Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 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.

ATTORNEY FOR APPELLANT

Jennifer A. Joas

Joas & Stotts

Madison, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Gary Allen Gibson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 30, 2015

Court of Appeals Cause No.

39A05-1404-CR-156

Appeal from the Jefferson Circuit 

Court.

The Honorable Darrell M. Auxier, 

Judge.

Cause No. 39C01-1308-FB-845

Darden, Senior Judge

Statement of the Case

[1] Gary Allen Gibson appeals his convictions by jury of aggravated battery
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as a Class B felony1 and criminal confinement as a Class D felony2 as well as 

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

Issues

[2] Gibson raises two issues for our review:

I. Whether there is sufficient evidence to support his 

aggravated battery and criminal confinement convictions; 

and 

II. Whether his sixteen-year executed sentence is 

inappropriate.

Facts and Procedural History

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

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

investigation by the Madison Police Department. During the investigation, 

Detective Jonathan Simpson learned that the Taulbees purchased the 

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

on information received from the Taulbees, Madison Police Department 

officers went to a home where methamphetamine was being manufactured. 

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

 

1

Ind. Code § 35-42-2-1.5 (1997).

2

Ind. Code § 35-42-3-3 (2006).
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boyfriend, Christopher Peel. All members of the Taulbee family testified 

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

methamphetamine and sentenced to thirty years.

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

outside talking on opposite sides of a car while Cope was watching his threeyear-old son. Suddenly, Gibson walked up behind Taulbee, grabbed Taulbee’s 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

his commercial driver’s license.
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[6] A jury convicted Gibson of aggravated battery as a Class B felony and criminal 

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

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

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

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

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

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

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

discouraging potential witnesses from testifying; 2) Gibson demonstrated no 

remorse as evidenced by the derogatory statements Gibson made about Taulbee 

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

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

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

criminal history, which includes several misdemeanor convictions as well as 

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

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

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

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

convictions and sentence.

Discussion and Decision

I. Sufficiency of the Evidence

[7] Gibson argues that there is insufficient evidence to support his convictions. In 

reviewing the sufficiency of the evidence, this Court will affirm the convictions 
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if the probative evidence and reasonable inferences to be drawn therefrom could 

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

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

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

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

reasonable inferences supporting the judgment to determine whether the trier of 

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

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

aside. Id.

A. Aggravated Battery

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

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

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

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

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

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

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

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

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

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

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

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

held that the victim experiencing “muffled hearing” for two months after the 
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attack met the statutory definition of protracted impairment and provided 

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

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

statutory definition of protracted impairment and provides sufficient evidence 

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

prevent him from obtaining a commercial driver’s license.

B. Criminal Confinement

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

confinement conviction as an accomplice. To convict Gibson of criminal 

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

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

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

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

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

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

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

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

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

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

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

be considered in determining whether a person participated in the commission 

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

App. 2014). The following four factors are relevant to show that one acted as 
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an accomplice to a crime: 1) presence at the scene of the crime; 2) 

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

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

occurrence of the crime. Id. at 1004.

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

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

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

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

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

criminal confinement as an accomplice.

II. Inappropriate Sentence

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

the Indiana Constitution authorizes independent appellate review of sentences. 

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

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

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

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

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

inappropriate, this Court looks at the culpability of the defendant, the severity 

of the crime, the damage done to others, and myriad other factors that come to 

light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). 
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Gibson bears the burden on appeal of persuading us that his sentence is 

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

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

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

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

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

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

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

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

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

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

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

extensive criminal history that includes one felony and several misdemeanor 

convictions, including convictions for resisting law enforcement and battery 

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

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

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

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

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

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

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

his sentence is inappropriate. 
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[16] Affirmed.

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