MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 22 2015, 8:44 am this 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce E. Andis Gregory F. Zoeller Daniel A. Dixon Attorney General of Indiana Lawrence County Public Defender Monika Prekopa Talbot Agency Deputy Attorney General Bedford, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeffery L. Gipson, December 22, 2015 Appellant-Defendant, Court of Appeals Case No. 47A01-1501-CR-23 v. Appeal from the Lawrence Superior Court State of Indiana, The Honorable Michael Robbins, Appellee-Plaintiff Judge Trial Court Cause Nos. 47D01-1212-FA-1456 47D01-1209-FA-1058
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 1 of 25 Case Summary and Issues [1] Following a jury trial, Jeffery Gipson was convicted of three counts of child
molesting and one count of attempted child molesting, all Class A felonies, and
two counts of contributing to the delinquency of a minor, both Class A
misdemeanors. The jury also found Gipson to be an habitual offender. The
trial court ordered Gipson serve 110 years in the Indiana Department of
Correction. Gipson raises three issues for our review: 1) whether the trial court
committed reversible error by admitting into evidence a cell phone memo in its
entirety under Indiana Evidence Rule 803(3); 2) whether the trial court
committed reversible error by admitting Gipson’s statements made after a
polygraph examination; and 3) whether Gipson’s sentence is inappropriate in
light of the nature of the offenses and his character. Concluding the trial court
did not commit reversible error in the admission of evidence, we affirm
Gipson’s convictions. Also concluding Gipson’s sentence is not inappropriate
in light of the nature of the offenses and his character, but the trial court erred in
its handling of Gipson’s habitual offender enhancement, we affirm his sentence
but remand with instructions.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 2 of 25 Facts and Procedural History [2] In the spring of 2012, Gipson and C.G. lived together in a home in Mitchell,
Indiana;1 the pair had dated on and off for approximately six years. Mikey
Allen, Jason Farmer, and Gipson’s and C.G.’s son, A.G., also lived in the
home. When the couple were having relationship problems, Gipson would stay
with his friend, Dustin Jamison, who lived across the street from C.G. C.G.’s
daughter, thirteen-year-old A.M.G., also lived with C.G. Although not
A.M.G.’s biological father, Gipson “was basically [A.M.G.’s] father for some
time.” Transcript at 634.
[3] J.W., also thirteen years old, and A.M.G. befriended one another in middle
school. J.W. often visited A.M.G. at C.G.’s home, and spent the night on
occasion. J.W. was attracted to, and flirted with, Gipson. J.W. and Gipson
began communicating via text messages. Thereafter, the messages became
sexual in nature, and the two began sharing explicit photographs. Specifically,
Gipson sent J.W. a picture of his penis, and J.W. sent pictures of her naked
body, including her vagina.
[4] The first sexual contact between Gipson and J.W. occurred in March 2012.
J.W. was sleeping on the couch in C.G.’s living room when Gipson arrived
home intoxicated. J.W. awoke to Gipson inserting his finger into her vagina;
1 We identify C.G., an adult, only by her initials to protect the privacy of the child victims.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 3 of 25 J.W. pretended to remain asleep. Acknowledging J.W.’s lack of response,
Gipson stopped and stated, “we’ll wait until tomorrow.” Id. at 735.
[5] The following morning, J.W. and Gipson were left alone in the home while
Allen, A.G., and A.M.G. visited the Indianapolis Zoo; C.G. was at work.
Over the course of a couple hours, J.W. and Gipson had sex three or four times
in C.G.’s living room. Gipson also performed oral sex on J.W. A few days
later, J.W. created a memo in her cell phone, which stated, “I feel like such a
whore! I slept with my best friend’s dad Sat. March 31. I loved it so much & I
really like him, but [A.M.G.’s] my bestie and I need to tell her.” State’s Exhibit
32.2 Ultimately, J.W. told A.M.G she had sex with Gipson in C.G.’s living
room. A few weeks later, J.W. claimed she and Gipson twice had sex in a
detached garage behind C.G.’s home and, on two more separate occasions, the
two again had sex in C.G.’s living room and detached garage.
[6] On April 26, 2012, J.W. and A.M.G. went across the street to Jamison’s house
where Gipson and his friend, Farmer, shared a bedroom. Gipson was staying
at Jamison’s home because Gipson and C.G. had gotten into a dispute. When
the two girls arrived, Gipson and Farmer were the only two people in the home;
Jamison was not present. The four of them began to drink alcohol and settled
into a bedroom to watch television. A.M.G. began to feel ill and laid down on
the bed. Gipson joined her, and Farmer and J.W. left the room.
2 J.W. testified the cell phone memo was essentially “an electronic version of a diary.” Tr. at 799.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 4 of 25 [7] Once alone with A.M.G, Gipson began acting “kind of sexual and odd.” Tr. at
655. Gipson then took off A.M.G.’s pants and underwear, and attempted to
insert his penis into A.M.G.’s vagina, but A.M.G. claimed “it wasn’t going in
and it hurt really bad so he just did alternatives instead.” Id. at 656. Those
alternatives included Gipson performing oral sex on A.M.G. and inserting his
fingers into her vagina. A.M.G. stated she wanted to stop and go home, but
Gipson did not stop until J.W. entered the room. Gipson told A.M.G. to act
like she was asleep, but her eyes remained open with the hopes of attracting
J.W.’s attention; J.W. was too drunk to notice.3 J.W. exited the room, and
Gipson continued the sexual acts on A.M.G. Again, J.W. entered the room
and Gipson stopped. At this point, A.M.G. put her clothes back on, and she
and J.W. returned across the street to C.G.’s home.
[8] When they arrived at C.G.’s home, A.M.G. told J.W. about Gipson’s acts.
This upset J.W. because she “liked [Gipson] and . . . was mad that he wanted to
be with A.M.G.” Id. at 754. A.M.G. later took a bath because she “just felt
nasty.” Id. at 659. While A.M.G. took a bath, Gipson returned to C.G.’s
home. Later that evening, with A.M.G. asleep in her bedroom and with C.G.
in the living room, J.W. joined Gipson in a bedroom where they had sex. The
two stopped when they heard C.G. begin walking towards the bedroom.
Gipson then hopped into bed and pretended to be asleep as J.W. remained
3 At trial, A.M.G testified, “I had a pleading look on my face just like please help, but she didn’t pay attention.” Tr. at 657.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 5 of 25 seated on the floor. When C.G. entered the bedroom, she witnessed J.W. on
the floor and called J.W. a stalker, stating later at trial that “it was kind of weird
for her to be watching him sleep.” Id. at 839.
[9] The following day, a visibly upset A.M.G. told her mother about Gipson’s acts.
J.W. also told C.G. about her sexual encounters with Gipson. After C.G.
confronted Gipson, J.W. went over to Jamison’s home to talk with Gipson.
Gipson began yelling at J.W., called her a snitch, and stated she had ruined his
life. A few days later, C.G. reported Gipson to the authorities.
[10] After both girls disclosed sexual abuse during interviews with the Indiana
Department of Child Services, Detective Brian Smith of the Indiana State
Police initiated an investigation. As a part of the investigation, Detective Smith
asked Gipson if he would go to the Bloomington State Police Post for an
interview. Gipson was not in custody and obliged Detective Smith’s request.
During the interview, Gipson acknowledged he had prior communications with
J.W. on the phone and via text messaging. In addition, Gipson stated he had
previously been alone with J.W. in C.G.’s detached garage. Gipson, however,
denied any sexual relations with J.W. When questioned about A.M.G.’s
allegations, Gipson acknowledged there was a time when he and A.M.G. were
alone in a bedroom together at Jamison’s house. However, Gipson denied
performing any sexual acts on A.M.G.
[11] Thereafter, Detective Smith requested Gipson submit to a non-stipulated
polygraph examination with Sergeant Paul Hansard of the Indiana State Police.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 6 of 25 Not being in police custody, Gipson drove himself and voluntarily submitted to
the examination on June 28, 2012. When Gipson arrived, Sergeant Hansard
explained the polygraph process and read over a polygraph waiver with Gipson.
The waiver provided,
Before we ask you any questions, you must understand your rights. *** You have the right to remain silent. *** Anything you say can be used against you in court. *** You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. *** If you cannot afford a lawyer, one will be appointed to you before any questioning, if you wish. *** If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. *** I have read the above statement of my rights and it has been read to me. I understand what my rights are. I do wish to take the polygraph test. No force, threats, or promises of any kind or nature have been used by anyone in any way to influence me to waive my rights. I am signing this statement after having been advised of my rights and before taking the polygraph test.
State’s Ex. A.
[12] Gipson reviewed, stated he understood, initialed, and signed the waiver prior to
submitting to the polygraph examination. During the examination, Sergeant Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 7 of 25 Hansard asked Gipson if his penis touched A.M.G.’s vagina. Gipson answered
in the negative. Following the examination, Sergeant Hansard interpreted the
results and determined Gipson failed the polygraph examination. Sergeant
Hansard told Gipson about his interpretation of the results and asked Gipson
for an explanation. Gipson stated he had gotten into bed with A.M.G. the
night they had been drinking alcohol at Jamison’s home. According to Gipson,
A.M.G. took off her pants and underwear, unzipped his pants, pulled his penis
out, and then tried to insert it into her vagina. Once he realized what was
occurring, Gipson claimed he stopped A.M.G. and told her to go home.
[13] Once Sergeant Hansard finished his questioning, Detective Smith entered the
room to speak with Gipson. Detective Smith reminded Gipson of his rights,
and Gipson acknowledged his rights. Gipson then relayed the same story to
Detective Smith. When asked about his involvement with J.W., Gipson did
not answer. Detective Smith did not arrest Gipson at that time, and Gipson
drove himself home.
[14] The State filed two separate causes against Gipson and, at Gipson’s request, the
causes were later consolidated for trial. For the alleged conduct with A.M.G.,
the State charged Gipson with Count I, Class A felony child molesting; Count
II, Class A felony attempted child molesting; Counts III and IV, Class A felony
child molesting; and Count V, Class A misdemeanor contributing to the
delinquency of a minor. For the alleged conduct with J.W., the State charged
Gipson with Counts VI-X, Class A felony child molesting; and Count XI, Class
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 8 of 25 A misdemeanor contributing to the delinquency of a minor. The State also
charged Gipson with Count XII, being an habitual offender.
[15] On February 3, 2014, Gipson filed a motion to suppress his post-polygraph
statements made to Detective Smith and Sergeant Hansard, arguing the
statements were not made voluntarily. Due to the potential of unfair prejudice
to Gipson, the trial court ordered the video not be played in the presence of the
jury. However, the trial court stated both Detective Smith and Sergeant
Hansard could testify as to Gipson’s statements. Gipson sought interlocutory
appellate review of the trial court’s order, which we denied.
[16] At trial on November 17, Gipson objected to the admission of a picture of
J.W.’s cell phone memo, arguing the memo amounted to inadmissible hearsay.
The trial court overruled the objection and admitted the memo into evidence.
At trial, J.W. testified on the State’s re-direct:
[State:] Do you recall when it is you would have created the text of the memo in comparison to [March 31]? [J.W.:] Most likely a few days after. [State:] Why is it that you created this memo? [J.W.:] Because I felt I guess the correct term would be dirty. *** [State:] [D]id it help you in any way to create this memo? [J.W.:] Yes. [State:] How did it help you? [J.W.:] At first, or at the beginning, to remember it and then after that I’m pretty sure I edited [the memo] because I didn’t feel like it was right not to say anything to her. [State:] Did you, after you created the memo, did that feeling change at all?
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 9 of 25 [J.W.:] A little. [State:] How did it change? [J.W.:] It got the weight off my shoulders. *** [State:] And then you did in fact end up telling A.M.G., correct? [J.W.:] Yes.
Tr. at 799-800, 805. Evidence at trial also included the testimony of Detective
Smith, who testified—over Gipson’s objections—to Gipson’s post-polygraph
statements; Sergeant Hansard did not testify at trial. In addition, the jury
requested to see the memo during deliberations. Having forgotten to send all
the exhibits to the jurors at the beginning of deliberations, the trial court
ordered all of the exhibits be delivered to the jurors, including the picture of the
cell phone memo.
[17] In regards to offenses committed against A.M.G., the jury found Gipson guilty
of Count II attempted child molesting, Count III child molesting, and Count V
contributing to the delinquency of a minor.4 As to J.W., the jury found Gipson
guilty of Count VI child molesting, Count VII child molesting, and Count XI
contributing to the delinquency of a minor.5 The jury also found Gipson to be
4 These three counts stem from the events that occurred on April 26, 2012. Count II alleged, “Gipson . . . did attempt to perform or submit to sexual intercourse with [A.M.G] . . . .” Appellant’s Appendix at 41. Count III alleged, “Gipson . . . did perform deviate sexual conduct with [A.M.G.] . . . .” Id. Count V alleged, “Gipson . . . did knowingly or intentionally aid, induce or cause [A.M.G.] . . . to commit an act of delinquency.” Id. at 42. 5 Count VI alleged, “On or about March, 2012 . . . Gipson . . . did perform or submit to sexual intercourse with J.W. . . . .” Id. at 65. Count VII alleged, “On or about March, 2012 . . . Gipson . . . did perform deviate sexual conduct, to-wit: placed finger in vagina, with J.W. . . . .” Id. Count XI alleged, “On or about April,
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 10 of 25 an habitual offender. The trial court entered a judgment of conviction on the
above counts.
[18] For the offenses committed against A.M.G., the trial court sentenced Gipson to
forty years on Count II, forty years on Count III, and one year on Count V, all
to be served concurrently for a total of forty years. For the crimes committed
against J.W., the trial court sentenced Gipson to forty years on Count VI, forty
years on Count VII, and one year on Count XI, all to be served concurrently for
a total of forty years. The trial court ordered the two forty-year concurrent
sentences be served consecutively for a total of eighty years. Finally, the trial
court sentenced Gipson to thirty years for the habitual offender finding, to run
“consecutive to the terms imposed” in the other two causes. Tr. at 1153. In
total, the trial court ordered Gipson serve 110 years executed in the Department
of Correction. This appeal ensued.
Discussion and Decision I. Admission of Evidence A. Standard of Review [19] We review a trial court’s admission of evidence for an abuse of discretion.
McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. “An
2012 . . . Gipson . . . did knowingly or intentionally aid, induce, or cause J.W. . . . to commit an act of delinquency.” Id. at 66.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 11 of 25 abuse of discretion occurs if a trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court.” Id. We neither
weigh the evidence nor resolve questions of credibility, “but consider the
evidence which supports the decision of the trier of fact in the case of contested
evidence and any uncontested evidence presented by the appellant.” Davies v.
State, 730 N.E.2d 726, 732 (Ind. Ct. App. 2000), trans. denied, cert. denied, 532
U.S. 945 (2001).
[20] We reverse a trial court’s erroneous decision to admit evidence only when the
decision affects a party’s substantial rights. McVey, 863 N.E.2d at 440.
However, “[a]ny error caused by the admission of evidence is harmless error for
which we will not reverse a conviction if the erroneously admitted evidence was
cumulative of other evidence appropriately admitted.” Id. In other words,
“[t]he improper admission of evidence is harmless error when the conviction is
supported by such substantial independent evidence of guilt as to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the conviction.” Wickizer v. State, 626 N.E.2d 795, 800
(Ind. 1993).
B. Cell Phone Memo [21] Gipson claims the trial court abused its discretion in admitting into evidence the
cell phone memo written by J.W. a few days after she first had sex with Gipson.
The memo stated, “I feel like such a whore! I slept with my best friend’s dad
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 12 of 25 Sat. March 31. I loved it so much & I really like him, but [A.M.G.’s] my bestie
and I need to tell her.” State’s Ex. 32.
[22] Initially, we note the memo constitutes hearsay. “Hearsay is an out-of-court
statement offered in court to prove the truth of the matter asserted.” Coleman v.
State, 946 N.E.2d 1160, 1168 (Ind. 2011) (citing Ind. Evidence Rule 801(c)).
The memo is an out-of-court statement offered to prove the truth of the matter
asserted, namely J.W. felt “dirty” about having sex with Gipson on March 31
and deemed it necessary to share that information with A.M.G. Tr. at 800.
[23] Hearsay is not admissible unless it falls within an exception. Evid. R. 802. The
trial court concluded the memo constituted hearsay, but found it fell within the
purview of Indiana Evidence Rule 803(3), which creates, regardless of whether
the declarant is available as a witness, “a hearsay exception for statements of
the declarant’s then-existing state of mind at the time the statement was made.
State of mind, as that term is defined, may include emotion, sensation, physical
condition, intent, plan, motive, design, mental feeling, pain, and bodily health.”
Camm v. State, 908 N.E.2d 215, 226 (Ind. 2009). This does not include “a
statement of memory or belief to prove the fact remembered or believed . . . .”
Evid. R. 803(3).
[24] In criminal cases involving out-of-court statements of a victim’s state of mind,
evidence of the victim’s state of mind is relevant and admissible only “(1) to
show the intent of the victim to act in a particular way, (2) when the defendant
puts the victim’s state of mind in issue, and (3) sometimes to explain physical
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 13 of 25 injuries suffered by the victim.” Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind.
2000). Of the three instances, only one is relevant here: to show the intent of
the victim to act in a particular way.
[25] The bulk of the cell phone memo consists of statements concerning J.W.’s then-
existing state of mind and emotions, and her intent to act in a particular way. It
speaks of how she felt guilty about having sex with Gipson, who acted as a
fatherly figure towards J.W.’s best friend, A.M.G. It also speaks of how J.W.
deemed it necessary to confess to A.M.G, which she later did. These
statements show J.W.’s intent to act in a particular way. Moreover, J.W.
testified that when she created the memo, she felt “dirty” for having sex with
Gipson, and after creating the memo, she felt a weight lifted off her shoulders.
Tr. at 800. To the extent the memo describes J.W.’s then-existing state of mind
and emotions, and intent to act in a particular way, it was admissible pursuant
to Indiana Evidence Rule 803(3). See Heinzman v. State, 970 N.E.2d 214, 224
(Ind. Ct. App. 2012) (holding a child molestation victim’s statements in a letter
to the defendant were admissible because they spoke to the child’s then-existing
state of mind and emotions), vacated in part, and summarily aff’d in part, 979
N.E.2d 143 (Ind. 2012).
[26] Although parts of the memo do speak to J.W.’s then-existing state of mind,
Gipson contends the remaining statements exceed the scope of the Rule 803(3)
exception because those statements were offered to prove a fact remembered,
namely that Gipson and J.W. had sex on March 31. Gipson claims the trial
court should have, at the very least, redacted the memo to only include the
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 14 of 25 statements speaking to J.W.’s then-existing state of mind. Therefore, Gipson
argues admission of the entire memo constituted reversible error because the
State relied solely on the victims’ credibility, the memo was not cumulative of
other evidence, the jury specifically asked to review the memo during
deliberations, and the jury convicted Gipson only for the conduct referenced in
the memo. We disagree admission of the memo constituted reversible error.
[27] In Heinzman, we concluded the admission of a letter written by the child victim
to the defendant, which contained both admissible statements pertaining to the
victim’s state of mind and inadmissible statements referencing the defendant’s
acts of molestation, constituted harmless error. Id. at 224. We reasoned, “Z.B.
testified clearly and directly regarding Heinzman’s acts of molestation. The few
indirect references to the molestation contained in the letter are relatively
innocuous by comparison and are, at most, cumulative of Z.B.’s direct
testimony.” Id.
[28] Here, we agree with Gipson that the memo contains a direct reference to
Gipson’s acts of molesting J.W. Similar to Heinzman, however, J.W. clearly
and directly testified as to Gipson’s acts of molestation on March 31—the day
Gipson and J.W. were left alone in C.G.’s home. Therefore, the reference to
Gipson’s acts of molestation in the memo is merely cumulative of J.W.’s direct
testimony. See id.
[29] Finally, we note reversal is appropriate only where “the record as a whole
discloses that the erroneously admitted evidence was likely to have had a
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 15 of 25 prejudicial impact on the fact-finder, thereby contributing to the judgment.”
Hamilton v. State, No. 65A04-1412-CR-592, slip op. at 10 (Ind. Ct. App. Sept. 9,
2015) (citation omitted). After reviewing the entirety of the record, we
conclude admission of the memo was not likely to have had a prejudicial
impact on the jury despite the jury both requesting to see the memo during
deliberations and convicting Gipson for the act referenced in the memo. This
conclusion is supported by the corroborating testimony of the State’s witnesses
and the fact the memo merely offered cumulative evidence of J.W.’s direct
testimony. Therefore, even if admission of the memo constituted error, the
error was harmless.
C.Post-Polygraph Statements [30] Gipson also contends the trial court erred in admitting his post-polygraph
statements because the statements were not voluntary. Specifically, he argues
the statements were made after his will was overcome due to the combination
of there being no reference to post-polygraph questioning on the polygraph
waiver, Sergeant Hansard’s exaggeration of the reliability of the polygraph
results, and coercive interrogation tactics. The State argues Gipson’s
statements were not made involuntarily because Gipson was not in custody,
law enforcement read Gipson his Miranda rights, and Gipson “readily accepted
the opportunity to give a statement” to law enforcement. Brief of Appellee at
16.
[31] Although we have expressed reservations about the reliability of polygraph
results, “the fact that a polygraph test is not sufficiently reliable to warrant Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 16 of 25 admission of its results does not undermine the reliability of voluntary
statements made by a defendant during a polygraph test.” McVey, 863 N.E.2d
at 441. The question of whether a defendant made a voluntary statement is
determined from the totality of the circumstances. Jackson v. State, 735 N.E.2d
1146, 1153 (Ind. 2000). The State has the burden of proving beyond a
reasonable doubt the statement “was voluntary and not induced by violence,
threats, promises, or other improper influences so as to overcome the free will
of the accused at the time” the statements were made. Davies, 730 N.E.2d at
732.
[32] At the hearing on Gipson’s motion to suppress his post-polygraph statements,
Sergeant Hansard testified to his customary polygraph procedure:
I generally meet with the investigator fifteen minutes or so beforehand to get an idea what the case is about. And then I bring the subject back into the polygraph suite or the polygraph testing area. I introduce myself. Give them a little overview of what’s going to take place, how long things are going to take place. Then we have a polygraph waiver form that is read to them and we make sure that they can read, write and understand the English language, still read it to them out loud. I specifically have them initial after each line to make sure they’ve understood the waiver. If they still want to take the test and they sign the waiver, at that point I go through and gather some basic background information. This is kind of like the pretest phase if you will. And that includes family history, education history, medical kinds of issues, just some general questions like that. When that’s finished I go through and explain polygraph to them. Tell them what it’s about, what the different components are and how polygraph works. When that is finished we talk about their case and why they’re there today. I have them
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 17 of 25 explain it to me what they’re being accused of. I try to gather some details from them. At that point then we do question formulation where I explain to them what kind of questions are going to be on their test. We kind of come up with a framework for that at that point. After that is finished I give them a break, let them go back out to the lobby. Restroom, drinking fountain’s [sic] out there. They’re welcome to go outside and smoke if that’s what they choose to do. Usually it takes me about ten or fifteen minutes. That’s when I type their questions into the computer. I bring them back in. We (indiscernible) at that point is what’s called the end test phase which is where I’m actually running the polygraph examination. After that’s complete I’ll step out, score their charts, discuss the results with the investigator, then go back in and discuss their results with the person that took the test.
Tr. at 52-54.
[33] Prior to the actual polygraph examination beginning in this case, Sergeant
Hansard explained the polygraph process to Gipson, and additionally explained
the examination was ninety-five to one hundred percent accurate. Sergeant
Hansard then handed the polygraph waiver to Gipson. Gipson read the waiver
to himself, and then Sergeant Hansard read the waiver to Gipson line-by-line.
Gipson initialed each line and signed the waiver. At the conclusion of the
polygraph examination, Sergeant Hansard analyzed the results of the polygraph
and determined Gipson was not being truthful. Sergeant Hansard re-entered
the polygraph suite to discuss the results with Gipson, which Sergeant Hansard
testified is customary procedure. In addition, we have previously held
“[c]onfronting a suspect with polygraph results is not coercive or
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 18 of 25 unreasonable.” McVey, 863 N.E.2d at 443 (citing Wyrick v. Fields, 459 U.S. 42,
48 (1982)).
[34] Sergeant Hansard told Gipson about his interpretation of the results and asked
Gipson for an explanation. Gipson explained that when he and A.M.G. were
laying in a bed together at Jamison’s house, A.M.G. took off her pants and
underwear, unzipped Gipson’s pants, pulled Gipson’s penis out, and then tried
to insert it into her vagina. It was at this point, Gipson claimed, he told
A.M.G. to stop and go home. Gipson repeated the story to Detective Smith.
At trial, Detective Smith testified to Gipson’s statements.
[35] Gipson’s primary argument in support of his contention that his will was
overcome is that he stated “I’m done” on at least three different occasions
during the post-polygraph phase of the examination. Gipson contends
investigators refused his attempts to end the interview thereby rendering his
subsequent statements involuntary. We disagree. In one such instance, Gipson
stated, in regards to the allegations against him, “I’m trying, but I have to look
over my shoulder every f***ing day now, and I’m damn near the point where I
have to quit my job. I am getting ready to lose my son again, and I have
already lost my youngest [child]. I’m done. I have already lost it.” Defendant’s
Ex. 1 (emphasis added). Every time Gipson stated he was “done,” Gipson
continued to converse with Sergeant Hansard. Based on the context of the
entire interview, we are not convinced Gipson was seeking to end the interview.
Rather, the record indicates Gipson was likely aware of the impact the girls’
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 19 of 25 allegations carried and the effects the allegations would have on his life, namely
his ability to maintain custody of his son.
[36] Gipson also argues his will was overcome because Sergeant Hansard, prior to
Gipson taking the examination, exaggerated the reliability of the polygraph by
stating it was ninety-five to one hundred percent accurate. As expressed above,
we do have reservations about the reliability of polygraph results. See McVey,
863 N.E.2d at 441. Sergeant Hansard, however, testified at the suppression
hearing that he explained this to Gipson because he wanted Gipson to have
faith that he was receiving a fair test.
[37] Further, the record indicates Sergeant Hansard was respectful and polite
throughout all three phases of the polygraph examination. He explained the
entire polygraph process to Gipson, including the pre-polygraph, actual
polygraph, and post-polygraph phases. He told Gipson he would receive a
break prior to the actual polygraph phase of the examination, which Gipson
received. Moreover, prior to beginning the examination, Gipson indicated he
understood his rights and then initialed and signed the polygraph waiver.
Having read and understood his rights—specifically the right to remain silent,
the right to have counsel present, and the right to stop answering at any time—
Gipson voluntarily provided Sergeant Hansard with an explanation for the
results of the examination.
[38] When Detective Smith entered the room to discuss the polygraph results with
Gipson, Detective Smith asked Gipson whether he was advised of his rights
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 20 of 25 and whether he understood his rights. Gipson responded affirmatively to both
questions. Before Gipson relayed the story to Detective Smith, Detective Smith
stated Gipson was not under arrest, and Detective Smith had no intention of
placing Gipson under arrest. Thereafter, Gipson stated, “I’ve got an
explanation for you and I am willing to give it you.” Defendant’s Ex. 1. Once
Gipson explained it was A.M.G. who grabbed his penis and pulled it near her
vagina, Gipson told Detective Smith he needed to leave the interview.
Detective Smith responded by stating Gipson was not in custody and he was
free to leave at any time, but sought an explanation in regards to J.W.’s
allegations. Gipson stated there was nothing to explain, and Gipson left on his
own volition. This indicates Gipson understood he was not required to answer
any questions and that he was free to end the interview at any time.
[39] Based on the totality of the circumstances, we are not persuaded Gipson’s
statements were induced by violence, threats, promises, or other improper
influences so as to overcome Gipson’s free will. Therefore, the trial court did
not abuse its discretion in allowing Detective Smith to testify to Gipson’s
statements.
III. Inappropriateness of Sentence A. Standard of Review [40] Gipson also contends his sentence is inappropriate in light of the nature of the
offenses and his character. A reviewing court possesses the authority to revise a
defendant’s sentence “if, after due consideration of the trial court’s decision, the
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 21 of 25 Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Ind. Appellate Rule 7(B). The burden is on
the defendant to persuade the reviewing court the sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[S]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). It is not for the reviewing court “to achieve a perceived ‘correct’ result in
each case,” but “[t]he principal role of appellate review should be to attempt to
leaven the outliers.” Id. at 1225. Whether we regard a sentence as
inappropriate turns on “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.” Id. at 1224.
B. Gipson’s Sentence [41] Gipson was convicted of three counts against each victim. For the crimes
committed against A.M.G., the trial court sentenced Gipson to forty years. For
the crimes committed against J.W., the trial court sentenced Gipson to forty
years. In recognition of the harm done to each victim, the trial court ordered
the two forty-year sentences be served consecutively thereby increasing
Gipson’s sentence to eighty years. Finally, the trial court sentenced Gipson to
thirty years, to be served consecutively to the others, because of his habitual
offender status. In total, the trial court ordered Gipson serve 110 years in the
Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 22 of 25 [42] As to the nature of the offenses, the advisory sentence is the starting point the
legislature selected as an appropriate sentence for the crime committed.
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). Pursuant to Indiana Code section 35-50-2-4(a), a person who
commits a Class A felony “shall be imprisoned for a fixed term of between
twenty (20) and fifty (50) years, with the advisory sentence being thirty (30)
years.” Here, Gipson was in a position of trust and authority in relation to both
victims, especially A.M.G., for whom Gipson was a fatherly figure. In
addition, this is not a case where there is only one claim of child molestation.
Rather, this is a case where there are multiple allegations of child molestation
against two victims. Finally, the record indicates Gipson provided alcohol to
A.M.G. and when she started to feel the effects of the alcohol, Gipson took
advantage of her vulnerability and molested her. We cannot turn a blind eye to
such conduct.
[43] As to his character, Gipson’s criminal history dates back to when he was twelve
years old. Gipson was adjudicated a delinquent for committing various
offenses over a span of four years, including burglary, automobile theft,
criminal recklessness with a deadly weapon, and battery resulting in bodily
injury. As an adult, Gipson has been convicted of multiple crimes, including
burglary as a Class C felony, automobile theft as a Class D felony, and criminal
recklessness as a Class D felony. We note these three crimes are the same three
crimes for which Gipson was adjudicated a delinquent, which shows Gipson
failed to learn from his past encounters with the law. Although Gipson
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 23 of 25 attempts to make light of his criminal history by noting his age at the time of his
earlier convictions, the amount of time elapsed since his prior felony
convictions, and that he has no criminal history of sexual abuse prior to these
convictions, it is evident Gipson learned nothing from his previous encounters
with the law, and we are not persuaded his sentence is inappropriate.
[44] Finally, although not raised by Gipson, the State has noted the trial court erred
in sentencing Gipson to thirty years for the habitual offender finding, to run
“consecutive to the terms imposed” in the other two causes. Tr. at 1153.
Indiana Code section 35-50-2-8(h) (2005) states,
The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.
When a jury finds a defendant is a habitual offender, it is a fact which “requires
the trial court to enhance the sentence for the instant crime by the statutory
term.” Lord v. State, 531 N.E.2d 207, 208 (Ind. 1988). Here, the trial court did
not enhance one of Gipson’s felony sentences due to his status as an habitual
offender but ordered a separate consecutive sentence. Therefore, we remand to
the trial court to correct its sentencing order and attach the habitual offender
enhancement to one of Gipson’s felony convictions. See Greer v. State, 680
N.E.2d 526, 527 (Ind. 1997) (“In the event of simultaneous multiple felony
convictions and a finding of habitual offender status, trial courts must impose
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 24 of 25 the resulting penalty enhancement upon only one of the convictions and must
specify the conviction to be so enhanced.”).
Conclusion [45] We conclude the trial court did not commit reversible error in the admission of
evidence and Gipson’s sentence is not inappropriate. However, the trial court
erred in sentencing Gipson to a consecutive term of thirty years due to his status
as an habitual offender. We therefore affirm Gipson’s convictions and
sentence, but remand to the trial court for the limited purpose of correcting the
sentencing order with respect to the sentencing enhancement for Gipson’s
habitual offender finding.
[46] Affirmed and remanded with instructions.
Pyle, J., concurs.
Vaidik, C.J., concurs in result.
Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015 Page 25 of 25