Henry Gibson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2015
• Docket: 49A05-1502-CR-70
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Sep 24 2015, 10:02 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 Karen Celestino-Horseman Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Henry Gibson, September 24, 2015

Appellant-Defendant, Court of Appeals Cause No. 49A05-1502-CR-70 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Judge Cause No. 49G06-1408-F3-40935 Appellee-Plaintiff.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 1 of 10 STATEMENT OF THE CASE

[1] Appellant-Defendant, Henry Gibson (Gibson), appeals his sentence for Count

I, aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5(2); Count II,

battery by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(b)(1);

and Count III, carrying a handgun without a license, a Class A misdemeanor,

I.C. § 35-47-2-1.

[2] We affirm.

ISSUE

[3] Gibson raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion by failing to specifically identify and balance the

aggravating and mitigating circumstances.

FACTS AND PROCEDURAL HISTORY

[4] Gibson lived in the house next to Tabitha Parr (Parr) for about two years in

Marion County, Indianapolis, Indiana. At the time, Parr was renting out her

vehicle on a daily basis to Gibson’s friend, Derrick Hart (Hart). On more than

one occasion, Parr had requested Hart to return her vehicle and when Hart did

not concede to her requests, Parr’s girlfriend contacted the police and reported

the vehicle stolen. On August 21, 2014, using Parr’s vehicle, Hart dropped his

girlfriend off at work and then drove and parked the vehicle outside an

apartment building located on Michigan and Lasalle to hang out with his

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 2 of 10 friends. At around 2:00 p.m., Hart saw a police vehicle stop by Parr’s vehicle

and the officer informed Hart that the vehicle had been reported stolen. Parr’s

vehicle was then impounded and towed. Because he had paid to use the vehicle

that day, Hart texted Parr questioning her about the vehicle. In a phone

conversation, Hart demanded a refund on his money and also made several

threats. After work, instead of going home, Parr drove to her longtime friends’

house—Larry Tindle (Tindle) and John Carr (Carr)—who lived on 3741 East

Market Street, Marion County, Indianapolis, Indiana. During that time, Hart

was dating Carr’s daughter, and he lived at Tindle’s and Carr’s house. Parr had

hoped that Carr would calm Hart down. At some point, Parr texted Hart and

informed him that she was at Tindle’s and Carr’s house.

[5] When Hart arrived, Carr answered the door. According to Carr, Hart yelled at

Parr that he was “going to kill her” and was going to “beat the crap out of

[Parr] if she didn’t come out [] and fight like a man.” (Transcript p. 76). Carr

defended Parr by informing Hart that he was not going to harm Parr, and he

requested Hart to leave. Thereafter, Hart returned to Gibson’s house and

narrated the vehicle situation to Gibson. Gibson was upset to hear what had

transpired, and so he asked Hart to show him where Parr was. When Gibson

and Hart arrived at Tindle’s and Carr’s house, both walked to the front steps

and drew their guns. Since Parr needed a ride home, Carr offered to drive her.

The moment Carr and Parr opened the front door, Hart and Gibson started

shooting. Carr blocked the shots with his right arm and two bullets hit Carr’s

right elbow. Parr ran back inside the house and Carr closed the door.

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 3 of 10 Approximately six more bullets flew through the closed door, and one of them

hit Carr in the buttocks. Gibson and Hart took off running down the street. On

their way home, Gibson discarded his handgun in a field.

[6] Carr was taken to the hospital and was admitted for about four days. Carr’s

elbow was shattered and had to be replaced. The bullet that hit Carr’s buttocks

was fused in his femoral artery and could not be removed from his body. As a

result of the shooting, Carr continued to feel numbness and pain in his leg, as

well as pain in his elbow. Carr also had to use a cane for walking.

[7] On August 27, 2014, the State filed an Information, charging Gibson with

Count I, aggravated battery, a Level 3 felony; Count II, battery by means of a

deadly weapon, a Level 5 felony; Count III, carrying a handgun without a

license, a Class A misdemeanor; and Part II of Count III, carrying a handgun

without a license, a Level 5 felony. A two-day joint jury trial for Gibson and

Hart was held on January 13-14, 2015. 1 At the close of the evidence, the jury

found Gibson guilty as charged. The State subsequently dismissed Part II of

Count III, carrying a handgun without a license. On January 29, 2015, the trial

court held a joint sentencing hearing for Gibson and Hart. At the close of the

1 Hart appeals separately and is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 4 of 10 evidence, the trial court merged Count II into Count I, and it thereafter

sentenced Gibson to fifteen years in the Department of Correction (DOC). As

for Count III, the trial court sentenced Gibson to one year. Gibson’s sentences

were to run concurrently.

[8] Gibson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION2

[9] Gibson contends that the trial court abused its discretion by failing to expressly

identify and balance the aggravating and mitigating circumstances. “A trial

court’s sentencing determination is within its discretion, and we will reverse

only for an abuse of that discretion.” Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007), clarified on reh’g by 875 N.E.2d 218 (Ind. 2007). When sentencing a

defendant for a felony, the trial court must enter a sentencing statement

“including reasonably detailed reasons or circumstances for imposing a

particular sentence.” Id. Even if the trial court has abused its discretion—by,

for example, neglecting to enter a sentencing statement—we will remand for

2 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence investigation (PSI) report must be excluded from public access. However, in this case, the information contained in the PSI report “is essential to the resolution” of Gibson’s claims on appeal. Ind. Admin. Rule 9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent necessary to resolve the appeal.

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 5 of 10 resentencing only “if we cannot say with confidence that the trial court would

have imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Id. at 491.

[10] We initially note that the trial court’s failure to use the word “aggravator” is not

fatal to its sentencing statement. Lewis v. State, 31 N.E.3d 539, 543 n.7 (Ind. Ct.

App. 2015). At Gibson’s sentencing, without specifically proclaiming that the

following were aggravators, the trial court noted in its oral sentencing statement

the nature of Gibson’s crimes, Carr’s injuries, Gibson’s extensive criminal

history, and his addiction to drugs.

[11] Generally, the “nature and circumstances” of a crime is a proper aggravating

circumstance. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (quoting

Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)). Even if the trial court did not

state that Gibson’s crimes were aggravating factors, the trial court’s sentencing

statement was focused on pointing out the nature of the attack on Carr and the

risk of injury that would have resulted from the shooting. Specifically, the trial

court stated,

I am just absolutely staggered by the ability of anybody to fire just indiscriminately into a house in which you know there [were] individuals inside. You know, you’re not firing up in the air. You’re not firing [] into the ground to make a point. You’re actually firing to the point where the bullets go through the door and could have hit anybody that had moved, and you knew people that were there.

**** [Somebody [] could have been hit by those bullets that weren’t (sic) part of your argument, or weren’t (sic) part of your beef. And you

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 6 of 10 didn’t really care. You just shot it up because you could.

**** But you can’t ignore six bullet holes through a door, and you can’t ignore it in somebody’s body. [] And no matter what your argument was, it wasn’t worth that. So, my suggestion to you is you stay away from the drugs or anything else going [] in the [DOC]. You go out and you get yourself some kind of degree. Either in certification in terms of doing something where you’re worthwhile and then we can talk about community corrections. But there’s no way I’m putting you in community corrections or giving you anything less than pretty close to the maximum [], because I think shooting through a house with multiple people inside for fifteen years is frankly nothing by comparison.

(Sent. Tr. pp. 33-34, 54).

[12] Further, we note that the serious nature of a victim’s injuries is a proper

aggravator. See McCann, 749 N.E.2d at 1120. In the instant case, the trial court

noted that Carr was still carrying a bullet inside his body, and that Gibson was

lucky that the bullet had not severed the artery. In addition, the record shows

that Carr’s elbow was shattered from the shooting and had to be replaced.

[13] With respect to Gibson’s criminal history, we have held that a defendant’s

criminal history is a valid aggravating circumstance. See Deloney v. State, 938

N.E.2d 724, 732 (Ind. Ct. App. 2010), trans. denied. In the instant case, the trial

court noted Gibson had not led a law-abiding life leading up to the immediate

offenses. Gibson’s juvenile history included seven true findings, including two

batteries, truancy, intimidation, public intoxication, and criminal recklessness.

With regards to Gibson’s adult criminal history, the trial court observed that

Gibson had five felony convictions. Furthermore, the record shows that in Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 7 of 10 2007, Gibson violated his probation for failing to report his accurate address,

attend counselling, or obtain employment. In 2008, Gibson was convicted and

sentenced to four years in the DOC for multiple charges, including armed

robbery, criminal confinement, intimidation, pointing a firearm, and resisting

arrest. Gibson was placed on probation for six months which he violated in

2011, and was therefore sentenced to one year in the DOC. Again, in 2013,

Gibson violated his probation by contacting victims of a domestic battery case.

Here, we conclude the trial court properly relied on Gibson’s criminal history as

an aggravating factor.

[14] Lastly, we note that a history of substance abuse may constitute a valid

aggravating factor. See Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App.

2002), trans. denied. In this case, the trial court noted that Gibson started using

drugs at the age of fourteen and he would use “two blunts a day.” (Sent. Tr. p.

46).

[15] Gibson also contends that the trial court abused its discretion when it failed to

identify as mitigating that both of his parents had arrest records. Also, Gibson

argues that the trial court failed to consider that his incarceration would have

posed hardship to his “two children, ages eight and nine.” (Appellant’s Br. p.

7). It is well established that the determination of mitigating circumstances is

within the trial court’s discretion. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct.

App. 2007), trans. denied. The trial court is not obligated to accept the

defendant’s argument as to what constitutes a mitigating factor, and a trial court

is not required to give the same weight to proffered mitigating factors as does a

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 8 of 10 defendant. Id. A trial court does not err in failing to find a mitigating factor

where that claim is highly disputable in nature, weight, or significance. Id. An

allegation that a trial court abused its discretion by failing to identify or find a

mitigating factor requires the defendant on appeal to establish that the

mitigating evidence is significant and clearly supported by the record. Id.

[16] With respect to Gibson’s first proffered mitigator, the fact his parents were

arrested was documented in the PSI. The trial court did not recognize that

circumstance at Gibson’s sentencing hearing, but acknowledged that Gibson

had a poor upbringing. Here, we find that it was within the trial court’s

discretion to determine if Gibson’s parents’ arrest records was a separate

mitigating circumstance warranting a reduced sentence. See Anglemyer, 868

N.E.2d at 493 (stating that it “is the court’s call” to determine whether a

proposed mitigating circumstance is significant). Turning to Gibson’s second

proffered mitigating factor, the record shows that although Gibson had a

relationship with his children, he had failed to pay child support in an amount

close to $5,000. Moreover, Gibson had been incarcerated numerous times since

his children were born, and his imprisonment would not have caused an undue

burden to his children. As such, the trial court properly refused to recognize

Gibson’s second proffered mitigator.

[17] Finally, with respect to Gibson’s argument that the trial court failed to properly

balance the mitigating and aggravating circumstances, our Indiana Supreme

Court has instructed that our review of sentencing for an abuse of discretion

does not include a review of the relative weight or value assigned to mitigating

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 9 of 10 and aggravating factors. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

Here, we find that Gibson’s argument is not available for appellate review

because he is merely challenging the weight that the trial court assigned to the

factors.

[18] With all of the above in mind, we conclude that the trial court did not abuse its

discretion when sentencing Gibson. Here, the trial court properly demonstrated

that the aggravating and mitigating circumstances were weighed to determine

that the aggravators outweighed the mitigators. Therefore, we find that the trial

court properly sentenced Gibson.

CONCLUSION

[19] Based on the foregoing, we conclude that trial court did not abuse its discretion

by failing to expressly identify and balance the aggravating and mitigating

circumstances.

[20] Affirmed.

[21] Brown, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015 Page 10 of 10