MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             FILED
Memorandum Decision shall not be                                   Nov 22 2016, 9:06 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
Yvette M. LaPlante                                       Gregory F. Zoeller
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Demeko Bradley,                                         November 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1602-CR-294
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,
                                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                     Judge

                                                        Trial Court Cause No.
                                                        82D03-1412-MR-5429



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016     Page 1 of 20
[1]   Demeko Bradley appeals his conviction and sentence for murder. Bradley

      raises three issues which we revise and restate as:


              I.      Whether the evidence is sufficient to disprove his claim of
                      self-defense;

              II.     Whether the trial court abused its discretion in admitting
                      photographic evidence; and

              III.    Whether his sentence is inappropriate based on the nature
                      of the offense and the character of the offender.


      We affirm.


                                      Facts and Procedural History

[2]   Bradley began dating Erin Harvell when she was approximately fourteen years

      old, and Bradley and Harvell had a child when Harvell was nineteen years old.

      When Harvell was seventeen or eighteen years old, she started dating Decedric

      Williams.


[3]   At some point after midnight on December 27, 2014, Bradley, Derrick Johnson,

      and another person arrived at a gas station in Evansville, Indiana, in a blue

      Tahoe. A short time later, while Bradley was between the driver’s side of the

      Tahoe and the gas pump, Williams, Harvell, and two others arrived at the gas

      station in a black Cadillac and pulled up on the right side of the Tahoe. Harvell

      exited the Cadillac, briefly stopped near the front passenger door of the Tahoe,

      and then walked toward the rear of the Tahoe. Bradley walked around the rear

      of the Tahoe, and he and Harvell stopped near the rear of the Tahoe and spoke

      to each other. Williams exited the Cadillac, walked a few steps to the front
      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 2 of 20
      passenger door of the Tahoe, and spoke with Johnson. Bradley then moved

      around Harvell, fired five shots at Williams, and then fled the scene.


[4]   Police responded to the shooting and discovered Williams face down in some

      bushes by a fence. Williams was unresponsive, and police discovered a nine-

      millimeter firearm underneath him. Williams was transported to the hospital,

      where he later died. Police took photographs of the crime scene and of

      Williams’s body at the scene and at the hospital. Police discovered ten shell

      casings at the scene, five of which were .380 and the other five of which were

      nine-millimeter. Police did not locate the gun used by Bradley, who was later

      taken into custody in Louisville, Kentucky.


[5]   On December 29, 2014, the State charged Bradley with murder. The State later

      alleged Bradley was an habitual offender. At the trial, the jury heard testimony

      from, among others, Harvell, Johnson, Bradley, and police investigators, and

      the court admitted photographs of Williams’s body, an autopsy report, and

      video recordings taken from surveillance cameras at the gas station.


[6]   When asked what she and Bradley were discussing when he moved around her,

      Harvell testified “[n]othing. He just moved around me” and “he just slightly

      pushed me to the back and I just heard a lot of gunshots.” Transcript at 95-96.

      When asked if she recalled what she told a detective about the manner in which

      Bradley moved around her, Harvell testified that “I honestly thought he like

      pushed me out of the way but I see he just kind of shoves me out of the way”

      and that “[h]e was just trying to push me out of the way,” and when asked why


      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 3 of 20
      she thought that he moved around her, she answered “[b]ecause I was in front

      of him.” Id. at 98. On cross-examination, when asked “didn’t [Bradley] also

      kind of push you behind the Tahoe,” Harvell responded affirmatively. Id. at 99.

      When asked “shortly before he made that move to get around you and push

      you behind the Tahoe, there was kind of a change in his facial expression

      wasn’t there,” Harvell answered “[y]es,” and when asked “[h]is facial

      expression changed to one of surprise or fear, didn’t it” and “his eyes got a little

      bigger, correct,” she responded affirmatively. Id. She further testified that

      Bradley “kept like looking around me a little bit too. He wasn’t like all the way

      focused on me while I was talking.” Id. at 100. Harvell further testified that she

      had observed Williams in possession of a gun earlier that day, that Williams

      was driving the Cadillac and stopped on Main Street, that someone honked at

      him, and that Williams pulled his weapon on the person who honked at him.

      Harvell stated that Williams was out of the Cadillac when he brandished the

      gun on Main Street, that the vehicle of the person who honked at Williams was

      a black “Jeep kind of looking car” or “SUV,” and that she knew the person,

      Shayla, who had honked. Id. at 104.


[7]   On redirect, Harvell indicated that she did not mention Bradley’s facial

      expressions to the police that evening, that she had been drinking a lot that

      evening, and that she remembered the facial expressions after she thought about

      what happened that night. When asked if she originally told police that Bradley

      grabbed her by the neck and threw her to the ground, Harvell replied “[y]eah . .

      . because that’s how I remembered it” but that her testimony was that “he just


      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 4 of 20
      kind of shoved me.” Id. at 116. She indicated that she had talked to Bradley

      probably more than ten times following the shooting, including two and three

      days prior to trial. Evansville Police Officer Doug Hamner testified that he was

      a crime scene investigator and that, when he arrived at the scene and

      interviewed Harvell, she stated that she was across the street from the gas

      station when the shooting occurred.


[8]   Johnson testified that, on the night of the shooting, Bradley picked him up in

      the blue Tahoe and that, while they were stopped on Main Street, there was

      a“kind of altercation like,” which occurred about ten minutes before they

      arrived at the gas station. Id. at 195. He testified “well [Williams] like pointed

      a gun at the, at the truck” on Main Street at a stoplight. Id. at 196. When asked

      what happened, he said “[t]wo people was – somebody was talking. It was two

      cars stopped right there,” and when asked who was driving those vehicles, he

      said “not all the way 100 percent sure, I just – you know what I’m saying.” Id.

      When asked “[w]ho was there that you know that you can tell us about,”

      Johnson answered “[Williams]. That’s all I know for sure.” Id. When asked if

      he knew which vehicle Williams was in, Johnson replied “[n]o. He was talking

      to somebody at the window,” and when asked if there were “[t]wo cars other

      than the Tahoe,” he replied affirmatively. Id. at 197. He stated the first car at

      the light was a gray or white Impala and the second vehicle was a truck. When

      asked if he had “any idea which car [Williams] was likely in,” he replied “I

      would think he was in the first one,” and when asked if he was the driver or a

      passenger, he stated he did not know because Williams was out of the car. Id.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 5 of 20
       at 198. When asked “[s]o how did it come about that [Williams] is pointing a

       gun at the truck,” Johnson answered “I couldn’t even tell you. You know we

       were just right there at the light stopped and that’s what happened.” Id.


[9]    Johnson further testified that, at the gas station, Williams drove up next to the

       Tahoe, exited the car and started “loudly talking towards” the Tahoe, he had a

       gun in his right hand, and he “was talking to me and shots got to firing off.” Id.

       at 202. He testified that Williams was “waving [the gun] around and pointing

       it” and that “[h]e was coming towards the car on violence.” Id. at 204. When

       asked what he thought would have happened if Bradley did not shoot at

       Williams, Johnson answered “[i]t probably went the other way around.” Id. at

       207.


[10]   On cross-examination, Johnson stated that Williams drove up in a Cadillac at

       the gas station but was in a gray Impala on Main Street ten minutes earlier.

       When asked if Williams had been driving the gray Impala, he replied “I’m

       thinking.” Id. at 211. He stated that Williams was “[t]alking to the car behind

       him” and that car was “like a gray truck . . . [l]ike a little SUV Trailblazer.” Id.

       When asked “[d]id you ever see a gun at that point,” Johnson answered

       affirmatively, and when asked “[w]hen,” he answered “[w]hen he like noticed

       that we was behind him. When he noticed that we was behind the gray

       Trailblazer.” Id. at 213. When asked “what did [Williams] do after you saw

       him with a gun,” Johnson said “[t]ook off running,” and when asked how the

       Impala moved, he answered that “[s]omebody jumped over there and drove it.”

       Id. at 214-215. Johnson indicated that at one point after the shooting he went

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 6 of 20
       back to the gas station, and when asked “it appears that you pick up a black

       object that’s on the ground,” he replied that it was his cell phone and not a gun.

       Id. at 226.


[11]   Bradley testified that, on Main Street, Williams drew a gun and pointed it at the

       vehicle Bradley was in and then ran away, and that, when the Cadillac pulled

       up, Harvell exited and started yelling at him. Bradley testified that he fired a

       weapon at Williams, and when asked what led him to make that decision, he

       stated that he and Harvell were “arguing back and forth but I’m listening and I

       heard him and I’m watching him and then I see, see the gun in his hand and he

       turns” and that Williams was turning the gun towards him. Id. at 249. When

       asked what went through his mind, he testified “[t]hat he was about to shoot. I

       was scared.” Id. When asked the length of time from when he saw Williams’s

       gun until he made the decision to fire at him, Bradley replied “[a] few seconds

       because I’m moving my daughter’s mother out of the way and I started

       shooting.” Id. at 250. Bradley stated that he was the first one to shoot. He

       further testified that he began to run and dropped the gun across the street from

       the gas station, and that he traveled to Louisville several hours later because he

       was scared. Bradley stated that he thought he was the person Williams was

       there to hurt and that he thought that, if he had not shot, he would have been

       dead or shot.


[12]   The video from the surveillance cameras at the gas station shows the shooting

       and the activity at the gas station before and after the shooting. The video

       shows the Cadillac pull up next to the Tahoe, Harvell exit the Cadillac and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 7 of 20
       briefly stop near the front passenger side of the Tahoe and then walk toward the

       rear of the vehicle, Bradley walk around the rear of the Tahoe and stand near

       Harvell while facing towards the front of the Tahoe, and Williams exit the

       Cadillac and stand near the front passenger door of the Tahoe speaking to the

       person seated in the passenger seat. The video shows that, after approximately

       sixteen seconds, Bradley took about four steps forward around the right side of

       Harvell, using his left arm to move her slightly to the left, and toward Williams,

       and while he was moving toward Williams he drew a gun with his right hand

       and started to fire shots at Williams. After firing his weapon five times, Bradley

       ran behind the Tahoe and out of view.


[13]   The autopsy report states Williams’s death “is attributed to exsanguination,

       secondary to a non-contact gunshot wound of the left abdomen with near

       transection of the left common iliac artery.” Joint Exhibit 1 at 1. The projectile

       from this wound was recovered from the right side of Williams’s abdomen.

       The report further states that Williams sustained a gunshot wound to his

       posterior right arm and a gunshot wound to his lateral left buttock. The court

       admitted photographs of Williams showing in part his wounds. The court

       instructed the jury regarding self-defense.


[14]   In closing argument, Bradley’s defense counsel argued that Bradley acted in

       self-defense and pointed to the video of the shooting and the testimony of

       Johnson and Bradley. The prosecutor argued Bradley intentionally shot

       Williams and that he did not act in self-defense. The prosecutor argued there

       was no factual basis to support a theory of self-defense in this case, asked the

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 8 of 20
       jury to look at the position of Williams in the video at the time Bradley started

       to shoot, argued Williams was facing and talking to Johnson at the time, and

       stated the autopsy report is consistent with the video. The prosecutor also

       discussed the testimony of Harvell and Johnson regarding what occurred on

       Main Street and at the gas station.


[15]   The jury found Bradley guilty of murder, and Bradley admitted to being an

       habitual offender. The court sentenced Bradley to sixty years for murder and

       enhanced the sentence by ten years for being an habitual offender.


                                                   Discussion

                                                         I.


[16]   The first issue is whether the evidence is sufficient to support Bradley’s

       conviction and negate his claim of self-defense. When reviewing claims of

       insufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g

       denied. Rather, we look to the evidence and the reasonable inferences therefrom

       that support the verdict. Id. We will affirm the conviction if there exists

       evidence of probative value from which a reasonable trier of fact could find the

       defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony

       of one witness is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d

       1070, 1072-1073 (Ind. 1991). “Because intent is a mental function and usually

       must be determined from a person’s conduct and resulting reasonable




       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 9 of 20
       inferences, the element of intent may properly be inferred from circumstantial

       evidence.” Beatty v. State, 567 N.E.2d 1134, 1139 (Ind. 1991).


[17]   The offense of murder is governed by Ind. Code § 35-42-1-1, which provides in

       part that a person who knowingly or intentionally kills another human being

       commits murder, a felony. Ind. Code § 35-41-2-2 provides that a person

       “engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

       conscious objective to do so” and that a person “engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.”


[18]   Bradley asserts the State produced no relevant evidence to contradict his claim

       of self-defense, the video and autopsy report showed only that a homicide took

       place, and the recording does not show whether Williams verbally provoked

       Bradley or Bradley was reasonably afraid of Williams. He also argues, without

       citation to the record, that “[t]he State asked the jury . . . to hold that two pieces

       of evidence with no probative value or relationship as to any of the elements of

       self-defense be held to disprove the elements of self-defense by themselves.”

       Appellant’s Brief at 9. In the facts section of his brief, Bradley also states that

       Williams had flashed a gun at Bradley earlier on Main Street and that, after

       Harvell and Bradley had been talking for a short period at the gas station,

       Bradley’s expression changed to one of surprise or fear.


[19]   The State maintains that Bradley’s arguments are invitations to reweigh the

       evidence and re-determine the credibility of the witnesses, that there is sufficient


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 10 of 20
       evidence showing Bradley did not act from a fear of great harm or death, and

       that Johnson’s testimony that Williams brandished a gun earlier in the evening

       was confusing and contradicted by Harvell’s testimony. The State also argues

       that Bradley fled the state within hours of the murder and fired multiple shots at

       Williams, undercutting his claim of self-defense.


[20]   Self-defense is governed by Ind. Code § 35-41-3-2. A valid claim of self-defense

       is legal justification for an otherwise criminal act. Wilson v. State, 770 N.E.2d

       799, 800 (Ind. 2002). In order to prevail on a self-defense claim, a defendant

       must demonstrate he was in a place he had a right to be; did not provoke,

       instigate, or participate willingly in the violence; and had a reasonable fear of

       death or great bodily harm. Id. The amount of force a person may use to

       protect himself depends on the urgency of the situation. Harmon v. State, 849

       N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, “[w]hen a person uses

       more force than is reasonably necessary under the circumstances, the right of

       self-defense is extinguished. Id. at 731.


[21]   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. Wilson,

       770 N.E.2d at 800. If a defendant is convicted despite his claim of self-defense,

       we will reverse only if no reasonable person could say that self-defense was

       negated by the State beyond a reasonable doubt. Id. at 800-801. A mutual

       combatant, whether or not the initial aggressor, must declare an armistice

       before he or she may claim self-defense. Id. at 801. The standard of review for

       a challenge to the sufficiency of the evidence to rebut a claim of self-defense is

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 11 of 20
       the same as the standard for any sufficiency of the evidence claim. Id. 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.


[22]   The jury was able to view the video from the surveillance cameras at the gas

       station which depicted the shooting, the position of the Tahoe and Cadillac,

       and the actions of Bradley, Harvell, and Williams before, during, and after the

       shooting. The video shows Bradley taking steps forward around Harvell and

       toward Williams, drawing a gun, and firing multiple times at Williams before

       running away. The jury could assess the mannerisms and actions of Bradley

       and Williams immediately prior to the shooting, the extent to which Bradley

       moved Harvell as he stepped around her, and the relative positions of Bradley

       and Williams. Additionally, the jury was able to review the autopsy report and

       the photographic evidence of Williams’s body, including the position of the

       bullet wound to his left abdomen and the wounds to his arm and buttock.

       Further, the jury heard Harvell’s testimony with respect to Bradley’s facial

       expressions prior to the shooting, Johnson’s testimony regarding Williams’s

       behavior at the gas station, and the testimony of Harvell, Johnson, and Bradley

       regarding Williams brandishing a weapon on Main Street prior to arriving at

       the gas station. The jury was able to consider the extent to which the testimony

       of each witness was consistent or inconsistent with the testimony of the other

       witnesses and the other evidence and was able to assess the demeanor and

       credibility of the witnesses and weigh their testimony. The jury also heard


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 12 of 20
       extensive arguments by the prosecutor and defense counsel regarding the

       evidence and testimony related to Bradley’s claim of self-defense.


[23]   Based upon the evidence, the jury could infer that Bradley participated willingly

       in the violence, that he did not have a reasonable fear of death or great bodily

       harm, or that the amount of force he used was unreasonable under the

       circumstances. We conclude based upon the record that the State presented

       evidence of a probative nature from which a reasonable trier of fact could have

       determined beyond a reasonable doubt that Bradley did not validly act in self-

       defense and that he was guilty of murder. See Wallace v. State, 725 N.E.2d 837,

       840 (Ind. 2000) (affirming the defendant’s convictions for murder and

       attempted murder, noting the defendant claimed that he acted in self-defense

       and testified one of the victims threatened him with harm if he did not pay

       money and the other victim reached for him and that at that point he produced

       a handgun and fired, observing that the trial court gave the jury a self-defense

       instruction and that the jury nonetheless convicted the defendant of murder,

       declining to reweigh the evidence, and holding that the State presented

       sufficient evidence to negate the defendant’s claim of self-defense); Milam v.

       State, 719 N.E.2d 1208, 1210-1211 (Ind. 1999) (affirming the defendant’s

       conviction for murder, noting that the defendant and victim had a violent past,

       the defendant had stated that she shot the victim when he threatened to hit her,

       the victim was shot four times, and there was no evidence of a struggle, and

       holding a reasonable trier of fact could have found the defendant did not have a

       reasonable fear of death or great bodily harm and that the evidence was


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 13 of 20
       sufficient to rebut the defendant’s claim of self-defense); Birdsong v. State, 685

       N.E.2d 42, 45-46 (Ind. 1997) (affirming the defendant’s convictions for murder

       and attempted murder, noting that the victims were the initial aggressors was

       not dispositive as to whether deadly force was a reasonable response, and

       holding that the evidence supported the State’s argument that the defendant

       used unreasonable force and did not validly act in self-defense); Rodriguez v.

       State, 714 N.E.2d 667, 670-671 (Ind. Ct. App. 1999) (noting that the defendant’s

       version of events differed from other testimony, declining to reweigh the

       evidence, and holding that sufficient evidence existed to rebut the defendant’s

       claim of self-defense), trans. denied.


                                                        II.


[24]   The next issue is whether the trial court abused its discretion in admitting

       photographic evidence. The court admitted into evidence, over Bradley’s

       objection, a photograph depicting a portion of Williams’s body and right arm

       after he died. Specifically, Evansville Police Officer Ben Gentry testified that he

       was assigned to the crime scene unit and that he had been asked by Officer

       Hamner to visit the hospital and photograph Williams after he had passed away

       in the surgery center of the hospital. Outside the presence of the jury, the State

       offered State’s Exhibit 32, and Officer Gentry testified that the photograph

       showed a bullet injury to Williams’s arm, that Williams was deceased at the

       time the photograph was taken, that he took approximately ten photographs

       showing other parts of Williams’s body and other wounds, and that the



       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 14 of 20
       photograph showed “the table and the medical patches and stuff on his body

       but that’s about it.” Transcript at 173.


[25]   Bradley’s counsel asked “[t]here’s also visible in that photograph a substantial

       amount of blood, is that correct,” and the officer replied “[t]hat’s correct, yes.”

       Id. at 174. Bradley’s counsel then objected to the admission of the photograph,

       stated that Bradley had conceded by stipulation that Williams is deceased, the

       time of death, the nature of his death, and the cause of his death, and argued

       that any type of post-mortem photographs were inadmissible and are more

       prejudicial than probative. The State responded that “[i]t’s hardly anything

       about that photograph that’s prejudicial,” that the fact the defense stipulated

       that Williams was dead did not prohibit the State from presenting evidence,

       that “[t]he wounds are a significant piece in this trial and in this puzzle for the

       jury and the State ought to have an opportunity to display those wounds to the

       jury,” and that “[t]he State’s held back lots of photographs that may have

       caused alarm. This certainly isn’t one of them. It’s an arm, Your Honor.” Id.

       at 174-175. The court admitted the photograph as State’s Exhibit 32. In the

       presence of the jury, Officer Gentry testified that State’s Exhibit 32 was taken

       after Williams passed away, shows a bullet wound to the upper right arm, and

       that the medical bandaging on the arm could be seen.


[26]   Bradley asserts on appeal that, “[a]fter the defense had stipulated that the victim

       had been shot, the probative value of photographs of the victim’s body

       depicting the bullet wounds without explanation of how those wounds came to

       be, did not outweigh their prejudicial value.” Appellant’s Brief at 9. He

       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 15 of 20
       contends that photographic evidence does not need to be particularly gruesome

       in order to fail the balancing test under Ind. Evidence Rule 403, that the State

       did not delve into the origin or nature of the wounds, and that the photograph

       was not relevant to the issue of whether he was acting in self-defense.


[27]   The State responds that the photograph in State’s Exhibit 32 weighs against

       Bradley’s claim of self-defense because it shows Bradley shot Williams multiple

       times, that Bradley does not point to precedent which requires a witness

       through whom a photograph is introduced to describe the origin or angle of

       bullet holes or whether the defendant acted in self-defense, that the photograph

       shows a bullet wound to Williams’s arm and bandaging, and that the State

       refrained from introducing other potentially graphic photographs.


[28]   The admission of photographic evidence is within the sound discretion of the

       trial court, and we review the admission of photographic evidence only for

       abuse of discretion. Helsley v. State, 809 N.E.2d 292, 296 (Ind. 2004) (citing

       Corbert v. State, 764 N.E.2d 622, 627 (Ind. 2002)). Photographs, as with all

       relevant evidence, may be excluded only if their probative value is substantially

       outweighed by the danger of unfair prejudice. Id. (citing Ind. Evidence Rule

       403; Corbert, 764 N.E.2d at 627). Admission of cumulative evidence alone is

       insufficient to warrant a new trial. Id. An appellant must establish that the

       probative value of the evidence was outweighed by the unfair prejudice flowing

       from it. Id. The Indiana Supreme Court has stated:


               Relevant evidence, including photographs, may be excluded only
               if its probative value is substantially outweighed by the danger of
       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 16 of 20
               unfair prejudice. Even gory and revolting photographs may be
               admissible as long as they are relevant to some material issue or
               show scenes that a witness could describe orally. Photographs,
               even those gruesome in nature, are admissible if they act as
               interpretative aids for the jury and have strong probative value.


       Corbert, 764 N.E.2d at 627 (internal citations and quotation marks omitted). A

       defendant is not entitled to have his actions sanitized when evidence is

       presented to a jury. See Reaves v. State, 586 N.E.2d 847, 859 (Ind. 1992).

       Evaluating whether an exhibit’s probative value is substantially outweighed by

       the danger of unfair prejudice is a discretionary task best performed by the trial

       court. Helsley, 809 N.E.2d at 296.


[29]   The trial court admitted into evidence approximately twenty-seven photographs

       introduced by the State, including photographs of Williams, the crime scene,

       shell casings on the pavement, and bullet holes in the Tahoe. The court

       admitted into evidence, without objection, three photographs depicting

       Williams’s body which were taken at the scene of the shooting. Officer

       Hamner testified that he took a number of photographs of the scene, the State

       moved to admit the photographs, defense counsel stated there was no objection,

       and the court admitted the photographs. State’s Exhibit 21 shows a portion of

       Williams’s abdomen and his right arm while he is on his back on a gurney,

       State’s Exhibit 22 shows Williams’s left arm while he is on the gurney, and

       State’s Exhibit 24 shows a portion of Williams’s body on the gurney from his

       waist area to his chest and depicts the bullet wound to his abdomen.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 17 of 20
[30]   The photograph to which Bradley objected at trial and appears to challenge on

       appeal, State’s Exhibit 32, shows a portion of the side of Williams’s body

       partially covered by a medical patch or drape, his right arm, and a bullet wound

       to the arm. Officer Gentry testified he had taken the photograph after Williams

       had passed away and that he had taken about ten photographs showing other

       parts of Williams’s body and other wounds. The photograph illustrates the

       testimony related to the gunshot injury to Williams’s right arm, and we cannot

       say the photograph could not have helped the jury understand the testimony

       and evidence related to the shootings. In addition, while State’s Exhibit 32

       depicts a medical patch or drape and blood, the photograph is not particularly

       gruesome. After reviewing the challenged exhibit in light of the other exhibits

       and all the evidence, we cannot say that the prejudicial impact of the admission

       of the photograph outweighs its probative value. The trial court did not abuse

       its discretion in admitting the photograph. See Helsley, 809 N.E.2d at 296

       (holding that the trial court did not abuse its discretion in admitting several

       photographs showing gunshot wounds to the victims’ heads where the

       defendant argued the photographs were cumulative and he did not contest that

       the victims died from gunshot wounds); Wallace, 725 N.E.2d at 839 (holding

       photographs were not particularly gruesome, the probative value of the

       photographs outweighed any prejudicial impact, and the court did not err by

       allowing the photographs into evidence).


                                                        III.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 18 of 20
[31]   The next issue is whether Bradley’s sentence is inappropriate based on the

       nature of the offense and his character. Ind. 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.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[32]   Bradley argues he did not have a history of committing violent crimes, he had

       been threatened with a gun by the victim earlier in the evening, Williams pulled

       up next to him with a weapon, and Bradley responded by shooting at the

       victim, but only after moving Harvell out of the way. He argues that the nature

       of the crime and his character do not indicate that justice requires that he serve

       a sentence above the advisory range.


[33]   The State responds that Bradley senselessly shot Williams five times and fled

       the state within a couple of hours, Bradley and Williams knew each other and

       both dated Harvell, Bradley did not receive the maximum sentence, and that he

       has a criminal history including numerous prior felony convictions.


[34]   A person who commits murder shall be imprisoned for a fixed term of between

       forty-five and sixty-five (65) years, with the advisory sentence being fifty-five

       (55) years. Ind. Code § 35-50-2-3. The trial court sentenced Bradley to sixty

       years and ordered that his sentence be enhanced by ten years for being an

       habitual offender.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 19 of 20
[35]   With respect to the nature of the offense, the record reveals that Bradley stepped

       toward Williams and shot him five times, resulting in Williams’s death, and

       then traveled to Louisville. With respect to the character of the offender, the

       presentence investigation report (“PSI”) indicates that as a juvenile Bradley was

       adjudicated delinquent for an act that would constitute theft as a class D felony

       if committed by an adult in 2001 and an act that would constitute burglary as a

       class B felony if committed by an adult in 2003. His adult criminal history

       consists of possession of cocaine or a narcotic drug as a class B felony in 2004,

       false informing as a class B misdemeanor in 2005, and dealing in a narcotic

       drug as a class A felony in 2009. The PSI further indicates that Bradley was a

       participant in the court’s re-entry program when he committed the instant

       offense and that the results of the Indiana risk assessment show that he is a very

       high risk to reoffend.


[36]   After due consideration, we conclude Bradley has not met his burden of

       establishing that his aggregate sentence is inappropriate in light of the nature of

       the offense and his character.


                                                   Conclusion

[37]   For the foregoing reasons, we affirm Bradley’s conviction and sentence for

       murder.


[38]   Affirmed.


       Robb, J., and Mathias, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1602-CR-294 | November 22, 2016   Page 20 of 20
