MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 29 2016, 8:38 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ronald J. Moore Gregory F. Zoeller The Moore Law Firm, LLC Attorney General of Indiana Richmond, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brady D. McBride, July 29, 2016 Appellant-Defendant, Court of Appeals Case No. 89A04-1511-CR-2058 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David A. Kolger, Appellee-Plaintiff Judge Trial Court Cause No. 89C01-1407-F1-22
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 1 of 6 Case Summary [1] Following a jury trial, Brady D. McBride appeals the twenty-six-year sentence
imposed by the trial court on his convictions for level 3 felony aggravated
battery and level 4 felony unlawful possession of a firearm by a serious violent
felon. McBride contends that the trial court abused its discretion in considering
certain aggravating factors. Concluding that the trial court did not abuse its
discretion, we affirm.
Facts and Procedural History [2] In February 2014, McBride had a fistfight with Rodre Blackburn. After the
fight McBride called Blackburn to apologize, and Blackburn considered their
feud to be over. In July 2014, Blackburn was at a garage, which is a popular
neighborhood hangout. Blackburn heard someone call his name from across
the street. Blackburn crossed the street and was confronted by McBride.
McBride stated that he had heard that Blackburn had plans to shoot him.
Blackburn denied McBride’s allegations. McBride pulled out a handgun and
shot at the ground. Blackburn attempted to take the gun from McBride, but
was unsuccessful and retreated into the garage. McBride stood in the entry of
the garage about five feet away from Blackburn and shot him in the groin.
After shooting Blackburn, McBride fled into an alley next to the garage.
Blackburn had a handgun in his shorts pocket. He followed McBride down the
alley for a few feet and used the handgun to shoot at him six times until the
magazine was empty. Ultimately, Blackburn was taken to the emergency room
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 2 of 6 where he was treated for a urethra injury, and he had to use a catheter for six
weeks.
[3] The State charged McBride with level 1 felony attempted murder, level 3 felony
aggravated battery, and level 4 felony unlawful possession of a firearm by a
serious violent felon. Following a trial, the jury found McBride not guilty of
attempted murder and guilty of aggravated battery and unlawful possession of a
firearm by a serious violent felon. At sentencing the trial court found the
following aggravating factors: the nature of the offense pertaining to the
disregard for the bystanders’ safety, McBride’s criminal history of two prior
convictions of attempted murder, the fact that McBride was on probation and
released on bond in a probation revocation proceeding at the time of the
offenses, and his behavior at trial and while incarcerated. The court found no
mitigating factors and imposed sentences of sixteen years for aggravated battery
and ten years for unlawful possession of a firearm by a serious violent felon and
ordered them to run consecutively for a total sentence of twenty-six years. This
appeal ensued.
Discussion and Decision [4] McBride contends that his sentence is inappropriate in light of the nature of his
offense and his character and should be reduced pursuant to Indiana Appellate
Rule 7(B), but his actual argument focuses solely on whether the trial court
abused its discretion in considering aggravating factors. Our supreme court has
made it clear that inappropriate sentence and abuse of discretion claims are to
be analyzed separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 3 of 6 Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. So long as the sentence is within the statutory range, it is subject to review
only for an abuse of discretion. Id. An abuse of discretion occurs if the decision
is clearly against the logic and effect of the facts and circumstances before the
court or the reasonable, probable, and actual deductions to be drawn therefrom.
Id. A trial court abuses its discretion during sentencing by: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91. “Because the trial court no longer
has any obligation to ‘weigh’ aggravating and mitigating factors against each
other when imposing a sentence … a trial court can not now be said to have
abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491.
[5] The first aggravator that the trial court considered is the nature of the offense
concerning the disregard for the injuries that the offense could have caused the
bystanders. McBride claims that it is an improper aggravator because he fired
one shot into the ground and one shot into Blackburn. Appellant’s Br. At 11.
The fact remains that McBride fired a handgun twice while bystanders were
present, which displayed his disregard for the safety of others.
[6] McBride concedes that his criminal history was a proper aggravator to be
considered, but he claims that the trial court gave it too much weight, and he
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 4 of 6 also claims that the court “was inappropriately concerned with the acquitted
count of attempted murder.” Appellant’s Br. at 12. The first claim is
unavailable for appellate review, and the second is unsupported by the record. 1
We find no abuse of discretion here.
[7] The trial court also considered McBride’s probation status as an aggravating
factor. Again, McBride contends that the trial court gave this too much weight.
This contention is unavailable for appellate review.
[8] McBride also challenges the trial court’s consideration of his outburst at trial.
Before the court read the final instructions to the jury, McBride yelled, “Man,
you all a bunch of f***ing […] racists man.” Tr. at 525. The trial court found
that despite his outburst it was “amazing” that the jurors remained focused on
properly executing their duty and acquitted him of the attempted murder
charge. Tr. at 603. McBride claims that the trial court assigned too much
weight to this aggravator and inappropriately expressed disagreement with the
acquittal.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 29 2016, 8:38 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ronald J. Moore Gregory F. Zoeller The Moore Law Firm, LLC Attorney General of Indiana Richmond, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brady D. McBride, July 29, 2016 Appellant-Defendant, Court of Appeals Case No. 89A04-1511-CR-2058 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David A. Kolger, Appellee-Plaintiff Judge Trial Court Cause No. 89C01-1407-F1-22
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 1 of 6 Case Summary [1] Following a jury trial, Brady D. McBride appeals the twenty-six-year sentence
imposed by the trial court on his convictions for level 3 felony aggravated
battery and level 4 felony unlawful possession of a firearm by a serious violent
felon. McBride contends that the trial court abused its discretion in considering
certain aggravating factors. Concluding that the trial court did not abuse its
discretion, we affirm.
Facts and Procedural History [2] In February 2014, McBride had a fistfight with Rodre Blackburn. After the
fight McBride called Blackburn to apologize, and Blackburn considered their
feud to be over. In July 2014, Blackburn was at a garage, which is a popular
neighborhood hangout. Blackburn heard someone call his name from across
the street. Blackburn crossed the street and was confronted by McBride.
McBride stated that he had heard that Blackburn had plans to shoot him.
Blackburn denied McBride’s allegations. McBride pulled out a handgun and
shot at the ground. Blackburn attempted to take the gun from McBride, but
was unsuccessful and retreated into the garage. McBride stood in the entry of
the garage about five feet away from Blackburn and shot him in the groin.
After shooting Blackburn, McBride fled into an alley next to the garage.
Blackburn had a handgun in his shorts pocket. He followed McBride down the
alley for a few feet and used the handgun to shoot at him six times until the
magazine was empty. Ultimately, Blackburn was taken to the emergency room
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 2 of 6 where he was treated for a urethra injury, and he had to use a catheter for six
weeks.
[3] The State charged McBride with level 1 felony attempted murder, level 3 felony
aggravated battery, and level 4 felony unlawful possession of a firearm by a
serious violent felon. Following a trial, the jury found McBride not guilty of
attempted murder and guilty of aggravated battery and unlawful possession of a
firearm by a serious violent felon. At sentencing the trial court found the
following aggravating factors: the nature of the offense pertaining to the
disregard for the bystanders’ safety, McBride’s criminal history of two prior
convictions of attempted murder, the fact that McBride was on probation and
released on bond in a probation revocation proceeding at the time of the
offenses, and his behavior at trial and while incarcerated. The court found no
mitigating factors and imposed sentences of sixteen years for aggravated battery
and ten years for unlawful possession of a firearm by a serious violent felon and
ordered them to run consecutively for a total sentence of twenty-six years. This
appeal ensued.
Discussion and Decision [4] McBride contends that his sentence is inappropriate in light of the nature of his
offense and his character and should be reduced pursuant to Indiana Appellate
Rule 7(B), but his actual argument focuses solely on whether the trial court
abused its discretion in considering aggravating factors. Our supreme court has
made it clear that inappropriate sentence and abuse of discretion claims are to
be analyzed separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 3 of 6 Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. So long as the sentence is within the statutory range, it is subject to review
only for an abuse of discretion. Id. An abuse of discretion occurs if the decision
is clearly against the logic and effect of the facts and circumstances before the
court or the reasonable, probable, and actual deductions to be drawn therefrom.
Id. A trial court abuses its discretion during sentencing by: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91. “Because the trial court no longer
has any obligation to ‘weigh’ aggravating and mitigating factors against each
other when imposing a sentence … a trial court can not now be said to have
abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491.
[5] The first aggravator that the trial court considered is the nature of the offense
concerning the disregard for the injuries that the offense could have caused the
bystanders. McBride claims that it is an improper aggravator because he fired
one shot into the ground and one shot into Blackburn. Appellant’s Br. At 11.
The fact remains that McBride fired a handgun twice while bystanders were
present, which displayed his disregard for the safety of others.
[6] McBride concedes that his criminal history was a proper aggravator to be
considered, but he claims that the trial court gave it too much weight, and he
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 4 of 6 also claims that the court “was inappropriately concerned with the acquitted
count of attempted murder.” Appellant’s Br. at 12. The first claim is
unavailable for appellate review, and the second is unsupported by the record. 1
We find no abuse of discretion here.
[7] The trial court also considered McBride’s probation status as an aggravating
factor. Again, McBride contends that the trial court gave this too much weight.
This contention is unavailable for appellate review.
[8] McBride also challenges the trial court’s consideration of his outburst at trial.
Before the court read the final instructions to the jury, McBride yelled, “Man,
you all a bunch of f***ing […] racists man.” Tr. at 525. The trial court found
that despite his outburst it was “amazing” that the jurors remained focused on
properly executing their duty and acquitted him of the attempted murder
charge. Tr. at 603. McBride claims that the trial court assigned too much
weight to this aggravator and inappropriately expressed disagreement with the
acquittal. Again, the first claim is not available for review, and the second is
unsupported by the record. 2
[9] The trial court also considered McBride’s behavior while incarcerated as an
aggravating factor. While incarcerated McBride assaulted correctional officers,
assaulted other inmates, refused meals, and possessed contraband. McBride
1 McBride offers no citation that might support his contention. 2 McBride offers no citation that might support his contention.
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 5 of 6 argues that uncharged prior bad acts are inappropriate other than to show
character. During the sentencing hearing, McBride did not object to this
aggravator. Failing to object to an aggravating factor during sentencing
constitutes waiver. Brock v. State, 983 N.E.2d 636, 640 (Ind. Ct. App. 2013).
Therefore, McBride cannot challenge this aggravating factor for this first time
on appeal. Waiver notwithstanding, this aggravator is not improper. See id.
(“[A] defendant’s behavior during incarceration may be considered as an
aggravating factor, as it relates to the risk that the defendant will commit
another crime.”).
[10] McBride’s argument is essentially an invitation for this Court to reweigh the
aggravating factors, which we will not do. The trial court did not abuse its
discretion when it considered the aggravating factors during sentencing.
Therefore, we affirm.
[11] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016 Page 6 of 6