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Date: 02-07-2021
Case Style:
JAMES BRADEN v. State of Indiana
Case Number: 19A-CR-02935
Judge: Rudolph R. Pyle III
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney General
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Indianapolis, IN - Criminal defense attorney represented James Braden with appealing, following a jury trial, his conviction for Level 1 felony rape1 and his thirty-eight-year sentence.
The relevant facts most favorable to the verdict follow.2
In March 2017,
Braden’s wife took his gun, which was a .25 Bryco Arms handgun (“Bryco
1
IND. CODE § 35-42-4-1.
2 We note that Braden’s Statement of Facts presents the facts according to Braden’s trial testimony. We
remind Braden’s counsel that, pursuant to Indiana Appellate Rule 46(A)(6), an appellant’s Statement of Facts
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 3 of 22
handgun”), from him and hid it at their house. Braden then went to a friend’s
house and took a .45 caliber Taurus handgun (“Taurus handgun”) from his
friend’s gun vault without telling his friend.
[4] On April 1, 2017, a little before noon, Braden drove his black SUV to a park in
Porter County, Indiana (“the park”). Braden had the Taurus handgun with him
that day. He approached a woman, Jennifer Cox (“Cox”), who was at the park
with her dog and standing near her car. Braden drove up to Cox and asked her
for directions. Cox found it “odd” that a “young” person of Braden’s age,
which was thirty-six, did not have Google maps or a phone to get directions.
(Tr. Vol. 1 at 27). Braden drove away but then returned to Cox’s car and
parked behind it. As Cox was putting her dog in her car, Braden asked her
what kind of dog she had and whether the dog bites. Cox told Braden that the
dog would bite “[i]f she need[ed] to” and then got into her car and drove away
“as quickly as [she] could.” (Tr. Vol. 1 at 29, 30).
[5] Thereafter, Braden approached another woman, Randi Riley (“Riley”), who
was at the park with her five-year-old daughter. Riley’s daughter was riding her
bike in the parking lot. At that time, no other people were in the parking lot,
but there were some people at a nearby playground. Braden asked Riley if she
could jump his car, and she agreed. When Riley said that she could have her
husband bring some jumper cables, Braden told her that he had some. Braden
“shall describe the facts relevant to the issues presented for review” and “shall be stated in accordance with
the standard of review appropriate to the judgment or order being appealed.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 4 of 22
“started fishing” in his car for jumper cables and “took a good amount of time
to where [Riley] [became] a little bit intimidated.” (Tr. Vol. 2 at 50). Braden
eventually retrieved some cables, which he attached to the two cars. He started
his car, but it then died. Braden, who did not have a phone with him, then lied
and told Riley that he had gotten a text from his wife and that she would be
bringing a battery to the park, and he asked Riley to watch out for his wife’s
car. Thereafter, when a man pulled into the parking lot, Braden was “very
curious about the guy” and asked Riley “why is he here.” (Tr. Vol. 2 at 55).
The man then got out of the car with a “little boy” who then started riding a
tricycle. (Tr. Vol. 2 at 55).
[6] That same day, around 12:30 p.m., R.H. and her fiancé (“fiancé”) took R.H.’s
six-year-old daughter and four-year-old son and her fiancé’s five-year-old
daughter to the park, and they parked near the playground. When they arrived
at the park, R.H. had to use the restroom, so she walked to the porta-potties
that were located “850 feet” from the playground parking lot. (Tr. Vol. 2 at 10).
R.H. went into a porta-potty, locked the door, and urinated. As she was pulling
up her pants, “[t]he door of the porta-potty . . . was ripped open.” (Tr. Vol. 1 at
76). R.H. screamed and saw a man, who was later identified as Braden.
Braden shut the door and apologized. After R.H. had pulled up her pants,
Braden again opened the porta-potty door and then walked inside. R.H. said
“no” and put her hands onto Braden’s chest, trying to push him back. (Tr. Vol.
1 at 78). Braden, who had “crazy eyes” and very constricted pupils, closed the
door and told R.H. to “[s]hut up[.]” (Tr. Vol. 1 at 91, 78). Braden also told
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 5 of 22
R.H. that he had a gun and that the safety was off. Braden, with a gun in his
hand, blocked the door and locked it. R.H. pleaded for Braden not to hurt her
and told him that her kids were playing at the park. Braden threatened to shoot
R.H. if she screamed.
[7] Braden then “motioned with the gun” and directed R.H. to pull her pants
down. (Tr. Vol. 1 at 80). R.H. said “please, don’t do this[,]” and “he told [her]
to shut the fuck up and turn around.” (Tr. Vol. 1 at 80). R.H. pulled her pants
and underwear halfway down her thighs, and Braden pointed his gun at her
head. Braden stood behind R.H. and started to stroke his penis. He then put
his finger in R.H.’s vagina. R.H. told Braden to stop and that he was hurting
her. Braden refused and told R.H., “Tell me that’s what you like.” (Tr. Vol. 2
at 83).
[8] Braden then tried to put his flaccid penis into R.H.’s vagina and said, “Tell me
this is what you want.” (Tr. Vol. 1 at 83). R.H. told Braden that he was “soft,”
he told her to “shut up” and tried to “cram” his non-erect penis into R.H.’s
vagina. (Tr. Vol. 1 at 84). When R.H. again told Braden that his penis was
“soft,” he told her to turn around and “suck it like [she] like[d] it.” (Tr. Vol. 1
at 84). Braden had his gun at the side of R.H.’s head and directed her down to
his penis. When R.H. delayed putting Braden’s penis into her mouth, Braden
“clunked” the gun against her head and again told her to “suck it like [she]
like[d] it.” (Tr. Vol. 1 at 85).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 6 of 22
[9] After a few seconds of having Braden’s limp penis in her mouth, R.H. again
told Braden that he was “soft.” (Tr. Vol. 1 at 85). Braden responded, “I know,
I know.” (Tr. Vol. 1 at 85). Braden, still armed with his gun, then sat on the
toilet, spit in his other hand, started to stroke his penis, and told R.H. to sit on
it. R.H., acting as if she was going to sit on Braden, moved near the door and
opened the porta-potty door to escape. Braden grabbed the back of R.H.’s
sweater and threatened to shoot her. R.H., who still had her pants and
underwear down, ran from the porta-potty as fast as she could and screamed for
help. R.H.’s fiancé heard R.H. screaming and saw her—with her pants and
underwear down—running away from the porta-potty. As R.H. ran toward the
playground, she yelled to her fiancé to “get the kids” and that Braden had a
gun. (Tr. Vol. 1 at 88). R.H., her fiancé, and the three children ran to their car.
Once inside the car, R.H. called the police. R.H.’s fiancé observed that R.H.
was “frantic[,]” “visibly distraught[,]” and crying. (Tr. Vol. 1 at 52). Her fiancé
saw a male, who was later identified as Braden, walk out of a porta-potty and
walk toward a black SUV.
[10] Riley, who was about to leave the park, also saw Braden walking to his black
SUV. Additionally, Riley and her daughter saw R.H.—with her pants and
underwear down—when she had escaped from the porta-potty. Riley saw R.H.
“looking back and in a hurry to get away.” (Tr. Vol. 2 at 57). As Riley
watched Braden go to his car, she wondered if something had happened and
made sure that she “got a description of him.” (Tr. Vol. 2 at 58). Riley drove
away from the park but then saw “four or five squad cars flying down the road”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 7 of 22
to the park. (Tr. Vol. 2 at 59). Riley then drove back to the park, talked to
police, and gave them information about Braden and his car.
[11] When the responding Portage Police Department officers arrived at the park,
one officer, Officer Anthony Dandurand (“Officer Dandurand”) observed that
R.H. was crying and “hyperventilating at times[,]” and she “appeared very
distraught.” (Tr. Vol. 1 at 43). Detective Kurt Biggs (“Detective Biggs”)
interviewed R.H. that day. R.H. then went to the hospital, where a nurse
performed a sexual assault examination.
[12] The police posted information on the police department’s Facebook page,
seeking to get information from anyone who may have seen anything at the
park. Specifically, the police stated that they were looking for “a black
Mitsubishi Outlander, a white male subject between the ages of . . . 25 to 35,
approximately . . . 5’6” to 5’7”, a couple tattoos on his arms, wearing a skull
ring, and also . . . a Harley Davidson plate on the front of the vehicle.” (Tr.
Vol. 2 at 12). The police received tips from four people, including Cox, and the
tips led to the identification of Braden as a suspect.
[13] On April 3, 2017, R.H. went to the police station where Detective Biggs again
interviewed her. During the interview, which was videotaped, R.H. identified
Braden in a photo array. Thereafter, the police obtained a warrant for Braden’s
arrest. The police later recovered the Taurus handgun from the bottom of the
porta-potty.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 8 of 22
[14] The State charged Braden with Level 1 felony rape while armed with a deadly
weapon. The rape charge was based on Braden’s act of forcing R.H. to perform
oral sex and his act of forcing R.H. to submit to digital penetration.
[15] The trial court held a three-day jury trial in October 2019. Identification was
not an issue at trial. Instead, Braden’s defense, as explained in his opening
statement, was that the acts were consensual and part of a “trade for a product
for services.” (Tr. Vol. 1 at 21). Specifically, Braden’s defense was that he had
gone to the porta-potty to sell cocaine and that he had “proposition[ed] [R.H.]
for oral sex in exchange for the drugs.” (Tr. Vol. 1 at 17).
[16] The State presented multiple witnesses who testified to the facts as set forth
above. One of the early witnesses was Officer Dandurand, who testified about
his personal observation of R.H.’s demeanor when he had been dispatched to
the park. After both R.H. and Cox had testified and had already identified
Braden at trial, Detective Biggs testified about when R.H. had identified Braden
in a photo array during her April 3, 2017 interview. Specifically, the State
asked Detective Biggs what happened during the interview, and Detective Biggs
responded, “I’d have to watch the interview again to -- I want to say that the
picture was the fourth or fifth one down. But as soon as she got to [Braden’s]
picture[,] she stopped and picked him out and said I think that’s him.” (Tr.
Vol. 1 at 122-23). Braden objected to the testimony as hearsay. The State
pointed out that R.H. had already identified Braden at trial and argued that the
testimony was not offered for the proof of the matter asserted. The trial court
overruled the objection and allowed the testimony.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 9 of 22
[17] Immediately thereafter, the State asked Detective Biggs what R.H. had said
when she looked at the fourth or fifth photographs, and Detective Biggs
answered as follows:
She said I think it’s him. And then she proceeded to check the
other two. And kind of put his aside. And then looked back at
his. And as I was -- she was just sitting there thinking. And I
could see her hands start to shake. And I think that she put her
hand like over her mouth, and she was thinking more about it.
And then she said yeah, I’m . . . 98 percent sure it’s him.
(Tr. Vol. 1 at 123). Braden objected and asked to make his objection outside
the presence of the jury.
[18] Thereafter, Braden objected to Detective Biggs’ testimony based on vouching
and hearsay. Braden argued that Detective Biggs’ testimony that R.H.’s “hand
was shaking” and his observations of R.H.’s “physical characteristics” during
the April 3 interview constituted vouching because Officer Dandurand had
testified about R.H.’s appearance and emotional state on the day of the crime
on April 1. The trial court rejected Braden’s argument, explaining that each
officer could testify regarding what each had observed.
[19] Braden argued that the testimony constituted hearsay because it was being
offered for the truth of the matter asserted. The State again pointed out that
R.H. had already identified Braden in court and argued that the testimony was
not offered for the proof of the matter asserted and was, instead, offered to
show the course of the investigation and how R.H.’s interview had led to the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 10 of 22
next step of the investigation, which was Detective Biggs obtaining an arrest
warrant.
[20] Braden then argued that even if the testimony was not hearsay, then it was
cumulative and prejudicial because R.H. had already identified him. The trial
court pointed out that Braden’s identity was not at issue and asked Braden’s
counsel how it was prejudicial because counsel had already admitted during
opening statements that Braden was the person in the porta-potty with R.H.
The trial court ruled that, “[f]or the purposes of the continuity of the
investigation[,]” it would allow the testimony “one time, and then . . . move
on.” (Tr. Vol. 1 at 125).
[21] The jury then returned to the courtroom, and Detective Biggs finished his
testimony about R.H.’s identification of Braden in the photo array.
Specifically, he testified that after R.H. had identified Braden, she had “an
emotional reaction to it.” (Tr. Vol. 1 at 126). Detective Biggs testified that
R.H.’s hands shook and that she put her hand up to her mouth. Additionally,
the detective testified that R.H. had written down that she was “99 percent sure
that it was him.” (Tr. Vol. 1 at 126).
[22] The State later recalled Detective Biggs as a witness. During his testimony, the
State introduced State’s Exhibit 21, which was the videotape of Detective Biggs’
April 3 interview with R.H. when she had identified Braden in the photo array.
The State informed the trial court that it wanted to offer “just a portion” of the
interview to be played for the jury and that the State had an agreement with
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 11 of 22
Braden about the portion to be played. (Tr. Vol. 2 at 14). Braden’s counsel
confirmed that the parties had an agreement and stated that Braden had “[n]o
objection to the admission” of the exhibit. (Tr. Vol. 2 at 14). The State then
showed the jury six minutes of the April 3 interview.
[23] After the State had completed its’ presentation of evidence, Braden testified at
trial and stated that he was a drug user and drug dealer. He testified that he had
been selling drugs since 2015 and that he sold cocaine, morphine, Vicodin,
Oxycontin, and Xanax. Braden also testified that he had gone to the park
because a fellow drug dealer, who had arranged a drug deal at the park but was
“out of drugs[,]” had asked Braden to make the deal instead. (Tr. Vol. 2 at 92).
Specifically, Braden testified that he had gone to the park to sell cocaine to an
unknown woman who had red hair and a red SUV. Braden testified that he
had believed that R.H. was the intended drug buyer. He acknowledged that
R.H. did not know him, but he testified that she had motioned for him to go to
the porta-potty. Braden testified that he had offered R.H. the drugs in exchange
for “sexual favors” and that she had agreed. (Tr. Vol. 2 at 104). Braden
acknowledged that he had put his fingers into R.H.’s vagina. He also testified
that R.H. had “willingly g[i]ve[n] [him] oral [sex] for a couple seconds” but that
he had been unable to get an erection, which he blamed on his drug use. (Tr.
Vol. 2 at 134). Additionally, Braden acknowledged that he had the Taurus
handgun when he went into the porta-potty, but he denied that he had held the
gun on R.H. and testified that he had kept his gun in his hoodie pocket.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 12 of 22
[24] The jury found Braden guilty as charged. During Braden’s sentencing hearing,
R.H. gave a detailed victim impact statement and explained how she had been
suffering from post-traumatic stress and anxiety since the offense and how the
offense had affected her everyday life. She stated that the offense had also
affected her children because they still “talk about the day that the man that
hurt mommy in the park” and “talk about being scared that someone is going to
kill [her.]” (Sent. Tr. 7-8).
[25] When the trial court addressed aggravating circumstances, it found that
Braden’s criminal history, which included two misdemeanor convictions for
operating a vehicle while intoxicated, to be an aggravating circumstance. The
trial court stated that Braden’s criminal history was a minor aggravating
circumstance because his prior convictions were remote in time, but the trial
court noted that Braden was admittedly a “prolific drug dealer.” (Sent. Tr. 15).
The trial court also discussed the nature and circumstances of the offense as
follows:
[Braden] committed a crime of violence, and knowingly
committed the offense in the presence or within hearing of an
individual who was less than 18 years of age at the time the
person committed the offense, and the minor was not a victim of
the offense. This took place at a public park. There were
children in the lot nearby. Parking lot of the public park nearby.
The act was premeditated in that after having had his gun taken
away from him by his wife, he then obtained another gun, which
was used in commission of this offense. And it is true there were
two acts of prohibited sexual conduct, including the digital
penetration and the oral sex.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 13 of 22
(Sent. Tr. 15-16).
[26] When discussing mitigating circumstances, the trial court noted that Braden,
who had not been employed at the time of the offense, had provided limited
information regarding his support of his son; nevertheless, the trial court found
“to some extent” that “the loss of a parent to incarceration would be a hardship
to the child.” (Sent. Tr. 16). Additionally, the trial court found that the remote
nature of Braden’s criminal history was a mitigating circumstance.
[27] The trial court imposed a thirty-eight (38) year sentence. Braden now appeals.
Decision
[28] Braden argues that: (1) the trial court abused its discretion in its admission of
evidence; (2) the trial court abused its discretion when sentencing him; and (3)
his sentence is inappropriate. We will review each issue in turn.
1. Admission of Evidence
[29] Braden first argues that the trial court abused its discretion by admitting
Detective Biggs’ testimony regarding the April 3 interview. Specifically, he
contends that Detective Biggs’ testimony that R.H. identified Braden from a
photo array was hearsay and improper course-of-investigation testimony.
Additionally, Braden contends that Detective Biggs’ testimony regarding his
personal observations of R.H.’s behavior when choosing Braden’s photo
constituted vouching.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 14 of 22
[30] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,
871 (Ind. 2012), reh’g denied.
3
[31] We need not, however, determine whether the trial court abused its discretion
by admitting Detective Biggs’ testimony into evidence because even if it was
erroneous to admit the testimony, any error was harmless. “The improper
admission of evidence is harmless error when the conviction is supported by
substantial independent evidence of guilt as to satisfy the reviewing court that
there is no substantial likelihood that the questioned evidence contributed to the
conviction.” Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000), reh’g denied. See
also Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014) (“If we are satisfied the
conviction is supported by independent evidence of guilt such that there is little
3 We reject Braden’s freestanding argument that we should alter our standard of review and apply a prima
facie error standard of review to his admission of evidence argument. Braden bases his argument on the onemonth law license suspension of former Indiana Attorney General Curtis Hill (“Former AG Hill”). Our
supreme court “suspend[ed] [Former AG Hill] from the practice of law . . . for a period of 30 days, beginning
May 18, 2020” and ordered that, at the conclusion of the suspension period, Former AG Hill would be
“automatically reinstated to the practice of law[.]” Matter of Hill, 144 N.E.3d 184, 197 (Ind. 2020). Braden
filed his Appellant Brief just after Former AG Hill’s suspension period had begun and argued that the
suspension created a “vacancy” in the Office of the Attorney General, making any Appellee Brief filed by the
State during the suspension period to be “unauthorized[.]” (Braden’s Br. 8). Braden then requested that this
Court “disregard” any brief filed by the State during the suspension period and to apply the prima facie error
standard of review. (Braden’s Br. 8). The State, however, filed its Appellee Brief after Former AG Hill’s
one-month suspension period had ended. Thus, we will not further address Braden’s argument and decline
his request to apply a prima facie error standard of review.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 15 of 22
likelihood the challenged evidence contributed to the verdict, the error is
harmless.”). Additionally, “[t]he improper admission of evidence is harmless
error when the erroneously admitted evidence is merely cumulative of other
evidence before the trier of fact.” Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct.
App. 2017), trans. denied.
[32] Here, Detective Biggs’ testimony that R.H. had identified Braden from a photo
array was harmless because it was cumulative identification testimony. R.H.
had already identified Braden at trial before Detective Biggs testified.
Furthermore, Braden had already told the jury during opening statements that
identification was not at issue and that he “d[id] not deny he was there.” (Tr.
Vol. 1 at 20). Moreover, Braden cannot show that he was prejudiced by the
detective’s personal observations of R.H.’s behavior during the interview.
While Braden attempts to challenge the admission of Detective Biggs’
testimony about his observations of R.H. during the April 3 interview, he fails
to acknowledge that he had no objection to the State’s admission of the video
recording of that same April 3 interview. Indeed, Braden had an agreement
with the State about playing part of that interview. Our supreme court has
explained that “‘[a]ny error in the admission of evidence is not prejudicial, and
[is] therefore harmless, if the same or similar evidence has been admitted
without objection or contradiction.’” Hoglund v. State, 962 N.E.2d 1230, 1238
(Ind. 2012) (quoting McCovens v. State, 539 N.E.2d 26, 30 (Ind. 1989)), reh’g
denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 16 of 22
[33] Based on our review of the record and the evidence supporting Braden’s
conviction, we are satisfied that there is no substantial likelihood that the
challenged evidence contributed to jury’s verdict and, therefore, conclude that
the admission of the evidence was harmless error.
2. Sentencing
[34] Braden argues that the trial court abused its discretion when sentencing him.
Specifically, he contends that the trial court abused its discretion in its
determination of aggravating circumstances.
[35] We first address Braden’s challenge to the trial court’s determination of
aggravating circumstances. 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 (Ind. 2007). 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 will be found where 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 may abuse its discretion in a number of ways, including: (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.
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[36] Braden first contends that the trial court considered his use of a gun during the
commission of the crime as a separate aggravating circumstance and that it was
improper because it was an element of his offense. We agree “a trial court may
not use a material element of the offense as an aggravating circumstance.” See
Lemos v. State, 746 N.E.2d 972, 975 (Ind. 2001). “However, the trial court may
find the nature and circumstances of the offense to be an aggravating
circumstance.” Id.
[37] Here, the trial court mentioned Braden’s gun when discussing the nature and
circumstances of Braden’s offense. Specifically, the trial court pointed out that
Braden’s offense was “premeditated” because “after having had his gun taken
away from him by his wife, he then obtained another gun[.]” (Sent. Tr. 16).
We conclude that the trial court did not abuse its discretion when finding this
nature and circumstance aggravating circumstance. See, e.g., Shane v. State, 769
N.E.2d 1195, 1199 (Ind. Ct. App. 2002) (explaining that the trial court’s
consideration of the planning involved in the defendant’s crime reflected the
nature and circumstances of the crime and was properly considered as an
aggravating circumstance).
[38] Braden also argues that the trial court abused its discretion in its consideration
of aggravating circumstances when it found that he had committed the crime in
the presence or within the hearing of a child less than eighteen years old. We
disagree.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 18 of 22
[39] “A trial court may consider the fact that the defendant committed a crime of
violence—including rape—in the presence or within hearing of a child under
the age of eighteen as an aggravating factor.” Abrajan v. State, 917 N.E.2d 709,
712 (Ind. Ct. App. 2009). INDIANA CODE § 35-38-1-7.1(4) provides that a trial
court may consider the following as an aggravating circumstance when
sentencing a defendant:
The person:
(A) committed a crime of violence (IC 35-50-1-2); and
(B) knowingly committed the offense in the presence or
within hearing of an individual who:
(i) was less than eighteen (18) years of age at the
time the person committed the offense; and
(ii) is not the victim of the offense.
“[I]it is well established that this aggravator ‘does not require that a child under
eighteen actually see or hear the offense taking place . . . .’” Abrajan, 917
N.E.2d at 712 (quoting Firestone v. State, 838 N.E.2d 468, 474 (Ind. Ct. App.
2005)).
[40] At Braden’s sentencing hearing, the trial court found that:
[Braden] committed a crime of violence, and knowingly
committed the offense in the presence or within hearing of an
individual who was less than 18 years of age at the time the
person committed the offense, and the minor was not a victim of
the offense. This took place at a public park. There were
children in the lot nearby. Parking lot of the public park nearby.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 19 of 22
(Sent. Tr. 15-16). Our review of the record reveals the trial court’s
consideration of this aggravating circumstance was supported by the evidence.
Multiple witnesses testified that young children were present at the park. For
example, R.H. testified that she told Braden that her children were playing at
the park when she pleaded with him not to hurt her. Additionally, Riley
testified that her five-year-old daughter was riding a bike when Braden first
approached Riley to ask her to jump-start his car. Riley also testified that while
she was talking with Braden, a man pulled into the parking lot and got out with
a little boy who rode a tricycle. Additionally, Riley testified that she and her
five-year-old daughter saw R.H.—with her pants and underwear down—when
she had escaped from the porta-potty. Given the evidence presented at trial, we
conclude that the trial court did not abuse its discretion by considering as an
aggravating circumstance that the crime was committed in the presence or
hearing of a child under eighteen. See, e.g., Abrajan, 917 N.E.2d at 712;
Firestone, 838 N.E.2d at 474.
3. Inappropriate Sentence
[41] Lastly, we turn to Braden’s argument that his thirty-eight-year sentence for
Level 1 felony rape is inappropriate. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). The defendant has the burden of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to
attempt to leaven the outliers, and identify some guiding principles for trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 20 of 22
courts and those charged with improvement of the sentencing statutes, but not
to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B) analysis is not to
determine whether another sentence is more appropriate but rather whether the
sentence imposed is inappropriate.” Conley, 972 N.E.2d at 876 (Ind. 2012)
(internal quotation marks and citation omitted).
[42] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
Here, Braden was convicted of Level 1 felony rape. A person who commits a
Level 1 felony “shall be imprisoned for a fixed term of between twenty (20) and
forty (40) years, with the advisory sentence being thirty (30) years.” I.C. § 35-
50-2-4. The trial court imposed a thirty-eight-year sentence.
[43] Turning to the nature of Braden’s offense, we note that Braden, armed with a
gun, committed the crime of rape in the middle of the day at a public park.
After approaching two other women under seemingly suspicious pretenses,
Braden followed R.H. to the porta-potty where she went to urinate before
playing with her young children at the playground. Braden forced open the
porta-potty door and told R.H. that he had a gun and that the safety was off.
After Braden locked the door, R.H. pleaded for Braden not to hurt her and told
him that her kids were playing at the park. Braden then threatened to shoot
R.H. if she screamed. Braden pointed his gun at R.H.’s head and put his finger
into R.H.’s vagina. When R.H. told Braden to stop and that he was hurting
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2935| January 29, 2021 Page 21 of 22
her, Braden refused and told R.H., “Tell me that’s what you like.” (Tr. Vol. 2
at 83). Braden was unable to get an erection, and, while pointing his gun at
R.H.’s head, he commanded R.H. to “suck [his flaccid penis] like [she] like[d]
it.” (Tr. Vol. 1 at 84). When Braden’s penis remained limp after a few seconds
inside R.H.’s mouth, Braden, stilled armed with his gun, then sat on the toilet,
spit in his other hand, started to stroke his penis, and told R.H. to sit on it. At
that point, R.H. opened the porta-potty door to escape, and Braden grabbed the
back of R.H.’s sweater and threatened to shoot her. R.H., who still had her
pants and underwear down, ran from the porta-potty as fast as she could and
screamed for help. At Braden’s sentencing hearing, R.H. explained that she
had been suffering from post-traumatic stress and anxiety since the offense and
that it affected her everyday life.
[44] Turning to Braden’s character, we recognize that he has limited prior criminal
history consisting of two misdemeanor convictions for operating a vehicle while
intoxicated. Indeed, the trial court found that the remote nature of Braden’s
criminal history was a mitigating circumstance when imposing the sentence in
this case. However, as the trial court noted, Braden was admittedly a “prolific
drug dealer.” (Sent. Tr. 15). At trial, he admitted that he was a drug user and
drug dealer. He testified that he had been selling drugs since 2015 and that he
sold cocaine, morphine, Vicodin, Oxycontin, and Xanax
Outcome: Braden has not persuaded us that his thirty-eight-year sentence for Level 1
felony rape is inappropriate. Therefore, we affirm the sentence imposed by the
trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: