MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Jul 29 2016, 8:38 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Gregory F. Zoeller
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana                                        Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brady D. McBride,                                        July 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A04-1511-CR-2058
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         89C01-1407-F1-22



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016         Page 1 of 6
                                             Case Summary
[1]   Following a jury trial, Brady D. McBride appeals the twenty-six-year sentence

      imposed by the trial court on his convictions for level 3 felony aggravated

      battery and level 4 felony unlawful possession of a firearm by a serious violent

      felon. McBride contends that the trial court abused its discretion in considering

      certain aggravating factors. Concluding that the trial court did not abuse its

      discretion, we affirm.


                                  Facts and Procedural History
[2]   In February 2014, McBride had a fistfight with Rodre Blackburn. After the

      fight McBride called Blackburn to apologize, and Blackburn considered their

      feud to be over. In July 2014, Blackburn was at a garage, which is a popular

      neighborhood hangout. Blackburn heard someone call his name from across

      the street. Blackburn crossed the street and was confronted by McBride.

      McBride stated that he had heard that Blackburn had plans to shoot him.

      Blackburn denied McBride’s allegations. McBride pulled out a handgun and

      shot at the ground. Blackburn attempted to take the gun from McBride, but

      was unsuccessful and retreated into the garage. McBride stood in the entry of

      the garage about five feet away from Blackburn and shot him in the groin.

      After shooting Blackburn, McBride fled into an alley next to the garage.

      Blackburn had a handgun in his shorts pocket. He followed McBride down the

      alley for a few feet and used the handgun to shoot at him six times until the

      magazine was empty. Ultimately, Blackburn was taken to the emergency room



      Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016   Page 2 of 6
      where he was treated for a urethra injury, and he had to use a catheter for six

      weeks.


[3]   The State charged McBride with level 1 felony attempted murder, level 3 felony

      aggravated battery, and level 4 felony unlawful possession of a firearm by a

      serious violent felon. Following a trial, the jury found McBride not guilty of

      attempted murder and guilty of aggravated battery and unlawful possession of a

      firearm by a serious violent felon. At sentencing the trial court found the

      following aggravating factors: the nature of the offense pertaining to the

      disregard for the bystanders’ safety, McBride’s criminal history of two prior

      convictions of attempted murder, the fact that McBride was on probation and

      released on bond in a probation revocation proceeding at the time of the

      offenses, and his behavior at trial and while incarcerated. The court found no

      mitigating factors and imposed sentences of sixteen years for aggravated battery

      and ten years for unlawful possession of a firearm by a serious violent felon and

      ordered them to run consecutively for a total sentence of twenty-six years. This

      appeal ensued.


                                     Discussion and Decision
[4]   McBride contends that his sentence is inappropriate in light of the nature of his

      offense and his character and should be reduced pursuant to Indiana Appellate

      Rule 7(B), but his actual argument focuses solely on whether the trial court

      abused its discretion in considering aggravating factors. Our supreme court has

      made it clear that inappropriate sentence and abuse of discretion claims are to

      be analyzed separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
      Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016   Page 3 of 6
      Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. So long as the sentence is within the statutory range, it is subject to review

      only for an abuse of discretion. Id. An abuse of discretion occurs if the decision

      is clearly against the logic and effect of the facts and circumstances before the

      court or the reasonable, probable, and actual deductions to be drawn therefrom.

      Id. A trial court abuses its discretion during sentencing by: (1) failing to enter a

      sentencing statement at all; (2) entering a sentencing statement that includes

      aggravating and mitigating factors that are unsupported by the record; (3)

      entering a sentencing statement that omits reasons that are clearly supported by

      the record; or (4) entering a sentencing statement that includes reasons that are

      improper as a matter of law. Id. at 490-91. “Because the trial court no longer

      has any obligation to ‘weigh’ aggravating and mitigating factors against each

      other when imposing a sentence … a trial court can not now be said to have

      abused its discretion in failing to ‘properly weigh’ such factors.” Id. at 491.


[5]   The first aggravator that the trial court considered is the nature of the offense

      concerning the disregard for the injuries that the offense could have caused the

      bystanders. McBride claims that it is an improper aggravator because he fired

      one shot into the ground and one shot into Blackburn. Appellant’s Br. At 11.

      The fact remains that McBride fired a handgun twice while bystanders were

      present, which displayed his disregard for the safety of others.


[6]   McBride concedes that his criminal history was a proper aggravator to be

      considered, but he claims that the trial court gave it too much weight, and he

      Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016   Page 4 of 6
      also claims that the court “was inappropriately concerned with the acquitted

      count of attempted murder.” Appellant’s Br. at 12. The first claim is

      unavailable for appellate review, and the second is unsupported by the record. 1

      We find no abuse of discretion here.


[7]   The trial court also considered McBride’s probation status as an aggravating

      factor. Again, McBride contends that the trial court gave this too much weight.

      This contention is unavailable for appellate review.


[8]   McBride also challenges the trial court’s consideration of his outburst at trial.

      Before the court read the final instructions to the jury, McBride yelled, “Man,

      you all a bunch of f***ing […] racists man.” Tr. at 525. The trial court found

      that despite his outburst it was “amazing” that the jurors remained focused on

      properly executing their duty and acquitted him of the attempted murder

      charge. Tr. at 603. McBride claims that the trial court assigned too much

      weight to this aggravator and inappropriately expressed disagreement with the

      acquittal. Again, the first claim is not available for review, and the second is

      unsupported by the record. 2


[9]   The trial court also considered McBride’s behavior while incarcerated as an

      aggravating factor. While incarcerated McBride assaulted correctional officers,

      assaulted other inmates, refused meals, and possessed contraband. McBride




      1
          McBride offers no citation that might support his contention.
      2
          McBride offers no citation that might support his contention.

      Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016   Page 5 of 6
       argues that uncharged prior bad acts are inappropriate other than to show

       character. During the sentencing hearing, McBride did not object to this

       aggravator. Failing to object to an aggravating factor during sentencing

       constitutes waiver. Brock v. State, 983 N.E.2d 636, 640 (Ind. Ct. App. 2013).

       Therefore, McBride cannot challenge this aggravating factor for this first time

       on appeal. Waiver notwithstanding, this aggravator is not improper. See id.

       (“[A] defendant’s behavior during incarceration may be considered as an

       aggravating factor, as it relates to the risk that the defendant will commit

       another crime.”).


[10]   McBride’s argument is essentially an invitation for this Court to reweigh the

       aggravating factors, which we will not do. The trial court did not abuse its

       discretion when it considered the aggravating factors during sentencing.

       Therefore, we affirm.


[11]   Affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A04-1511-CR-2058 | July 29, 2016   Page 6 of 6
