MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Nov 13 2019, 10:04 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Daniel Hageman                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gregory Kincaid,                                        November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-829
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Stanley E. Kroh,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1808-F5-26970



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019              Page 1 of 9
[1]   Gregory Kincaid appeals the sentence imposed by the trial court for one count

      of Level 5 felony domestic battery, arguing that (1) the trial court erred by

      relying on an improper sentence aggravator; and (2) the sentence should be

      revised in light of the nature of the offense and Kincaid’s character. Finding no

      error and the sentence not inappropriate, we affirm.


                                                    Facts
[2]   In August 2018, Kincaid was dating T.H. T.H. and her two children, a son and

      a daughter, lived with Kincaid at the time. On August 14, 2018, while the

      family was spending the evening at home, Kincaid was intoxicated and being

      “[v]ery rude” towards T.H. Tr. Vol. II p. 85. After dinner, T.H. watched a

      television show, and then around 11:00 or 11:30 p.m., she went to go relax in

      the bath.


[3]   While in the bath, T.H. heard “very loud music” coming from Kincaid’s

      bedroom. Id. at 86. She texted him multiple times asking to turn the music

      down due to the late hour and because her son had an important I.E.P.

      Assessment at school the next day. Kincaid did not respond to the messages.

      Instead, he came “storming in the bathroom . . . in a rage,” and yelled and

      cussed at T.H. as she sat in the bath. Id. at 87. Kincaid then proceeded to put

      his hand around T.H.’s neck, strangled her until she could not breathe, and told

      her “I’ll f*cking kill you.” Id. At some point while T.H. struggled to get free and

      stand up, the shower curtain fell and startled Kincaid, after which he released

      T.H. and fled the house. T.H. called her mother and told her, “[h]e tried to kill


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 2 of 9
      me. Come, please. Call the cops.” Id. at 89. T.H. also locked the doors to the

      house so that Kincaid could not get back inside. T.H.’s mother testified that

      T.H. told her Kincaid had punched her in the face; T.H.’s mother then called

      911 and reported the same.


[4]   When the responding officer arrived at the house, Kincaid was sitting on the

      porch and spoke with the officer. The officer observed that Kincaid was

      intoxicated. He then went inside and spoke with T.H., who was crying and

      visibly upset, and he “immediately noticed that there had been some kind of

      damage to her—her throat was obviously not in good condition. . . . it was very

      obvious that something had happened that night.” Id. at 143. He described the

      injuries: “obvious red marks on her neck . . . especially on the sides of the

      neck.” Id. at 144. Upon entering the bathroom where the attack occurred, the

      officer observed that “[i]t [was] in complete disarray.” Id.


[5]   On August 16, 2018, the State charged Kincaid with part I of Count I, Class A

      misdemeanor domestic battery; part II of Count I, Level 5 felony domestic

      battery for a prior battery conviction with the same victim; Count II, Level 6

      felony strangulation; Count III, Level 6 felony domestic battery committed in

      the presence of a child; and Count IV, Level 6 felony intimidation. Before trial,

      the State filed a motion to dismiss Count III, and Count IV was renumbered as

      Count III.


[6]   A jury trial was held February 28, 2019, at the conclusion of which Kincaid was

      found guilty of Count I and not guilty of Counts II and III. Kincaid pleaded


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 3 of 9
      guilty to the enhancement under part II of Count I, resulting in a conviction of

      Level 5 felony domestic battery. The trial court sentenced Kincaid to five years,

      with two years executed in the Department of Correction, three years

      suspended, and 545 days on probation. Kincaid now appeals.


                                   Discussion and Decision
                                    I. Sentence Aggravator
[7]   Kincaid first argues that the trial court erred during sentencing by relying on the

      cumulative impact of Kincaid’s behavior on T.H. and her children as a sentence

      aggravator. Sentencing decisions are within the sound discretion of the trial

      court and we thus afford great deference to the trial court’s judgment. Anglemyer

      v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. The

      trial court may err in its sentencing process if, among other things, it relies on

      aggravators not supported by the record or that are improper as a matter of law.

      Id. at 490-91. We will not review the relative weight the trial court gave to any

      properly found aggravators. Id. at 491.


[8]   During sentencing, the State read aloud three letters from T.H., her son, and

      her daughter that described the various ways in which Kincaid’s actions had

      impacted their long-term mental, physical, and emotional health. The trial court

      then considered these impacts as one of many aggravators in determining

      Kincaid’s sentence. Kincaid argues that these letters fail to demonstrate lasting

      impacts beyond what is normally associated with the offense of domestic

      battery, and, therefore, that their contents were an improper aggravator.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 4 of 9
[9]    “Generally, the impact that a victim or a family experiences as a result of a

       particular offense is accounted for in the [advisory] sentence. ‘In order to validly

       use victim impact evidence to enhance a[n advisory] sentence, the trial court

       must explain why the impact in the case at hand exceeds that which is normally

       associated with the crime.’” Simmons v. State, 746 N.E.2d 81, 91 (Ind. Ct. App.

       2001) (quoting Davenport v. State, 689 N.E.2d 1226, 1233 (Ind. 1997)) (internal

       citation omitted).


[10]   We acknowledge that every victim of domestic abuse suffers long-term impacts

       on all aspects of their well-being beyond what most of us could imagine. T.H.

       described herself as “scarred for life” by her abusive relationship with Kincaid,

       during which she “felt like [she] wasn’t living anymore, everyday was a

       survival.” Tr. Vol. II p. 215-16. But what we find particularly noteworthy in this

       case are the additional impacts suffered by T.H.’s daughter as a result of the

       physical abuse Kincaid inflicted upon her mother. Her letter detailing these

       impacts reads, in relevant part, as follows:


               . . . First off, I would like to start by saying, Gregory Kincaid has
               actually messed me up, whether it’s mentally, physically or
               emotionally. He’s messed me up on levels that I didn’t think was
               possible. His physical abuse towards my mom, [T.H.], and his
               mental abuse towards me and my brother caused me to need
               therapy. I can’t tell you how many nights I was sleepless because
               of his actions. I would hear him beat on my mom, throw things
               at her, talk down to her, and I would be too scared to sleep
               because I knew if it got too bad, I would get up and try to stop it.
               I missed many days of school due to not sleeping, but it doesn’t
               stop there. I would physically have to get between them just so
               that he would stop hurting her. This man truly broke me and my

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 5 of 9
               spirit. . . . After dealing with this abuse and living with it for four
               years, he’s caused me to have PTSD. I have to be on two
               different medications. One so I could sleep because I’d wake up
               hour after hour because of nightmares. Nightmares about him
               killing my mom or hurting my younger brother. The other
               medication also for my PTSD, I needed it because anytime I
               heard a lot of noise, or someone yelling, I would have a flashback
               of something he’d done. It would cause me to breakdown and
               start crying. I would tense up, and I remember being so scared
               that I would have to see this man again.


               . . . [T]here’s so many stories I could tell you about what Gregory
               Kincaid has done, but then this letter would be at least 20 pages
               long. He made me feel like I was nothing, that I shouldn’t even
               be here. . . . And I guess what bothers me the most is how he
               would treat my mom and turn around and try to be nice to me
               and my brother. As I’m writing this letter, I just feel sick to my
               stomach.


                                                       ***


               In conclusion, what I’m trying to explain is that he really is a
               dangerous person. He feeds off of mentally and physically
               abusing people. I’m scared that he’s going to get out and try to
               come back for us, and I would feel safe if I knew for sure that
               he’s gone.


       Id. at 213-15.


[11]   The lasting and traumatic impacts suffered by T.H.’s daughter—who was not

       even the direct victim of the offense at hand—far exceed those typically

       associated with a domestic battery offense, and certainly far exceed what any



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 6 of 9
       bystander should have to endure. The trial court did not err in considering these

       impacts to be an aggravator in determining Kincaid’s sentence.


                                II. Sentence Appropriateness
[12]   Kincaid next argues that the sentence imposed by the trial court is inappropriate

       in light of the nature of the offense and his character. Indiana Appellate Rule

       7(B) provides that this Court may revise a statutorily authorized sentence “if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” In conducting this review, “substantial deference” must be

       given to the trial court’s decision, “since the ‘principal role of [our] review is to

       attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’

       sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v.

       State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations omitted).


[13]   For Level 5 felony domestic battery, Kincaid faced a term of one to six years,

       with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). The trial

       court imposed a sentence of five years, with two years executed in the

       Department of Correction, three years suspended, and 545 days on probation.


[14]   With respect to the nature of the offense, we again reiterate the cumulative

       impacts Kincaid’s actions had not only on T.H. as the victim, but on her

       children as well. Kincaid also strangled T.H. while she was relaxing in the bath,

       threatened to kill her, and left visible marks and bruises on T.H.’s neck—all in

       response to T.H. merely texting him asking to turn his music down.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 7 of 9
[15]   Further, this was not the first time Kincaid had physically abused T.H., and

       instead was simply the last straw in an ongoing pattern of domestic violence.

       The letter from T.H.’s daughter went into detail about multiple other incidents,

       stating, for example, that “for one month straight, he beat my mom every single

       night,” and that she once jumped in front of T.H. to prevent Kincaid from

       “tr[ying] to hit my mom with a two-by-four piece of wood.” Tr. Vol. II p. 214-

       15. T.H. stated in her letter that this offense marked the point when she “finally

       found the strength and courage to have Mr. Kincaid arrested for his actions”

       after years of enduring his abusive behavior. Id. at 216.


[16]   With respect to Kincaid’s character, we first take note of Kincaid’s criminal

       history, which includes convictions for misdemeanor operating while

       intoxicated, felony criminal recklessness (for which he was ordered to complete

       domestic violence counseling), misdemeanor domestic battery, and

       misdemeanor invasion of privacy. This is certainly not the worst pattern of

       offenses, but when reviewing sentences under Rule 7(B), “[e]ven a minor

       criminal history is a poor reflection of a defendant’s character.” Moss v. State, 13

       N.E.3d 440, 448 (Ind. Ct. App. 2014). It is noteworthy that Kincaid was on

       probation for domestic battery on T.H. when he again attacked her in this case.

       He has also been arrested and charged with domestic battery on multiple

       occasions, demonstrating an ongoing and persistent tendency to commit

       violence. See, e.g., Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)

       (holding that we may consider a defendant’s history of arrests as a reflection of

       his character).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 8 of 9
[17]   Kincaid points to his good work history and emphasizes that he was assessed to

       be in the low-risk category to reoffend as evidence of his good character. While

       these are valid considerations, the trial court took them into account by

       suspending three years of his sentence, with only two years to be served in

       prison.


[18]   We do not find the five-year sentence imposed by the trial court to be

       inappropriate in light of the nature of the offense and Kincaid’s character.


[19]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019   Page 9 of 9
