial court‘s discretion and are governed by
Here, the trial court identified the following aggravating circumstances in its sentencing order: (1) the nature and circumstances of the crime; (2) history of criminal and delinquent activity; (3) Joshua had prior arrests that did not result in convictions; (4) Joshua is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility; (5) Joshua‘s extensive experience in contact sports; (6) Joshua‘s lack of remorse; and (7) the risk that Joshua will commit another crime. Appellant‘s App. p. 313-14. The trial court also identified the following mitigating circumstances: (1) the victim of the crime initiated the incident; (2) Joshua acted partly in defense of another; (3) Joshua acted under strong provocation; and (4) Joshua is devoted to his family and other persons and donates time to youth contact sports in which young people regard him as a role model. Appellant‘s App. p. 314-15. Finding that the “very strong” aggravators outweighed the “much weaker” mitigators, the trial court sentenced Joshua to the maximum term of eight years. Appellant‘s App. p. 315.
A. Aggravators
Joshua first argues that the trial court improperly relied on the nature and circumstances of the crime as an aggravator. In finding this to be an aggravator, the trial court explained that the crime was “extremely brutal” and involved “striking the Victim in the head area a number of times with great force.” Appellant‘s App. p. 313. Joshua asserts that
Joshua next argues that the trial court improperly relied on his history of criminal and delinquent activity as an aggravator. In support of this aggravator, the trial court noted the following: “[Joshua] was adjudicated as a delinquent for Minor in Possession of Alcohol in 1995 and Theft in 1996. He was convicted as an adult for Illegal Consumption [in] 1998 and Littering [in] 1999.” Appellant‘s App. p. 313. Joshua asserts that it was improper for the trial court to consider littering because it was an ordinance violation, not a crime. Although the trial court should not have relied on Joshua‘s violation of the littering ordinance, it properly considered three other adjudications and convictions, none of which Joshua challenges. The trial court did not err in relying on Joshua‘s history of criminal and delinquent activity as an aggravator.
Joshua also argues that the trial court erred in considering his arrests for battery resulting in bodily injury and minor in possession of alcohol as an aggravator because they did not result in convictions. In support of this aggravator, the trial court observed:
[Joshua] also was arrested in 1999 for Battery Resulting in Bodily Injury and in 2000 for Minor in Possession of Alcohol. These have not resulted in convictions. The Court considers them because the current criminal behavior was not deterred even after the Defendant was subject to the police authority of the State in these instances.
Appellant‘s Br. p. 313-14. One or more arrests, standing alone, do not establish the history of criminal or delinquent activity aggravator to enhance a sentence. Pickens v. State, 767 N.E.2d 530, 534 (Ind.2002). However, although a record of arrests does not establish the historical fact of prior criminal behavior, “such a record does reveal to the court that subsequent antisocial behavior on the part of the defendant has not been deterred even after having been subject to the police authority of the State and made aware of its oversight activities of its citizens.” Id. (quotation omitted). The trial court did not err in considering Joshua‘s prior arrests as an aggravator.
Joshua next argues that the trial court erred in considering his involvement in contact sports as an aggravator. In support of this aggravator, the trial court stated: “[Joshua] has had extensive experience in contact sports including wrestling and three ‘Tough Man’ competitions.” Appellant‘s App. p. 314. Joshua alleges that by finding this to be an aggravator, the trial court is “attempt[ing] to maximize [his] sentence without sufficient legal basis.” Appellant‘s Br. p. 21. Although the trial court found Joshua‘s involvement in contact sports to be a separate aggravator, we conclude that it fits more appropriately under the nature and circumstances of the crime aggravator. This is especially so considering that under the nature and circumstances of the crime, the trial court noted that the crime was “extremely bru-
Joshua lastly argues that the trial court erred in finding as an aggravator that he is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility. Specifically, he asserts that the trial court failed to articulate why he is in need of such treatment beyond the presumptive term. It is true that to support this aggravator, the trial court “needs to explain why the defendant requires treatment beyond the presumptive sentence.” Bailey v. State, 763 N.E.2d 998, 1004 (Ind.2002). However, the trial court adequately explained so here when it stated the following:
Many prior efforts for rehabilitation have been attempted. As a juvenile, [Joshua] received informal adjustment, writing a composition, probation, restitution, suspended commitment to a secure facility. As an adult, [Joshua] was ordered to pay a fine, placed on probation, received a suspended sentence, and ordered to attend an alcohol class. These efforts at rehabilitation failed to deter the present crime.
Appellant‘s App. p. 314. Therefore, the trial court did not err in finding Joshua‘s need of correctional and rehabilitative treatment in a penal facility as an aggravator.4
B. Mitigators
Joshua argues that the trial court erred by not assessing two of the mitigators sufficient mitigating weight. The trial court is responsible for determining the appropriate weight of aggravating and mitigating factors. Hurt v. State, 657 N.E.2d 112, 115 (Ind.1995); Powell v. State, 751 N.E.2d 311, 315 (Ind.Ct.App.2001).
Joshua challenges the weight given by the trial court to the mitigators that the victim commenced the incident and that Joshua acted under provocation. The trial court found that these mitigators had low weight because Joshua‘s actions greatly exceeded a reasonable response. See Appellant‘s App. p. 314-15. Joshua asserts that the trial court‘s reasoning for finding these mitigators to have low weight ignored the evidence and the jury‘s verdict. To the contrary, there was evidence before the jury that the force Joshua used against Walker was unreasonable in light of the surrounding circumstances. Furthermore, the jury apparently did not find that Joshua acted in self-defense, as it found him guilty of battery causing serious bodily injury. And even if the trial court erred in not assessing these two mitigators sufficient weight, Joshua has failed to prove that the trial court‘s conclusion would have been any different. It is well settled that only one valid aggravating circumstance is required to be found by the trial court in order to enhance a presumptive sentence. Sherwood v. State, 702 N.E.2d 694, 699 (Ind.1998), reh‘g denied. Here, the trial court properly found six aggravators. Accordingly, the trial court did not abuse its discretion in sentencing
V. Inappropriate Sentence
Joshua contends that his eight-year sentence is manifestly unreasonable. Under Article VII, Section 6 of the Indiana Constitution, we have the constitutional authority to review and revise sentences. However, we will not do so unless the sentence imposed is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B).5 Our review under Appellate Rule 7(B) is very deferential to the trial court. See Cruz Angeles v. State, 751 N.E.2d 790, 800 (Ind.Ct.App.2001) (applying manifestly unreasonable standard), trans. denied.
As for the nature of the offense, the presumptive sentence for the class of crimes to which the offense belongs is meant to be the starting point for the court‘s consideration of what sentence is appropriate for the crime committed. Hildebrandt v. State, 770 N.E.2d 355, 361 (Ind.Ct.App.2002), trans. denied. Here, Joshua was convicted of a Class C felony. The presumptive sentence for a Class C felony is four years, with the maximum sentence being eight years and the minimum sentence being two years.
As for the character of the offender, the court is guided by the general sentencing considerations under
VI. Funeral Expenses
Joshua contends that the trial court erred in ordering him to pay restitution. Specifically, the trial court ordered Joshua to pay “$10,838.65 to the Walker family as reimbursement for losses which resulted f[ro]m his actions within five (5) years of release.” Appellant‘s App. p. 316. At the sentencing hearing, the trial court explained that these losses were for “expenses for the funeral.” Tr. p. 885.
[I]n addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime, the victim‘s estate, or the family of a victim who is deceased. The court shall base its restitution order upon a consideration of:
...
(5) funeral, burial, or cremation costs incurred by the family or estate of a homicide victim as a result of the crime.
This Court addressed this issue in Utley v. State, 699 N.E.2d 723 (Ind.Ct.App.1998), trans. denied. In Utley, the defendant was charged with reckless homicide and leaving the scene of an accident for running over his former girlfriend with his car. The jury found the defendant guilty of leaving the scene of an accident. The trial court sentenced the defendant to four years and ordered him to pay the victim‘s funeral expenses. On appeal, the defendant argued that the trial court erred in ordering him to pay the victim‘s funeral expenses because a trial court can only order a defendant convicted of a homicide to pay funeral expenses. In addressing this issue, this Court first noted that
Here, however, Joshua was convicted of battery as a Class C felony for beating
Conclusion
The State met its burden of negating at least one of the elements of self-defense because the force Joshua used was not proportionate to the requirements or urgency of the situation. The photographs of Walker admitted into evidence were relevant and neither unduly prejudicial nor cumulative. The trial court properly denied Joshua‘s Motion to Correct Error because Joshua failed to prove that he was entitled to a new trial on grounds of either a Brady violation or newly discovered evidence. Because the trial court properly found six aggravators and concluded that they outweighed the four mitigators, we conclude that the trial court did not abuse its discretion in sentencing Joshua to the maximum term. Furthermore, Joshua‘s eight-year sentence is not inappropriate because Joshua, who had a history of criminal and delinquent activity as well as arrests, brutally beat a man causing his death. Lastly, because Walker‘s family suffered financial loss as a direct and immediate result of the battery, the trial court did not abuse its discretion in ordering Joshua to pay Walker‘s funeral expenses.
Judgment affirmed.
NAJAM, J., concurs.
BAILEY, J., concurring in part and dissenting in part with separate opinion.
BAILEY, Judge, concurring in part and dissenting in part.
I concur with the majority opinion in all respects except for the affirmance of Martin‘s sentence. I believe that Martin‘s maximum eight-year sentence for Aggravated Battery was “inappropriate in light of the nature of the offense and the character of the offender,” see Ind. Appellate Rule 7(B), and should therefore be revised. As the majority notes, the starting point for our determination of the appropriateness of Martin‘s sentence is the recognition that pursuant to
While Martin‘s battery of Walker was undoubtedly severe, and the ultimate result tragic, Martin was, after all convicted of battery resulting in serious bodily injury. Given the facts, as noted by the trial court at sentencing, that Walker instigated the fight, and that Martin acted in the defense of his father and under strong provocation, I cannot conclude that Martin‘s offense amounted to the worst example of a battery resulting in serious bodily injury.
Moreover, while Martin has a history of run-ins with the law, his four convictions consisted of theft, minor possession of alcohol, illegal consumption, and littering. A history of criminal activity is certainly evidence of poor character. In my view, however, the nature of these offenses does not place Martin in the category of the very worst of offenders.
For these reasons, I believe that Martin‘s maximum eight-year sentence was in-