      MEMORANDUM DECISION                                                            FILED
                                                                                May 15 2017, 9:07 am

      Pursuant to Ind. Appellate Rule 65(D), this                                    CLERK
      Memorandum Decision shall not be regarded as                               Indiana Supreme Court
                                                                                    Court of Appeals
      precedent or cited before any court except for the                              and Tax Court

      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Charles W. Lahey                                         Curtis T. Hill, Jr.
      South Bend, Indiana                                      Attorney General of Indiana
                                                               Justin F. Roebel
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tyre Mark Bradbury,                                      May 15, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A05-1606-CR-1280
              v.                                               Appeal from the St. Joseph
                                                               Superior Court.
      State of Indiana,                                        The Honorable Elizabeth C.
                                                               Hurley, Judge.
      Appellee-Plaintiff.                                      Cause No. 71D08-1405-MR-5




      Shepard, Senior Judge

[1]   A jury found Tyre Mark Bradbury guilty of murder as an accessory and

      concluded he had participated in the crime as part of a criminal gang. The trial

      judge sentenced him to the minimum penalty for murder, forty-five years, and

      doubled it as required by the gang statute.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017                Page 1 of 26
                                                    Issues
[2]   Bradbury raises the following issues:

              I.      Whether the trial court erred in admitting the recording of
                      Bradbury’s interrogation;
              II.     Whether the court erred while instructing the jury;
              III.    Whether there is sufficient evidence to sustain Bradbury’s
                      conviction for murder;
              IV.     Whether there is sufficient evidence to sustain a sentence
                      enhancement for participation in a criminal organization;
              V.      Whether Bradbury should have been sentenced as a
                      juvenile; and

              VI.     Whether Bradbury’s sentence is unconstitutional.

                               Facts and Procedural History
[3]   On April 8, 2014, a fistfight broke out among several young men at a public

      park in South Bend. Fifteen-year-old Tyre Bradbury and another juvenile, L.B.,

      participated in the fight on opposing sides. The next day, Bradbury and

      numerous companions, including Robert Griffin and juvenile T.B., returned to

      the park. Bradbury had obtained a handgun and a shotgun; he gave the

      handgun to Griffin and the shotgun to another companion. The group again

      encountered L.B., and, during a confrontation, Griffin and T.B. pulled out

      handguns and shot at L.B. multiple times. No one fired the shotgun. None of

      the shots hit L.B., but one of Griffin’s bullets traveled 390 yards and struck two-

      year-old J.S. in the chest as he was playing with his sister in the front yard of his

      house. J.S. died from the gunshot.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 2 of 26
[4]   These dreadful events rightly led to multiple prosecutions. Griffin, who fired

      the shot that killed J.S. and was an adult at the time of the shooting, received a

      flat sixty years for murder. T.B., the other shooter, received a forty-year

      sentence with five years suspended for attempted murder. Bradbury’s other

      companions, including Josh Hodge, Xavier Primm, M.B., D.W., and C.W.,

      received sentences of ten years or less. The State argued that most of

      Bradbury’s companions were also members of the gang, but only C.W. was

      convicted of the criminal organizations enhancement. M.B. and D.W. were

      also charged with the enhancement, but the enhancement was later dismissed

      as to them.


[5]   As for Bradbury, the police arrested him on April 10, and an officer

      interrogated him with his mother present. The State charged Bradbury with
                                           1
      murder as an accessory and sought a sentencing enhancement for participation
                                               2
      in a criminal organization. The juvenile court waived jurisdiction and

      transferred the case to the St. Joseph Superior Court. In a bifurcated

      proceeding, the jury determined that Bradbury was guilty of murder and that he

      was subject to the criminal organizations enhancement. The court sentenced

      Bradbury to an aggregate of ninety years.




      1
          Ind. Code §§ 35-42-1-1 (2013), 35-41-2-4 (1977).
      2
          Ind. Code § 35-50-2-15 (2006).


      Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 3 of 26
                                    Discussion and Decision
                     1. Admitting the Recording of Interrogation
[6]   Bradbury argues the trial court should have granted his motion to suppress the

      recording of his interrogation, claiming his incriminating statements were
                 3
      coerced. The issue is more appropriately framed as whether the court abused

      its discretion by admitting the recording. Lanham v. State, 937 N.E.2d 419 (Ind.

      Ct. App. 2010). Abuse of discretion involves a decision that is clearly against

      the logic and effect of the facts and circumstances before the court. Id.


[7]   When a defendant challenges the admissibility of his or her statement, the State

      must prove by a preponderance that the statement was voluntary. Williams v.

      State, 997 N.E.2d 1154 (Ind. Ct. App. 2013). On review, we look to the totality

      of the circumstances surrounding the giving of the statement, and our focus is

      whether the statement was free and voluntary, not induced by any violence,

      threats, promises, or other improper influences. Id. Among other factors, we

      consider the length of the interrogation, its location, its continuity, and the

      defendant’s maturity, education, physical condition, and mental health. Pruitt

      v. State, 834 N.E.2d 90 (Ind. 2005). Coercive police activity is a necessary

      prerequisite to finding a confession is not voluntary within the meaning of the

      Due Process Clause of the Fourteenth Amendment. Scalissi v. State, 759 N.E.2d




      3
       The State claims Bradbury has waived this issue for appellate review. Based on our review of the record,
      we disagree and consider the merits of Bradbury’s claim.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017             Page 4 of 26
       618 (Ind. 2001). If there is substantial evidence to support the trial court’s

       conclusion of voluntariness, we affirm. Williams, 997 N.E.2d at 1154.


[8]    The police took fifteen-year-old Bradbury into custody on the morning of April

       10, 2014, and Officer Brian Cook of the St. Joseph County Sheriff’s Department

       questioned him at a police station. Bradbury had attended some high school

       and had no mental illnesses or cognitive disabilities. The interrogation

       occurred over three sessions that day.


[9]    The first session lasted from 11:34 a.m. to 2:30 p.m., with several breaks of

       around ten minutes each. At the beginning, Officer Cook read the Miranda

       rights to Bradbury and his mother, who signed a form acknowledging same.

       The officer then left the room and turned off the recording to allow Bradbury

       and his mother to confer in private. When Officer Cook returned and

       reactivated the recorder, he re-read the form, and Bradbury’s mother signed it

       again.


[10]   Officer Cook then questioned Bradbury. Bradbury’s mother repeatedly urged

       him to cooperate, asking him to name persons who were involved. Bradbury

       initially refused to provide details, saying Officer Cook “didn’t know [s**t].”

       Ex. 30 at 11:51. After a break, Bradbury told the officer he had shot at L.B.

       using a chrome Taurus handgun. He said a person named “Ace” also shot at

       L.B. with a handgun. Bradbury further claimed he brought a shotgun to the

       park but threw it under some bushes, where he left it. During this discussion,

       Officer Cook expressed skepticism that Bradbury was one of the shooters, and


       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 5 of 26
       Bradbury’s mother repeatedly urged him not to claim responsibility so as to

       protect someone else.


[11]   Officer Cook brought Bradbury a meal at the end of the first session, saying he

       and his fellow officers wanted to go find the shotgun and “Ace.” Almost four

       hours later, at 6:19 p.m., the questioning resumed. Officer Cook told Bradbury

       the shotgun was not where he said it would be. To the contrary, Officer Cook

       said an eyewitness saw someone matching the description of Bradbury and two

       of his companions carrying a shotgun as they entered a car and left the scene of

       the shooting. He also informed Bradbury that “Ace” was at work during the

       shooting. After Officer Cook confronted Bradbury about his lies, Bradbury

       laughed. Cook ended the session by telling Bradbury he was going to jail.


[12]   The final session began at 6:52 p.m. after a thirty-minute break. Officer Cook

       stated for the record that Bradbury had asked to talk to him again. Cook re-

       read Miranda rights to Bradbury and his mother, she signed it, and then Officer

       Cook left the room and turned off the recording so Bradbury and his mother

       could talk privately. When Cook returned and reactivated the recording,

       Bradbury’s mother signed the form again. Bradbury admitted he had lied about

       being one of the shooters, stating he was trying to be loyal to his friends and

       “was not thinking of the consequences.” Ex. 30 at 19:05. Bradbury conceded

       one of his friends fired one handgun and another person he knew as “Josh”

       fired a second handgun. Officer Cook ended the session at 7:54 p.m.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 6 of 26
[13]   Bradbury argues his statement was involuntary because, during the first session,

       Officer Cook stated that due to his young age, if Bradbury went to prison he

       was likely to be sexually assaulted. Although this type of remark to a minor

       suspect is not to be condoned, the recording shows that Bradbury laughed after

       Cook said it and further stated he would not give any names to Cook.


[14]   Further, Cook’s comment was an isolated remark over the course of three

       sessions, with a lengthy break between the first and second. Bradbury did not

       cooperate with Cook immediately after he made the remark. Instead, Bradbury

       continued to lie about being one of the shooters in order to protect a friend,

       falsely claimed “Ace” was the other shooter, and falsely stated he left a shotgun

       at the park. He persisted in these statements through the end of the first session

       of questioning. Bradbury did not change his story until after Officer Cook

       confronted him with his lies, some five hours after Cook had warned him about

       sexual assault in prison. Further, before beginning the third session, Cook

       again advised Bradbury and his mother of his Miranda rights. Finally, even at

       the end of the third session Bradbury was never fully cooperative with Officer

       Cook because he never named Griffin as a shooter, claiming that a person

       named “Josh” did it. There is substantial evidence to support the trial court’s

       determination that Officer Cook’s isolated comment about sexual assault did

       not render Bradbury’s statement involuntary.


[15]   Bradbury cites Arizona v. Fulminante, 499 U.S. 279 (1991), for the proposition

       that a threat of sexual assault in prison must be considered unduly coercive, but

       that case is factually distinguishable. In Fulminante, a prisoner confessed to a

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 7 of 26
       fellow inmate, while in prison, that he had committed a murder, after the fellow

       inmate told the defendant that he could protect him from ongoing harassment

       by other inmates if the defendant told him the truth. In Bradbury’s case, he was

       not in prison, was not subjected to harassment from inmates, and Officer

       Cook’s remark, while troubling, did not imply immediate danger and was

       merely one statement in the course of a lengthy interrogation. The trial court

       did not abuse its discretion in admitting Bradbury’s interrogation.


                                          2. Jury Instruction
[16]   Bradbury claims the trial court failed to properly instruct the jury on the

       elements of the offense of murder. The State says Bradbury waived any error.

       We agree with the State.


[17]   Jury instructions are left to the sound discretion of the trial court, and we may

       not reverse unless the court abuses that discretion. Davis v. State, 892 N.E.2d

       156 (Ind. Ct. App. 2008). A trial court abuses its discretion if a jury instruction

       misstates the law or otherwise misleads the jury. Elliott v. State, 786 N.E.2d 799

       (Ind. Ct. App. 2003).


[18]   Bradbury claims that several instructions were erroneous, but he identifies only

       the instruction on the elements of murder. The instruction said:

               There were in force the following statutes of the State of Indiana:


               I.C. 35-42-1-1 Murder
               The crime of murder is defined by law as follows:


       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 8 of 26
               A person who knowingly or intentionally kills another human
               being commits murder, a felony.


               I.C. 35-41-2-4 Aiding, inducing or causing
               Aiding, inducing, or causing murder is defined by statute as
               follows:
               A person who, knowingly or intentionally aids, induces or causes
               another person to commit an offense commits that offense. A
               person may be convicted of aiding, inducing or causing murder
               even if the other person has not been prosecuted for the murder,
               has not been convicted of the murder, or has been acquitted of
               the murder.


               I.C. 35-41-2-2 Culpability
               A person engages in conduct intentionally if, when he engages in
               the conduct, it is his conscious objective to do so.
               A person engages in conduct knowingly if, when he engages in
               this conduct, he is aware of a high probability that he is doing so.

       Appellant’s App. Vol. 2, p. 179.


[19]   Bradbury’s claim on appeal is that the instruction should have required his

       actual knowledge the handgun would be used to shoot. This Court has held

       otherwise. See Boney v. State, 880 N.E.2d 279 (Ind. Ct. App. 2008) (instruction

       not erroneous for failure to state specifically that defendant gave weapon to

       shooter with knowledge or intent it would be used to kill), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 9 of 26
[20]   In any event, we need not resolve the claim. Initially, Bradbury’s counsel had
                                                                                                4
       no objection to the court’s instruction. March 28-30 Tr. p. 180. Later, after

       the State raised a challenge to it, Bradbury stated he had concerns and

       requested the chance to dictate his objections into the record after trial. March

       31 Tr. p. 12. When the presentation of evidence ended, the court offered

       counsel an opportunity to dictate any objections, and he declined. Id. at 265.
                                     5
       The issue is waived.


                             3. Sufficiency of the Evidence - Murder
[21]   Bradbury argues there is insufficient evidence to support his conviction for

       murder as an accomplice, saying the State failed to prove he intended for

       anyone to be killed. In reviewing a sufficiency claim, this court does not

       reweigh the evidence or judge the credibility of the witnesses. Green v. State, 937

       N.E.2d 923 (Ind. Ct. App. 2010), trans. denied. Reversal is appropriate only

       when reasonable persons would not be able to form inferences as to each

       material element of the offense. Id.


[22]   To convict Bradbury of murder as an accessory, the State was required to prove

       beyond a reasonable doubt that (1) Bradbury (2) knowingly or intentionally (3)




       4
           The volumes of the transcript are not designated by number, so we cite to them by the date of the hearing.
       5
         Bradbury also argues the prosecutor committed misconduct by claiming during opening and closing
       arguments, without evidentiary support, that Griffin was recruited by Bradbury or his companions to come to
       the park on April 9, 2014 because he was willing to kill. Bradbury did not object to the prosecutor’s
       statements at trial, so the issue is not preserved. See Lacy v. State, 58 N.E.3d 944 (Ind. Ct. App. 2016) (claim
       of prosecutorial misconduct waived where defendant did not request admonishment or mistrial).

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017               Page 10 of 26
       aided, induced, or caused (4) Griffin (5) to shoot J.S. Ind. Code §§ 35-42-1-1

       (murder), 35-41-2-4 (aiding, inducing or causing an offense). Intent is a mental

       function, and, absent a confession, it often must be proved by circumstantial

       evidence. Hightower v. State, 866 N.E.2d 356 (Ind. Ct. App. 2007), trans. denied.


[23]   The State was required to show more than Bradbury’s mere presence at the

       scene of the shooting. Wright v. State, 690 N.E.2d 1098 (Ind. 1997). It had to

       establish that Bradbury’s conduct before, during, and after the crimes, in

       addition to his presence, tended to show complicity and thus supported an

       inference of participation in the crimes. Id. In addition, Bradbury’s murder

       conviction is based in part on the doctrine of transferred intent. If a person

       deliberately attempts to kill one person but in the process kills another, the

       intent to kill is transferred and he may be found guilty of murdering the person

       who was killed. Williams v. State, 690 N.E.2d 162 (Ind. 1997).


[24]   Bradbury, L.B., and others were involved in a fistfight at a public park in South

       Bend on April 8, 2014. Bradbury later told a fellow inmate there was an

       ongoing dispute between his east side friends and people from the west side of

       town, including L.B. After the fight, the participants continued to discuss the

       dispute on social media.


[25]   On April 9, 2014, Bradbury took a handgun and a rifle from the home of a

       friend, D.W., before gathering with companions at a house near the park.

       Griffin was present at the house near the park, although he had not been




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 11 of 26
       involved in the fight the previous day. Griffin did not usually hang out with

       Bradbury and his friends.


[26]   Bradbury gave the handgun to Griffin and the shotgun to another companion.

       D.W. recognized the guns as coming from his house. While the group was at

       the house near the park, a person from the west side of town came by and

       showed them a handgun, saying he brought it in case “anything got out of

       hand” at the park. March 28-30 Tr. p. 201. Griffin pulled out his own

       handgun, saying “it ain’t going to happen like that.” Id.


[27]   Later, Bradbury and his associates went to the park. Bradbury’s mother was

       looking for him and brought Joshua Hodge and Xavier Primm to the park to

       help. They found Bradbury with his companions, and Primm asked Bradbury

       to go to his mother’s car. Bradbury refused.


[28]   Next, Bradbury and company stopped L.B. as he was riding by on a bicycle.

       L.B. was informed that he would have to fight M.B. or Griffin. He chose M.B.

       because M.B. was unarmed, while Griffin had a handgun tucked in his pants.

       L.B. handed his phone to T.B., but T.B. threw it on the ground, breaking it. At

       that point, Griffin and T.B. pulled out their handguns and shot at L.B. as he

       fled, firing around fifteen shots. One of Griffin’s shots killed J.S.


[29]   After the shooting, everyone scattered. Bradbury, Hodge and Primm got into

       Bradbury’s mother’s car and left the scene. Later, when Bradbury, Hodge and

       others watched the news and saw that a two-year-old had been killed, Bradbury

       said, “It’s my fault.” March 28-30 Tr. p. 221.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 12 of 26
[30]   During the questioning that followed his arrest, Bradbury went to great lengths

       to avoid implicating Griffin. He lied to Officer Cook for hours by claiming that

       someone named “Ace,” and later someone named “Josh,” were the shooters.

       He later told a fellow inmate, “he did it, but he didn’t mean to do it.” Id. at

       322. Bradbury further said, “if he would have never brought the guns over

       there it would have never happened.” Id. He said he had been having

       problems with L.B.


[31]   Later, Bradbury talked with a different inmate about the inmate’s tattoo of a

       handgun. Bradbury said he was facing a case involving the same type of

       handgun, but no one would find the gun because “somebody got rid of it.” Id.

       at 329. After the shooting, C.W. retrieved the gun Griffin had used and

       brought it to D.W. at the home of D.W.’s brother. The police later arrested

       C.W. and found shell casings from the gun on his person. They also retrieved

       the handgun from the home of D.W.’s brother, where it had been hidden in

       attic insulation.


[32]   This is sufficient evidence from which the jury could have concluded beyond a

       reasonable doubt that Bradbury knowingly or intentionally aided, induced, or

       caused Griffin to shoot at L.B., striking and killing J.S. instead. Bradbury

       argues that he opposed the shooting, pointing to L.B.’s testimony that Bradbury

       shouted “don’t shoot” immediately before Griffin shot at L.B. March 28-30 Tr.

       p. 140. One of Bradbury’s fellow inmates testified that Bradbury had said his

       family was attempting to make a deal with L.B.’s family so that L.B. would



       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 13 of 26
       testify that he heard Bradbury shouting at his companions not to shoot during

       the confrontation. Bradbury’s argument is a request to reweigh the evidence.


[33]   Bradbury cites Rosemond v. U.S., 134 S. Ct. 1240 (2014), in support of his claim,

       but that case is distinguishable. There, the Supreme Court was called upon to

       apply principles of accomplice liability to a federal statute barring use of a gun

       during a violent crime or drug dealing and to determine whether “aiding and

       abetting” liability applied only to the use of a gun or also to the predicate

       violent or drug-related offense. By contrast, this case presents a murder charge

       without a predicate offense.


[34]   We affirm Bradbury’s conviction for murder.


            4. Sufficiency of the Evidence – Sentence Enhancement
[35]   Bradbury argues the State failed to prove he was part of a gang. Our standard

       of review is the same as for reviewing the murder conviction: we consider only

       the probative evidence and reasonable inferences supporting the verdict.

       Armstrong v. State, 22 N.E.3d 629 (Ind. Ct. App. 2014), trans. denied.


[36]   At the time of the incident in question, the governing statute, Indiana Code

       section 35-50-2-15 (2006), provided in relevant part:

               (b) The state may seek, on a page separate from the rest of a
               charging instrument, to have a person who allegedly committed a
               felony offense sentenced to an additional fixed term of
               imprisonment if the state can show beyond a reasonable doubt
               that the person knowingly or intentionally:
               (1) was a member of a criminal gang while committing the
               offense; and
       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 14 of 26
                (2) committed the felony offense at the direction of or in
                affiliation with a criminal gang.


[37]   If the State makes that proof, the trial court must sentence the offender to an

       additional, non-suspendable term equal to the sentence for the underlying

       offense. Id. The Code provides guidance on possible evidence that might

       support a gang finding:

                (g) For purposes of subsection (c), evidence that a person was a
                member of a criminal gang or committed a felony at the direction
                of or in affiliation with a criminal gang may include expert
                testimony pursuant to the Indiana Rules of Evidence that may be
                admitted to prove that particular conduct, status, and customs
                are indicative of criminal gang activity. The expert testimony
                may include the following:
                (1) Characteristics of persons who are members of criminal
                gangs.
                (2) Descriptions of rivalries between criminal gangs.
                (3) Common practices and operations of criminal gangs.
                (4) Behavior of criminal gangs.
                (5) Terminology used by members of criminal gangs.
                (6) Codes of conduct, including criminal conduct, of particular
                criminal gangs.
                (7) Types of crimes that are likely to be committed by a
                                          6
                particular criminal gang.




       6
         The General Assembly later amended the statute to replace all references to gangs with references to
       criminal organizations.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017             Page 15 of 26
       Id.


[38]   Bradbury claims he was not a member of a criminal gang and did not act as an

       accomplice at the direction of or in affiliation with a gang. Several officers with

       the South Bend Police Department who were trained in organized crime

       testified they were aware of a gang called Evil Side that was based on South

       Bend’s east side. According to the officers, Evil Side’s members worked

       together to commit felonies. In addition, the members of the group used a

       specific hand gesture to indicate affiliation with Evil Side. The State submitted

       to the jury numerous photos of Bradbury’s companions flashing the gesture.


[39]   And, during the interrogation by Officer Cook, Bradbury admitted he affiliated

       with Evil Side. Bradbury also told a fellow inmate he was a member of Evil

       Side and that the April 9 shooting was the result of a dispute between Evil Side

       and a west side gang. Another witness who was present at the shooting, D.W.,

       testified that he, Bradbury, and several other young men claimed affiliation

       with Evil Side, were loyal to each other, and would fight together if necessary.

       This is sufficient evidence from which the jury could have concluded beyond a

       reasonable doubt that Bradbury was a member of a criminal gang and

       participated in J.S.’s murder in affiliation with a criminal gang.


                          5. Treatment Under the Juvenile Code
[40]   Bradbury argues the trial court should have imposed a juvenile sentence

       pursuant to Indiana Code section 31-30-4-2 (2013). At the time Bradbury

       committed his offense, that statute provided that when an offender under age

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 16 of 26
       eighteen is convicted of a felony in criminal court: “The court may, upon its

       own motion, a motion of the prosecuting attorney, or a motion of the offender’s

       legal representative, impose a sentence upon the conviction of the offender

       under this chapter” and may:

               (1) impose an appropriate criminal sentence on the offender
               under IC 35-50-2;
               (2) suspend the criminal sentence imposed, notwithstanding IC
               35-50-2-2 and IC 35-50-2-2.1;
               (3) order the offender to be placed into the custody of the
               department of correction to be placed in the juvenile facility of
               the division of youth services . . . .
       Indiana Code § 31-30-4-2.


[41]   According to the plain language of the statute, the trial court “may” impose a

       juvenile sentence but is not obligated to do so. Id. As a result, a panel of this

       Court reviewed a trial court’s rejection of juvenile sentencing under this statute

       pursuant to an abuse of discretion standard. Legg v. State, 22 N.E.3d 763 (Ind.

       Ct. App. 2014), trans. denied.


[42]   In Legg, the trial court declined to impose juvenile sentencing upon a sixteen-

       year-old who murdered another juvenile, considering the defendant’s juvenile

       history, his challenging childhood, and the nature of the offense. Id. Similarly,

       in the current case the trial court declined to impose juvenile sentencing, citing

       the heinous nature of the offense (including the victim’s young age), Bradbury’s

       juvenile record, the fact that he was on probation at the time of the offense, and

       his failure to benefit from several different juvenile justice rehabilitation


       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 17 of 26
       programs. Based on this record, we cannot conclude that the trial court’s

       decision was an abuse of discretion.


                       6. Was Bradbury’s Sentence Proportional?
[43]   Bradbury raises several statutory and constitutional challenges to his ninety-

       year sentence. We conclude that most of them do not warrant any relief and

       thus turn to the only one that does.


[44]   Bradbury claims his sentence amounts to cruel and unusual punishment in

       violation of the Eighth Amendment to the United States Constitution and

       article I, section 16 of the Indiana Constitution because his sentence is

       disproportionate to his companions’ sentences. The Eighth Amendment

       provides: “Excessive bail shall not be required, nor excessive fines imposed,

       nor cruel and unusual punishments inflicted.” Section 16 states, in relevant

       part, “Cruel and unusual punishments shall not be inflicted. All penalties shall

       be proportioned to the nature of the offense.”


[45]   As Justice David recently reminded us, article I, section 16 requires reviewing

       not only whether a sentence is within statutory parameters, but also

       constitutional as applied to the particular defendant. Shoun v. State, 67 N.E.3d

       635 (Ind. 2017). For penalties not based on prior offenses, a court must

       consider whether the penalty is “‘graduated and proportioned to the nature of

       [the] offense.’” Id. at 641 (quoting Knapp v. State, 9 N.E.3d 1274, 1290 (Ind.

       2014)). As Justice DeBruler once noted, while the nature and extent of penal

       sanctions are primarily legislative considerations, an appellant nevertheless has

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 18 of 26
       a right to have the proportionality of his penalty reviewed under the Indiana

       Constitution. Clark v. State, 561 N.E.2d 759 (Ind. 1990). The protections of

       section 16 go beyond those contained in the Eighth Amendment, and

       vindicating those protections may on rare occasion require setting aside a

       sentence even when it is inside the statutory parameters. Conner v. State, 626

       N.E.2d 803 (Ind. 1993).


[46]   Bradbury, a juvenile, was convicted as an accessory of the murder of a two-

       year-old, who was the victim of a gang dispute. Bradbury had intended to kill

       another juvenile, L.B., and brought guns to the park to give to his companions.

       He had ample opportunity to avoid the confrontation but chose to persist. At

       the time Bradbury committed his crime, the advisory sentence for murder was

       fifty-five years, with a maximum sentence of sixty-five years and a minimum of

       forty-five. Ind. Code § 35-50-2-3 (2007). In addition, a person subject to a

       criminal organizations enhancement must receive “an additional fixed term of

       imprisonment equal to the sentence imposed for the underlying felony.” Ind.

       Code § 35-50-2-15. The enhancement must be served consecutively to the

       underlying sentence and cannot be suspended. Id.


[47]   Here, the trial court determined that it “would be well within [its] discretion to

       enter a sentence [of] at least the advisory 55 years.” May 16, 2016, Tr. p. 346.

       Due to the sentencing enhancement, the court instead chose to impose the

       minimum sentence of forty-five years for murder, plus the mandatory,

       consecutive equal amount for the sentencing enhancement, for an aggregate of

       ninety years.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 19 of 26
[48]   Taking the Shoun/Knapp/Conner tests described above, we proceed to consider

       whether the penalty is “graduated and proportioned to the nature of the

       offense.”


[49]   To be sure, murder is the most serious offense of all, and the victim in this

       instance is the most innocent and unintended target. Still, the offenders as a

       group went to the park intending on homicide and bear responsibility for the

       outcome. Though Bradbury was not the shooter, he supplied weapons for the

       event, and the jury found that he intended the death of a fellow teenager, L.B.

       Based on these and other aggravating and mitigating factors, the trial judge

       observed that if the murder conviction were the only grounds for sentencing,

       the advisory sentence or a little more would be within reasonable discretion.


[50]   The doubling of that sentence required by the gang enhancement sits on

       different grounds. That automatic doubling was the leading reason the judge

       elected to impose the minimum sentence for murder, declaring that she needed

       to look at the whole forest rather than at each individual tree. We think the

       judge was correct about that, but we also conclude that as with the automatic

       thirty-year addition in Clark v. State, the result is not proportionate to the nature

       of the offense.


[51]   We thus conclude that the trial court’s forty-five-year sentence for murder as an

       accomplice should stand, but direct that the gang enhancement be set at fifteen

       years.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 20 of 26
                                                Conclusion
[52]   The trial court carefully considered the facts and circumstances of the case in

       imposing a sentence that is within statutory limits, but we conclude Bradbury’s

       sentence is constitutionally disproportionate to the nature of the offense and his

       companions’ culpability for J.S.’s death. We reverse his sentence and remand

       with instructions to resentence Bradbury for a total sentence of sixty years.


[53]   Affirmed in part, reversed in part, and remanded.


       Riley, J., concurs.


       Vaidik, C.J., concurs in part and dissents in part with opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 21 of 26
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Tyre Mark Bradbury,
       Appellant-Defendant,                                    Court of Appeals Case No.
                                                               71A05-1606-CR-1280
               v.

       State of Indiana,
       Appellee-Plaintiff




       Vaidik, Chief Judge, concurring in part, dissenting in part.

[54]   I concur with the majority as to all issues except one. That is, I disagree with

       the majority’s conclusion that “Bradbury’s [ninety-year] sentence is

       constitutionally disproportionate to the nature of the offense and his

       companions’ culpability for J.S.’s death” and its decision to resentence him to

       sixty years. Slip op. at 21. Given the circumstances in this case, including that




       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 22 of 26
       a two-year-old child was killed and Bradbury’s juvenile history, I would affirm

       Bradbury’s ninety-year sentence.


       Article 1, Section 16 of the Indiana Constitution provides in part: “All penalties

       shall be proportioned to the nature of the offense.” Although “we cannot set

       aside a legislatively sanctioned penalty merely because it seems too severe,”

       Article 1, Section 16 requires us to review whether a sentence is not only within

       statutory parameters but also constitutional as applied to the particular

       defendant. Knapp v. State, 9 N.E.3d 1274, 1290 (Ind. 2014) (quotation omitted).

       For penalties not based on prior offenses, the inquiry is whether the penalty is

       graduated and proportioned to the nature of the offense. Id. “Stated

       differently, a legislatively determined penalty will be deemed unconstitutional

       by reason of its length only if it is so severe and entirely out of proportion to the

       gravity of the offense committed as to shock public sentiment and violate the

       judgment of reasonable people.” Foreman v. State, 865 N.E.2d 652, 655 (Ind.

       Ct. App. 2007) (quotation omitted), reh’g denied, trans. denied.


[55]   Here, Bradbury, who was fifteen years old at the time of the offense and a

       member of a gang, intended to kill L.B., another juvenile, and brought guns to

       the park to give to his companions. Griffin and T.B. fired approximately fifteen

       shots that missed L.B., killing a two-year-old child instead. Bradbury was

       charged with two counts: murder and committing the offense of murder at the

       direction of or in affiliation with a criminal organization. Bradbury had a jury

       trial and was convicted of both counts. At sentencing, the trial court found the

       following aggravators: Bradbury’s juvenile history, including that he was on

       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 23 of 26
       probation at the time of the offense and had tried every option that the juvenile

       system had to offer (including home detention with electronic monitoring and

       Boys School) with no success; Bradbury’s ongoing substance abuse, including

       the “substantial use of marijuana” on the day of the offense; other children were

       playing in the yard with the two-year-old when he was shot; and the “ridiculous

       beef” that Bradbury had with L.B. that led to this tragedy. May 16, 2016 Tr.

       pp. 344-45. The court found two mitigators: Bradbury’s age at the time of the

       offense and his difficult upbringing. It specifically rejected Bradbury’s role as

       an accomplice as a mitigator in light of the jury’s “specific finding” that

       Bradbury intended to kill L.B. Id. at 346. The court sentenced Bradbury to

       forty-five years for murder and then enhanced his sentence by forty-five years

       because of his membership in a criminal organization. See Ind. Code § 35-50-2-

       15 (explaining that the trial court “shall . . . sentence the person to an additional

       fixed term of imprisonment equal to the sentence imposed for the underlying

       felony . . . .”). Although the court considered imposing the advisory sentence

       for murder of fifty-five years, because of the mandatory sentencing

       enhancement it decided to impose the minimum sentence for murder of forty-

       five years, resulting in an aggregate sentence of ninety years. May 16, 2016 Tr.

       p. 346.


[56]   I agree with the majority that the minimum sentence of forty-five years for

       murder is constitutionally proportionate in light of Bradbury’s role in the crime.

       The issue then is whether Bradbury’s forty-five-year criminal-organization

       sentencing enhancement is also constitutionally proportionate. I believe that it


       Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 24 of 26
is. Bradbury was convicted of the most serious offense, murder, and the victim

was a two-year-old child. Although the child was not the intended victim, the

jury found that Bradbury intended to kill another minor, L.B. In addition,

Bradbury has two juvenile adjudications, one of which would have been a

felony if committed by an adult. As the trial court explained, Bradbury had

been on probation and “home detention with electronic monitoring,” “detained

at the . . . juvenile justice center,” and “sent to Indiana Boys School at the

department of correction”—none of which “have resulted in a change of

behavior.” Id. at 341. Given Bradbury’s role in the tragic murder of the two-

year-old child, I believe that his forty-five-year criminal-organization sentencing

enhancement is graduated and proportioned to the underlying offense. See

Armstrong v. State, 22 N.E.3d 629, 639 (Ind. Ct. App. 2014) (affirming sixty-five-

year criminal-organization sentencing enhancement for sixty-five-year murder

sentence because it was graduated and proportioned to the nature of the offense

and “the circumstances surrounding the murder”), trans. denied; cf. Clark v. State,

561 N.E.2d 759, 766 (Ind. 1990) (finding that a thirty-year habitual-offender

enhancement for operating while intoxicated was “not proportionate to [the]

offense and therefore violate[d] Article [1], § 16 of the Indiana Constitution”

because it was based on “conduct that the legislature has classified as a




Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017   Page 25 of 26
misdemeanor” and there was “no injury to person or property”). Accordingly,

I would affirm Bradbury’s ninety-year sentence. 7




7
 The majority notes that the actual shooters received shorter sentences than Bradbury. But the
proportionality analysis requires us to look at whether the sentence is proportional to the nature of the
offense, not to the sentences of any accomplices. In any event, Griffin, who fired the fatal shot, was not
charged with the criminal-organization sentencing enhancement because he was not a member of a gang.
May 16, 2016 Tr. p. 325. Griffin was convicted of murder and sentenced to sixty years. T.B., the other
shooter, was charged with murder, attempted murder, and the criminal-organization sentencing
enhancement. T.B. pled guilty to attempted murder, and the criminal-organization sentencing enhancement
and murder charge were dismissed. He was then sentenced to forty years with five years suspended.

Court of Appeals of Indiana | Memorandum Decision 71A05-1606-CR-1280 | May 15, 2017          Page 26 of 26
