Opinion
23A-CR-3066
08-28-2024
Joe M. Cody, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria N. Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Bartholomew Circuit Court The Honorable Kelly S. Benjamin, Judge Trial Court Cause No. 03C01-2102-F5-1098
ATTORNEY FOR APPELLANT
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Alexandria N. Sons
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Shepard, Senior Judge.
[¶1] Joe M. Cody appeals from his conviction for one count of Level 5 felony battery resulting in serious bodily injury, contending that the State's evidence negating his self-defense claim was insufficient and that his sentence is inappropriate. Concluding that Cody is not entitled to relief on either claim, we affirm.
Facts and Procedural History
[¶2] On February 5, 2021, Cody, Brian Gilbert, Gilbert's girlfriend Julie Rutan, and many others patronized the Cozy, a bar in Columbus. Reggie Brown, the bartender, knew both Cody and Gilbert. He observed Cody arrive there at around 9:30 p.m. and noted that Cody "seemed like he was agitated about something." Tr. Vol. II, p. 26. And when Gilbert and Rutan walked into the bar, Rutan observed that Cody was "very like combative, like trying to fight." Id. at 65. She thought he was "trying to get kicked out by the bartender." Id. at 64.
[¶3] At around midnight, Brown the bartender heard Cody loudly say over the din of the crowd, "I'm Joe Cody; I'm a man if anybody wants to do anything about it; I'm right here." Id. at 28. He approached Cody and asked, "what's going on?" Id. Brown then learned that an unidentified patron had shoulder checked Cody. Brown returned to his duties after Cody appeared to calm down. But, he later overheard Cody say, "I'm Joe Cody, if anybody wants to do anything. I'll be outside." Id. Cody walked outside, followed by numerous patrons.
[¶4] As Gilbert, Rutan, and some friends went outside, Gilbert said to Cody, "why don't you just go home[?]" Id. at 43. Gilbert and Cody then engaged in a verbal altercation. Brown went outside where he positioned himself between Cody and Gilbert, deescalating the situation, and ultimately convincing the other patrons to go inside. Gilbert, Rutan, and their friends returned to the bar and remained there until last call or closing time, which was around 3 a.m.
[¶5] Unbeknownst to Gilbert and Rutan, Cody was in the parking lot waiting for them. They were walking toward Gilbert's truck when Cody "blindsided" them by approaching from between a row of cars, "[l]ike he was ready to fight [Gilbert]." Id. at 46, 68. Gilbert told Cody that he "didn't want any issues" and he "just wanted to go home." Id. at 46. Cody then charged at Gilbert, and the two began shoving each other. Cody punched Gilbert, pulled him to the ground, and knocked him out. Once Gilbert was unconscious on the ground, both motionless and defenseless, Cody struck him five more times. Cody walked away and a woman approached him.
[¶6] Gilbert regained consciousness and heard Cody tell the woman that he was going to beat her up. Gilbert, who was "stumbling quite a bit" after being helped up by others and who was still in "blackout mode," approached the woman and told her to stay away from Cody. Someone pushed Gilbert down from behind.
[¶7] Somebody called the police, and when officers arrived, they saw Gilbert lying unconscious on the ground. He was bleeding profusely from the forehead, his head was swollen, and his eyes were swollen shut. Emergency Medical Services caregivers decided to airlift Gilbert to a hospital in Indianapolis due to the extent and nature of his injuries. Gilbert sustained a severe brain hemorrhage, a broken orbital socket, a concussion, and lacerations on his face. He remained in the hospital for three days. Cody, however, was uninjured.
[¶8] While speaking with an officer, Cody explained that Gilbert brought himself into the situation voluntarily. However, surveillance footage of the parking lot outside the Cozy depicted Cody in a truck in the parking lot at 2:50 a.m. A car pulled alongside Cody's parked truck. He exited and sat down in the passenger seat of the car. The driver of the car then repositioned it to a different spot in the parking lot, one which faced the direction where Gilbert and Rutan exited the building. The video then depicted Cody's brutal attack on Gilbert as Gilbert lay motionless and unconscious on the ground in the parking lot.
[¶9] The State charged Cody with one count of Level 5 felony battery resulting in serious bodily injury. During Cody's trial, the jury received an instruction on self-defense. The jury found Cody guilty as charged and the trial court subsequently imposed a sentence of five years executed in the Department of Correction (DOC) with one year suspended to probation.
Discussion and Decision
I. Sufficiency of Evidence Negating Self-Defense Claim
[¶10] Cody says the State failed to negate any of the three elements of his self-defense claim. He says that he was in a place where he had a right to be when he was in the parking lot of the Cozy, that he acted without fault by approaching Gilbert to confirm that there would be no further issues between the two, and that he defended himself by striking Gilbert until Gilbert was no longer a threat to him. We disagree.
[¶11] "This court reviews a challenge to the sufficiency of the evidence to rebut a self defense claim under the same standard as any sufficiency of the evidence claim." Boyer v. State, 883 N.E.2d 158, 162 (Ind.Ct.App. 2008). "That is, the verdict will not be disturbed if there is sufficient evidence of probative value to support the conclusion of the trier of fact." Id. "Stated differently, a reviewing court will reverse a conviction where the defendant claimed self-defense only if no reasonable person could say the State disproved self-defense beyond a reasonable doubt." Id. "In conducting this review, we neither reweigh evidence nor judge witness credibility." Id.
[¶12] "A person is justified in using reasonable force against another person to protect the person . . . from what the person reasonably believes to be the imminent use of unlawful force." Ind. Code §35-41-3-2(c)(2019). "When the defendant has raised a self-defense claim, the State must disprove at least one of the following elements beyond a reasonable doubt: 1) the defendant was in a place where [he] had a right to be; 2) the defendant was without fault; and 3) the defendant had a reasonable fear or apprehension of bodily harm." Boyer, 883 N.E.2d at 162. "The State may disprove one of these elements by affirmatively showing the defendant did not act to defend [himself] or by relying on evidence elicited in its case-in-chief." Id.
[¶13] Setting aside the element of whether Cody was in a place where he had a right to be, he argues that he was without fault. The State can disprove the defendant was without fault by establishing that he used more force than was reasonably necessary under the circumstances. See Turner v. State, 183 N.E.3d 346, 358 (Ind.Ct.App. 2022) ("When a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished."), trans. denied. Here, the testimonial and video evidence establishes that after Cody knocked Gilbert out cold, he struck him five more times while he lay on the ground unconscious and unable to defend himself. Cody was uninjured, while Gilbert had to be airlifted to a hospital.
[¶14] And assuming for the sake of argument that Gilbert was the initial aggressor, when the victim no longer poses a threat and a defendant continues to use force, the defendant's self-defense claim fails. See Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App. 1999) (no longer self-defense when defendant continued to stab and chase victim after victim first punched defendant in mouth). Cody argues that "[a]fter Gilbert was no longer attacking Cody, Cody attempted to walk away. Cody, thus, established he acted in self-defense." Appellant's Br. p. 11. The evidence in the light most favorable to the verdict, however, shows that Cody rendered Gilbert unconscious, yet Cody punched him five more times before walking away. Cody's self-defense argument fails because sufficient evidence that he continued to beat Gilbert after he was unconscious negates that Cody had a reasonable fear or apprehension of bodily harm.
II. Inappropriate Sentence
[¶15] Cody claims that "the conduct alleged did not warrant imposition of an aggravated sentence" and asks us for a downward revision to a "more appropriate sentence" under Indiana Appellate Rule 7(B). Id. at 13, 15.
[¶16] The question in not whether another sentence is more appropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008). The issue is whether Cody's sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that "we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014). The defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the "culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[¶17] To assess whether the sentence is inappropriate, we look first to the statutory range established for the offense. The advisory sentence for a Level 5 felony is three years, with a minimum of one and a maximum of six years. Ind. Code §35-50-2-6(b) (2014). The court sentenced Cody to a term of five years executed in the DOC with one year suspended to probation.
[¶18] "The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation." Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Cody waited for Gilbert outside the bar for more than an hour. He then knocked Gilbert unconscious and continued to strike him while he lay defenseless on the ground. Gilbert's injuries were so significant that he had to be airlifted to a hospital. Gilbert suffered a "severe" brain hemorrhage, a broken orbital socket, a concussion, and lacerations on his face. Tr. Vol. II, pp. 47-48, 57. Gilbert was unable to work due to his injuries, has permanent light sensitivity, headaches, and nerve damage to his face. Beyond the physical injuries inflicted, Cody beat Gilbert in front of Gilbert's girlfriend, who continues to suffer from anxiety and nightmares about the incident. And Gilbert's family missed work to transport him and his children because he was unable to drive.
[¶19] The "character of the offender" portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors, Williams v. State, 782 N.E.2d 1039, 1051 (Ind.Ct.App. 2003), trans. denied, and permits a broader consideration of the defendant's character, Anderson v. State, 989 N.E.2d 823, 827 (Ind.Ct.App. 2013), trans. denied. "A defendant's life and conduct are illustrative of his or her character." Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied.
[¶20] Regarding his character, Cody points to his GED, employment, and "regret for the results of the altercation between himself and Gilbert." Appellant's Br. p. 14. And while acknowledging his criminal history as a valid aggravating factor, Cody argues that his character, nonetheless, "did not warrant an aggravated sentence." Id.
[¶21] Cody's criminal history consists of two prior felony convictions and five prior misdemeanor convictions. "Even a minor criminal history is a poor reflection of a defendant's character." Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020). Several of those convictions involved alcohol or marijuana use. Furthermore, Cody has prior failed attempts at rehabilitation through AA, Centerstone treatment center, treatment while in the DOC, and substance abuse evaluations as a juvenile. See Sanders v. State, 71 N.E.3d 839, 845 (ind. Ct. App. 2017) (refusal to take advantage of rehabilitative services reflects poorly on character). He reported that "he knows everything he needs to know to stay sober." Appellant's App. Conf. Vol. II, p. 122.
[¶22] Yet, in addition to a prior violation of probation, Cody committed a new crime (one count of Class B misdemeanor public intoxication) while released on his own recognizance in the present case. Violations of the terms of pre-trial release reflect poorly on a defendant's character. See Eisert v. State, 102 N.E.3d 330, 335 (Ind.Ct.App. 2018) (violation of pretrial release reflects poorly on defendant's character), trans. denied.
[¶23] Cody has not met his burden of persuading us that his sentence is inappropriate.
Conclusion
[¶24] In light of the foregoing, we affirm the trial court's judgment.
[¶25] Affirmed.
Altice, C.J., and Foley, J., concur.