                                                                               FILED
                                                                           Oct 02 2018, 8:54 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Amy D. Griner                                              Curtis T. Hill, Jr.
      Mishawaka, Indiana                                         Attorney General of Indiana

                                                                 Ellen H. Meilaender
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jason Michael Gibson,                                      October 2, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-743
              v.                                                 Appeal from the St. Joseph
                                                                 Superior Court
      State of Indiana,                                          The Honorable Jane Woodward
      Appellee-Plaintiff.                                        Miller, Judge
                                                                 Trial Court Cause No.
                                                                 71D01-1706-F3-37



      Najam, Judge.


                                         Statement of the Case
[1]   Jason Michael Gibson appeals his convictions for robbery, as a Level 3 felony,

      and conspiracy to commit robbery, as a Level 3 felony, following a jury trial.

      He presents the following issues for our review:
      Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018                           Page 1 of 14
              1.       Whether the trial court committed fundamental error
                       when it entered judgment of conviction for conspiracy to
                       commit robbery.

              2.       Whether the trial court abused its discretion when it
                       admitted into evidence his inculpatory statements to law
                       enforcement.

              3.       Whether the trial court abused its discretion when it
                       admitted the testimony of an eight-year-old witness.

              4.       Whether his convictions violate Indiana’s prohibition
                       against double jeopardy.

              5.       Whether the trial court abused its discretion when it
                       sentenced him.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 29, 2017, Tyshawn Owens was babysitting Talanda Peck’s five

      children at her home in South Bend. Peck was gone overnight, and Owens

      invited his friends Gibson and Shayla Brazier to spend the night. After Gibson

      and Brazier left on the morning of May 30, they met with Deangelo Dove and

      Deziara Parker and discussed robbing Peck’s house.


[4]   At approximately 11:00 a.m. that morning, Dove entered Peck’s house, and

      within a few minutes someone disabled a video surveillance system at the

      house. Two of Peck’s daughters, including T.O., were in Peck’s bedroom when

      Dove, who had a gun, found them and tied them up using duct tape. At some


      Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018          Page 2 of 14
      point, one of the perpetrators used duct tape to tie up Owens. Gibson, Dove,

      and Parker then stole from the home televisions, a computer, an iPad, a cell

      phone, a vacuum cleaner, and tennis shoes. A neighbor, Michael Griffin, saw a

      blue Buick with front-end damage parked in Peck’s backyard during the time of

      the robbery. And Griffin saw that car drive away shortly before Peck’s

      daughters and Owens, who were able to get out of the duct tape bindings, came

      to his house and told him they had just been robbed. At some point, T.O. went

      to a nearby store and called police to report the robbery.


[5]   Later that evening, Officer Scott Gutierrez with the South Bend Police

      Department was on patrol when he saw a blue Buick with front-end damage,

      which he knew matched the description of the car used in the robbery earlier

      that day. Officer Gutierrez followed the car until it stopped at a gas station,

      where he initiated a traffic stop. He questioned the female driver, Caprice

      Guidan, and the passenger, Parker, and he conducted a search of the car.

      Officer Gutierrez found an ATM card belonging to Dove in the back passenger

      seat.


[6]   In the meantime, Officer James Taylor questioned Gibson at the police station.1

      Gibson told Officer Taylor that he and Dove had made a plan to rob Peck’s




      1
        The record does not reveal how officers learned that Gibson was involved in the robbery, but it appears
      that Owens told officers of Gibson’s involvement.

      Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018                               Page 3 of 14
      house, that Dove had committed the robbery, and that the stolen items could be

      found at Guidan’s house. Officers later found several of the stolen items there.


[7]   On June 5, 2017, the State charged Gibson with three counts of robbery, as

      Level 3 felonies. On December 15, the State amended the information to add a

      fourth count, conspiracy to commit robbery, as a Level 3 felony. And in

      January 2018, the State moved to amend the three robbery charges “to allege

      that [Gibson] Aided, Induced, or Caused another person in committing [sic] the

      robberies against Tyshawn Owens and the two minor children” on May 30,

      2017. Appellant’s App. Vol. 2 at 39. The trial court permitted that amendment

      over Gibson’s objection.


[8]   At trial, the court instructed the jury on the elements of the four counts against

      Gibson: three counts of robbery and one count of conspiracy to commit

      robbery. And the State and defense counsel addressed all four counts in their

      opening and closing arguments. The jury found Gibson guilty as charged on all

      four counts, but the trial court entered judgment of conviction only on one

      count of robbery, as a Level 3 felony, and conspiracy to commit robbery, as a

      Level 3 felony. The court then sentenced Gibson to fourteen years for robbery

      and three years for conspiracy to commit robbery, and the court ordered those

      sentences to be executed and to run consecutively. This appeal ensued.




      Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 4 of 14
                                       Discussion and Decision
                               Issue One: Conspiracy to Commit Robbery

[9]    Gibson first contends that, because the State’s amended information filed in

       January 2018 only referenced the three robbery counts, “he was not charged

       with [conspiracy to commit robbery] at the time he went to trial” and his

       conviction on that count “must be vacated.” Appellant’s Br. at 12. He

       maintains that he “cannot be convicted of a crime for which he was not charged

       by the State of Indiana and it would be fundamental error to do so.” Id. But

       the State points out that it did not dismiss the conspiracy to commit robbery

       charge by its January 2018 amendment, so it was still a “live” charge at the time

       of trial. We agree with the State.


[10]   “In every criminal case, an accused is entitled to clear notice of the charge or

       charges against which the State summons him to defend.” Wright v. State, 658

       N.E.2d 563, 565 (Ind. 1995) (citing Ind. Const. art 1, § 13). “Clear notice

       serves the dual purposes of allowing an accused to prepare his defense and of

       protecting him from being placed twice in jeopardy for the same offense.” Id.

       Here, there is no dispute that the State charged Gibson with conspiracy to

       commit robbery when it amended the information to add that charge in

       December 2017, and there is no dispute that Gibson had prepared his defense to

       that charge after clear notice of the charge. And at trial, Gibson argued the

       conspiracy to commit robbery charge in opening and closing statements, and he

       proffered a jury instruction on the conspiracy charge.



       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 5 of 14
[11]   The only question on appeal is whether, when the State amended the

       information a second time in January 2018, the conspiracy to commit robbery

       charge was effectively dismissed or remained a “live” charge against Gibson.

       We have found no statutory or case law indicating that where, as here, the State

       amends some but not all charges in an information without any reference to

       unamended charges previously filed, the amended information effectively

       dismisses the previously charged but unamended counts. Rather, it appears

       that an amended information revising fewer than all charges against a

       defendant only supersedes the previous information as to the amended counts.


[12]   We note that the better practice would be to include both the unamended

       charges and the amended charges in a single, clean charging document before

       the start of trial so as to avoid the type of confusion presented here. But there is

       nothing that prohibits what the State did here. Indeed, when the State added

       the fourth count, conspiracy to commit robbery, by amendment in December

       2017, it included only that single count in the amended information. See

       Appellant’s App. Vol. 2 at 35. Accordingly, when the State amended the three

       robbery counts in January 2018 and included only those three counts in the

       second amended information, that procedure was consistent with the manner in

       which the State amended the information the first time. See id. at 41-42.


[13]   In sum, under the facts and circumstances presented here, where Gibson was

       clearly notified of the charge of conspiracy to commit robbery and prepared and

       executed a defense to that charge at trial, and where the State did not dismiss



       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018         Page 6 of 14
       the conspiracy charge prior to trial, the trial court’s entry of judgment of

       conviction on that charge was not error, let alone fundamental error.


                                    Issue Two: Inculpatory Statements

[14]   Gibson next contends that the trial court abused its discretion when it admitted

       into evidence his inculpatory statements to police. Gibson maintains that the

       State did not “establish a corpus delicti” required to admit those statements at

       trial. Appellant’s Br. at 14. We cannot agree.


[15]   In Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017), our Supreme Court

       explained as follows:


               In Indiana, a person may not be convicted of a crime based solely
               on a nonjudicial confession of guilt. Green v. State, 159 Ind. App.
               68, 304 N.E.2d 845, 848 (1973). Rather, independent proof of
               the corpus delicti is required before the defendant may be
               convicted upon a nonjudicial confession. Id. Proof of the corpus
               delicti means “proof that the specific crime charged has actually
               been committed by someone.” Walker v. State, 249 Ind. 551, 233
               N.E.2d 483, 488 (1968). Thus, admission of a confession
               requires some independent evidence of commission of the crime
               charged. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999).
               The independent evidence need not prove that a crime was
               committed beyond a reasonable doubt, but merely provide an
               inference that the crime charged was committed. Malinski v.
               State, 794 N.E.2d 1071, 1086 (Ind. 2003). This inference may be
               created by circumstantial evidence. Id.
               The purpose of the corpus delicti rule is to prevent the admission of
               a confession to a crime which never occurred. Hurt v. State, 570
               N.E.2d 16, 19 (Ind. 1991). The State is not required to prove the
               corpus delicti by independent evidence prior to the admission of a
               confession, as long as the totality of independent evidence

       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018         Page 7 of 14
               presented at trial establishes the corpus delicti. McManus v. State,
               541 N.E.2d 538, 539-40 (Ind. 1989).


[16]   Further, as the State points out,


               the State’s case may be tested by reference to the corpus delicti in
               two ways. For the preliminary purpose of determining whether
               the confession is admissible, the State must present evidence
               independent of the confession establishing that the specific crime
               charged was committed by someone. The degree of proof
               required to establish the corpus delicti for admission of a
               confession is that amount which would justify the reasonable
               inference that the specific criminal activity had occurred. It is not
               necessary to make out a prima facie case as to each element of the
               offense charged, and the corpus delicti may be shown by
               circumstantial evidence.

               On the other hand, in order to sustain a conviction the corpus
               delicti must be proved beyond a reasonable doubt. In determining
               the sufficiency of the evidence for conviction, the confession may
               be considered along with the independent evidence.


       Harkrader v. State, 553 N.E.2d 1231, 1232-33 (Ind. Ct. App. 1990) (citations

       omitted).


[17]   Here, we cannot discern whether Gibson is challenging one or both types of

       corpus delicti requirements. In any event, in essence, Gibson contends that,

       other than his inculpatory statements, there is no evidence that he had made an

       agreement with Dove to commit the robbery to establish the conspiracy. But

       T.O. testified that she saw Gibson helping another man steal televisions from

       the house, and she saw both men going through her mother’s jewelry. Gibson


       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018             Page 8 of 14
       and Dove worked together to commit the robbery, which is circumstantial

       evidence to support a reasonable inference that they had made a plan before

       they arrived to commit the robbery. See Hickman v. State, 654 N.E.2d 278, 283

       (Ind. Ct. App. 1995) (holding corpus delicti for conspiracy to commit burglary

       satisfied where circumstantial evidence showed defendant had committed

       burglary with others’ help). We hold that the corpus delicti rule was satisfied

       here. In particular, the trial court did not abuse its discretion when it admitted

       into evidence Gibson’s inculpatory statements to police, and the evidence was

       sufficient to support Gibson’s conviction for conspiracy to commit robbery.


                                       Issue Three: T.O.’s Testimony

[18]   Gibson contends that T.O., who was eight years old at the time of trial, was

       “not a competent witness.” Appellant’s Br. at 17. Thus, he maintains that the

       trial court abused its discretion when it allowed her to testify. But, while

       Gibson initially questioned her competency, after the trial court conducted a

       competency hearing and found her competent, Gibson made no objection to

       her testimony.


[19]   It is well settled that the failure to make a contemporaneous objection to the

       admission of evidence at trial results in waiver of the error on appeal. Jackson v.

       State, 735 N.E.2d 1146, 1152 (Ind. 2000). A contemporaneous objection

       affords the trial court the opportunity to make a final ruling on the matter in the

       context in which the evidence is introduced. Id. Gibson’s failure here results in

       waiver of appellate review. See, e.g., Kochersperger v. State, 725 N.E.2d 918, 922


       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 9 of 14
       (Ind. Ct. App. 2000) (holding defendant waived issue of child witness’

       competency for failure to make contemporaneous objection).


                                        Issue Four: Double Jeopardy

[20]   Gibson contends that his convictions violate double jeopardy principles. He

       maintains that, because “[t]here was no independent evidence of any agreement

       between co-conspirators except Gibson’s statements[,]” there is a “reasonable

       possibility that the jury relied on the same evidence to prove both the

       conspiracy to commit robbery as to prove the robbery, namely: Gibson’s

       statements.” Appellant’s Br. at 16. Gibson misunderstands the actual evidence

       test under Article 1, Section 14 of the Indiana Constitution, and his contention

       on this issue is without merit.


[21]   Article 1, Section 14 of the Indiana Constitution states, “No person shall be put

       in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32,

       49 (Ind. 1999), our Supreme Court held that two or more offenses are the

       “same offense” in violation of Article 1, Section 14 of the Indiana Constitution,

       if, with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.


[22]   Here, Gibson does not contend a violation under the statutory elements test.

       Instead, he claims that his convictions constitute double jeopardy under the

       actual evidence test. “The actual evidence test prohibits multiple convictions if

       there is ‘a reasonable possibility that the evidentiary facts used by the fact-finder


       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 10 of 14
       to establish the essential elements of one offense may also have been used to

       establish the essential elements of a second challenged offense.’” Davis v. State,

       770 N.E.2d 319, 323 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 53). The

       actual evidence test “is not violated when the evidentiary facts establishing the

       essential elements of one offense also establish only one or even several, but not

       all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d

       831, 833 (Ind. 2002).


[23]   A “reasonable possibility” that the trier of fact used the same facts to reach two

       convictions requires substantially more than a logical possibility. Lee v. State,

       892 N.E.2d 1231, 1236 (Ind. 2008). “‘[R]easonable possibility’ turns on a

       practical assessment of whether the jury may have latched on to exactly the

       same facts for both convictions.” Id. Application of this test requires the court

       to “identify the essential elements of each of the challenged crimes and to

       evaluate the evidence from the jury’s perspective[.]” Spivey, 761 N.E.2d at 832.

       In determining the facts used by the jury to establish the elements of each

       offense, we consider the charging information, jury instructions, and arguments

       of counsel. Lee, 892 N.E.2d at 1234; Spivey, 761 N.E.2d at 832; Richardson, 717

       N.E.2d at 54 n.48.


[24]   The State charged Gibson with robbery, as a Level 3 felony, as follows:


               On or about May 30, 2017 in St. Joseph County, State of
               Indiana, Jason Michael Gibson did knowingly aid, induce, or
               cause another person or persons, including Deangelo Dove, to



       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 11 of 14
               knowingly take property from another person or the presence of
               another person, to-wit: T.O., by putting T.O. in fear, while
               armed with a deadly weapon.


       Appellant’s App. Vol. 2 at 41. And the State charged Gibson with conspiracy

       to commit robbery as follows:


               On or about May 30, 2017, in St. Joseph County, State of
               Indiana, JASON MICHAEL GIBSON, with the intent to
               commit the crime of Armed Robbery, did agree with one or more
               other persons, including Deangelo Dove, to commit the crime of
               Armed Robbery by knowingly taking property from the presence
               of Tyshawn Owens by using or threatening the use of force while
               armed with a deadly weapon, and that one or more of those
               other persons did commit an overt act in furtherance of the
               agreement.


       Id. at 35.


[25]   At trial, the court instructed the jury in relevant part that the State had to prove

       beyond a reasonable doubt that either Gibson or Dove committed the overt act

       of entering Peck’s residence in furtherance of their agreement to prove

       conspiracy. And in its closing argument, the State directed the jury to the

       evidence that Dove entered the residence to prove the overt act in support of the

       conspiracy charge. That evidence has no relation to the evidence supporting

       the robbery charge, which required only proof that Gibson aided Dove in

       stealing items from the presence of T.O., which T.O.’s testimony supports. In

       short, considering the charging information, jury instructions, and arguments of

       counsel there is no reasonable possibility that the jury used the evidence proving


       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 12 of 14
       the elements of robbery to also establish the elements of conspiracy to commit

       robbery. We hold that Gibson’s convictions do not violate double jeopardy

       principles.


                                             Issue Five: Sentencing

[26]   Finally, Gibson contends that the trial court abused its discretion when it

       sentenced him. As our Supreme Court has explained,


               sentencing decisions rest within the sound discretion of the trial
               court and are reviewed on appeal only for an abuse of
               discretion. . . . So long as the sentence is within the statutory
               range, it is subject to review only for abuse of discretion. . . . 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 deductions to be drawn
               therefrom.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are clearly
               supported by the record and advanced for consideration, or the reasons
               given are improper as a matter of law. Under those
               circumstances, remand for resentencing may be the appropriate
               remedy 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.


       Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (emphasis added) (some

       citations and quotation marks omitted), clarified on reh’g, 875 N.E.2d 218 (2007).

       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018           Page 13 of 14
[27]   Gibson maintains that “the trial court failed to recognize mitigating factors

       clearly advanced for consideration[,]” namely, his youth, his cooperation with

       police in this case, his remorse, his desire to “repay the victims for the property

       taken,” and the undue hardship his incarceration will pose on his daughter.

       Appellant’s Br. at 19-20. However, it is well settled that a trial court does not

       abuse its discretion if it does not consider a mitigating factor that a defendant

       does not raise at sentencing. Anglemyer, 868 N.E.2d at 492. The State points

       out that Gibson did not proffer to the trial court any of the mitigators he

       outlines in his brief on appeal.


[28]   In any event, at sentencing the trial court considered Gibson’s youth and

       remorse, but declined to give them any mitigating weight. It is well settled that

       a trial court is under no obligation to explain why a proposed mitigator does not

       exist or why the court found it to be insignificant. Sandleben v. State, 22 N.E.3d

       782, 796 (Ind. Ct. App. 2014), trans. denied. Gibson has not shown that the trial

       court abused its discretion when it sentenced him. Id.


[29]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-743 | October 2, 2018        Page 14 of 14
