Gipson v. State
| Decision Date | 22 December 2015 |
| Docket Number | No. 47A01–1501–CR–23.,47A01–1501–CR–23. |
| Citation | 44 N.E.3d 137 (Table) |
| Parties | Jeffery L. GIPSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Bruce E. Andis, Daniel A. Dixon, Lawrence County Public Defender Agency, Bedford, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
ROBB
, Judge.
[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.
[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; 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, 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.
[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. Tater 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 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.
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 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...
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