James Ray Gipson v. State of Indiana (mem. dec.) , 121 N.E.3d 135 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 16 2019, 6:04 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William T. Myers Curtis T. Hill, Jr.
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Ray Gipson, January 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-51
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana Kenworthy,
Appellee-Plaintiff Judge
Trial Court Cause No.
27D02-1509-FA-4
May, Judge.
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[1] James Ray Gipson appeals following his convictions of four counts of Class B
felony child molesting, 1 seven counts of Class A felony child molesting, 2 four
counts of Class B felony incest, 3 one count of Class D felony child solicitation, 4
and one count of Class B felony attempted incest. 5 He argues the trial court
abused its discretion when sentencing him to consecutive sentences. We affirm.
Facts and Procedural History
[2] Gipson has two daughters, C.G. and J.S., born in 1984 and 1986, respectively.
Gipson’s inappropriate behavior began when C.G. was nine years old. On
multiple occasions Gipson walked in while C.G. was taking a bath. Gipson
also showered with C.G. and would become aroused during those showers.
When C.G. was between the ages of ten and twelve, Gipson would rub C.G.’s
legs, using shin splints as an excuse. Gipson would eventually slide his hands
all the way up C.G.’s legs and touch C.G.’s vagina.
[3] When C.G. was in fifth grade, Gipson discovered love notes from boys to C.G.
Gipson read the notes with C.G. and told her the boys wanted to have sex with
her. Gipson told C.G. she needed to have her first sexual experience with him.
1
Ind. Code § 35-42-4-3 (a) (1994).
2
Ind. Code § 35-42-4-3(a)(1) (Three counts in 1996) (Four counts in 1998).
3
Ind. Code § 35-46-1-3 (1994).
4
Ind. Code § 35-42-4-6 (a)(1) (1994).
5
Ind. Code § 35-46-1-3 (1994) & Ind. Code § 35-41-5-1 (1977).
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When C.G. was thirteen, Gipson told C.G. incest was allowed, because it was
in the Bible, and Gipson read multiple verses about incest to C.G.
[4] Gipson also molested J.S. regularly, at least once a week for six years. Starting
when J.S. was in third grade, Gipson used shin splints as an excuse to rub J.S.’s
legs. Gipson would slide his hands up her leg and then put his fingers in her
vagina. Gipson would also have J.S. put her feet on his lap against his penis.
Gipson would become aroused when this happened. Whenever J.S. was in the
pool Gipson would make J.S. kiss him while he rubbed her body. Gipson told
J.S. the molestation means “I love you and it means you love me and this is
what we’re supposed to do.” (Tr. Vol. III at 83.)
[5] The last incident occurred during a sleepover. J.S. and her friends were
sleeping in the backyard. J.S. woke up while Gipson was standing over her
with his fingers in her vagina. J.S. told C.G. what Gipson did and how he had
molested her for years. C.G. and J.S. agreed to stay away from Gipson.
[6] In April 2015, C.G. and J.S. reported Gipson to the police. Gipson was
charged with of four counts of Class B felony child molesting, seven counts of
Class A felony child molesting, four counts of Class B felony incest, one count
of Class D felony child solicitation, and one count of Class B felony attempted
incest. A jury found Gipson guilty on all seventeen counts.
[7] The trial court sentenced Gipson to thirty-five years for each Class A felony, ten
years for each Class B felony, and one-and-a-half years for the Class D felony.
The trial court ordered the Class B felonies, the Class D felony, and four of the
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Class A felonies served concurrent with three Class A felonies, but ordered
those three Class A felonies served consecutively, for an aggregate sentence of
one-hundred-and-five years in prison.
Discussion and Decision
[8] “We initially observe that sentencing decisions rest within the sound discretion
of the trial court and are reviewed on appeal only for an abuse of discretion.”
Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). 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.” Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A trial court abuses its
discretion by: “(1) issuing an inadequate sentencing statement, (2) finding
aggravating or mitigating factors that are not supported by the record, (3)
omitting factors that are clearly supported by the record and advanced for
consideration, or (4) finding factors that are improper as a matter of law.”
Gleason, 965 N.E.2d at 710.
[9] “[T]he court shall determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the aggravating and
mitigating circumstances in Indiana Code § 35-38-1-7.1(b) and Indiana Code §
35-38-1-7.1(c) in making a determination under this subsection.” Ind. Code §
35-50-1-2(c) (1996). Gipson argues the trial court abused its discretion in
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ordering consecutive sentences because it failed to articulate evidence to justify
the sentence.
[10] The trial court found many aggravating factors that allowed the consecutive
sentence. Gipson was in a position of trust with his victims. C.G. and J.S were
Gipson’s daughters and lived with him and their mother in the family’s home.
See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (defendant
violating position of trust with victim allowed for an enhanced sentence), trans.
denied. The trial court also pointed out that J.S. was nine-years-old at the time
of the first offense and the abuse went on for many years. C.G. and J.S.
continued into their adulthood to experience negative consequences from the
abuse. Specifically, J.S. continues to experience panic attacks and struggle with
adult relationships and low self-esteem. (See Tr. Vol. IV at 211-13.) C.G. said
she still is “not right” after what Gipson did to her. (Tr. Vol. II at 236.) The
trial court noted Gipson has a narcissistic personality, is a repeat offender, and
used religion to perpetrate his crimes. The trial court stated:
I think the evidence in this case was clear throughout particularly
during Mr. Gipson’s testimony that he is what I would say is the
worst of the worst. Um, he is narcissistic. He is a pedophile. He
is a predator, and he enlisted religion to perpetrate his crimes,
um, on his biological children.
(Tr. Vol. IV at 224.)
[11] The trial court found no mitigating factors. Gipson argues that, when
sentencing him, the court did not consider his “traumatic injury.” (Br. of
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Appellant at 9.) “When a defendant offers evidence of mitigators, the trial
court has the discretion to determine whether the factors are mitigating, and it is
not required to explain why it does not find the proffered factors to be
mitigating.” Johnson v. State, 855 N.E.2d 1014, 1016 (Ind. Ct. App. 2006), trans.
denied. During trial, reference was made to hand injuries. Gipson explained he
was involved in a gasoline accident that left him without the use of his hands
for two years. (Tr. Vol IV at 10-11.) During sentencing, Gipson referred to a
“traumatic brain injury,” and mental health issues. 6 (Id. at 221-222.) We are
unsure whether Gipson asserts the trial court should have found a mitigator in
his hand injury, a traumatic brain injury, or his self-reported mental health
issues. Because it is unclear which injury is the traumatic injury the court
should have found, we cannot conclude the trial court abused its discretion. See
Battle v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) (trial court’s failure to find any
mitigating circumstances was not an abuse of discretion).
[12] In summary, the trial court found a number of aggravators that could be used to
justify consecutive sentences, and Gipson has not demonstrated the trial court
abused its discretion in failing to find his purported mitigator. We accordingly
find no abuse of discretion in the court’s imposition of consecutive sentences for
three of Gipson’s seventeen convictions. See O’Connell v. State, 742 N.E.2d 943,
6
In the Presentence Investigation, Gipson reported being diagnosed with depression four different times.
Gipson also reported being diagnosed with Post Traumatic Stress Disorder (PTSD) in 1970, 1973, 1991
through 1993, and 2001. Gipson received counseling for his PTSD for two years after burning his hands, but
quit going in 1991. (App. Vol. III at 11.) We found no mention of a brain injury in the Presentence
Investigation.
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952 (Ind. 2001) (multiple victims or multiple crimes justifies imposing
consecutive sentences).
Conclusion
[13] The trial court properly found aggravators allowing it to sentence Gipson to
consecutive sentences and did not have to consider the same mitigating factors
the defense did. Thus, the trial court did not abuse its discretion when
sentencing Gipson. Accordingly, we affirm.
[14] Affirmed
Baker, J., and Tavitas, J., concur.
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