Gary Allen Gibson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 30, 2015
• Docket: 39A05-1404-CR-156
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2015, 8:42 am Memorandum Decision shall not be 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 Jennifer A. Joas Gregory F. Zoeller Joas & Stotts Attorney General of Indiana Madison, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gary Allen Gibson, January 30, 2015

Appellant-Defendant, Court of Appeals Cause No. 39A05-1404-CR-156 v. Appeal from the Jefferson Circuit Court. The Honorable Darrell M. Auxier, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 39C01-1308-FB-845

Darden, Senior Judge

Statement of the Case [1] Gary Allen Gibson appeals his convictions by jury of aggravated battery

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 1 of 9 as a Class B felony1 and criminal confinement as a Class D felony2 as well as

the sixteen-year executed sentence imposed thereon. We affirm.

Issues [2] Gibson raises two issues for our review:

I. Whether there is sufficient evidence to support his aggravated battery and criminal confinement convictions; and

II. Whether his sixteen-year executed sentence is inappropriate.

Facts and Procedural History [3] In July 2012, John Taulbee, his wife, Joyce, and his son, J.D., purchased

pseudoephedrine on the same day. The family’s purchases led to an

investigation by the Madison Police Department. During the investigation,

Detective Jonathan Simpson learned that the Taulbees purchased the

pseudoephedrine for Darci McFadden, who is Gibson’s stepdaughter. Based

on information received from the Taulbees, Madison Police Department

officers went to a home where methamphetamine was being manufactured.

The officers arrested the occupants of the house, including Darci and her

1 Ind. Code § 35-42-2-1.5 (1997).

2 Ind. Code § 35-42-3-3 (2006).

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 2 of 9 boyfriend, Christopher Peel. All members of the Taulbee family testified

pursuant to subpoenas at Peel’s trial. Peel was convicted of manufacturing

methamphetamine and sentenced to thirty years.

[4] On August 5, 2013, Taulbee and Brandon Cope were standing on a street

outside talking on opposite sides of a car while Cope was watching his three-

year-old son. Suddenly, Gibson walked up behind Taulbee, grabbed Taulbee’s

ponytail, and struck Taulbee in the head three or four times. Taulbee then ran

around the front of the car where Dustin McFadden, Darci’s brother, knocked

Taulbee to the pavement. While Taulbee was lying on the ground, both Gibson

and McFadden kicked Taulbee in the face. The two men told Taulbee, “[w]e

said we’d get you and we got you.” Tr. p. 139. Darci, who had arrived on the

scene at this point, yelled, “that’s what snitches get.” Id. at 295. Someone

yelled “cops,” and Gibson and McFadden fled. Id. at 139.

[5] Taulbee was transported by ambulance to the local hospital. As a result of the

beating, Taulbee suffered a fractured nose, eye trauma, and a subdural

hematoma, which is bleeding in the brain. He was transferred by helicopter to

the University of Louisville Hospital so that he could have immediate surgery if

the hematoma became life-threatening. Taulbee was discharged from the

hospital the following day when the hematoma did not worsen. Taulbee has

suffered from blurred vision since the beating to the point that he cannot obtain

his commercial driver’s license.

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 3 of 9 [6] A jury convicted Gibson of aggravated battery as a Class B felony and criminal

confinement as a Class D felony. At the sentencing hearing, the State presented

evidence that during phone calls while in jail after his arrest, Gibson referred to

Taulbee as, among other things, a “f***ing dumbs**t,” a “f***ing p***y a**

b***h,” and a “snitch’n a** little punk.” State’s Exhibit 40, p. 1. The trial

court found the following aggravating factors: 1) the motive for battering

Taulbee was retaliation for his testimony as a subpoenaed State’s witness in a

drug trial, which is an attack on the court system and has the effect of

discouraging potential witnesses from testifying; 2) Gibson demonstrated no

remorse as evidenced by the derogatory statements Gibson made about Taulbee

while Gibson was incarcerated, which indicated that Gibson was likely to

further injure Taulbee if given the opportunity to do so; 3) the crime of violence

was committed in front of a young child; and 4) Gibson has a significant

criminal history, which includes several misdemeanor convictions as well as

one felony conviction. The trial court found no mitigating factors and

sentenced Gibson to sixteen years for the Class B felony and two and one-half

years for the Class D felony. The trial court ordered the sentences to run

concurrently for a total executed sentence of sixteen years. Gibson appeals his

convictions and sentence.

Discussion and Decision I. Sufficiency of the Evidence [7] Gibson argues that there is insufficient evidence to support his convictions. In

reviewing the sufficiency of the evidence, this Court will affirm the convictions Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 4 of 9 if the probative evidence and reasonable inferences to be drawn therefrom could

allow a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). On appeal, we do

not reweigh the evidence or judge the credibility of witnesses. Fields v. State,

679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the evidence and

reasonable inferences supporting the judgment to determine whether the trier of

fact could reasonably reach the conclusion. Id. If there is substantial evidence

of probative value supporting a conviction, this Court will not set the judgment

aside. Id.

A. Aggravated Battery

[8] Gibson first contends there is insufficient evidence to support his aggravated

battery conviction. To convict Gibson of aggravated battery as a Class B

felony, the State had to prove that Gibson knowingly or intentionally inflicted

injury on Taulbee that created protracted loss or impairment of the function of a

bodily member or organ. See Indiana Code § 35-42-2-1.5. Gibson’s sole

contention is that the State failed to prove that the “injury inflicted on Taulbee

created a protracted . . . impairment . . . .” Appellant’s Br. pp. 11-12.

[9] This Court has previously explained that protracted means “to draw out or

lengthen in time,” Neville v. State, 802 N.E.2d 516, 518 (Ind. Ct. App. 2004),

trans. denied, and that impairment means the “fact or state of being damaged,

weakened, or diminished.” Fleming v. State, 833 N.E.2d 84, 89 (Ind. Ct. App.

2005). In Mann v. State¸ 895 N.E.2d 119, 122 (Ind. Ct. App. 2008), this Court

held that the victim experiencing “muffled hearing” for two months after the Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 5 of 9 attack met the statutory definition of protracted impairment and provided

sufficient evidence to support Mann’s aggravated battery conviction. Similarly,

Taulbee experiencing blurred vision for fifteen months after the attack meets the

statutory definition of protracted impairment and provides sufficient evidence

to support Gibson’s conviction. Furthermore, his injury was severe enough to

prevent him from obtaining a commercial driver’s license.

B. Criminal Confinement

[10] Gibson also challenges the sufficiency of the evidence to support his criminal

confinement conviction as an accomplice. To convict Gibson of criminal

confinement as a Class D felony, the State had to prove that Gibson knowingly

or intentionally confined Taulbee without Taulbee’s consent. See Ind. Code §

35-42-3-3. To confine means to substantially interfere with the liberty of a

person. Ind. Code § 35-42-3-1 (1977). The essence of the offense is the

restriction of the person’s movement and liberty against his will. Cornelius v.

State, 508 N.E.2d 548, 549 (Ind. 1987).

[11] The accomplice liability statute, Indiana Code Section 35-41-2-4 (1977), does

not set forth a separate crime, but merely provides a separate basis of liability

for the crime. Hampton v. State, 719 N.E.2d 803, 807 (Ind. 1999). Therefore, an

individual who aids another person in committing a crime is as guilty as the

actual perpetrator. Id. The particular facts and circumstances of each case must

be considered in determining whether a person participated in the commission

of an offense as an accomplice. Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct.

App. 2014). The following four factors are relevant to show that one acted as Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 6 of 9 an accomplice to a crime: 1) presence at the scene of the crime; 2)

companionship with another at the scene of the crime; 3) failure to oppose the

commission of the crime; and 4) course of conduct before, during, and after the

occurrence of the crime. Id. at 1004.

[12] Here, the evidence reveals that Gibson was present when McFadden knocked

Taulbee to the ground and restricted Taulbee’s liberty and movement against

his will. Gibson did not oppose the confinement. Rather, while Taulbee was

confined on the ground, Gibson kicked Taulbee in the head. Gibson’s conduct

before, during, and after the criminal confinement supports his conviction of

criminal confinement as an accomplice.

II. Inappropriate Sentence [13] Gibson next argues that his sentence is inappropriate. Article VII, section 4 of

the Indiana Constitution authorizes independent appellate review of sentences.

Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is implemented

through Indiana Appellate Rule 7(B), which states that we may revise a

sentence, even if authorized by statute, if after due consideration of the trial

court’s decision, the sentence is inappropriate in light of the nature of the

offense and the character of the offender. In determining whether a sentence is

inappropriate, this Court looks at 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. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 7 of 9 Gibson bears the burden on appeal of persuading us that his sentence is

inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[14] As to the nature of the offense, Gibson severely beat Taulbee for testifying

pursuant to a subpoena against Gibson’s stepdaughter’s boyfriend. We agree

with the trial court that this was an attack upon the criminal justice system. In

addition, Taulbee was so badly beaten that he has had blurred vision for over a

year and was unable to obtain a commercial driver’s license as a result. Lastly,

the beating occurred in the presence of a three-year-old child.

[15] As to the character of the offender, we note that the significance of a criminal

history in assessing a defendant’s character is based on the gravity, nature, and

number of prior offenses in relation to the current offense. Moss v. State, 13

N.E.3d 440, 447 (Ind. Ct. App. 2014), trans. denied. Here, Gibson has an

extensive criminal history that includes one felony and several misdemeanor

convictions, including convictions for resisting law enforcement and battery

resulting in bodily injury. Clearly, Gibson has not reformed his criminal

behavior despite his numerous contacts with the criminal justice system. In

addition, after the beating, Gibson continued to make derogatory comments

about Taulbee. We agree with the trial court that these comments demonstrate

Gibson’s lack of remorse for the beating and indicate Gibson is likely to further

harm Taulbee given the opportunity to do so. Considering the nature of the

offense and Gibson’s character, Gibson has not met his burden of proving that

his sentence is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 8 of 9 [16] Affirmed.

[17] Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 9 of 9