Desarai Xashia Kemp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 13, 2016
• Docket: 49A02-1602-CR-324
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 13 2016, 7:40 am

Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Desarai Xashia Kemp, September 13, 2016

Appellant-Defendant, Court of Appeals Case No. 49A02-1602-CR-324

v. Appeal from the Marion Superior Court State of Indiana, The Hon. Mark D. Stoner, Judge Trial Court Cause No. 49G06-1412- Appellee-Plaintiff. F3-53975

Bradford, Judge.

Case Summary [1] In early 2014, Appellant-Defendant Desarai Kemp befriended the pregnant

Juanita Gibson, with Kemp also claiming to be pregnant. Kemp was not, in

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 1 of 10 fact, pregnant. Over the course of several months, Kemp and Gibson became

friends, with Kemp continuing to assert that she was pregnant and due a few

weeks after Gibson. In early November of 2014, Gibson gave birth to her son,

William.

[2] In early December of 2014, Kemp spent two nights at Gibson’s, visiting with

Gibson and William. At approximately 2:30 a.m. on the second night, Kemp

started two fires in Gibson’s apartment before kidnapping William and stealing

Gibson’s mother’s car. Police tracked Kemp’s mobile telephone to an

Indianapolis dwelling, where they found Kemp hiding in a closet with William.

When approached, Kemp threw William at a police officer. Ultimately, Kemp

pled guilty to Level 3 felony kidnapping and Level 6 felonies auto theft and

theft. The trial court sentenced Kemp to an aggregate sentence of twelve years

of incarceration. Kemp argues that her sentence is inappropriately harsh.

Because we disagree, we affirm.

Facts and Procedural History [3] Early in 2014, Kemp began communicating with Gibson; Kemp claimed to

know Gibson from High School, although Gibson did not remember Kemp.

Gibson was pregnant, and Kemp claimed to be pregnant as well. The women,

both nineteen years old, continued to communicate via social media, text

messages, and telephone calls about their pregnancies throughout 2014, and

Kemp told Gibson that her due date was two weeks after hers. On November

6, 2014, Gibson gave birth to William.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 2 of 10 [4] On December 3, 2014, Kemp, still claiming to be pregnant, went to Gibson’s

apartment to visit William. The visit represented the first time Gibson and

Kemp met in person. Kemp appeared to be pregnant and told Gibson that she

was scheduled to be induced on December 6, 2014. Kemp asked if she could

spend the night, and, while the two women were out during the day, Gibson’s

mother saw a bottle of lighter fluid in a bag Kemp brought with her. Kemp

ended up spending the following two nights at Gibson’s.

[5] On the night of December 4, 2014, Gibson and Kemp were sleeping on a couch

next to William’s bassinet, while Gibson’s mother and grandmother slept

elsewhere in the apartment. At approximately 2:30 a.m. on December 5, 2014,

Gibson was awakened by her grandmother, who was screaming that there was

a fire in the apartment. In fact, one fire had been set in the kitchen and another

underneath William’s bassinet. Both fires were extinguished quickly.

[6] Kemp was not in the apartment, and Gibson realized that William was not in

his bassinet. After verifying that her mother did not have William, Gibson

realized that he was missing, along with his baby bag, his car seat, Gibson’s

mobile telephone, and her mother’s car. When Gibson attempted to call her

telephone, Kemp answered and, attempting to disguise her voice, said, “Did

you get the car, bro[?]” Tr. p. 56. Gibson hung up and called the police, who

could smell lighter fluid when they arrived at her apartment.

[7] Police traced Kemp’s mobile telephone to a location in Indianapolis and found

the stolen vehicle nearby. The officers observed movement and a bassinet

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 3 of 10 inside the dwelling in question. Once inside, the officers found Kemp hiding in

a closet with William. When one officer approached, Kemp threw William at

him. Kemp no longer appeared to be pregnant. Officers found the keys to the

stolen car in Kemp’s pocket and the missing car seat and baby bag in the

residence.

[8] Police soon discovered that Kemp had created a Twitter account dedicated to

her bogus pregnancy, on which she posted numerous photographs of herself in

which she appeared to be pregnant. On December 3, the day she arrived at

Gibson’s home, Kemp wrote, verbatim, “It’s time!!!!!” and “[t]hese contractions

kicking my a** [t]hey hurt so bad. I’m dilated 6cm im finna get this epidural

icant go natural I tried thou..” Ex. 2. Later, Kemp wrote, “Time to push!!!!!”

and then “Him Here Born at 2:34 am Dec4th 2014 6 pounds 9oz 18in long, he

was well worth them 8 hours of labor.” Ex. 2. Underneath the second post,

Kemp attached a picture of William. Throughout the day on December 4,

2014, Kemp continued to post pictures of William.

[9] On December 5, 2014, the Appellee-Plaintiff the State of Indiana (“the State”)

charged Kemp with Level 3 felony kidnapping, Level 4 felony arson, and Level

6 felonies arson, auto theft, and theft. On three dates in July of 2015, Kemp

was evaluated for a psychological assessment, the report of which was issued on

August 1, 2015. Kemp reported to the evaluator, inter alia, that she had started

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 4 of 10 taking Prozac1 in jail, fabricated her pregnancy in order to win back a boyfriend,

and used marijuana daily or multiple times a day between the ages of fifteen

and eighteen. The report opined that Kemp met the diagnostic criteria for

borderline personality disorder, persistent depressive disorder, and moderate

cannabis use disorder. The report concluded that Kemp needed mental health

treatment, including dialectical behavior therapy and continued use of

psychiatric medication.

[10] On October 26, 2015, Kemp pled guilty as charged. The record reflects that

Kemp pled guilty in order to preserve her ability to challenge the requirement to

register on the Sex and Violent Offender Registry, which is what would have

resulted in what she believed would have been an inevitable conviction after

trial. Kemp’s presentence investigation report (“PSI”), filed on November 18,

1 “Fluoxetine (Prozac) is used to treat depression, obsessive-compulsive disorder (bothersome thoughts that won’t go away and the need to perform certain actions over and over), some eating disorders, and panic attacks (sudden, unexpected attacks of extreme fear and worry about these attacks).” U.S. National Library of Medicine, Fluoxetine, https://medlineplus.gov/druginfo/meds/a689006.html (last visited Aug. 30, 2016).

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 5 of 10 2015, includes Kemp’s opinion that her current mental health was “good” and

that she had been prescribed Zyprexa.2 Appellant’s App. p. 100.

[11] At sentencing, the trial court found Kemp’s mental health to be a significant

mitigating circumstance but found her guilty plea, substance abuse, and

remorse to not be significantly mitigating. The trial court found Kemp’s

criminal history to be aggravating. The trial court, noting the “shocking

behavior [and] the extreme[] amount of planning that went into the

[com]mission of this crime[,]” determined that it could not find that the

circumstances were unlikely to reoccur. Tr. p. 99. The trial court noted that

Kemp’s crimes were not impulsive and, in fact, “carefully planned at the

time[,]” it appeared that Gibson had been “located and groomed over the

internet[,]” and Kemp’s motive was either to “trap a boyfriend” or get

sympathy from her family. Tr. p. 103.

2 ZYPREXA is a prescription medicine used to treat: • schizophrenia in people age 13 or older. • bipolar disorder, including: • manic or mixed episodes that happen with bipolar I disorder in people age 13 or older. • manic or mixed episodes that happen with bipolar I disorder, when used with the medicine lithium or valproate, in adults. • long-term treatment of bipolar I disorder in adults. • episodes of depression that happen with bipolar I disorder, when used with the medicine fluoxetine (Prozac®) in people age 10 or older. • episodes of depression that do not get better after 2 other medicines, also called treatment resistant depression, when used with the medicine fluoxetine (Prozac), in adults.

U.S. Food and Drug Administration, Zyprexa Medication Guide, http://www.fda.gov/ downloads/Drugs/DrugSafety/UCM134700.pdf (last visited Aug. 30, 2016).

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 6 of 10 [12] The trial court merged Kemp’s arson convictions into the Level 3 felony

kidnaping conviction and, on February 22, 2016, sentenced her to twelve years

of incarceration for kidnapping and two years each for auto theft and theft, all

sentences to be served concurrently. The trial court noted that Kemp was not

eligible for direct placement in community corrections. However, the trial court

stated that if it became apparent that the DOC could not provide dialectical

behavior therapy, it would modify her sentence to a placement in community

corrections in a work-release facility. To that end, the trial court requested that

Kemp’s trial counsel file a sentence modification request in March of 2017.

Kemp indicated that she was still receiving medication in jail, and the trial court

stated that “she appears to be in pretty good shape right now.” Tr. p. 119.

Discussion and Decision [13] Kemp argues that her twelve-year executed sentence is inappropriately harsh,

suggesting that an appropriate sentence is three years executed with nine

suspended to probation. Under our current sentencing scheme, “the trial court

must enter a statement including reasonably detailed reasons or circumstances

for imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We

review the sentence 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.” Id. As mentioned, the trial court sentenced Kemp to an

aggregate sentence of twelve years of incarceration following her convictions

and concurrent sentences for Level 3 felony kidnapping and Level 6 felonies

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 7 of 10 auto theft and theft. “A person who commits a Level 3 felony … shall be

imprisoned for a fixed term of between three (3) and sixteen (16) years, with the

advisory sentence being nine (9) years.” Ind. Code § 35-50-2-5.

[14] The nature of Kemp’s offenses and her horrendous conduct easily justify her

enhanced twelve-year sentence. Over the course of several months, Kemp

formulated her elaborate scheme to kidnap Gibson’s newborn child and claim

him as her own. Kemp spent several months gaining the trust of Gibson, who

was likely chosen as a victim for no other reason than that she happened to be

pregnant and due around the time Kemp claimed to be due. As for the

execution of the final stages of Kemp’s plan, her use of arson (whatever her

intent) as an alleged diversion could have had very tragic consequences, as there

were three persons asleep in Gibson’s apartment at the time and unknown

others in the rest of the building. It should also be remembered that when

found by police, Kemp threw one-month-old William at them. In summary,

because Kemp’s offenses were crimes that could have easily resulted in death

and/or serious injury, their nature justifies her enhanced twelve-year sentence.

[15] Kemp’s character also justifies her enhanced sentence. The elaborate planning,

the months-long deception, and the exploitation of Gibson’s trust all reflect

negatively on Kemp’s character. Kemp, who was nineteen at the time of the

instant offenses, also has a somewhat extensive criminal history. Kemp had

five experiences with the juvenile justice system, resulting in adjudications for

battery resulting in bodily injury (twice, apparently) and leaving home without

permission of a parent or guardian. At the time of sentencing in this case,

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 8 of 10 Kemp had charges pending for Level 6 felonies resisting law enforcement using

a vehicle and auto theft and Class A misdemeanor resisting law enforcement.

[16] The heart of Kemp’s argument is essentially that there is no way that Kemp can

receive the treatment she needs for her mental health issues while incarcerated

in DOC. First, the deliberation and planning exhibited by Kemp in the

execution of her kidnapping scheme undercut any suggestion that she was

incapacitated to any great degree by her mental health issues. Kemp seems to

have known what she was doing and had several months to abandon her

scheme, but did not. Second, there is some indication that the treatment Kemp

is already receiving is effective. The record indicates that Kemp has begun

taking Prozac and/or Zyprexa and subsequently self-reported her mental health

as “good.” Appellant’s App. p. 100. At her sentencing, Kemp indicated that

she was still receiving her medication in jail, and the trial court noted that “she

appears to be in pretty good shape right now.” Tr. p. 119. Moreover, the

record indicates that any medications usually get sent along with a prisoner to

DOC, so there is no reason to believe that Kemp’s apparently effective

treatments will cease.

[17] Finally, we cannot ignore the trial court’s clearly-stated intent to modify

Kemp’s placement to community corrections upon her filing a modification

request in March of 2017 if DOC cannot provide her with the dialectical

behavior therapy recommended in her psychological assessment report. So,

even assuming that Kemp is in need of treatment beyond her current

medication, she will either receive it from DOC or she will almost certainly

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 9 of 10 have her placement modified in March of 2017. Although Kemp is correct that

her sentence currently stands as twelve years of incarceration, the trial court has

clearly indicated its intent to modify that placement if it deems it necessary.

Any claim that Kemp will spend twelve years in DOC without needed mental

health treatment is speculative at this point. Kemp has failed to establish that

her twelve-year executed sentence is inappropriately harsh in light of the nature

of her offenses and her character, as well as the circumstances of this case.

[18] We affirm the judgment of the trial court.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016 Page 10 of 10