Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT William T. Myers Grant County Public Defender Marion, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
James Ray Gipson , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff January 16, 2019 Court of Appeals Ca se No. 18A

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- 51 Appeal from the Grant Superior Court The Honorable Dana Kenworthy, Judge Trial Co urt Cause No. 27D02

- 1509

- FA

- 4

May, Judge.Court of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 2 of 7 [1] James Ray Gipson appeals following his conviction s of four counts of Class B felony child molesting , 1 seven counts of Class A felony child molesting , 2 four counts of Class B felony inces t , 3 one count of Class D felony c hild solicitation , 4 and one cou nt of Class B felony a ttempted i ncest

. 5 He argues the trial court abused its discretion when sentencing him to consecutive sentences. We affirm.


# Facts and Procedural History

[2] G ipson has two daughters, C.G. and J.S

. , born in 1984 and 1986, respectively. Gipson’s inappropriate behavior began when C.G. was nine years old. O n multiple occasions Gipson walk ed in while C.G. was taking a bath. Gipson also sh owered with C.G. and would become aroused during th os e shower s
. When C.G. was between the ages of ten and twelve, Gipson would rub C.G.’s legs, using shin splints as an excuse. Gipson would eventually slide his hands all the way up C.G.’s legs and touch C.G.’s vagina.

[3] When C.G. was in fifth grade , Gipson discovered love notes from boys to C.G. Gipson read the notes with C.G. and told her the boys wanted to have sex with her. Gipson told C.G. she need ed t o have her first sexual experience with him.

1 Ind. Code § 35

- 42

- 4

- 3 (a) (1994 )

. 2 I nd. Code § 35

- 42

- 4

- 3(a)(1) ( Three counts in 1996 ) (Four counts in 1998)

. 3 Ind. Code § 35

- 46

- 1

- 3 (1994 )

. 4 Ind. Code § 35

- 42

- 4

- 6 (a) (1) (1994 ).
5 Ind. Code § 35

- 46

- 1

- 3 (1994) & Ind. Code § 35

- 41

- 5

- 1 (1977 ).Court of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 3 of 7 When C.G. was thirteen, Gipson told C.G. incest was allowed , because it was in the Bible , and Gipson read multiple verses about incest to C.G.

[4] Gipson also molested J.S. regularly , at least once a week for six years. Starting when J.S

. was in t hird grade, Gipson used shin splints as an excuse to rub J.S.’s legs. Gipson would slide his hands up her leg and then put his fingers in her vagina. Gipson would also have J.S

. put her feet on his lap against his penis. Gipson would become aroused when this happened. Whenever J.S. was in the pool Gipson would make J.S. kiss him while he rubbed her body. Gipson told J.S. the molestation means “I love you and it means you love me and this is what we’re supposed to do.” (Tr. Vol

. III at 83

. )

[5] The last incident occurred during a sleepover. J.S. and her friends were sleeping in the backyard. J.S

. woke up while Gipson was standing over her with his fingers in her vagina. J.S. told C.G. what Gipson did and how he had molested her for years. C.G. and J.S . agreed to stay away from Gipson.

[6] In April 2015, C.G. and J.S. reported Gipson to the police. Gipson was charged with of four counts of Class B felony child molesting, seven counts of Class A felony child molesting, four counts of Class B felony incest, one count of Class D felony child solicitation, and one count of Class B felony a ttempted i ncest. A jury found Gipson guilty on all seventeen counts.

[7] The trial court sentenced Gipson to thirty

- five years for each Class A felony, ten years for each C lass B felony, and one - and

- a - half years for the Class D felony. The trial court ordered the Class B felonies, the Class D felony, and four of theCourt of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 4 of 7 Class A felonies served concurrent with th re e Class A felonies, but ordered th os e three Class A felonies serv ed consecutively, for an aggregate sentence of

one - hundred

- and

- five years in prison.


# Discussion and Decision

[8] “We initially observe that sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse o f discretion.” Gleason v. State , 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). An abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual ded uctions to be drawn therefrom.” Anglemyer v. State , 8 68 N.E.2d 482, 490 (Ind. 2007) , clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A trial court abuse s its discretion by : “ (1) issuing an inadequate sentencing statement, (2) finding aggravating or mi tigating factors that are not supported by the record, (3) omitting factors that are clearly supported by the record and advanced for consideration, or (4) finding factors that are improper as a matter of law.” Gleason , 965 N.E.2d at 710.

[9] “[T]he court s hall determine whether terms of imprisonment shall be served concurrently or consecutively

. The court may consider the aggravating and mitigating circumstances in I ndiana C ode § 35

- 38

- 1

- 7.1(b ) and Indiana Code § 35

- 38

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- 7. 1(c ) i n making a determination under this subsection .” Ind. Code § 35

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- 2 (c) (1996 )

. Gipson argues the trial court abused its discretion inCourt of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 5 of 7 ordering consecutive sentences because it failed to articulate evid ence to justify the sentence.

[10] The trial court found many aggr avating factors that allowed the consecutive
sentence. Gipson was in a position of trust with his victims. C.G. and J.S were Gipson ’s daughters and lived with him and their mother in th e family’s home. See Edrington v. State , 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (defendant violating position of trust with victim allowed for an enhanced sentence), trans. denied. The trial court also point ed out th at J.S. was nine

- years - old at the time of the first offense and the abuse went on for many years. C.G. and J.S. continued into their adulthood to experience negative consequences from the abuse. Specifically , J.S. continues to experience panic attacks and struggle with adult relationships and low self

- esteem. ( See Tr. Vol. IV at 211

- 13

. ) C.G. said she still is “not right” after what Gipson did to her. (Tr. Vol. II at 236

. ) The trial court note d Gipson has a narcissisti c personality, is a repeat offender , and used religion to perpetrate his crim es. The trial court stated: I think the evidence in this case was clear throughout particularly during Mr. Gipson’s testimony that he is what I would say is the worst of the worst. Um, he is narcissistic. He is a pedophile. He is a predator, and he enlist ed religion to perpetrate his crimes, um, on his biological children. (Tr. Vol. IV at 224

. )

[11] The trial court found no mitigating factors. Gipson argues that, when sentencing him, the court did not consider his “ traumatic injury

. ” (Br

. ofCourt of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 6 of 7 Appellant at 9

. ) “When a defendant offers evidence of mitigators, the trial court has the discretion to determine whether the factors are mitigating, and it is not required to explain why it does not find the proffered factors to be mitigating.” Johnson v. State , 855 N .E.2d 1014, 1016 (Ind. Ct. App. 2006) , trans. denied

. During trial, reference was made to hand injuries. Gipson explained he was involved in a gasoline accident that left him without the use of his hands for two years

. (Tr. Vol IV a t 10

- 11 .) During sentencing, Gipson referred to a

“ traumatic brain injury , ” and mental health issues. 6 ( Id. at 221

- 222.) W e are unsure whether Gipson asserts the trial co urt should have found a mitigator in his hand injury , a traumatic brain injury, or his self

- reported mental health issues. Because it i s unclear which injury is the traumatic injury the court should have found , we cannot conclude the trial court abuse d its discretion. See Battle v. State , 688 N.E.2d 1230, 1237 (Ind. 1997) (trial court ’s fail ure to find any mitigating circumstances was no t an abuse of discretion )

.
[12] In summary, the trial court found a number of aggravators that could be used to justify consecutive sentences, and Gipson has not demonstrated the trial court abused its discretion in failing to find his purported mitigator. We accordingly find no abuse of discretion in the court’s imposition of consecutive sentences for three of Gipson’s seventeen convictions. See O’Connell v. State , 742 N.E.2d 943,

6 In the Presentence Investigation, Gipson reported being diagnosed with depression four differen t times. Gipson also reported being diagnosed with Post Traumatic Stress Disorder (PTSD) in 197 0, 1973, 1991 through 1993, and 2001. Gipson received counseling for his PTSD for two years after burning his hands , but quit going in 1991. (App. Vol. III at 11.) We found no mention of a brain injury in the Presentence Investigation.Court of Appeals of Indiana | Memorandum Decision 18A

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- 51 | January 16, 2019 Page 7 of 7 952 (Ind. 2001) (multiple victims or multiple crimes justifies imposing

consecu tive sentences).


# Conclusion

[13] The trial court properly found aggravators allowing it to sentence Gipson to consecutive sentences and did not have to consider the same mitigating factors the defense did . T hus , the trial court did not abuse its discretion when sentencing Gipson. Accordingly, we affirm.

[14] Affirmed

Baker, J., and Tavitas, J., concur

.