MEMORANDUM DECISION
Case Summary
[1] Mikail Martinez was convicted of murder and a firearm enhancement and sentenced to sixty years. Martinez now appeals, arguing the State failed to rebut his claim of self-defense and that the trial court erred in not finding several mitigators. We affirm.
Facts and Procedural History
[2] Twenty-three-year-old Martinez was getting married on November 11, 2022. The night before his wedding, Martinez went out with one of his friends, Kyle Johnson. In the early morning hours of November 11, Martinez and Kyle were at Phoenix Bar & Grill in Mishawaka. While there, Martinez ran into a former coworker, Nathan Shultz, and the two sat together at the bar. Martinez left his wallet on the bar while he left for a few minutes. According to surveillance footage, Nathan picked up Martinezs wallet, put it in his pocket, and didnt give it back to Martinez when he returned. After Martinez left the bar and discovered that his wallet was missing, he went to Nathans sisters house (he didnt have Nathans phone number) and asked her to get a hold of Nathan because he suspected that Nathan had his wallet. Nathans sister got a hold of him, and Martinez and Nathan got into “a heated discussion” on the phone. Tr. Vol. III p. 180. Nathan told Martinez to come to his house in South Bend to get the wallet.
[3] When Martinez and Kyle arrived at Nathans house, Nathan and one of his friends were outside. Martinez approached Nathan, who handed him his wallet. When Martinez opened his wallet, he discovered that several credit cards were missing. Martinez accused Nathan of taking his credit cards, and the two began arguing. Martinez “threw the first punch,” hitting Nathan in the jaw, and Nathan “started fighting back.” Tr. Vol. II p. 167. Nathans friend also started fighting with Martinez. When the situation “started getting out of control,” Nathans roommate, Lawrence Witzke, opened the front door, stepped onto the porch, and told Martinez to “[g]et off” his property as he called 911. Id. at 128, 168. Upon hearing Lawrence tell Martinez to leave, Kyle told Martinez “[l]ets go” and started walking to Martinezs car. Id. at 129. Martinez, however, took his gun out of his pocket and fired four shots in rapid succession at Lawrence, killing him. Martinez “panick[ed],” and he and Kyle fled the scene in Martinezs car. Tr. Vol. III p. 189. When the police pulled Martinez over, he ran because he “was scared.” Id. The police later searched the porch, finding Lawrences phone and broken glasses but no gun.
[4] The State charged Martinez with murder and a firearm enhancement.
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The defense theory at trial was that Martinez acted in self-defense. Martinez testified that when Lawrence opened the front door and stepped onto the porch, he saw him “raising his arm from around his waistband.” Id. at 187. Martinez “thought” Lawrence was “pulling a firearm.” Id. at 188. Claiming he was “scared for [his] life,” Martinez took his gun out of his pocket and fired four shots at Lawrence. Id. As Martinez himself acknowledged, Lawrence didnt end up having a gun but appeared to be holding a cell phone. Id. at 201-02.
[5] The jury, which was instructed on self-defense, found Martinez guilty of murder. Martinez waived jury trial on the firearm enhancement, and the trial court found that the State proved the enhancement applied. At the sentencing hearing, defense counsel argued that Martinez was remorseful and had no criminal history. Defense counsel said that although Martinez took responsibility for the shooting, he continued to believe that it was justified. In pronouncing the sentence, the trial court noted that the jury didnt buy Martinezs claim of self-defense and neither did it. The court explained that Martinezs remedy was clear: “call the police.” Tr. Vol. IV p. 48. But rather than do that, Martinez took matters into his own hands and “shot somebody who was on the porch of the house who wasnt at all involved in the theft of [his] wallet.” Id. The court acknowledged that Martinez didnt have a criminal history but found that it wasnt entitled to much weight since Martinez was on trial for murder, as opposed to theft or burglary. See id. The court also acknowledged that Martinez admitted using a firearm but said that was “obvious anyway.” Id. at 49. The court sentenced Martinez to fifty years for murder (which is five years below the advisory sentence, see Ind. Code § 35-50-2-3) and ten years for using a firearm (see I.C. § 35-50-2-11(g) (setting forth five- to twenty-year range)), for a total sentence of sixty years.
[6] Martinez now appeals.
Discussion and Decision
I. The State negated at least one element of Martinezs self-defense claim
[7] Martinez contends the State failed to rebut his claim of self-defense. 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). We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.
[8] A valid claim of self-defense is legal justification for an otherwise criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). Indiana Code section 35-41-3-2 provides:
(c) A person is justified in using reasonable force against any other 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:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
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. No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
[9] To prevail on a claim of self-defense, a defendant must show: (1) he was in a place where he had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death or great bodily harm. Coleman, 946 N.E.2d at 1165. Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendants claim to fail. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Id. Whether the State has met its burden is a question of fact for the fact-finder. Id.
[10] We find the State negated at least one element of Martinezs self-defense claim. Martinez says he shot Lawrence because he “reasonably believed” that Lawrence was “drawing a weapon.” Appellants Br. pp. 16, 17. The phrase “reasonably believes” in our self-defense statute “requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007). Even if Martinez had a subjective belief that Lawrence was reaching for a weapon, that belief was not reasonable under the circumstances. Neither Martinez nor anyone else saw Lawrence with a weapon, Lawrence never threatened Martinez with a weapon, and, as it turned out, Lawrence didnt have a weapon. He had a phone, which he used to call 911, and asked Martinez to leave. The only evidence supporting Martinezs self-defense claim was his own self-serving testimony, which the jury was free to disbelieve. See Randolph v. State, 755 N.E.2d 572, 576 (Ind. 2001). The State rebutted Martinezs self-defense claim.
II. The trial court did not abuse its discretion in not finding several mitigators
[11] Martinez next contends the trial court erred in not finding several mitigators. The finding of mitigators rests within the sound discretion of the trial court, and we review such decisions only for an abuse of that discretion. Wert v. State, 121 N.E.3d 1079, 1084 (Ind. Ct. App. 2019), trans. denied. One way a trial court abuses its discretion is by not recognizing mitigators that are clearly supported by the record and advanced for consideration. Id.
[12] Martinez argues the trial court should have identified the following mitigators: (1) there are substantial grounds tending to excuse or justify the crime, though failing to establish a defense, see I.C. § 35-38-1-7.1(b)(4); (2) he acted under strong provocation, see id. at (b)(5); and (3) imprisonment would result in hardship to his five-year-old daughter, see id. at (b)(10). As for (1) and (2), the court essentially rejected these mitigators when it stated that it agreed with the jurys rejection of Martinezs self-defense claim and that Martinez should have called the police about his wallet, not pulled out his gun against a person who wasnt involved. The court did not abuse its discretion in not finding these mitigators.
[13] As for (3), although Martinez noted in his allocution that he has a daughter (who, according to the PSI, lived with her mother), defense counsel didnt ask the trial court to find the hardship to her to be a mitigator. As such, no evidence was presented or argument made about how a sixty-year sentence would result in more hardship to Martinezs daughter than the minimum sentence. See Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) (“[T]he difference between the presumptive and enhanced sentence here hardly can be argued to impose much, if any, additional hardship on the child, and we decline to attach any significant weight to this proffered mitigating circumstance.”). The court did not abuse its discretion in not finding this mitigator.
[14] Affirmed.
FOOTNOTES
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. The State also charged Martinez with Level 6 felony battery for punching Nathan and Class A misdemeanor resisting law enforcement. Martinez was convicted of both counts but does not challenge these convictions on appeal.
Vaidik, Judge.
Weissmann, J., and Foley, J., concur.