MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Sep 24 2015, 10:02 am
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                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Henry Gibson,                                            September 24, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A05-1502-CR-70
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner, Judge
                                                         Cause No. 49G06-1408-F3-40935
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Henry Gibson (Gibson), appeals his sentence for Count

      I, aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5(2); Count II,

      battery by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(b)(1);

      and Count III, carrying a handgun without a license, a Class A misdemeanor,

      I.C. § 35-47-2-1.


[2]   We affirm.


                                                    ISSUE

[3]   Gibson raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion by failing to specifically identify and balance the

      aggravating and mitigating circumstances.


                           FACTS AND PROCEDURAL HISTORY

[4]   Gibson lived in the house next to Tabitha Parr (Parr) for about two years in

      Marion County, Indianapolis, Indiana. At the time, Parr was renting out her

      vehicle on a daily basis to Gibson’s friend, Derrick Hart (Hart). On more than

      one occasion, Parr had requested Hart to return her vehicle and when Hart did

      not concede to her requests, Parr’s girlfriend contacted the police and reported

      the vehicle stolen. On August 21, 2014, using Parr’s vehicle, Hart dropped his

      girlfriend off at work and then drove and parked the vehicle outside an

      apartment building located on Michigan and Lasalle to hang out with his


      Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 2 of 10
      friends. At around 2:00 p.m., Hart saw a police vehicle stop by Parr’s vehicle

      and the officer informed Hart that the vehicle had been reported stolen. Parr’s

      vehicle was then impounded and towed. Because he had paid to use the vehicle

      that day, Hart texted Parr questioning her about the vehicle. In a phone

      conversation, Hart demanded a refund on his money and also made several

      threats. After work, instead of going home, Parr drove to her longtime friends’

      house—Larry Tindle (Tindle) and John Carr (Carr)—who lived on 3741 East

      Market Street, Marion County, Indianapolis, Indiana. During that time, Hart

      was dating Carr’s daughter, and he lived at Tindle’s and Carr’s house. Parr had

      hoped that Carr would calm Hart down. At some point, Parr texted Hart and

      informed him that she was at Tindle’s and Carr’s house.


[5]   When Hart arrived, Carr answered the door. According to Carr, Hart yelled at

      Parr that he was “going to kill her” and was going to “beat the crap out of

      [Parr] if she didn’t come out [] and fight like a man.” (Transcript p. 76). Carr

      defended Parr by informing Hart that he was not going to harm Parr, and he

      requested Hart to leave. Thereafter, Hart returned to Gibson’s house and

      narrated the vehicle situation to Gibson. Gibson was upset to hear what had

      transpired, and so he asked Hart to show him where Parr was. When Gibson

      and Hart arrived at Tindle’s and Carr’s house, both walked to the front steps

      and drew their guns. Since Parr needed a ride home, Carr offered to drive her.

      The moment Carr and Parr opened the front door, Hart and Gibson started

      shooting. Carr blocked the shots with his right arm and two bullets hit Carr’s

      right elbow. Parr ran back inside the house and Carr closed the door.


      Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 3 of 10
      Approximately six more bullets flew through the closed door, and one of them

      hit Carr in the buttocks. Gibson and Hart took off running down the street. On

      their way home, Gibson discarded his handgun in a field.


[6]   Carr was taken to the hospital and was admitted for about four days. Carr’s

      elbow was shattered and had to be replaced. The bullet that hit Carr’s buttocks

      was fused in his femoral artery and could not be removed from his body. As a

      result of the shooting, Carr continued to feel numbness and pain in his leg, as

      well as pain in his elbow. Carr also had to use a cane for walking.


[7]   On August 27, 2014, the State filed an Information, charging Gibson with

      Count I, aggravated battery, a Level 3 felony; Count II, battery by means of a

      deadly weapon, a Level 5 felony; Count III, carrying a handgun without a

      license, a Class A misdemeanor; and Part II of Count III, carrying a handgun

      without a license, a Level 5 felony. A two-day joint jury trial for Gibson and

      Hart was held on January 13-14, 2015. 1 At the close of the evidence, the jury

      found Gibson guilty as charged. The State subsequently dismissed Part II of

      Count III, carrying a handgun without a license. On January 29, 2015, the trial

      court held a joint sentencing hearing for Gibson and Hart. At the close of the




      1
          Hart appeals separately and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 4 of 10
      evidence, the trial court merged Count II into Count I, and it thereafter

      sentenced Gibson to fifteen years in the Department of Correction (DOC). As

      for Count III, the trial court sentenced Gibson to one year. Gibson’s sentences

      were to run concurrently.


[8]   Gibson now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION2

[9]   Gibson contends that the trial court abused its discretion by failing to expressly

      identify and balance the aggravating and mitigating circumstances. “A trial

      court’s sentencing determination is within its discretion, and we will reverse

      only for an abuse of that discretion.” Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g by 875 N.E.2d 218 (Ind. 2007). When sentencing a

      defendant for a felony, the trial court must enter a sentencing statement

      “including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Id. Even if the trial court has abused its discretion—by,

      for example, neglecting to enter a sentencing statement—we will remand for




      2
        Pursuant to Indiana Administrative Rule 9(G)(2)(b) and Indiana Code section 35-38-1-13, the presentence
      investigation (PSI) report must be excluded from public access. However, in this case, the information
      contained in the PSI report “is essential to the resolution” of Gibson’s claims on appeal. Ind. Admin. Rule
      9(G)(7)(a)(ii)(c). Accordingly, we have included confidential information in this decision only to the extent
      necessary to resolve the appeal.

      Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015            Page 5 of 10
       resentencing only “if we cannot say with confidence that the trial court would

       have imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id. at 491.


[10]   We initially note that the trial court’s failure to use the word “aggravator” is not

       fatal to its sentencing statement. Lewis v. State, 31 N.E.3d 539, 543 n.7 (Ind. Ct.

       App. 2015). At Gibson’s sentencing, without specifically proclaiming that the

       following were aggravators, the trial court noted in its oral sentencing statement

       the nature of Gibson’s crimes, Carr’s injuries, Gibson’s extensive criminal

       history, and his addiction to drugs.


[11]   Generally, the “nature and circumstances” of a crime is a proper aggravating

       circumstance. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (quoting

       Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999)). Even if the trial court did not

       state that Gibson’s crimes were aggravating factors, the trial court’s sentencing

       statement was focused on pointing out the nature of the attack on Carr and the

       risk of injury that would have resulted from the shooting. Specifically, the trial

       court stated,

                I am just absolutely staggered by the ability of anybody to fire just
                indiscriminately into a house in which you know there [were]
                individuals inside. You know, you’re not firing up in the air. You’re
                not firing [] into the ground to make a point. You’re actually firing to
                the point where the bullets go through the door and could have hit
                anybody that had moved, and you knew people that were there.

                ****
                [Somebody [] could have been hit by those bullets that weren’t (sic)
                part of your argument, or weren’t (sic) part of your beef. And you

       Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 6 of 10
                didn’t really care. You just shot it up because you could.

                ****
                But you can’t ignore six bullet holes through a door, and you can’t
                ignore it in somebody’s body. [] And no matter what your argument
                was, it wasn’t worth that. So, my suggestion to you is you stay away
                from the drugs or anything else going [] in the [DOC]. You go out
                and you get yourself some kind of degree. Either in certification in
                terms of doing something where you’re worthwhile and then we can
                talk about community corrections. But there’s no way I’m putting
                you in community corrections or giving you anything less than pretty
                close to the maximum [], because I think shooting through a house
                with multiple people inside for fifteen years is frankly nothing by
                comparison.

                (Sent. Tr. pp. 33-34, 54).



[12]   Further, we note that the serious nature of a victim’s injuries is a proper

       aggravator. See McCann, 749 N.E.2d at 1120. In the instant case, the trial court

       noted that Carr was still carrying a bullet inside his body, and that Gibson was

       lucky that the bullet had not severed the artery. In addition, the record shows

       that Carr’s elbow was shattered from the shooting and had to be replaced.


[13]   With respect to Gibson’s criminal history, we have held that a defendant’s

       criminal history is a valid aggravating circumstance. See Deloney v. State, 938

       N.E.2d 724, 732 (Ind. Ct. App. 2010), trans. denied. In the instant case, the trial

       court noted Gibson had not led a law-abiding life leading up to the immediate

       offenses. Gibson’s juvenile history included seven true findings, including two

       batteries, truancy, intimidation, public intoxication, and criminal recklessness.

       With regards to Gibson’s adult criminal history, the trial court observed that

       Gibson had five felony convictions. Furthermore, the record shows that in
       Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 7 of 10
       2007, Gibson violated his probation for failing to report his accurate address,

       attend counselling, or obtain employment. In 2008, Gibson was convicted and

       sentenced to four years in the DOC for multiple charges, including armed

       robbery, criminal confinement, intimidation, pointing a firearm, and resisting

       arrest. Gibson was placed on probation for six months which he violated in

       2011, and was therefore sentenced to one year in the DOC. Again, in 2013,

       Gibson violated his probation by contacting victims of a domestic battery case.

       Here, we conclude the trial court properly relied on Gibson’s criminal history as

       an aggravating factor.


[14]   Lastly, we note that a history of substance abuse may constitute a valid

       aggravating factor. See Iddings v. State, 772 N.E.2d 1006, 1018 (Ind. Ct. App.

       2002), trans. denied. In this case, the trial court noted that Gibson started using

       drugs at the age of fourteen and he would use “two blunts a day.” (Sent. Tr. p.

       46).


[15]   Gibson also contends that the trial court abused its discretion when it failed to

       identify as mitigating that both of his parents had arrest records. Also, Gibson

       argues that the trial court failed to consider that his incarceration would have

       posed hardship to his “two children, ages eight and nine.” (Appellant’s Br. p.

       7). It is well established that the determination of mitigating circumstances is

       within the trial court’s discretion. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct.

       App. 2007), trans. denied. The trial court is not obligated to accept the

       defendant’s argument as to what constitutes a mitigating factor, and a trial court

       is not required to give the same weight to proffered mitigating factors as does a

       Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 8 of 10
       defendant. Id. A trial court does not err in failing to find a mitigating factor

       where that claim is highly disputable in nature, weight, or significance. Id. An

       allegation that a trial court abused its discretion by failing to identify or find a

       mitigating factor requires the defendant on appeal to establish that the

       mitigating evidence is significant and clearly supported by the record. Id.


[16]   With respect to Gibson’s first proffered mitigator, the fact his parents were

       arrested was documented in the PSI. The trial court did not recognize that

       circumstance at Gibson’s sentencing hearing, but acknowledged that Gibson

       had a poor upbringing. Here, we find that it was within the trial court’s

       discretion to determine if Gibson’s parents’ arrest records was a separate

       mitigating circumstance warranting a reduced sentence. See Anglemyer, 868

       N.E.2d at 493 (stating that it “is the court’s call” to determine whether a

       proposed mitigating circumstance is significant). Turning to Gibson’s second

       proffered mitigating factor, the record shows that although Gibson had a

       relationship with his children, he had failed to pay child support in an amount

       close to $5,000. Moreover, Gibson had been incarcerated numerous times since

       his children were born, and his imprisonment would not have caused an undue

       burden to his children. As such, the trial court properly refused to recognize

       Gibson’s second proffered mitigator.


[17]   Finally, with respect to Gibson’s argument that the trial court failed to properly

       balance the mitigating and aggravating circumstances, our Indiana Supreme

       Court has instructed that our review of sentencing for an abuse of discretion

       does not include a review of the relative weight or value assigned to mitigating

       Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 9 of 10
       and aggravating factors. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       Here, we find that Gibson’s argument is not available for appellate review

       because he is merely challenging the weight that the trial court assigned to the

       factors.


[18]   With all of the above in mind, we conclude that the trial court did not abuse its

       discretion when sentencing Gibson. Here, the trial court properly demonstrated

       that the aggravating and mitigating circumstances were weighed to determine

       that the aggravators outweighed the mitigators. Therefore, we find that the trial

       court properly sentenced Gibson.


                                               CONCLUSION

[19]   Based on the foregoing, we conclude that trial court did not abuse its discretion

       by failing to expressly identify and balance the aggravating and mitigating

       circumstances.


[20]   Affirmed.


[21]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Opinion 49A05-1502-CR-70 | September 24, 2015   Page 10 of 10
