Gregory B. Kimbrough v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 1, 2018
• Docket: 18A-CR-470
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 01 2018, 8:37 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gregory B. Kimbrough, August 1, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-470 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1709-F5-129

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018 Page 1 of 5 [1] Gregory Kimbrough appeals the sentence he received after pleading guilty to

Level 6 felony domestic battery and Class A misdemeanor invasion of privacy,

arguing that the sentence is inappropriate in light of the nature of the offenses

and his character. Finding no error, we affirm.

[2] On September 23, 2017, Kimbrough was with his wife at an apartment in

Lafayette. Their two children, who were under the age of sixteen, were also

present in the apartment. A protective order was in place at the time that

prohibited Kimbrough from having contact with his wife. At some point,

Kimbrough and his wife got into an argument, and his wife started to leave the

apartment when Kimbrough grabbed her by the neck and tried to pull her back

inside.

[3] On September 28, 2017, the State charged Kimbrough with Level 5 felony

domestic battery, Level 6 felony domestic battery, Level 6 criminal

confinement, Class A misdemeanor domestic battery, and Class A

misdemeanor invasion of privacy. On January 12, 2018, Kimbrough pleaded

guilty to Level 6 felony domestic battery and Class A misdemeanor invasion of

privacy in exchange for the dismissal of the other charges and another pending

case.

[4] On January 24, 2018, Kimbrough filed a statement of sentencing

considerations, which included the results of a neuropsychological evaluation.

The evaluation stated that Kimbrough suffers from severe mental health issues,

including paranoid schizophrenia and psychotic symptoms, but that he has

Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018 Page 2 of 5 refused treatment for these problems because he did not like the medications

involved. It also stated that he has poor control over anger and aggression.

[5] A sentencing hearing took place on January 25, 2018. During the hearing,

Kimbrough testified about the physical and mental impact that he has suffered

following a work accident that included him being electrocuted. Kimbrough’s

wife testified that Kimbrough is a wonderful husband and father but that he has

not been willing to address his mental health problems, which overshadow their

relationship. She also testified that she was the victim of Kimbrough’s prior

strangulation conviction, blaming Kimbrough’s mental health issues and stating

that he would continue to have problems with the criminal justice system if he

did not receive help for those issues.

[6] The trial court found that Kimbrough’s mental health constituted a mitigating

circumstance, but was far outweighed by the aggravating circumstance of his

prior criminal history and probation violations. The trial court sentenced him

to concurrent terms of two and one-half years for the domestic battery

conviction and one year for the invasion of privacy conviction, for an aggregate

sentence of two and one-half years’ imprisonment, with six months suspended

to probation.

[7] Kimbrough’s sole argument on appeal is that his sentence is inappropriate in

light of the nature of the offenses and his character pursuant to Indiana

Appellate Rule 7(B). In considering an argument under Rule 7(B), we must

“conduct [this] review with substantial deference and give ‘due consideration’

Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018 Page 3 of 5 to the trial court’s decision—since the ‘principal role of [our] review is to

attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’

sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

omitted).

[8] Kimbrough was convicted of Level 6 felony domestic battery. For this

conviction, he faced a sentence of six months to two and one-half years, with an

advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court

imposed a maximum sentence of two and one-half years. Kimbrough was also

convicted of Class A misdemeanor invasion of privacy. For this conviction, he

faced a sentence of up to one year. I.C. § 35-50-3-2. The trial court imposed a

maximum sentence of one year. The trial court ordered the sentences to run

concurrently, for an aggregate term of two and one-half years, with six months

suspended to probation.

[9] With respect to the nature of the offenses, Kimbrough engaged in an argument

with his wife, in the presence of their young children, when his wife tried to

leave the apartment. Kimbrough grabbed her by the neck and prevented her

from leaving. He did this in violation of a protective order.

[10] With respect to Kimbrough’s character, Kimbrough has a long history with the

criminal justice system. He has multiple felony convictions, including domestic

battery, and multiple misdemeanors. He has violated probation numerous

times, and he was on probation when he committed the instant offenses. He

Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018 Page 4 of 5 has previously violated the protective order. Kimbrough also has a history of

using illegal substances. Kimbrough contends that his decision to plead guilty

and his mental health issues should mitigate problems with his character. Yet

Kimbrough has refused appropriate treatment for them, and nothing in the

record indicates that he would make a serious attempt at treatment now. The

trial court found that Kimbrough’s mental health issues, coupled with his

criminal record, make him a dangerous individual.

[11] Under these circumstances, we find that the sentence imposed by the trial court

is not inappropriate in light of the nature of the offenses and Kimbrough’s

character.

[12] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018 Page 5 of 5