MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 22 2015, 10:32 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
Christina D. Page
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron G. Bradley, Jr., September 22, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1502-CR-71
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff Shewmaker, Judge
Trial Court Cause No.
21C01-1401-FB-8
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Aaron Bradley, Jr., was convicted of unlawful possession
of a firearm by a serious violent felon, a Class B felony. The trial court
sentenced Bradley to sixteen years in the Indiana Department of Correction.
Bradley appeals his conviction and sentence, raising two issues for our review,
which we restate as: (1) whether the evidence was sufficient to support a
conviction for unlawful possession of a firearm by a serious violent felon; and
(2) whether Bradley’s sentence is inappropriate in light of the nature of the
offense and his character. Concluding the State presented sufficient evidence
and Bradley’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On the morning of January 3, 2014, Bradley called Dajuvetta Meux asking
whether he could store some of his belongings in her apartment. Meux
responded affirmatively. Five of Meux’s children, including an infant child
fathered by Bradley, were in the apartment when Bradley arrived.
[3] After Bradley arrived, he requested Meux drive him to an appointment.
Bradley’s appointment was a probation violation hearing. Meux said she
would and went upstairs to brush her teeth. In the meantime, Meux requested
Bradley grab some diapers located in a “cubbyhole that was kind of tall . . .
[and] above a dresser” in an upstairs bedroom. Transcript at 336. According to
Bradley, when he reached for the diapers, a firearm slid off the top of a box and
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he “caught it from hitting” him. Id. at 338. Meux returned to the bedroom and
witnessed Bradley holding the firearm. She instantly became upset with
Bradley because the firearm “magically appeared” as soon as Bradley arrived
with his belongings. Id. at 58. Meux did not allow firearms in the residence
and thought he brought it into the apartment.
[4] Concerned for her children’s safety, Meux requested Bradley remove the
firearm from the residence. Bradley denied the request and “[t]hen he set [the
firearm] on” a dresser. Id. at 62. Upset he would not remove the firearm,
Meux blocked Bradley from exiting the room. A shoving match ensued
between the two. Once the altercation calmed, Bradley again requested Meux
take him to his appointment. Before leaving, Meux placed the firearm in her
daughter’s room because she felt it was the safest place in the apartment.
[5] Meux then drove Bradley to a nearby gas station so he could get cigarettes
before his appointment. However, Meux left Bradley at the gas station and
returned home, where she intended to call police to have the firearm removed.
Before Meux called 911, Bradley returned to the apartment and—without
permission—took her cell phone, car keys, and drove to his appointment.
Despite not having her cell phone, Meux then called 911 and told the operator
there was an altercation, she had been pushed and choked, and there was a
firearm present in the apartment she wanted removed.
[6] Officer Jason Reed of the Elkhart City Police Department responded to the call.
When he arrived, Meux directed Officer Reed to the firearm because the only
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reason she called the police was to ensure the firearm was removed. Officer
Reed discovered the .22 caliber revolver was loaded with hollow-point bullets.
After collecting evidence, including the firearm, Officer Reed left the residence.
“Because a lot of time in these situations the individual who’s the suspect will
often wait for [the police] to leave,” Officer Reed remained near Meux’s
residence. Id. at 145. Within minutes, Bradley returned. Officer Reed made
contact with Bradley and placed him under arrest. Bradley possessed ten .22
caliber hollow-point bullets—the type of bullet “designed to cause maximum
impact”—and Meux’s cell phone and car keys. Id. at 184.
[7] The State charged Bradley with Count I, Class B felony unlawful possession of
a firearm by a serious violent felon; Count II, Class D felony strangulation;
Count III, Class D felony domestic battery in the presence of a child under the
age of sixteen; and Count IV, Class A misdemeanor interference with reporting
a crime. The parties agreed to a bifurcated trial. At the conclusion of evidence
in phase one of the trial, the trial court dismissed Counts II and IV. The jury
was unable to reach a verdict on Count III. In phase two, the jury returned a
guilty verdict on Count I—unlawful possession of a firearm by a serious violent
felon.
[8] At sentencing, Bradley entered a guilty plea on Count III and was sentenced
according to the plea agreement to six months to be served concurrently with
the sentence imposed on Count I. On Count I, the trial court imposed the
advisory sentence of ten years and, due to aggravating circumstances, enhanced
the sentence to sixteen years in the Department of Correction. Bradley now
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appeals his conviction and sentence for unlawful possession of a firearm by a
serious violent felon.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
[9] When reviewing the sufficiency of the evidence to support a conviction, a
reviewing court shall consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). The court neither reweighs the evidence nor reassesses the credibility of
witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, the court
must respect “the jury’s exclusive province to weigh conflicting evidence.” Id.
(citation omitted). Therefore, the court should affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Drane, 867 N.E.2d at 146-47 (citation omitted).
B. Possession of a Firearm
[10] Bradley concedes he qualifies as a serious violent felon based on a prior robbery
conviction. See Appellant’s Brief at 10. Bradley claims, however, the evidence
is insufficient to support his conviction because the State failed to prove beyond
a reasonable doubt he was in possession of a firearm.
[11] “A serious violent felon who knowingly or intentionally possesses a firearm
commits unlawful possession of a firearm by a serious violent felon, a Class B
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felony.” Ind. Code § 35-47-4-5(c) (2013). “Possession of a firearm may be
either actual or constructive.” Tate v. State, 835 N.E.2d 499, 511 (Ind. Ct. App.
2005), trans. denied. “A person who has direct and physical control over a
firearm has actual possession, whereas a person who has the intent and
capability to maintain control over a firearm has constructive possession.” Id.
[12] Here, Bradley admits he controlled the firearm:
[Defense Counsel:] Now, how did it come about that you
discovered this handgun in that room on January 3, 2014?
[Bradley:] When Dajuvetta asked me to remove the diapers from
the cubbyhole.
[Defense Counsel:] And describe to the jury what happened.
[Bradley:] First, I opened the cabinet, I grabbed a box; and as I
grabbed the box, it was – but I’m not knowing at the time that the
gun was on top of the box so as I grabbed the box, it slid down,
and I – caught it from hitting me.
***
[Defense Counsel:] What did you do with the handgun after you
– you discovered it out of the cubbyhole? What did you do with
it?
[Bradley:] I left it right there on the dresser.
Tr. at 338-39. Moreover, Meux testified she saw Bradley holding and moving
the firearm:
[State:] Was he holding the gun at the time?
[Meux:] And he was looking at it.
***
[State:] What happened next?
[Meux:] Then he set it on a shelf in my room . . . .
***
[State:] Are you claiming that the first time you ever saw this
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gun was when you came out of the bathroom after brushing your
teeth and your [sic] found Mr. Bradley holding the gun in your
bedroom area?
[Meux:] Yes
Id. at 61-62, 84. This is evidence Bradley actually possessed the firearm. See
Williams v. State, 834 N.E.2d 225, 229 (Ind. Ct. App. 2005) (noting a daughter’s
testimony stating she witnessed her father holding, and then attempting to hide,
a firearm was sufficient evidence to support a finding of actual possession).
[13] Additionally, we note there were attempts to discredit the testimony of Meux
and Bradley. It is exclusively for a jury to decide the weight of trial testimony
and to judge the witnesses’ credibility. McHenry, 820 N.E.2d at 126. We will
not second guess those determinations. We conclude a reasonable fact-finder
could find beyond a reasonable doubt the elements of unlawful possession of a
firearm by a serious violent felon. Accordingly, the State presented sufficient
evidence to sustain Bradley’s conviction.
II. Inappropriateness of Sentence
A. Standard of Review
[14] Bradley also contends his sentence is inappropriate in light of the nature of the
offense and his character. A reviewing court possesses the authority to revise a
defendant’s sentence “if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Ind. Appellate Rule 7(B). The burden is on
the defendant to persuade the reviewing court the sentence is inappropriate.
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Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[S]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). It is not for the reviewing court “to achieve a perceived ‘correct’ result in
each case[,]” but “[t]he principal role of appellate review should be to attempt
to leaven the outliers . . . .” Id. at 1225. Whether we regard a sentence as
inappropriate turns on “the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light
in a given case.” Id. at 1224.
B. Bradley’s Sentence
[15] As to the nature of the offense, the advisory sentence is the starting point the
legislature selected as an appropriate sentence for the crime committed.
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g. Bradley
was convicted of a Class B felony. Pursuant to Indiana Code section 35-50-2-
5(a), a person who commits a Class B felony “shall be imprisoned for a fixed
term of between six (6) and twenty (20) years, with the advisory sentence being
ten (10) years.” The trial court sentenced Bradley to sixteen years in the
Department of Correction.
[16] Bradley argues there is nothing “egregious” or “exceptional” about the nature
of the offense. Appellant’s Br. at 14-15. He also attempts to diminish the
nature of the offense by contending had it not been for his status as a serious
violent felon, the possession of the firearm would have been legal.
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[17] Nevertheless, the firearm “magically appeared” at Meux’s apartment when
Bradley dropped off his belongings. Tr. at 58. The firearm was loaded with .22
caliber hollow-point bullets—those designed to cause maximum damage.
Bradley refused to remove the firearm from the premises. Further, he was
arrested in possession of ten additional .22 caliber hollow-point bullets when he
returned to the apartment. In committing this offense, he violated probation
and risked the health and safety of those present in the apartment, including his
infant child. This evidences an exceptional disregard for the law and for the
safety of others.
[18] With respect to his character, Bradley asserts he had a positive attitude at trial;
he was not considered to be a high risk to reoffend in his presentence report; he
pleaded guilty to domestic battery; and he offered an apology to his family and
the court. The trial court identified Bradley’s guilty plea as a mitigating
circumstance, but assigned it “diminished weight” because the State tried the
case, there was a hung jury, and the plea came on the day Bradley was set to be
sentenced for possession of a firearm by a serious violent felon. Id. at 399.
Although we agree the record indicates Bradley maintained a positive attitude
at trial, apologized to his family and the court, and was not labeled a high risk
to reoffend in his presentence report, we also agree with the trial court’s
determination that Bradley’s criminal history is a “predictor of future
behavior.” Id. at 398. Bradley’s criminal history is significant for any
individual, let alone a twenty-four year old. At the time of sentencing, his
criminal history consisted of two juvenile referrals—including a true finding for
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receiving stolen property, a Class D felony; two prior felony convictions for
armed robbery, a Class B felony, and theft, a Class D felony; one probation
violation; and one pending probation violation. This history cannot be ignored.
[19] Finally, Bradley argues even if the length of the sentence is appropriate, his
placement at the Department of Correction for sixteen years is inappropriate.
Under Appellate Rule 7(B), “[t]he place that a sentence is to be served is an
appropriate focus for application of our review and revise authority.” Biddinger
v. State, 868 N.E.2d 407, 414 (Ind. 2007). The burden is on the defendant to
persuade the court the location is inappropriate. Id. Here, Bradley contends he
has a child to care for and therefore there are more appropriate options than the
Department of Correction. Appellant’s Br. at 17. However, he adds nothing
more in support of this contention and the record indicates he does not provide
Meux much, if any, assistance in the care of their child. Moreover, Bradley has
not shown he can comply with terms of probation. Bradley fails to persuade us
that placement in the Department of Correction is inappropriate.
[20] Ultimately, Bradley has a significant criminal history for his age and committed
the instant offense while on probation. See Teer v. State, 738 N.E.2d 283, 292
(Ind. Ct. App. 2000) (upholding a defendant’s sixteen-year sentence for
unlawful possession of a firearm by a serious violent felon based on defendant’s
criminal history, probation violation, and a pending charge in another state),
trans. denied. Moreover, Bradley was found in possession of a firearm in an
apartment full of children. Given the nature of the offense, Bradley’s character,
and his careless disregard for the law and the safety of others, we are not
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persuaded Bradley’s sentence of sixteen years in the Department of Correction
is inappropriate.
Conclusion
[21] The evidence presented at trial was sufficient to support Bradley’s conviction
for unlawful possession of a firearm by a serious violent felon, and Bradley’s
sentence is not inappropriate. Bradley’s conviction and sentence are therefore
affirmed.
[22] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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