MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Dec 22 2015, 8:44 am
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.


ATTORNEYS FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Bruce E. Andis                                         Gregory F. Zoeller
Daniel A. Dixon                                        Attorney General of Indiana
Lawrence County Public Defender
                                                       Monika Prekopa Talbot
Agency                                                 Deputy Attorney General
Bedford, Indiana                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffery L. Gipson,                                     December 22, 2015
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       47A01-1501-CR-23
        v.                                             Appeal from the Lawrence Superior
                                                       Court
State of Indiana,                                      The Honorable Michael Robbins,
Appellee-Plaintiff                                     Judge
                                                       Trial Court Cause Nos.
                                                       47D01-1212-FA-1456
                                                       47D01-1209-FA-1058



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015      Page 1 of 25
                               Case Summary and Issues
[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.




      Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 2 of 25
                                 Facts and Procedural History
[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;




      1
          We identify C.G., an adult, only by her initials to protect the privacy of the child victims.


      Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015              Page 3 of 25
      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, “I feel like such a

      whore! I slept with my best friend’s dad Sat. March 31. I loved it so much & I

      really like him, but [A.M.G.’s] my bestie and I need to tell her.” 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.




      2
          J.W. testified the cell phone memo was essentially “an electronic version of a diary.” Tr. at 799.


      Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015               Page 4 of 25
[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. Later 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




      3
       At trial, A.M.G testified, “I had a pleading look on my face just like please help, but she didn’t pay
      attention.” Tr. at 657.

      Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015             Page 5 of 25
       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.


[11]   Thereafter, Detective Smith requested Gipson submit to a non-stipulated

       polygraph examination with Sergeant Paul Hansard of the Indiana State Police.


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 6 of 25
       Not being in police custody, Gipson drove himself and voluntarily submitted to

       the examination on June 28, 2012. When Gipson arrived, Sergeant Hansard

       explained the polygraph process and read over a polygraph waiver with Gipson.

       The waiver provided,


               Before we ask you any questions, you must understand your
               rights.
               ***
               You have the right to remain silent.
               ***
               Anything you say can be used against you in court.
               ***
               You have the right to talk to a lawyer for advice before we ask
               you any questions and to have him with you during questioning.
               ***
               If you cannot afford a lawyer, one will be appointed to you
               before any questioning, if you wish.
               ***
               If you decide to answer questions now without a lawyer present,
               you will still have the right to stop answering at any time. You
               also have the right to stop answering at any time until you talk to
               a lawyer.
               ***
               I have read the above statement of my rights and it has been read
               to me. I understand what my rights are. I do wish to take the
               polygraph test. No force, threats, or promises of any kind or
               nature have been used by anyone in any way to influence me to
               waive my rights. I am signing this statement after having been
               advised of my rights and before taking the polygraph test.


       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
       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 7 of 25
       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 State filed two separate causes against Gipson and, at Gipson’s request, the

       causes were later consolidated for trial. For the alleged conduct with A.M.G.,

       the State charged Gipson with Count I, Class A felony child molesting; Count

       II, Class A felony attempted child molesting; Counts III and IV, Class A felony

       child molesting; and Count V, Class A misdemeanor contributing to the

       delinquency of a minor. For the alleged conduct with J.W., the State charged

       Gipson with Counts VI-X, Class A felony child molesting; and Count XI, Class



       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 8 of 25
       A misdemeanor contributing to the delinquency of a minor. The State also

       charged Gipson with Count XII, being an habitual offender.


[15]   On February 3, 2014, Gipson filed a motion to suppress his post-polygraph

       statements made to Detective Smith and Sergeant Hansard, arguing the

       statements were not made voluntarily. Due to the potential of unfair prejudice

       to Gipson, the trial court ordered the video not be played in the presence of the

       jury. However, the trial court stated both Detective Smith and Sergeant

       Hansard could testify as to Gipson’s statements. Gipson sought interlocutory

       appellate review of the trial court’s order, which we denied.


[16]   At trial on November 17, Gipson objected to the admission of a picture of

       J.W.’s cell phone memo, arguing the memo amounted to inadmissible hearsay.

       The trial court overruled the objection and admitted the memo into evidence.

       At trial, J.W. testified on the State’s re-direct:


               [State:] Do you recall when it is you would have created the text
               of the memo in comparison to [March 31]?
               [J.W.:] Most likely a few days after.
               [State:] Why is it that you created this memo?
               [J.W.:] Because I felt I guess the correct term would be dirty.
               ***
               [State:] [D]id it help you in any way to create this memo?
               [J.W.:] Yes.
               [State:] How did it help you?
               [J.W.:] At first, or at the beginning, to remember it and then
               after that I’m pretty sure I edited [the memo] because I didn’t feel
               like it was right not to say anything to her.
               [State:] Did you, after you created the memo, did that feeling
               change at all?

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 9 of 25
                [J.W.:]    A little.
                [State:]   How did it change?
                [J.W.:]    It got the weight off my shoulders.
                ***
                [State:]   And then you did in fact end up telling A.M.G., correct?
                [J.W.:]    Yes.


       Tr. at 799-800, 805. Evidence at trial also included the testimony of Detective

       Smith, who testified—over Gipson’s objections—to Gipson’s post-polygraph

       statements; Sergeant Hansard did not testify at trial. In addition, the jury

       requested to see the memo during deliberations. Having forgotten to send all

       the exhibits to the jurors at the beginning of deliberations, the trial court

       ordered all of the exhibits be delivered to the jurors, including the picture of the

       cell phone memo.


[17]   In regards to offenses committed against A.M.G., the jury found Gipson guilty

       of Count II attempted child molesting, Count III child molesting, and Count V

       contributing to the delinquency of a minor.4 As to J.W., the jury found Gipson

       guilty of Count VI child molesting, Count VII child molesting, and Count XI

       contributing to the delinquency of a minor.5 The jury also found Gipson to be




       4
         These three counts stem from the events that occurred on April 26, 2012. Count II alleged, “Gipson . . . did
       attempt to perform or submit to sexual intercourse with [A.M.G] . . . .” Appellant’s Appendix at 41. Count
       III alleged, “Gipson . . . did perform deviate sexual conduct with [A.M.G.] . . . .” Id. Count V alleged,
       “Gipson . . . did knowingly or intentionally aid, induce or cause [A.M.G.] . . . to commit an act of
       delinquency.” Id. at 42.
       5
         Count VI alleged, “On or about March, 2012 . . . Gipson . . . did perform or submit to sexual intercourse
       with J.W. . . . .” Id. at 65. Count VII alleged, “On or about March, 2012 . . . Gipson . . . did perform deviate
       sexual conduct, to-wit: placed finger in vagina, with J.W. . . . .” Id. Count XI alleged, “On or about April,

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015            Page 10 of 25
       an habitual offender. The trial court entered a judgment of conviction on the

       above counts.


[18]   For the offenses committed against A.M.G., the trial court sentenced Gipson to

       forty years on Count II, forty years on Count III, and one year on Count V, all

       to be served concurrently for a total of forty years. For the crimes committed

       against J.W., the trial court sentenced Gipson to forty years on Count VI, forty

       years on Count VII, and one year on Count XI, all to be served concurrently for

       a total of forty years. The trial court ordered the two forty-year concurrent

       sentences be served consecutively for a total of eighty years. Finally, the trial

       court sentenced Gipson to thirty years for the habitual offender finding, to run

       “consecutive to the terms imposed” in the other two causes. Tr. at 1153. In

       total, the trial court ordered Gipson serve 110 years executed in the Department

       of Correction. This appeal ensued.



                                     Discussion and Decision
                                      I. Admission of Evidence
                                             A. Standard of Review
[19]   We review a trial court’s admission of evidence for an abuse of discretion.

       McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. “An




       2012 . . . Gipson . . . did knowingly or intentionally aid, induce, or cause J.W. . . . to commit an act of
       delinquency.” Id. at 66.

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015              Page 11 of 25
       abuse of discretion occurs if a trial court’s decision is clearly against the logic

       and effect of the facts and circumstances before the court.” Id. We neither

       weigh the evidence nor resolve questions of credibility, “but consider the

       evidence which supports the decision of the trier of fact in the case of contested

       evidence and any uncontested evidence presented by the appellant.” Davies v.

       State, 730 N.E.2d 726, 732 (Ind. Ct. App. 2000), trans. denied, cert. denied, 532

       U.S. 945 (2001).


[20]   We reverse a trial court’s erroneous decision to admit evidence only when the

       decision affects a party’s substantial rights. McVey, 863 N.E.2d at 440.

       However, “[a]ny error caused by the admission of evidence is harmless error for

       which we will not reverse a conviction if the erroneously admitted evidence was

       cumulative of other evidence appropriately admitted.” Id. In other words,

       “[t]he improper admission of evidence is harmless error when the conviction is

       supported by such substantial independent evidence of guilt as to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the conviction.” Wickizer v. State, 626 N.E.2d 795, 800

       (Ind. 1993).


                                           B. Cell Phone Memo
[21]   Gipson claims the trial court abused its discretion in admitting into evidence the

       cell phone memo written by J.W. a few days after she first had sex with Gipson.

       The memo stated, “I feel like such a whore! I slept with my best friend’s dad




       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 12 of 25
       Sat. March 31. I loved it so much & I really like him, but [A.M.G.’s] my bestie

       and I need to tell her.” State’s Ex. 32.


[22]   Initially, we note the memo constitutes hearsay. “Hearsay is an out-of-court

       statement offered in court to prove the truth of the matter asserted.” Coleman v.

       State, 946 N.E.2d 1160, 1168 (Ind. 2011) (citing Ind. Evidence Rule 801(c)).

       The memo is an out-of-court statement offered to prove the truth of the matter

       asserted, namely J.W. felt “dirty” about having sex with Gipson on March 31

       and deemed it necessary to share that information with A.M.G. Tr. at 800.


[23]   Hearsay is not admissible unless it falls within an exception. Evid. R. 802. The

       trial court concluded the memo constituted hearsay, but found it fell within the

       purview of Indiana Evidence Rule 803(3), which creates, regardless of whether

       the declarant is available as a witness, “a hearsay exception for statements of

       the declarant’s then-existing state of mind at the time the statement was made.

       State of mind, as that term is defined, may include emotion, sensation, physical

       condition, intent, plan, motive, design, mental feeling, pain, and bodily health.”

       Camm v. State, 908 N.E.2d 215, 226 (Ind. 2009). This does not include “a

       statement of memory or belief to prove the fact remembered or believed . . . .”

       Evid. R. 803(3).


[24]   In criminal cases involving out-of-court statements of a victim’s state of mind,

       evidence of the victim’s state of mind is relevant and admissible only “(1) to

       show the intent of the victim to act in a particular way, (2) when the defendant

       puts the victim’s state of mind in issue, and (3) sometimes to explain physical


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 13 of 25
       injuries suffered by the victim.” Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind.

       2000). Of the three instances, only one is relevant here: to show the intent of

       the victim to act in a particular way.


[25]   The bulk of the cell phone memo consists of statements concerning J.W.’s then-

       existing state of mind and emotions, and her intent to act in a particular way. It

       speaks of how she felt guilty about having sex with Gipson, who acted as a

       fatherly figure towards J.W.’s best friend, A.M.G. It also speaks of how J.W.

       deemed it necessary to confess to A.M.G, which she later did. These

       statements show J.W.’s intent to act in a particular way. Moreover, J.W.

       testified that when she created the memo, she felt “dirty” for having sex with

       Gipson, and after creating the memo, she felt a weight lifted off her shoulders.

       Tr. at 800. To the extent the memo describes J.W.’s then-existing state of mind

       and emotions, and intent to act in a particular way, it was admissible pursuant

       to Indiana Evidence Rule 803(3). See Heinzman v. State, 970 N.E.2d 214, 224

       (Ind. Ct. App. 2012) (holding a child molestation victim’s statements in a letter

       to the defendant were admissible because they spoke to the child’s then-existing

       state of mind and emotions), vacated in part, and summarily aff’d in part, 979

       N.E.2d 143 (Ind. 2012).


[26]   Although parts of the memo do speak to J.W.’s then-existing state of mind,

       Gipson contends the remaining statements exceed the scope of the Rule 803(3)

       exception because those statements were offered to prove a fact remembered,

       namely that Gipson and J.W. had sex on March 31. Gipson claims the trial

       court should have, at the very least, redacted the memo to only include the

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 14 of 25
       statements speaking to J.W.’s then-existing state of mind. Therefore, Gipson

       argues admission of the entire memo constituted reversible error because the

       State relied solely on the victims’ credibility, the memo was not cumulative of

       other evidence, the jury specifically asked to review the memo during

       deliberations, and the jury convicted Gipson only for the conduct referenced in

       the memo. We disagree admission of the memo constituted reversible error.


[27]   In Heinzman, we concluded the admission of a letter written by the child victim

       to the defendant, which contained both admissible statements pertaining to the

       victim’s state of mind and inadmissible statements referencing the defendant’s

       acts of molestation, constituted harmless error. Id. at 224. We reasoned, “Z.B.

       testified clearly and directly regarding Heinzman’s acts of molestation. The few

       indirect references to the molestation contained in the letter are relatively

       innocuous by comparison and are, at most, cumulative of Z.B.’s direct

       testimony.” Id.


[28]   Here, we agree with Gipson that the memo contains a direct reference to

       Gipson’s acts of molesting J.W. Similar to Heinzman, however, J.W. clearly

       and directly testified as to Gipson’s acts of molestation on March 31—the day

       Gipson and J.W. were left alone in C.G.’s home. Therefore, the reference to

       Gipson’s acts of molestation in the memo is merely cumulative of J.W.’s direct

       testimony. See id.


[29]   Finally, we note reversal is appropriate only where “the record as a whole

       discloses that the erroneously admitted evidence was likely to have had a


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 15 of 25
       prejudicial impact on the fact-finder, thereby contributing to the judgment.”

       Hamilton v. State, No. 65A04-1412-CR-592, slip op. at 10 (Ind. Ct. App. Sept. 9,

       2015) (citation omitted). After reviewing the entirety of the record, we

       conclude admission of the memo was not likely to have had a prejudicial

       impact on the jury despite the jury both requesting to see the memo during

       deliberations and convicting Gipson for the act referenced in the memo. This

       conclusion is supported by the corroborating testimony of the State’s witnesses

       and the fact the memo merely offered cumulative evidence of J.W.’s direct

       testimony. Therefore, even if admission of the memo constituted error, the

       error was harmless.


                                    C.Post-Polygraph Statements
[30]   Gipson also contends the trial court erred in admitting his post-polygraph

       statements because the statements were not voluntary. Specifically, he argues

       the statements were made after his will was overcome due to the combination

       of there being no reference to post-polygraph questioning on the polygraph

       waiver, Sergeant Hansard’s exaggeration of the reliability of the polygraph

       results, and coercive interrogation tactics. The State argues Gipson’s

       statements were not made involuntarily because Gipson was not in custody,

       law enforcement read Gipson his Miranda rights, and Gipson “readily accepted

       the opportunity to give a statement” to law enforcement. Brief of Appellee at

       16.


[31]   Although we have expressed reservations about the reliability of polygraph

       results, “the fact that a polygraph test is not sufficiently reliable to warrant
       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 16 of 25
       admission of its results does not undermine the reliability of voluntary

       statements made by a defendant during a polygraph test.” McVey, 863 N.E.2d

       at 441. The question of whether a defendant made a voluntary statement is

       determined from the totality of the circumstances. Jackson v. State, 735 N.E.2d

       1146, 1153 (Ind. 2000). The State has the burden of proving beyond a

       reasonable doubt the statement “was voluntary and not induced by violence,

       threats, promises, or other improper influences so as to overcome the free will

       of the accused at the time” the statements were made. Davies, 730 N.E.2d at

       732.


[32]   At the hearing on Gipson’s motion to suppress his post-polygraph statements,

       Sergeant Hansard testified to his customary polygraph procedure:

               I generally meet with the investigator fifteen minutes or so
               beforehand to get an idea what the case is about. And then I
               bring the subject back into the polygraph suite or the polygraph
               testing area. I introduce myself. Give them a little overview of
               what’s going to take place, how long things are going to take
               place. Then we have a polygraph waiver form that is read to
               them and we make sure that they can read, write and understand
               the English language, still read it to them out loud. I specifically
               have them initial after each line to make sure they’ve understood
               the waiver. If they still want to take the test and they sign the
               waiver, at that point I go through and gather some basic
               background information. This is kind of like the pretest phase if
               you will. And that includes family history, education history,
               medical kinds of issues, just some general questions like that.
               When that’s finished I go through and explain polygraph to
               them. Tell them what it’s about, what the different components
               are and how polygraph works. When that is finished we talk
               about their case and why they’re there today. I have them

       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 17 of 25
               explain it to me what they’re being accused of. I try to gather
               some details from them. At that point then we do question
               formulation where I explain to them what kind of questions are
               going to be on their test. We kind of come up with a framework
               for that at that point. After that is finished I give them a break,
               let them go back out to the lobby. Restroom, drinking fountain’s
               [sic] out there. They’re welcome to go outside and smoke if
               that’s what they choose to do. Usually it takes me about ten or
               fifteen minutes. That’s when I type their questions into the
               computer. I bring them back in. We (indiscernible) at that point
               is what’s called the end test phase which is where I’m actually
               running the polygraph examination. After that’s complete I’ll
               step out, score their charts, discuss the results with the
               investigator, then go back in and discuss their results with the
               person that took the test.


       Tr. at 52-54.


[33]   Prior to the actual polygraph examination beginning in this case, Sergeant

       Hansard explained the polygraph process to Gipson, and additionally explained

       the examination was ninety-five to one hundred percent accurate. Sergeant

       Hansard then handed the polygraph waiver to Gipson. Gipson read the waiver

       to himself, and then Sergeant Hansard read the waiver to Gipson line-by-line.

       Gipson initialed each line and signed the waiver. At the conclusion of the

       polygraph examination, Sergeant Hansard analyzed the results of the polygraph

       and determined Gipson was not being truthful. Sergeant Hansard re-entered

       the polygraph suite to discuss the results with Gipson, which Sergeant Hansard

       testified is customary procedure. In addition, we have previously held

       “[c]onfronting a suspect with polygraph results is not coercive or



       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 18 of 25
       unreasonable.” McVey, 863 N.E.2d at 443 (citing Wyrick v. Fields, 459 U.S. 42,

       48 (1982)).


[34]   Sergeant Hansard told Gipson about his interpretation of the results and asked

       Gipson for an explanation. Gipson explained that when he and A.M.G. were

       laying in a bed together at Jamison’s house, A.M.G. took off her pants and

       underwear, unzipped Gipson’s pants, pulled Gipson’s penis out, and then tried

       to insert it into her vagina. It was at this point, Gipson claimed, he told

       A.M.G. to stop and go home. Gipson repeated the story to Detective Smith.

       At trial, Detective Smith testified to Gipson’s statements.


[35]   Gipson’s primary argument in support of his contention that his will was

       overcome is that he stated “I’m done” on at least three different occasions

       during the post-polygraph phase of the examination. Gipson contends

       investigators refused his attempts to end the interview thereby rendering his

       subsequent statements involuntary. We disagree. In one such instance, Gipson

       stated, in regards to the allegations against him, “I’m trying, but I have to look

       over my shoulder every f***ing day now, and I’m damn near the point where I

       have to quit my job. I am getting ready to lose my son again, and I have

       already lost my youngest [child]. I’m done. I have already lost it.” Defendant’s

       Ex. 1 (emphasis added). Every time Gipson stated he was “done,” Gipson

       continued to converse with Sergeant Hansard. Based on the context of the

       entire interview, we are not convinced Gipson was seeking to end the interview.

       Rather, the record indicates Gipson was likely aware of the impact the girls’



       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 19 of 25
       allegations carried and the effects the allegations would have on his life, namely

       his ability to maintain custody of his son.


[36]   Gipson also argues his will was overcome because Sergeant Hansard, prior to

       Gipson taking the examination, exaggerated the reliability of the polygraph by

       stating it was ninety-five to one hundred percent accurate. As expressed above,

       we do have reservations about the reliability of polygraph results. See McVey,

       863 N.E.2d at 441. Sergeant Hansard, however, testified at the suppression

       hearing that he explained this to Gipson because he wanted Gipson to have

       faith that he was receiving a fair test.


[37]   Further, the record indicates Sergeant Hansard was respectful and polite

       throughout all three phases of the polygraph examination. He explained the

       entire polygraph process to Gipson, including the pre-polygraph, actual

       polygraph, and post-polygraph phases. He told Gipson he would receive a

       break prior to the actual polygraph phase of the examination, which Gipson

       received. Moreover, prior to beginning the examination, Gipson indicated he

       understood his rights and then initialed and signed the polygraph waiver.

       Having read and understood his rights—specifically the right to remain silent,

       the right to have counsel present, and the right to stop answering at any time—

       Gipson voluntarily provided Sergeant Hansard with an explanation for the

       results of the examination.


[38]   When Detective Smith entered the room to discuss the polygraph results with

       Gipson, Detective Smith asked Gipson whether he was advised of his rights


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 20 of 25
       and whether he understood his rights. Gipson responded affirmatively to both

       questions. Before Gipson relayed the story to Detective Smith, Detective Smith

       stated Gipson was not under arrest, and Detective Smith had no intention of

       placing Gipson under arrest. Thereafter, Gipson stated, “I’ve got an

       explanation for you and I am willing to give it you.” Defendant’s Ex. 1. Once

       Gipson explained it was A.M.G. who grabbed his penis and pulled it near her

       vagina, Gipson told Detective Smith he needed to leave the interview.

       Detective Smith responded by stating Gipson was not in custody and he was

       free to leave at any time, but sought an explanation in regards to J.W.’s

       allegations. Gipson stated there was nothing to explain, and Gipson left on his

       own volition. This indicates Gipson understood he was not required to answer

       any questions and that he was free to end the interview at any time.


[39]   Based on the totality of the circumstances, we are not persuaded Gipson’s

       statements were induced by violence, threats, promises, or other improper

       influences so as to overcome Gipson’s free will. Therefore, the trial court did

       not abuse its discretion in allowing Detective Smith to testify to Gipson’s

       statements.


                           III. Inappropriateness of Sentence
                                         A. Standard of Review
[40]   Gipson also contends his sentence is inappropriate in light of the nature of the

       offenses and his character. A reviewing court possesses the authority to revise a

       defendant’s sentence “if, after due consideration of the trial court’s decision, the


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 21 of 25
       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Ind. Appellate Rule 7(B). The burden is on

       the defendant to persuade the reviewing court the sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[S]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). It is not for the reviewing court “to achieve a perceived ‘correct’ result in

       each case,” but “[t]he principal role of appellate review should be to attempt to

       leaven the outliers.” Id. at 1225. Whether we regard a sentence as

       inappropriate turns on “the culpability of the defendant, the severity of the

       crime, the damage done to others, and myriad other factors that come to light

       in a given case.” Id. at 1224.


                                        B. Gipson’s Sentence
[41]   Gipson was convicted of three counts against each victim. For the crimes

       committed against A.M.G., the trial court sentenced Gipson to forty years. For

       the crimes committed against J.W., the trial court sentenced Gipson to forty

       years. In recognition of the harm done to each victim, the trial court ordered

       the two forty-year sentences be served consecutively thereby increasing

       Gipson’s sentence to eighty years. Finally, the trial court sentenced Gipson to

       thirty years, to be served consecutively to the others, because of his habitual

       offender status. In total, the trial court ordered Gipson serve 110 years in the

       Department of Correction.



       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 22 of 25
[42]   As to the nature of the offenses, the advisory sentence is the starting point the

       legislature selected as an appropriate sentence for the crime committed.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). Pursuant to Indiana Code section 35-50-2-4(a), a person who

       commits a Class A felony “shall be imprisoned for a fixed term of between

       twenty (20) and fifty (50) years, with the advisory sentence being thirty (30)

       years.” Here, Gipson was in a position of trust and authority in relation to both

       victims, especially A.M.G., for whom Gipson was a fatherly figure. In

       addition, this is not a case where there is only one claim of child molestation.

       Rather, this is a case where there are multiple allegations of child molestation

       against two victims. Finally, the record indicates Gipson provided alcohol to

       A.M.G. and when she started to feel the effects of the alcohol, Gipson took

       advantage of her vulnerability and molested her. We cannot turn a blind eye to

       such conduct.


[43]   As to his character, Gipson’s criminal history dates back to when he was twelve

       years old. Gipson was adjudicated a delinquent for committing various

       offenses over a span of four years, including burglary, automobile theft,

       criminal recklessness with a deadly weapon, and battery resulting in bodily

       injury. As an adult, Gipson has been convicted of multiple crimes, including

       burglary as a Class C felony, automobile theft as a Class D felony, and criminal

       recklessness as a Class D felony. We note these three crimes are the same three

       crimes for which Gipson was adjudicated a delinquent, which shows Gipson

       failed to learn from his past encounters with the law. Although Gipson


       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 23 of 25
       attempts to make light of his criminal history by noting his age at the time of his

       earlier convictions, the amount of time elapsed since his prior felony

       convictions, and that he has no criminal history of sexual abuse prior to these

       convictions, it is evident Gipson learned nothing from his previous encounters

       with the law, and we are not persuaded his sentence is inappropriate.


[44]   Finally, although not raised by Gipson, the State has noted the trial court erred

       in sentencing Gipson to thirty years for the habitual offender finding, to run

       “consecutive to the terms imposed” in the other two causes. Tr. at 1153.

       Indiana Code section 35-50-2-8(h) (2005) states,

               The court shall sentence a person found to be a habitual offender
               to an additional fixed term that is not less than the advisory
               sentence for the underlying offense nor more than three (3) times
               the advisory sentence for the underlying offense. However, the
               additional sentence may not exceed thirty (30) years.


       When a jury finds a defendant is a habitual offender, it is a fact which “requires

       the trial court to enhance the sentence for the instant crime by the statutory

       term.” Lord v. State, 531 N.E.2d 207, 208 (Ind. 1988). Here, the trial court did

       not enhance one of Gipson’s felony sentences due to his status as an habitual

       offender but ordered a separate consecutive sentence. Therefore, we remand to

       the trial court to correct its sentencing order and attach the habitual offender

       enhancement to one of Gipson’s felony convictions. See Greer v. State, 680

       N.E.2d 526, 527 (Ind. 1997) (“In the event of simultaneous multiple felony

       convictions and a finding of habitual offender status, trial courts must impose



       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 24 of 25
       the resulting penalty enhancement upon only one of the convictions and must

       specify the conviction to be so enhanced.”).



                                               Conclusion
[45]   We conclude the trial court did not commit reversible error in the admission of

       evidence and Gipson’s sentence is not inappropriate. However, the trial court

       erred in sentencing Gipson to a consecutive term of thirty years due to his status

       as an habitual offender. We therefore affirm Gipson’s convictions and

       sentence, but remand to the trial court for the limited purpose of correcting the

       sentencing order with respect to the sentencing enhancement for Gipson’s

       habitual offender finding.


[46]   Affirmed and remanded with instructions.


       Pyle, J., concurs.


       Vaidik, C.J., concurs in result.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1501-CR-23 | December 22, 2015   Page 25 of 25
