FILED Jun 28 2023, 8:53 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Nathaniel C. Henson Theodore E. Rokita Devon DeMarco Attorney General of Indiana Rhame, Elwood & McClure, PC Evan Matthew Comer Portage, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jason Gibbs, June 28, 2023 Appellant-Defendant Court of Appeals Case No. 22A-CR-1041 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Michael A. Fish, Appellee-Plaintiff. Judge Trial Court Cause No. 64D01-1604-F6-3024
Opinion by Judge Pyle
Chief Judge Altice and Judge Riley concur.
Pyle, Judge.
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 1 of 19 Statement of the Case
[1] Jason Gibbs (“Gibbs”) appeals his convictions, following a jury trial, for two
counts of Class A felony child molesting,1 two counts of Class B felony incest,2
one count of Level 4 felony incest,3 two counts of Class C felony sexual
misconduct with a minor,4 and two counts of Level 5 felony sexual misconduct
with a minor.5 Gibbs also appeals the aggregate sentence imposed for his nine
felony convictions. Gibbs argues that the trial court abused its discretion when
it denied his motion for a mistrial and that his aggregate sentence is
inappropriate. Concluding that the trial court did not abuse its discretion when
it denied Gibbs’ motion for a mistrial and that his aggregate sentence is not
inappropriate, we affirm Gibbs’ convictions and sentence.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion when it denied Gibbs’ motion for a mistrial.
2. Whether Gibbs’ sentence is inappropriate.
1 IND. CODE § 35-42-4-3(a)(1) (2007). 2 I.C. § 35-46-1-3(a) (1994). 3 I.C. § 35-46-1-3(a) (2014). 4 I.C. § 35-42-4-9(b)(1) (2007). 5 I.C. § 35-42-4-9-(b)(1)(2014).
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 2 of 19 Facts [1] The facts most favorable to the judgment reveal that Gibbs and Michelle
Howisen (“Mother”) are the parents of: (1) Victoria (“Victoria”), who was
born in April 1995, when Mother was fifteen years old; (2) Jason, Jr., who was
born in April 1996; (3) Steven, who was born in October 1997; (4) K.G.
(“K.G.”), who was born in October 1998 and is one of two victims in this case;
(5) N.G. (“N.G.”), who was born in November 1999 and is the second victim
in this case; and (6) Stephanie, who was born in June 2002. Gibbs and Mother
have been married twice and divorced twice. Gibbs also has four or five
additional children with two other women. One or more of those children were
born while Gibbs was married to Mother. The three youngest of those children
were born in 2005, 2010, and 2012 and have the same mother.
[2] In late October or early November 2011, Gibbs, Mother, and their six children
moved to a house in Wheeler, Indiana (“the Wheeler house”). K.G. was
thirteen years old, and N.G. was twelve years old. Shortly after moving into
the Wheeler house, Gibbs took K.G. shopping for bras and underwear. While
K.G. tried on bras in the dressing room, Gibbs placed his hands on K.G.’s
breasts, explaining that he was determining what bra cup size she needed.
Gibbs also told K.G. to try on thong underwear so that he could see how the
underwear looked on her.
[3] Also, while the family lived in the Wheeler house, Gibbs went into K.G.’s
bedroom in the middle of the night, woke her up, and took her into his
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 3 of 19 bedroom.6 Gibbs placed K.G. on his bed, rubbed her thighs and her vagina,
and told her that Mother no longer “showed [him] any love or affection.” (Tr.
Vol. 3 at 33). Thereafter, Gibbs placed his finger between the lips of K.G.’s
vagina and “jerk[ed] off” with his other hand until he ejaculated. (Tr. Vol. 3 at
34). Gibbs referred to the act of placing his finger between K.G.’s vagina lips
while he masturbated as the “easy way” (“the easy way”). (Tr. Vol. 3 at 38).
Other incidents of the easy way occurred for three years.
[4] When K.G. turned fourteen years old and the family still lived at the Wheeler
house, Gibbs began placing his penis between the lips of her vagina while he
“hump[ed] forward and back.” (Tr. Vol. 3 at 39). Gibbs referred to this act as
the “hard way” (“the hard way”). (Tr. Vol. 3 at 41). Other incidents of the
hard way occurred for two years. After Gibbs had inappropriately touched
K.G., either the easy way or the hard way, Gibbs often rewarded K.G. with
body piercings, tattoos, hair dyes, electronics, and shopping trips.
[5] In addition, on another occasion, while the family lived at the Wheeler house,
Gibbs went into the bathroom while K.G. was showering and told her that he
wanted her to shave her pubic hair because “he like[d] it bald.” (Tr. Vol. 3 at
36). After K.G. had shaved her pubic hair, Gibbs “rub[bed] against [K.G.’s]
vagina lips with his fingers,” “jerked off[,]” and ejaculated onto the bathroom
floor. (Tr. Vol. 3 at 37).
6 Mother regularly slept on the living room couch.
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 4 of 19 [6] Gibbs also began sexually abusing N.G. while the family lived in the Wheeler
house. On one occasion, while N.G. was taking a shower, Gibbs walked into
the bathroom, “whipped the [shower] curtain open[,]” and stared at N.G. (Tr.
Vol. 3 at 206). N.G. got out of the shower and got dressed. As N.G. started to
walk out of the bathroom, Gibbs took her into his bedroom, sat on the bed with
her, told her that she needed to shave her pubic area, and told her to pull down
her pants. When N.G. refused to pull down her pants, Gibbs pulled them down
to her knees, “spread the lips of [her] vagina open,” “show[ed] her the middle
part[,]” “told her that [was] [her] clit[,]” and began “touching it.” (Tr. Vol. 3 at
208-09). When N.G. began crying, Gibbs pushed her down on her bed, “stuck
his index finger inside of [her,]” and asked her if she liked what he was doing.
(Tr. Vol. 3 at 210). N.G. responded that it hurt and that it “fe[lt] like [she]
ha[d] to pee[.]” (Tr. Vol. 3 at 211.) Gibbs also told N.G. that she had “big
boobs” for her age and “lift[ed] them up[.]” (Tr. Vol. 3 at 211).
[7] On another occasion, shortly before St. Patrick’s Day, N.G. asked Gibbs to
purchase her a green shirt to wear to school. On the way to purchase the shirt,
Gibbs stuck his hand down N.G.’s pants and attempted to insert his finger in
her vagina. When N.G. squeezed her thighs together, Gibbs asked her “what
the fuck [was] wrong with [her]” and told her that she was not getting “a
fucking shirt[.]” (Tr. Vol. 3 at 213).
[8] One night, while Mother was sleeping in an upstairs bedroom, and N.G. was
sleeping on the living room couch, Gibbs got on the couch with N.G. and
“spooned” her. (Tr. Vol. 3 at 2016). N.G. felt Gibbs’ hard penis touching her
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 5 of 19 buttocks. Gibbs attempted to stick his hand in N.G.’s pants but left the living
room when N.G. told him that she heard Mother coming down the stairs. On
another occasion, Gibbs went into N.G.’s bedroom while she was sleeping,
squeezed her breasts, stuck his hand under her underpants, and rubbed her
vagina with two of his fingers.
[9] In addition, one Wednesday evening, while N.G. was cleaning Gibbs’ bedroom
before going to church, Gibbs told her that she was “not going to fucking
church” that night. (Tr. Vol. 3 at 222). Gibbs placed N.G. on the bed and
removed her pants and underwear. When N.G. told Gibbs to stop because she
did not want to do that, Gibbs slapped N.G., leaving his fingerprints on her
face. Gibbs then inserted his middle finger in N.G.’s vagina and moved his
finger around. When N.G. told Gibbs to stop, Gibbs told N.G. to “stop with
[her] bitch-ass attitude[.]” (Tr. Vol. 3 at 223). N.G. asked Gibbs why he was
doing that to her, and Gibbs responded that her “mom wasn’t giving [him]
any.” (Tr. Vol. 3 at 225). When N.G. told Gibbs that she was going to tell
Mother what he had been doing to her, Gibbs responded, “your mom’s a
bitch.” (Tr. Vol. 3 at 224). Gibbs further told N.G. that Mother did not have
money to support the family and that if N.G. wanted to be hungry, then that
was on her. Gibbs sexually abused N.G. every few months for three years.
[10] At some point in 2013, Gibbs and Mother separated, and Gibbs moved to a
house in Portage (“the Portage house”). Gibbs continued to sexually abuse
K.G. when she visited him at the Portage house. One morning in 2014, after
Gibbs had just finished doing it the hard way, Gibbs was sitting at the kitchen
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 6 of 19 table in his bathrobe, and K.G. was standing naked between the kitchen and the
living room. As Gibbs and K.G. were talking, K.G. heard someone entering
the house. K.G. ran to the bedroom as her aunt (“aunt”) and uncle (“uncle”)
walked in the back door. When K.G. returned to the kitchen, she had a sheet
draped around her. K.G. told aunt and uncle that Gibbs had hurt her and that
she wanted to go home.
[11] In November 2014, K.G. told Mother that Gibbs had been sexually abusing her
for the previous three years. During their conversation, Gibbs arrived at
Mother’s home with the electronic device that he had promised K.G. as a
reward for doing it the easy way at the Portage house. Gibbs, Mother, and
K.G. went to Gibbs’ car to talk privately. Gibbs asked K.G. if she had told
Mother what had been happening. K.G. responded that she had, and Gibbs
apologized to Mother and told her that he had “made a mistake, [he had]
touched the girls[.]” (Tr. Vol. 3 at 89).
[12] The State initially charged Gibbs with three felony counts in March 2016.
Following several delays in the case, the State charged Gibbs with ten felony
counts in a January 2022 second amended information. Specifically, the State
charged Gibbs with: (1) Class A felony child molesting for knowingly or
intentionally penetrating K.G.’s sex organ with his finger between November 8,
2011 and October 26, 2012, when K.G. was under fourteen years old and Gibbs
was at least twenty-one years old; (2) Class A felony child molesting for
knowingly or intentionally penetrating N.G.’s sex organ with his finger between
November 8, 2011 and November 7, 2013, when N.G. was under fourteen
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 7 of 19 years old and Gibbs was at least twenty-one years old; (3) Class B felony incest
for knowingly or intentionally engaging in deviate sexual conduct with K.G.
between November 8, 2011 and June 30, 2014, when Gibbs knew that K.G.
was related to him biologically as a child and was less than sixteen years old,
and Gibbs was eighteen years of age or older; (4) Class B felony incest for
knowingly or intentionally engaging in deviate sexual conduct with N.G.
between November 8, 2011 and June 30, 2014, when Gibbs knew that N.G.
was related to him biologically as a child and was less than sixteen years old,
and Gibbs was eighteen years of age or older; (5) Level 4 felony incest for
knowingly or intentionally engaging in deviate sexual conduct with K.G.
between July 1, 2014 and October 23, 2014, when he knew that K.G. was
related to him biologically as a child and was less than sixteen years old, and
Gibbs was eighteen years of age or older; (6) Level 4 felony incest for
knowingly or intentionally engaging in deviate sexual conduct with N.G.
between July 1, 2014 and October 23, 2014, when he knew that N.G. was
related to him biologically as a child and was less than sixteen years old, and
Gibbs was eighteen years of age or older; (7) Class C felony sexual misconduct
with a minor for knowingly or intentionally performing or submitting to any
fondling or touching of either K.G. or himself with the intent to arouse or
satisfy the sexual desires of either K.G. or himself between October 27, 2012
and June 30, 2014, when K.G. at least fourteen years old but less than sixteen
years old and Gibbs was at least twenty-one years old; (8) Class C felony sexual
misconduct with a minor for knowingly or intentionally performing or
submitting to any fondling or touching of either N.G. or himself with the intent Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 8 of 19 to arouse or satisfy the sexual desires of either N.G. or himself between
November 8, 2012 and June 30, 2014, when N.G. was at least fourteen years
old but less than sixteen years old and Gibbs was at least twenty-one years old;
(9) Level 5 felony sexual misconduct with a minor for knowingly or
intentionally performing or submitting to any fondling or touching of either
K.G. or himself with the intent to arouse or satisfy the sexual desires of either
K.G. or himself between July 1, 2014 and October 23, 2014, when K.G. was at
least fourteen years old but less than sixteen years old and Gibbs was at least
twenty-one years old; and (10) Level 5 felony sexual misconduct with a minor
for knowingly or intentionally performing or submitting to any fondling or
touching of either N.G. or himself with the intent to arouse or satisfy the sexual
desires of either N.G. or himself between July 1, 2014 and October 23, 2014
when N.G. was at least fourteen years old but less than sixteen years old, and
Gibbs was at least twenty-one years old.
[13] At Gibbs’ March 2022 five-day trial, the trial court instructed the jury as
follows:
PRELIMINARY INSTRUCTION #11
* * *
Occasionally, the Court may strike evidence from the record after you have already seen or heard it. You must not consider such evidence in making your decision.
Your verdict should be based only on the evidence admitted and the instructions on the law. Nothing that I say or do is intended to recommend what facts or what verdict you should find.
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 9 of 19 (App. Vol. 3 at 23).
[14] Also, at trial, the jury heard the facts as set forth above during the testimony of
then twenty-three-year-old K.G. and then twenty-two-year-old N.G. In
addition, Mother testified that Gibbs had always instructed her to shave her
pubic area because “he like[d] no hair.” (Tr. Vol. 3 at 88). Aunt testified that
shortly before trial, Gibbs had telephoned uncle. During the telephone
conversation, aunt had heard Gibbs tell uncle that aunt and uncle had “better
get the story straight.” (Tr. Vol. 3 at 148). Gibbs further told uncle that he
would “make trouble” for aunt and uncle if they did not tell the truth at trial.
(Tr. Vol. 3 at 148).
[15] Victoria also testified at Gibbs’ trial. During direct examination, the State
asked Victoria about her relationship with Gibbs. Victoria testified that she and
Gibbs had initially had a good relationship but that the relationship had
changed. When the State asked Victoria why the relationship with Gibbs had
changed, Victoria responded because “[h]e inappropriately touched me.” (Tr.
Vol. 3 at 109). Gibbs made an oral motion to strike Victoria’s testimony, which
the trial court granted. The trial court also admonished the jury “to disregard
the statement made . . . by the witness” and took a brief recess. (Tr. Vol. 3 at
109). During the recess, Gibbs orally moved for a mistrial. After reviewing
case law, the trial court denied Gibbs’ motion. Thereafter, additional witnesses
testified that afternoon. The following morning, Gibbs renewed his motion for
a mistrial and alternatively asked the trial court to allow him to cross-examine
Victoria regarding the veracity of her statement. The trial court denied Gibbs’
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 10 of 19 motion for a mistrial and told him that he could recall Victoria as a witness
during his case-in-chief.
[16] During closing argument, the State reviewed the elements of each of the ten
charges against Gibbs. The State then pointed to specific testimony from K.G.
and N.G. and argued that the young women’s testimony provided evidence for
each element of the ten charges. During Gibbs’ closing argument, Gibbs’
counsel told the jury that he generally put the elements of the charged offenses
up on a screen and attempted to “knock them out.” (Tr. Vol. 4 at 167). Gibbs’
counsel further explained that he was not going to do that in this case because
Gibbs’ position was “that these allegations [had been] fabricated.” (Tr. Vol. 4
at 167). Specifically, according to Gibbs’ counsel, K.G. and N.G. had
fabricated the allegations against Gibbs because they had been angry at him for
fathering children with other women while he was married to Mother.
[17] The jury convicted Gibbs of both counts of Class A felony child molesting, both
counts of Class B felony incest, one count of Level 4 felony incest, both counts
of Class C felony sexual misconduct with a minor, and both counts of Level 5
felony sexual misconduct with a minor. The jury was unable to reach a verdict
on the remaining Level 4 felony incest charge, and the State dismissed that
charge.
[18] At Gibbs’ March 2022 sentencing hearing, the trial court reviewed Gibbs’ pre-
sentence investigation report, which revealed that Gibbs had two prior felony
convictions for the fraudulent purchase of firearms as well as prior gang
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 11 of 19 membership. Also, at the sentencing hearing, the State argued that Gibbs had
been “convicted of distinct acts with each victim and deserve[d] distinct
sentences for each of those.” (Tr. 4 at 193). Gibbs, on the other hand, argued
that the imposition of multiple sentences would violate the Indiana substantive
double jeopardy clause. According to Gibbs, the “lessers . . . merge[d] into” the
Class A felony child molesting convictions. (Tr. Vol. 4 at 200). Gibbs further
argued that he should be sentenced to the minimum twenty-year sentence for
each of the Class A felony convictions and that the two sentences should run
concurrently with each other for an aggregate sentence of twenty years.
[19] After hearing the parties’ arguments, the trial court found the following
“significant and troubling” aggravating circumstances: (1) K.G. and N.G. were
Gibbs’ biological daughters; (2) Gibbs had prior felony convictions and prior
gang involvement; (3) the harm, injury, loss, or damage suffered by K.G. and
N.G. was significant and greater than the elements necessary to prove the
commission of the offenses as demonstrated by the young women’s trial
testimony; (4) Gibbs had threatened victim N.G. and witnesses aunt and uncle;
and (5) Gibbs had harmed K.G. and N.G. multiple times and abused them over
a significant period of time. (Tr. Vol. 4 at 203). The trial court found as a
mitigating factor that Gibbs had three young children who depended on him for
support. In addition, the trial court rejected Gibbs’ double jeopardy argument
because “the State . . . presented separate incidents proving each of the nine
counts on which the jury convicted [Gibbs]. In some of those counts, there
were multiple occurrences of the crime. The acts happened at different times
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 12 of 19 and in different places. Each count contains distinct characteristics.” (Tr. Vol.
4 at 204).
[20] Thereafter, the trial court sentenced Gibbs to forty-five (45) years for each Class
A felony conviction, eighteen (18) years for each Class B felony conviction,
eleven (11) years for the Level 4 felony conviction, six (6) years for each Class C
felony conviction, and three (3) years for each Level 5 felony conviction. The
trial court further ordered the sentences to run consecutively to each other,
resulting in an aggregate sentence of 155 years.
[21] Gibbs now appeals his convictions and sentence.
Decision [22] Gibbs argues that the trial court abused its discretion when it denied his motion
for a mistrial and that his sentence is inappropriate. We address each of his
contentions in turn.
1. Motion for Mistrial
[23] Gibbs first argues that the trial court abused its discretion when it denied his
motion for a mistrial. The denial of a motion for a mistrial rests within the
sound discretion of the trial court, and we review the trial court’s decision only
for an abuse of that discretion. Brittain v. State, 68 N.E.3d 611, 619 (Ind. Ct.
App. 2017), trans. denied. Further, the trial court is entitled to great deference
on appeal because the trial court is in the best position to evaluate the relevant
circumstances of a given event and its probable impact on the jury. Id. at 620.
To prevail on appeal from the denial of a motion for mistrial, a defendant must Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 13 of 19 demonstrate that the statement in question was so prejudicial that he was
placed in a position of grave peril. Id. The gravity of the peril is measured by
the challenged conduct’s probable persuasive effect on the jury’s decision, not
the impropriety of the conduct. Mickens v. State, 742 N.E.2d 927, 929 (Ind.
2001). Granting a mistrial “is an extreme remedy that is warranted only when
no other action can be expected to remedy the situation.” Kemper v. State, 35
N.E.3d 306, 309 (Ind. Ct. App. 2015), trans. denied. Further, a timely and
accurate admonishment is presumed to cure any error in the admission of
evidence. Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). In addition, “[w]e
presume the jury followed the trial court’s admonishment and that the excluded
testimony played no part in the jury’s deliberation.” Francis v. State, 758 N.E.2d
528, 532 (Ind. 2001). We also presume that the jury followed the trial court’s
instructions. Weisheit v. State, 109 N.E.3d 978, 989 (Ind. 2018), cert. denied.
[24] Here, our review of the record reveals that before the jury heard any evidence,
the trial court read Preliminary Instruction Number 11, which advised the jury
that the trial court might strike evidence from the record after the jury had
already heard it. The trial court further instructed the jury that it must not
consider such evidence in making its decision. During the trial, the trial court
admonished the jury to disregard Victoria’s statement immediately after she had
made it. Both the trial court’s instruction and admonition were clear, and we
find nothing in the record to suggest that the jury did not follow the instruction
and the admonition. As such, we presume that the jury followed the trial
court’s admonition and instruction and conclude that the trial court’s timely
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 14 of 19 admonishment sufficiently dispelled any grave peril and justified the denial of
Gibbs’ motion for a mistrial. We further note that Victoria’s brief statement in
the five-day trial was never mentioned again, and K.G. and N.G. both gave
detailed testimony about the specific and repeated sexual acts that Gibbs had
perpetrated against them. See Szpyrka v. State, 550 N.E.2d 316, 318 (Ind. 1990)
(concluding that where the victims had positively identified the defendant, “it
stretche[d] credulity to believe that the jury could have been swayed to such an
extent that except for the improper remark by the police officer appellant would
have been acquitted.”). The trial court did not abuse its discretion in denying
Gibbs’s motion for a mistrial.7
2. Inappropriate Sentence
[25] Gibbs also argues that his aggregate 155-year sentence is inappropriate. Indiana
Appellate Rule 7(B) provides that we may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Whether we regard a sentence as inappropriate turns on the “culpability
7 Gibbs alternatively argues that the trial court should have allowed him “cross[-]examination into the veracity of Victoria[’s] . . . statement regarding uncharged conduct.” (Gibbs’ Br. 13). However, Gibbs has waived appellate review of this one-sentence argument that is not supported by citation to authority or portions of the record. See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (explaining that a party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record).
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 15 of 19 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).
[26] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, the jury convicted Gibbs of two Class A felonies, two Class B felonies,
one Level 4 felony, two Class C felonies, and two Level 5 felonies. The
sentencing range for a Class A felony is between twenty (20) and fifty (50)
years, and the advisory sentence is thirty (30) years. I.C. § 35-50-2-4(a). The
sentencing range for a Class B felony is between six (6) and twenty (20) years,
and the advisory sentence is ten (10) years. I.C. § 35-50-2-5(a). The sentencing
range for a Level 4 felony is between two (2) and twelve (12) years, and the
advisory sentence is six (6) years. IND. CODE § 35-50-2-5.5. The sentencing
range for a Class C felony is between two (2) and eight (8) years, and the
advisory sentence is four (4) years. I.C. § 35-50-2-6(a). Lastly, the sentencing
range for a Level 5 felony is between one (1) and six (6) years, and the advisory
sentence is three (3) years. I.C. § 35-50-2-6(b).
[27] The trial court sentenced Gibbs to forty-five (45) years for each Class A felony
conviction, eighteen (18) years for each Class B felony conviction, eleven (11)
years for the Level 4 felony conviction, six (6) years for each Class C felony
conviction, and three (3) years for each Level 5 felony conviction. The trial
court further ordered the sentences to run consecutively to each other, resulting
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 16 of 19 in an aggregate sentence of 155 years. This 155-year aggregate sentence is
considerably less than the potential maximum sentence of 180 years.
[28] With regard to the nature of the offenses, we note that Gibbs began regularly
sexually abusing his two biological daughters when they were twelve and
thirteen years old. The abuse included Gibbs placing his fingers between the
lips of K.G.’s vagina while he masturbated and placing his penis between the
lips of K.G.’s vagina while he humped back and forth. Gibbs nicknamed these
acts as the easy way and the hard way and rewarded K.G. with body piercings,
tattoos, hair dyes, electronics, and shopping trips when she complied with his
sexual demands. In addition, Gibbs sexually abused N.G., including digitally
penetrating her multiple times. When N.G. asked Gibbs to stop the sexual acts
against her, he rebuffed her plea by inflicting physical harm upon her, such as
by slapping her face. Further, after N.G. had threatened to tell Mother about
Gibbs’ acts, he manipulated N.G. to believe that she would be the cause of the
family going hungry and experiencing financial loss if she were to reveal his
actions to Mother. Gibbs perpetrated these heinous acts against his daughters
for three years. Moreover, Gibbs blamed his criminal actions on Mother,
telling his daughters that he was engaging in sexual acts with them because
Mother would no longer have a sexual relationship with him. Our Indiana
Supreme Court has explained that “when the perpetrator commits the same
offense against two victims, enhanced and consecutive sentences seem
necessary to vindicate the fact that there were separate harms and separate acts
against more than one person.” Serino v. State, 798 N.E.2d 852, 857 (Ind.
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 17 of 19 2003). “Similarly, additional criminal activity directed to the same victim
should not be free of consequences.” Cardwell, 895 N.E.2d at 1225. The
supreme court has further explained that “[a] harsher sentence is also more
appropriate when the defendant has violated a position of trust that arises from
a particularly close relationship between the defendant and the victim, such as a
parent-child . . . relationship.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind.
2011).
[29] With regard to Gibbs’ character, we note that the evidence presented at trial
about Gibbs’ multiple sexual offenses against his daughters over multiple years
reveals the disturbing and manipulative aspects of Gibbs’ character. Moreover,
Gibbs threatened aunt and uncle, who had discovered K.G. draped in a sheet at
the Portage house and whom K.G. had told that Gibbs had hurt her, to get their
story straight before testifying at trial. In addition, we note that Gibbs’ prior
felony convictions and gang membership speak poorly to his character. See
Quintanilla v. State, 146 N.E.3d 982, 989 (Ind. Ct. App. 2020) (explaining that
even a minor criminal history speaks poorly to a defendant’s character).
[30] Based on the nature of the offenses and his character, Gibbs has failed to
persuade this Court that his aggregate 155-year sentence for his nine felony
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 18 of 19 convictions for sexual offenses perpetrated against his biological daughters over
a period of three years is inappropriate.8
[31] Affirmed.
Altice, C.J., and Riley, J., concur.
8 Gibbs also argues that his convictions violate Indiana’s prohibition against double jeopardy. He specifically contends that his Class B and Level 4 felony convictions for incest and his Class C and Level 5 felony convictions for sexual misconduct with a minor are all lesser included offenses of his Class A felony child molesting convictions. The State responds that “the trial court did not run afoul of Indiana’s substantive double jeopardy principles” because Gibbs was “properly convicted of more than one crime[.]” (State’s Br. 41). The State specifically contends that “the facts from trial showed that [Gibbs’]actions constituted multiple criminal transactions for which he could be held separately liable.” (State’s Br. 41). The State is correct. In Wadle v. State, 151 N.E.3d 227, 247 (Ind. 2020), our Indiana Supreme Court recognized that “[s]ubstantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” (emphasis added). Here, however, Gibbs was convicted of multiple criminal acts or transactions that occurred over a three-year period of time. There is no violation of substantive double jeopardy because the facts show separate and distinct crimes. See id. at 249 (explaining that if the facts show separate and distinct crimes, there is no violation of substantive double jeopardy).
Court of Appeals of Indiana Opinion 22A-CR-1041| June 28, 2023 Page 19 of 19