      MEMORANDUM DECISION                                                FILED
      Pursuant to Ind. Appellate Rule 65(D), this                    Sep 13 2016, 7:40 am

      Memorandum Decision shall not be regarded as                       CLERK
      precedent or cited before any court except for the             Indiana Supreme Court
                                                                        Court of Appeals
      purpose of establishing the defense of res judicata,                and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                 Gregory F. Zoeller
      Marion County Public Defender Agency                   Attorney General of Indiana
      Indianapolis, Indiana
                                                             J.T. Whitehead
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Desarai Xashia Kemp,                                       September 13, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1602-CR-324

              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Hon. Mark D. Stoner, Judge
                                                                 Trial Court Cause No. 49G06-1412-
      Appellee-Plaintiff.
                                                                 F3-53975




      Bradford, Judge.



                                            Case Summary
[1]   In early 2014, Appellant-Defendant Desarai Kemp befriended the pregnant

      Juanita Gibson, with Kemp also claiming to be pregnant. Kemp was not, in

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 1 of 10
      fact, pregnant. Over the course of several months, Kemp and Gibson became

      friends, with Kemp continuing to assert that she was pregnant and due a few

      weeks after Gibson. In early November of 2014, Gibson gave birth to her son,

      William.


[2]   In early December of 2014, Kemp spent two nights at Gibson’s, visiting with

      Gibson and William. At approximately 2:30 a.m. on the second night, Kemp

      started two fires in Gibson’s apartment before kidnapping William and stealing

      Gibson’s mother’s car. Police tracked Kemp’s mobile telephone to an

      Indianapolis dwelling, where they found Kemp hiding in a closet with William.

      When approached, Kemp threw William at a police officer. Ultimately, Kemp

      pled guilty to Level 3 felony kidnapping and Level 6 felonies auto theft and

      theft. The trial court sentenced Kemp to an aggregate sentence of twelve years

      of incarceration. Kemp argues that her sentence is inappropriately harsh.

      Because we disagree, we affirm.



                            Facts and Procedural History
[3]   Early in 2014, Kemp began communicating with Gibson; Kemp claimed to

      know Gibson from High School, although Gibson did not remember Kemp.

      Gibson was pregnant, and Kemp claimed to be pregnant as well. The women,

      both nineteen years old, continued to communicate via social media, text

      messages, and telephone calls about their pregnancies throughout 2014, and

      Kemp told Gibson that her due date was two weeks after hers. On November

      6, 2014, Gibson gave birth to William.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 2 of 10
[4]   On December 3, 2014, Kemp, still claiming to be pregnant, went to Gibson’s

      apartment to visit William. The visit represented the first time Gibson and

      Kemp met in person. Kemp appeared to be pregnant and told Gibson that she

      was scheduled to be induced on December 6, 2014. Kemp asked if she could

      spend the night, and, while the two women were out during the day, Gibson’s

      mother saw a bottle of lighter fluid in a bag Kemp brought with her. Kemp

      ended up spending the following two nights at Gibson’s.


[5]   On the night of December 4, 2014, Gibson and Kemp were sleeping on a couch

      next to William’s bassinet, while Gibson’s mother and grandmother slept

      elsewhere in the apartment. At approximately 2:30 a.m. on December 5, 2014,

      Gibson was awakened by her grandmother, who was screaming that there was

      a fire in the apartment. In fact, one fire had been set in the kitchen and another

      underneath William’s bassinet. Both fires were extinguished quickly.


[6]   Kemp was not in the apartment, and Gibson realized that William was not in

      his bassinet. After verifying that her mother did not have William, Gibson

      realized that he was missing, along with his baby bag, his car seat, Gibson’s

      mobile telephone, and her mother’s car. When Gibson attempted to call her

      telephone, Kemp answered and, attempting to disguise her voice, said, “Did

      you get the car, bro[?]” Tr. p. 56. Gibson hung up and called the police, who

      could smell lighter fluid when they arrived at her apartment.


[7]   Police traced Kemp’s mobile telephone to a location in Indianapolis and found

      the stolen vehicle nearby. The officers observed movement and a bassinet


      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 3 of 10
      inside the dwelling in question. Once inside, the officers found Kemp hiding in

      a closet with William. When one officer approached, Kemp threw William at

      him. Kemp no longer appeared to be pregnant. Officers found the keys to the

      stolen car in Kemp’s pocket and the missing car seat and baby bag in the

      residence.


[8]   Police soon discovered that Kemp had created a Twitter account dedicated to

      her bogus pregnancy, on which she posted numerous photographs of herself in

      which she appeared to be pregnant. On December 3, the day she arrived at

      Gibson’s home, Kemp wrote, verbatim, “It’s time!!!!!” and “[t]hese contractions

      kicking my a** [t]hey hurt so bad. I’m dilated 6cm im finna get this epidural

      icant go natural I tried thou..” Ex. 2. Later, Kemp wrote, “Time to push!!!!!”

      and then “Him Here Born at 2:34 am Dec4th 2014 6 pounds 9oz 18in long, he

      was well worth them 8 hours of labor.” Ex. 2. Underneath the second post,

      Kemp attached a picture of William. Throughout the day on December 4,

      2014, Kemp continued to post pictures of William.


[9]   On December 5, 2014, the Appellee-Plaintiff the State of Indiana (“the State”)

      charged Kemp with Level 3 felony kidnapping, Level 4 felony arson, and Level

      6 felonies arson, auto theft, and theft. On three dates in July of 2015, Kemp

      was evaluated for a psychological assessment, the report of which was issued on

      August 1, 2015. Kemp reported to the evaluator, inter alia, that she had started




      Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 4 of 10
       taking Prozac1 in jail, fabricated her pregnancy in order to win back a boyfriend,

       and used marijuana daily or multiple times a day between the ages of fifteen

       and eighteen. The report opined that Kemp met the diagnostic criteria for

       borderline personality disorder, persistent depressive disorder, and moderate

       cannabis use disorder. The report concluded that Kemp needed mental health

       treatment, including dialectical behavior therapy and continued use of

       psychiatric medication.


[10]   On October 26, 2015, Kemp pled guilty as charged. The record reflects that

       Kemp pled guilty in order to preserve her ability to challenge the requirement to

       register on the Sex and Violent Offender Registry, which is what would have

       resulted in what she believed would have been an inevitable conviction after

       trial. Kemp’s presentence investigation report (“PSI”), filed on November 18,




       1
         “Fluoxetine (Prozac) is used to treat depression, obsessive-compulsive disorder (bothersome thoughts that
       won’t go away and the need to perform certain actions over and over), some eating disorders, and panic
       attacks (sudden, unexpected attacks of extreme fear and worry about these attacks).” U.S. National Library
       of Medicine, Fluoxetine, https://medlineplus.gov/druginfo/meds/a689006.html (last visited Aug. 30, 2016).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016        Page 5 of 10
       2015, includes Kemp’s opinion that her current mental health was “good” and

       that she had been prescribed Zyprexa.2 Appellant’s App. p. 100.


[11]   At sentencing, the trial court found Kemp’s mental health to be a significant

       mitigating circumstance but found her guilty plea, substance abuse, and

       remorse to not be significantly mitigating. The trial court found Kemp’s

       criminal history to be aggravating. The trial court, noting the “shocking

       behavior [and] the extreme[] amount of planning that went into the

       [com]mission of this crime[,]” determined that it could not find that the

       circumstances were unlikely to reoccur. Tr. p. 99. The trial court noted that

       Kemp’s crimes were not impulsive and, in fact, “carefully planned at the

       time[,]” it appeared that Gibson had been “located and groomed over the

       internet[,]” and Kemp’s motive was either to “trap a boyfriend” or get

       sympathy from her family. Tr. p. 103.




       2
               ZYPREXA is a prescription medicine used to treat:
                  • schizophrenia in people age 13 or older.
                  • bipolar disorder, including:
                       • manic or mixed episodes that happen with bipolar I disorder in people age 13
                       or older.
                       • manic or mixed episodes that happen with bipolar I disorder, when used with
                       the medicine lithium or valproate, in adults.
                       • long-term treatment of bipolar I disorder in adults.
                  • episodes of depression that happen with bipolar I disorder, when used with the
                  medicine fluoxetine (Prozac®) in people age 10 or older.
                  • episodes of depression that do not get better after 2 other medicines, also called
                  treatment resistant depression, when used with the medicine fluoxetine (Prozac), in
                  adults.

       U.S. Food and Drug Administration, Zyprexa Medication Guide, http://www.fda.gov/
       downloads/Drugs/DrugSafety/UCM134700.pdf (last visited Aug. 30, 2016).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016          Page 6 of 10
[12]   The trial court merged Kemp’s arson convictions into the Level 3 felony

       kidnaping conviction and, on February 22, 2016, sentenced her to twelve years

       of incarceration for kidnapping and two years each for auto theft and theft, all

       sentences to be served concurrently. The trial court noted that Kemp was not

       eligible for direct placement in community corrections. However, the trial court

       stated that if it became apparent that the DOC could not provide dialectical

       behavior therapy, it would modify her sentence to a placement in community

       corrections in a work-release facility. To that end, the trial court requested that

       Kemp’s trial counsel file a sentence modification request in March of 2017.

       Kemp indicated that she was still receiving medication in jail, and the trial court

       stated that “she appears to be in pretty good shape right now.” Tr. p. 119.


                                  Discussion and Decision
[13]   Kemp argues that her twelve-year executed sentence is inappropriately harsh,

       suggesting that an appropriate sentence is three years executed with nine

       suspended to probation. Under our current sentencing scheme, “the trial court

       must enter a statement including reasonably detailed reasons or circumstances

       for imposing a particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We

       review the sentence for an abuse of discretion. Id. An abuse of discretion

       occurs if “the decision is clearly against the logic and effect of the facts and

       circumstances.” Id. As mentioned, the trial court sentenced Kemp to an

       aggregate sentence of twelve years of incarceration following her convictions

       and concurrent sentences for Level 3 felony kidnapping and Level 6 felonies

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 7 of 10
       auto theft and theft. “A person who commits a Level 3 felony … shall be

       imprisoned for a fixed term of between three (3) and sixteen (16) years, with the

       advisory sentence being nine (9) years.” Ind. Code § 35-50-2-5.


[14]   The nature of Kemp’s offenses and her horrendous conduct easily justify her

       enhanced twelve-year sentence. Over the course of several months, Kemp

       formulated her elaborate scheme to kidnap Gibson’s newborn child and claim

       him as her own. Kemp spent several months gaining the trust of Gibson, who

       was likely chosen as a victim for no other reason than that she happened to be

       pregnant and due around the time Kemp claimed to be due. As for the

       execution of the final stages of Kemp’s plan, her use of arson (whatever her

       intent) as an alleged diversion could have had very tragic consequences, as there

       were three persons asleep in Gibson’s apartment at the time and unknown

       others in the rest of the building. It should also be remembered that when

       found by police, Kemp threw one-month-old William at them. In summary,

       because Kemp’s offenses were crimes that could have easily resulted in death

       and/or serious injury, their nature justifies her enhanced twelve-year sentence.


[15]   Kemp’s character also justifies her enhanced sentence. The elaborate planning,

       the months-long deception, and the exploitation of Gibson’s trust all reflect

       negatively on Kemp’s character. Kemp, who was nineteen at the time of the

       instant offenses, also has a somewhat extensive criminal history. Kemp had

       five experiences with the juvenile justice system, resulting in adjudications for

       battery resulting in bodily injury (twice, apparently) and leaving home without

       permission of a parent or guardian. At the time of sentencing in this case,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 8 of 10
       Kemp had charges pending for Level 6 felonies resisting law enforcement using

       a vehicle and auto theft and Class A misdemeanor resisting law enforcement.


[16]   The heart of Kemp’s argument is essentially that there is no way that Kemp can

       receive the treatment she needs for her mental health issues while incarcerated

       in DOC. First, the deliberation and planning exhibited by Kemp in the

       execution of her kidnapping scheme undercut any suggestion that she was

       incapacitated to any great degree by her mental health issues. Kemp seems to

       have known what she was doing and had several months to abandon her

       scheme, but did not. Second, there is some indication that the treatment Kemp

       is already receiving is effective. The record indicates that Kemp has begun

       taking Prozac and/or Zyprexa and subsequently self-reported her mental health

       as “good.” Appellant’s App. p. 100. At her sentencing, Kemp indicated that

       she was still receiving her medication in jail, and the trial court noted that “she

       appears to be in pretty good shape right now.” Tr. p. 119. Moreover, the

       record indicates that any medications usually get sent along with a prisoner to

       DOC, so there is no reason to believe that Kemp’s apparently effective

       treatments will cease.


[17]   Finally, we cannot ignore the trial court’s clearly-stated intent to modify

       Kemp’s placement to community corrections upon her filing a modification

       request in March of 2017 if DOC cannot provide her with the dialectical

       behavior therapy recommended in her psychological assessment report. So,

       even assuming that Kemp is in need of treatment beyond her current

       medication, she will either receive it from DOC or she will almost certainly

       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 9 of 10
       have her placement modified in March of 2017. Although Kemp is correct that

       her sentence currently stands as twelve years of incarceration, the trial court has

       clearly indicated its intent to modify that placement if it deems it necessary.

       Any claim that Kemp will spend twelve years in DOC without needed mental

       health treatment is speculative at this point. Kemp has failed to establish that

       her twelve-year executed sentence is inappropriately harsh in light of the nature

       of her offenses and her character, as well as the circumstances of this case.


[18]   We affirm the judgment of the trial court.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1602-CR-324 | Septmeber 13, 2016   Page 10 of 10
