Opinion
24A-CR-53
08-23-2024
Braxton Bird, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT John A. Kindley South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-2207-MR-12
ATTORNEY FOR APPELLANT
John A. Kindley
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Braxton Bird appeals from his convictions for one count of murder and one count of criminal recklessness, challenging the sufficiency of the evidence for his murder conviction and the appropriateness of his sentence. We affirm.
Facts and Procedural History
[¶2] In the early evening on June 26, 2022, Bird, his nephew Braelyn Rios, Corey Hairston, Adonis Grangerson, and Bird's girlfriend Nevaeh Neely drove around South Bend in Hairston's car. Hairston sat in the driver's seat while Bird occupied the front passenger seat. Neely sat between Grangerson and Rios in the back seat, with Rios sitting directly behind Bird. Neely had a pistol with her, and Bird had a rifle. Neely passed her pistol to Rios during the ride.
[¶3] At the time, Bird was seventeen years old, Rios was fourteen years old, and Neely was fifteen years old. All three juveniles had been drinking alcoholic beverages.
[¶4] The group traveled to Mishawaka so Neely could fight Jayla Cameron. Neely and Cameron's friendship had soured because Cameron believed Neely had robbed her father. Bird and Neely sent messages to Cameron via Snapchat telling her that they were "going to pull up" and that she and Neely were going to fight. Tr. Vol. 2, p. 125. Cameron told her mother Jasmine Swan about the messages.
[¶5] A few minutes later, Cameron's grandfather, who was outside on his Hoveround, saw the group drive by the house. He told Swan's partner Rhema Harris, who was also outside, what he had seen. Harris returned to the house and reported the information to Swan. Cameron and Swan went outside while Harris stood in the doorway of the house. Hairston drove down the alley a second time and stopped near Cameron's house. Bird pulled his shirt up over his chin and began shooting toward the house. Hearing the gunshots, Rios lifted his firearm and also began shooting toward the house. Cameron felt the bullets fly past her and then heard them striking the pavement and the house as she ran for cover. Hairston drove away after Bird and Rios were finished shooting. The guns were later hidden in the laundry room ceiling at Bird's house.
[¶6] Swan returned to the house. Harris grabbed her as she opened the door. Swan observed that Harris was missing some fingers on her right hand. Harris backed up and then dropped to the floor. Swan lifted Harris' shirt and saw that she had been shot in the chest. Another family member called 911, and an officer was dispatched to the scene. After he arrived, he applied pressure to the wound and felt for a pulse, but it was clear that Harris was dead.
[¶7] Dr. Jared Brooks conducted Harris' autopsy. He concluded that she sustained a fatal gunshot wound to her chest. Four of Harris' wounds were consistent with having been caused by a single projectile that had fragmented into several pieces. Three separate pieces of projectile were removed from Harris' body. Firearm analyst Ray Wolfenbarger confirmed that the projectile recovered from Harris' body was from the ".22 family" which includes the 5.56 caliber rifle round.
[¶8] The State charged Bird with murder, attempted murder, and criminal recklessness. Bird waived his right to a jury trial. At the conclusion of the bench trial, the court found Bird guilty of murder and criminal recklessness, but acquitted Bird of attempted murder. Bird filed a motion seeking to be sentenced as a youthful offender pursuant to Indiana Code section 31-30-4-2 (2014). The court denied Bird's request and sentenced him to serve an aggregate sentence of fifty-eight years in the Department of Correction (DOC).
Discussion and Decision
I. Sufficiency of the Evidence
[¶9] Bird contends there is insufficient evidence to support his conviction for murder on two grounds, namely, whether the evidence sufficiently establishes beyond a reasonable doubt that Bird, as opposed to Rios, killed Harris, and, if so, whether he did so knowingly.
[¶10] "For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact." Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). "[W]e will neither reweigh evidence nor judge witness credibility." Id. And "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id.
[¶11] The State was required to establish beyond a reasonable doubt that Bird knowingly killed Harris. See Ind. Code § 35-42-1-1 (2018); Appellant's App. Vol. II, p. 15. Rios testified that Bird was carrying a rifle and that the ammunition for that rifle was "long" with a green tip. Tr. Vol. 2, p. 103. Neely testified that Bird had a "long gun" and that the ammunition for it was "longer and skinnier" with a tipped point. Id. at 160-61. And Hairston testified that Bird fired a "long" black gun toward the house. Id. at 183. The State also introduced Snapchat videos depicting Bird displaying a rifle and ammunition consistent with 5.56 caliber ammunition. Dr. Brooks removed pieces of projectile from Harris' body. And the forensic analyst concluded those projectile pieces were from the ".22 family" which includes 5.56 caliber rifle round. Id. at 198. This is sufficient evidence that Bird fired the fatal shot.
[¶12] Additionally, however, under accomplice liability, "'[a]n accomplice may be tried and convicted when the proof of the underlying crime is sufficient despite the fact that the other actor is not prosecuted, not convicted, or even acquitted.'" Sanquenetti v. State, 727 N.E.2d 437, 441 (Ind. 2000) (quoting Johnson v. State, 687 N.E.2d 345, 350 (Ind. 1997)). "The individual who aids another person in committing a crime is as guilty as the actual perpetrator." Sanquenetti, 727 N.E.2d at 441. "There is no distinction between the responsibility of a principal and an accomplice." Id. (internal quotations omitted). "Thus, one may be charged as a principal yet convicted as an accomplice." Id. The following four factors are considered when determining whether a person aided another in the commission of a crime: "'(1) presence at the scene of the crime; (2) companionship with another at scene of crime; (3) failure to oppose commission of crime; and (4) course of conduct before, during, and after occurrence of crime.'" Snow v. State, 137 N.E.3d 965, 971 (Ind.Ct.App. 2019) (quoting Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012)), trans. denied.
[¶13] Assessing the evidence in that light, Bird was present at the scene of the crime, and he and Rios acted together when they shot toward the house where Harris was killed as she stood in the doorway. There is no evidence that Bird opposed the crime. Indeed, the evidence shows that Bird began shooting and Rios joined in. After the shooting, Bird fled with his companions and did not contact the police. Thus, even if the court concluded that Harris was struck by a bullet from Rios' gun, sufficient evidence would support Bird's murder conviction under accomplice liability.
[¶14] Next, Bird challenges the evidence that he acted knowingly when he killed Harris. "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." Ind. Code § 35-41-2-2(b) (1977). "'Because knowledge is the mental state of the actor, the trier of fact must resort to reasonable inferences of its existence.'" Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017) (quoting Young v. State, 761 N.E.2d 387, 389 (Ind. 2002)). "'A knowing killing may be inferred from the use of a deadly weapon in a way likely to cause death.'" Id. at 161. A deadly weapon is defined in part as "[a] loaded or unloaded firearm." Ind. Code § 35-31.5-2-86(a)(1) (2012).
[¶15] Bird rode in a car with the group and directed Hairston to Cameron's house. He used his rifle or "chop" to fire multiple rounds at Cameron's house. Tr. Vol. 2, p. 87. Bird's use of a deadly weapon in a manner likely to cause death supports the trial court's conclusion that Bird was aware of a high probability that he might strike and kill any of the people standing inside or outside the house.
[¶16] Bird challenges the trial court's reliance on McClendon v. State, 910 N.E.2d 826 (Ind.Ct.App. 2009), trans. denied, arguing the facts of that case are distinguishable from the present case on the subject of his awareness that a death would result from the firing of his rifle toward Cameron's home. Besides the obvious request for us to reweigh the evidence, a task we are forbidden to undertake, see Hall, 177 N.E.3d at 1191, Bird overlooks that a knowing killing may be inferred from the use of a deadly weapon in a way likely to cause death. See Leonard, 73 N.E.3d at 161. Here, Bird fired a deadly weapon toward the yard, where Cameron's family members were present, and Cameron's house, where Harris and other family members were present. It is reasonable to draw an inference that Bird was aware of the high probability that shooting bullets into an occupied yard and house would result in someone's death. [¶17] We conclude that there is sufficient evidence to support Bird's murder conviction.
II. Inappropriate Sentence
[¶18] Next, Bird seeks appellate review of his sentence under Indiana Appellate Rule 7(B). More specifically, he asks us "to sentence Bird as a youthful offender pursuant to Indiana Code 31-30-4-2, or to suspend the portion of his sentence that is above the forty-five year executed minimum." Appellant's Br. p. 13. He maintains that "his young age at the time of the offense" should be considered under the "character of the offender" prong of our analysis. Id.
[¶19] We address Bird's alternative sentencing argument first. He points to our Supreme Court's acknowledgement that "[a] defendant's young age is to be given considerable weight as a mitigating circumstance." Brown v. State, 720 N.E.2d 1157, 1159 (Ind. 1999).
[¶20] Indiana Code section 31-30-4-2 provides an alternative sentencing scheme for juveniles who are waived into adult court and convicted as adults. At sentencing, the trial court said, "I do find that your age is a non-statutory mitigator. And it's a pretty heavy mitigator." Tr. Vol. 3, pp. 12-13. But the court declined alternative sentencing in part because "your armed robbery conviction, your battery conviction where you were revoked and sent to the [DOC], carrying a weapon without a license where you were revoked and sent to the DOC, and that you were serving-or being on tether serving a sentence or at least awaiting adjudication of a burglary charge when this offense occurred." Id. at 13-14. The court concluded, "I don't think that IC 31-30-4-2 is an appropriate sanction for this offense." Id. at 14.
[¶21] Legg v. State, 22 N.E.3d 763 (Ind.Ct.App. 2014), trans. denied, is a case of first impression in interpreting the alternative sentencing scheme statute. In Legg, a panel of this Court observed that because there was no statutory "guidance regarding when the alternative sentencing scheme should be implemented", the delineated statutory factors used to determine waiver of juvenile jurisdiction are "instructive." 22 N.E.3d at 766-67. We held that "trial courts are [not] required to consider these factors" and "the State is [not] required to prove these factors" "but these are good examples of the kinds of criteria a trial court may consider in reaching its decision on the issue." Id. at 767.
[¶22] Indiana Code section 31-30-3-2 provides that juvenile jurisdiction may be waived if the court finds that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even though less serious;
(2) the child was at least fourteen
(14) years of age when the act charged was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system; and
(5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.
The trial court stated, "You have a history of delinquent behavior. You've committed the offense [murder] in front of a person less than eighteen years of age. I think one of the witnesses was a junior in high school at the time or maybe in junior high school at the time of the trial.... And the other person who was standing I think in the doorway with the victim was fifteen. That you violated the rules of probation." Tr. Vol. 3, p. 13. This reflection upon the case coupled with the court's evaluation of Bird's criminal history and the squandered opportunities at change through the rehabilitative services offered to him, show the trial court did not abuse its discretion by declining to implement alternative juvenile sentencing in this case.
[¶23] We next turn to our appellate review under Indiana Appellate Rule 7(B). Indiana 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."' Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014) (quoting Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)). The defendant bears the burden of persuading the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[¶24] To assess whether the sentence is inappropriate, we look first to the statutory range established for the offense. Bird was convicted of murder and Level 5 felony criminal recklessness. A person convicted of murder faces a potential sentence of between forty-five and sixty-five years with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3-(a) (2015). A person convicted of a Level 5 felony faces a potential sentence of between one year and six years with an advisory sentence of three years. Ind. Code § 35-50-2-6(b) (2014). Thus, Bird's maximum sentencing exposure was seventy-one years executed. Instead, Bird received the advisory sentence of fifty-five years for his murder conviction and the advisory sentence of three years for his Level 5 felony criminal recklessness conviction. The court ordered that Bird serve those sentences consecutively for an aggregate sentence of fifty-eight years executed in the DOC.
[¶25] "The nature of the offenses is found in the details and circumstances of the commission of the offenses and the defendant's participation." Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Bird, who was seventeen at the time of his offenses, had illegally consumed alcohol before bringing a rifle and ammunition with him on the trip from South Bend to Mishawaka where Cameron lived. Bird then fired several shots in the direction of unarmed people standing in their yard outside the house and those present in the house. One of Bird's shots struck Harris in the chest and killed her. Bird and the others fled from the scene and hid their weapons in a laundry room ceiling after arriving at Bird's house. There is nothing about the nature of the offenses to indicate Bird exercised restraint, regard, or lack of brutality. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (trial court deference prevails unless compelling evidence portraying in positive light nature of offense such as restraint, regard, and lack of brutality).
[¶26] The "character of the offender" portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors, Williams v. State, 782 N.E.2d 1039, 1051 (Ind.Ct.App. 2003), trans. denied, and permits a broader consideration of the defendant's character. Anderson v. State, 989 N.E.2d 823, 827 (Ind.Ct.App. 2013), trans. denied. "A defendant's life and conduct are illustrative of his or her character." Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied.
[¶27] "When considering the character of the offender, one relevant fact is the defendant's criminal history." McFarland v. State, 153 N.E.3d 369, 374 (Ind.Ct.App. 2020), trans. denied. A juvenile adjudication may be considered as a prior conviction for purposes of sentencing. See Mitchell v. State, 844 N.E.2d 88, 92 (Ind. 2006).
[¶28] Here, Bird had been adjudicated delinquent for burglary, theft, carrying a handgun without a license, and battery. He was on a strict and indefinite probation for his burglary adjudication and was on GPS monitoring when he committed his current offenses. He has not taken advantage of the opportunities for rehabilitation despite his contact with the juvenile justice system. This reflects poorly on his character.
[¶29] And Bird admitted to uncharged criminal conduct. Bird reported that he began drinking alcohol when he was fifteen or sixteen years old, and that became a regular habit by the time he turned seventeen years old. He drank one half of a bottle of Hennessy, a type of brandy, and a bottle of Pink Whitney Vodka on the day of the present offense. He began smoking marijuana at around that time and would smoke "three (3) to four (4) blunts daily." Appellant's App. Conf. Vol. II, p. 59. He started abusing Percocet when he was fifteen years old and Xanax and heroin when he was sixteen years old. He described his use of opiates, Xanax, and heroin, as "regular" to "heavy" and stated that his substances of choice were Percocet and Ecstasy. Id. at 59.
[¶30] We conclude that Bird's aggregate sentence of fifty-eight years is not inappropriate in light of the nature of his offenses and his character. See Fuller v. State, 9 N.E.3d 653, 659 (Ind. 2014) (revising a 150-year sentence for fifteenyear-old who had been convicted of two counts of murder and one count of robbery to concurrent, maximum terms of 65 years for murder convictions and to consecutive, enhanced 20-year term for robbery); Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (revising 150-year sentence for sixteen-year-old who had been convicted of two counts of murder and one count of robbery to concurrent, enhanced terms of 60 years for murder convictions and consecutive, enhanced 20-year term for robbery).
Conclusion
[¶31] In light of the foregoing, we affirm the trial court's judgment.
[¶32] Affirmed.
Riley, J., and Bradford, J., concur.