Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                          May 28 2013, 9:26 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

TIMOTHY J. LEMON                                 GREGORY F. ZOELLER
Knox, Indiana                                    Attorney General of Indiana

                                                 CHANDRA K. HEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SAMUEL BRADLEY,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 75A05-1211-CR-647
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE STARKE CIRCUIT COURT
                     The Honorable Jeanene Calabrese, Judge Pro Tempore
                               Cause No. 75C01-1107-FB-25



                                        May 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
      Samuel Bradley appeals his conviction for attempted deviate conduct as a class B

felony. Bradley raises two issues which we revise and restate as:

      I.     Whether the evidence is sufficient to sustain his conviction; and

      II.    Whether his sentence is inappropriate in light of the nature of the
             offense and his character.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

      On June 4, 2011, T.D. was an inmate in the Starke County Jail. At the time he

was twenty-one or twenty-two years old, was five feet, one inch tall, and weighed

approximately 120 pounds. That night, a fight broke out in the jail, and T.D. “was

supposed to get up and fight with Matt Shoaf,” but T.D. “didn’t want to fight [and]

backed down.” Transcript at 137.       T.D. was pressured by inmates Bradley, Adam

Makowski, and Buddy Blankenship to fight.

      The following day, Bradley, Makowski, and Blankenship “dr[a]gged [T.D.] into

[a] room because [he] didn’t want to go fight back Shoaf.” Id. at 139. All three men told

T.D. that he “better go out there and fight [Shoaf] or [he was] going to have

consequences.” Id. T.D. told them he did not want to fight. Bradley, Makowski, and

Blankenship pushed T.D. into the middle of the room to fight, and then Blankenship

dragged T.D. back into a room.        T.D. was thrown up against the top bunk, and

Blankenship pulled down T.D.’s pants. Bradley stood in the area between the smaller

room and the larger cell block area, and T.D.’s buttocks were “getting touched and

grabbed.” Id. at 141. T.D. struggled with the men and managed to exit the room briefly,

and Bradley, Makowski, and Blankenship followed him and forced him back into the
                                       2
room. Blakenship placed T.D. in a headlock and forced T.D.’s head towards Makowski’s

penis.1 Bradley stated someone was “getting violated in here,” “did he have any blood

leaking from his butt?,” “get him Buddy, strip him naked,” and “get him in here, I’ve got

the camera unplugged.” Id. at 167-168. T.D. broke free, ran to the cell block door, and

began pounding on the door. A dispatcher, viewing a monitor, had observed Makowski,

Blakenship, and Bradley overpower T.D. and force him into the smaller room and shut

the door, and the dispatcher alerted the jailer on duty to assist T.D. As the jailer arrived

at the door, T.D. was banging on it. The jailer opened the door so that T.D. could exit the

cell block.

       On July 5, 2011, the State charged Bradley with attempted criminal deviate

conduct as a class B felony2 and criminal confinement as a class D felony. At a jury trial,

the State presented the testimony of T.D. and the dispatcher, along with the video

recording of the incident, admitted as State’s Exhibit 21. When asked by the court

whether during the incident Bradley ever touched or hurt him, T.D. responded

affirmatively, and T.D. later testified that Bradley “held [him] against the bunk-bed in

jail.” Id. at 158. The dispatcher testified that she observed the incident in progress, that

she saw three inmates, Bradley, Makowski, and Blankenship, overpowering T.D. and

“making sexually, vulgar comments in reference to raping him,” that she heard the

statements made by Bradley, Makowski, and Blankenship, and that she recognized

Bradley’s voice.        Id. at 164.     The jury found Bradley guilty of both charges and

       1
           Bradley does not challenge the actions of Blankenship and Makowski.
       2
          The State charged Bradley under Ind. Code § 35-41-5-1 (attempt), Ind. Code § 35-42-4-2(a)(1)
(criminal deviate conduct), and Ind. Code § 35-41-2-4 (aiding, inducing or causing an offense).
                                                   3
convictions were entered. The trial court subsequently vacated Bradley’s conviction for

criminal confinement on double jeopardy grounds, found that Bradley had been convicted

of fifteen misdemeanor offenses and six felony offenses, that he was not a candidate for

probation, that rehabilitation outside of the Department of Correction was not

appropriate, that at least three of Bradley’s prior convictions involved acts of violence,

and that his willful and wanton disregard for the feelings, safety, and personal property of

others has been ongoing since 1993. The court sentenced Bradley to fourteen years for

his conviction for attempted criminal deviate conduct.       The court also ordered that

Bradley may petition the court to serve the last two years of his sentence on home

detention.

                                      DISCUSSION

                                             I.

       The first issue is whether the evidence is sufficient to sustain Bradley’s conviction

for attempted criminal deviate conduct as a class B felony. 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, even if it is the victim, is sufficient to

sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).



                                             4
       The offense of criminal deviate conduct in this case is governed by Ind. Code §

35-42-4-2(a), which provides in part that “[a] person who knowingly or intentionally

causes another person to perform or submit to deviate sexual conduct when . . . the other

person is compelled by force or imminent threat of force . . . commits criminal deviate

conduct, a Class B felony.” At the time of the offense, deviate sexual conduct was

defined to mean an act involving: (1) a sex organ of one person and the mouth or anus of

another person; or (2) the penetration of the sex organ or anus of a person by an object.

Ind. Code § 35-41-1-9 (now codified at Ind. Code § 35-31.5-2-94 (eff. Jul. 1, 2012)).

Ind. Code § 35-41-2-4 provides in part that “[a] person who knowingly or intentionally

aids, induces, or causes another person to commit an offense commits that offense . . . .”

An attempt is defined by Ind. Code § 35-41-5-1, which states in part that “[a] person

attempts to commit a crime when, acting with the culpability required for commission of

the crime, he engages in conduct that constitutes a substantial step toward commission of

the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as

the crime attempted.”     A “substantial step” toward the commission of a crime, for

purposes of the crime of attempt, is any overt act beyond mere preparation and in

furtherance of intent to commit an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind.

Ct. App. 1992). Whether a defendant has taken a substantial step toward the commission

of the crime, so as to be guilty of attempt to commit that crime, is a question of fact to be

decided by the trier of fact based on the particular circumstances of the case.           Id.

“[W]hen determining whether the defendant has taken a substantial step toward a crime,

the focus is on what has been completed, not on what remains to be done.” Hughes v.

                                             5
State, 600 N.E.2d 130, 132 (Ind. Ct. App. 1992). The charging information alleged that

Bradley “knowingly or intentionally attempted to cause another person to perform or

submit to deviate sexual conduct when the other person is compelled by force or

imminent threat of force, to-wit: Samuel Bradley physically blocked the cell so [T.D.]

could not leave while Adam Makowski and Buddy Blankenship physically forced

[T.D.’s] head down to the penis of Adam Makowski . . . .” Appellant’s Appendix at 35.

Thus, to convict Bradley of attempted criminal deviate conduct as a class B felony, the

State needed to prove that Bradley: (1) knowingly or intentionally; (2) took a substantial

step; (3) toward causing another person to perform or submit to deviate sexual conduct;

(4) when he was compelled by force or imminent threat of force.

       Bradley argues that the evidence shows that he was the last individual to enter the

room after the incident started between T.D. and the other two inmates and that the

reason he was unable to leave was because he was being touched by the other two

inmates. Bradley points to his own testimony that he never touched T.D., that he never

blocked T.D. from leaving the cell, that he moved out of the way and allowed T.D. to

leave, and that T.D. never told him that he wanted to leave the cell. The State argues that

T.D. was not required to ask to leave the room, the video recording of the incident clearly

shows that Bradley physically blocked T.D. from exiting, that during the assault Bradley

stood over T.D. while Makowski and Blankenship attempted to remove T.D.’s pants, and

that Bradley continued to block the door even as T.D. backed into Bradley and attempted

to leave. The State also argues that T.D. testified he did not feel free to leave, that T.D.’s



                                              6
screams indicate that he wished to leave, and that T.D. was prevented from leaving in

part by Bradley’s actions.

       Bradley essentially contends that he was merely present while T.D. was harassed

and assaulted by Makowski and Blankenship and that he was not a participant in the

assault. Bradley’s argument is an invitation to reweigh the evidence, which we cannot

do.   See Jordan, 656 N.E.2d at 817.       Further, the record shows that T.D. and the

dispatcher testified that Bradley was one of the three men who assaulted T.D., T.D.

testified that Bradley “held [him] against the bunk-bed in jail,” see Transcript at 158, and

on appeal we do not judge the credibility of witnesses and look to the evidence and the

reasonable inferences therefrom that support the verdict. See Jordan, 656 N.E.2d at 817.

In addition, the video recording of the incident, admitted as State’s Exhibit 21 at trial,

was played for the jury and showed that Bradley stood in or blocked the cell area where

the incident or assault occurred from the larger cell block area, and T.D. identified the

inmates who were visible in the recording which displayed three monitors showing the

cell block area from three different angles. Based upon our review of the trial testimony

and State’s Exhibit 21, we conclude that the State presented evidence of probative value

from which a reasonable jury could have found Bradley guilty of attempted criminal

deviate conduct as a class B felony.

                                             II.

       The next issue is whether Bradley’s sentence is inappropriate in light of the nature

of the offense and his character. Indiana Appellate Rule 7(B) provides that this court

“may revise a sentence authorized by statute if, after due consideration of the trial court’s

                                             7
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).

       Bradley argues that the record as a whole and even the trial court’s sentencing

statement demonstrate that he is not the worst offender nor has he committed the worst

type of crime. Bradley argues that his involvement in the case is clearly questionable and

that there was no testimony that he ever physically touched or attempted to harm T.D.

Bradley further asserts that his criminal history consists mainly of drug related offenses

and traffic related crimes and that his prior history is not indicative of an individual that

would not benefit from a probationary term. The State argues that Bradley and his co-

defendants terrorized T.D. for a significant period of time before the incident because

T.D. would not fight Shoaf, that Bradley watched Makowski and Blankenship assault

T.D. and laughed as T.D. attempted to escape, that Bradley continually made sexually

vulgar comments throughout the incident including “He’s getting violated in here,” “Is

there any blood leaking from his butt?,” and “Buddy, bring him in here, strip him naked,”

and that he encouraged Makowski and Blankenship as they humiliated and terrorized

T.D. Appellee’s Brief at 14. The State further argues that Bradley’s character warrants

an enhanced sentence in that he has committed fifteen misdemeanor offenses, six felony

offenses, has received ten substance abuse and anger management treatment

opportunities, and has continually violated various parole and probationary terms.



                                             8
       Our review of the nature of the offense reveals that Bradley, Makowski, and

Blankenship threatened T.D. when he would not fight Shoaf and later physically forced

T.D. out of the larger cell block area and into a smaller room where T.D. was assaulted,

his pants were pulled down, and his buttocks were touched and grabbed. The three men

brought T.D. back into the room when he attempted to exit. Bradley was a participant in

the assault which involved Blakenship placing T.D. in a headlock and forcing his head

towards Makowski’s penis. The record reveals that Bradley made a number of comments

during the assault of T.D., including that someone was “getting violated in here,” “did he

have any blood leaking from his butt?,” “get him Buddy, strip him naked,” and “get him

in here, I’ve got the camera unplugged.” See Transcript at 167-168. The assault ended

only after T.D. pounded on the door to exit the cell block area and the jailer opened the

door. With respect to the offense, the trial court stated at sentencing:

       I . . . was able to view the evidence . . . , and even though your attorney
       says that everything was done by inference, this court finds that there was
       direct evidence of your participation attempting this criminal deviate sexual
       conduct with [T.D.]. You followed them around. You laughed with the
       other perpetrators, Mr. Blankenship and Mr. Makowski. You made
       statements about physical violence and bleeding by [T.D.]; is he bleeding
       from the butt. You stood in front of the doorway. . . . And also, [T.D.]
       came in here and even though he didn’t get much out while he was
       testifying, he distinctly said that you held him against the bed during a
       certain part of the incident which was not on the tape.

Sentencing Hearing at 9-10.

       Our review of Bradley’s character shows that, according to the presentence

investigation report (the “PSI”), his criminal history includes convictions for resisting law

enforcement as a misdemeanor in 1993, “Leaving Scene Property Damage Accident” as a

misdemeanor in 1995, auto theft as a class D felony in 1997, criminal trespass as a class
                                           9
D felony in 1996, possession of marijuana as a misdemeanor in 1996, battery resulting in

bodily injury as a misdemeanor in 2000, driving while suspended as a misdemeanor in

2002, driving while suspended as a misdemeanor in 2003, failure to appear as a

misdemeanor in 2004, possession of marijuana as a misdemeanor in 2005, driving while

suspended as a misdemeanor in 2005, public intoxication as a misdemeanor in 2005,

trafficking with an inmate as a misdemeanor in 2007, disorderly conduct as a

misdemeanor in 2007, operating a vehicle while intoxicated endangering a person as a

misdemeanor in 2008, strangulation as a class D felony in 2008, criminal trespass as a

misdemeanor in 2008, possession of marijuana as a misdemeanor in 2009, driving while

suspended as a misdemeanor in 2011, and theft as a class D felony in 2012. PSI at 4.

The PSI further shows that Bradley was found to have violated the terms of his probation

at least four times. The summary of legal history in the PSI states that Bradley “has

violated the terms of probation on multiple occasions, violated the terms of Parole and

has violated the rules of Pulaski County Jail and lost credit time” and that he “was being

held in the Starke County Jail on a Parole Violation when the instant offense occurred.”

PSI at 10. The PSI indicates that Bradley reported that he has an alcohol and drug

problem, is in need of and willing to participate in a treatment program, that he has been

court ordered to undergo a substance abuse evaluation on multiple occasions, and that he

completed Thinking for a Change in 2009 but not a substance abuse program. The

probation officer concluded that Bradley was not a good candidate for probation and

recommended that he not be placed on probation.



                                           10
       After due consideration, we conclude that Bradley has not sustained his burden of

establishing that his sentence of fourteen years is inappropriate in light of the nature of

the offense and his character.

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

attempted criminal deviate conduct as a class B felony.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                            11
