MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Aug 01 2018, 8:37 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
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory B. Kimbrough,                                    August 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-470
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1709-F5-129



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018                   Page 1 of 5
[1]   Gregory Kimbrough appeals the sentence he received after pleading guilty to

      Level 6 felony domestic battery and Class A misdemeanor invasion of privacy,

      arguing that the sentence is inappropriate in light of the nature of the offenses

      and his character. Finding no error, we affirm.


[2]   On September 23, 2017, Kimbrough was with his wife at an apartment in

      Lafayette. Their two children, who were under the age of sixteen, were also

      present in the apartment. A protective order was in place at the time that

      prohibited Kimbrough from having contact with his wife. At some point,

      Kimbrough and his wife got into an argument, and his wife started to leave the

      apartment when Kimbrough grabbed her by the neck and tried to pull her back

      inside.


[3]   On September 28, 2017, the State charged Kimbrough with Level 5 felony

      domestic battery, Level 6 felony domestic battery, Level 6 criminal

      confinement, Class A misdemeanor domestic battery, and Class A

      misdemeanor invasion of privacy. On January 12, 2018, Kimbrough pleaded

      guilty to Level 6 felony domestic battery and Class A misdemeanor invasion of

      privacy in exchange for the dismissal of the other charges and another pending

      case.


[4]   On January 24, 2018, Kimbrough filed a statement of sentencing

      considerations, which included the results of a neuropsychological evaluation.

      The evaluation stated that Kimbrough suffers from severe mental health issues,

      including paranoid schizophrenia and psychotic symptoms, but that he has


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018   Page 2 of 5
      refused treatment for these problems because he did not like the medications

      involved. It also stated that he has poor control over anger and aggression.


[5]   A sentencing hearing took place on January 25, 2018. During the hearing,

      Kimbrough testified about the physical and mental impact that he has suffered

      following a work accident that included him being electrocuted. Kimbrough’s

      wife testified that Kimbrough is a wonderful husband and father but that he has

      not been willing to address his mental health problems, which overshadow their

      relationship. She also testified that she was the victim of Kimbrough’s prior

      strangulation conviction, blaming Kimbrough’s mental health issues and stating

      that he would continue to have problems with the criminal justice system if he

      did not receive help for those issues.


[6]   The trial court found that Kimbrough’s mental health constituted a mitigating

      circumstance, but was far outweighed by the aggravating circumstance of his

      prior criminal history and probation violations. The trial court sentenced him

      to concurrent terms of two and one-half years for the domestic battery

      conviction and one year for the invasion of privacy conviction, for an aggregate

      sentence of two and one-half years’ imprisonment, with six months suspended

      to probation.


[7]   Kimbrough’s sole argument on appeal is that his sentence is inappropriate in

      light of the nature of the offenses and his character pursuant to Indiana

      Appellate Rule 7(B). In considering an argument under Rule 7(B), we must

      “conduct [this] review with substantial deference and give ‘due consideration’


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018   Page 3 of 5
       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).


[8]    Kimbrough was convicted of Level 6 felony domestic battery. For this

       conviction, he faced a sentence of six months to two and one-half years, with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court

       imposed a maximum sentence of two and one-half years. Kimbrough was also

       convicted of Class A misdemeanor invasion of privacy. For this conviction, he

       faced a sentence of up to one year. I.C. § 35-50-3-2. The trial court imposed a

       maximum sentence of one year. The trial court ordered the sentences to run

       concurrently, for an aggregate term of two and one-half years, with six months

       suspended to probation.


[9]    With respect to the nature of the offenses, Kimbrough engaged in an argument

       with his wife, in the presence of their young children, when his wife tried to

       leave the apartment. Kimbrough grabbed her by the neck and prevented her

       from leaving. He did this in violation of a protective order.


[10]   With respect to Kimbrough’s character, Kimbrough has a long history with the

       criminal justice system. He has multiple felony convictions, including domestic

       battery, and multiple misdemeanors. He has violated probation numerous

       times, and he was on probation when he committed the instant offenses. He


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018   Page 4 of 5
       has previously violated the protective order. Kimbrough also has a history of

       using illegal substances. Kimbrough contends that his decision to plead guilty

       and his mental health issues should mitigate problems with his character. Yet

       Kimbrough has refused appropriate treatment for them, and nothing in the

       record indicates that he would make a serious attempt at treatment now. The

       trial court found that Kimbrough’s mental health issues, coupled with his

       criminal record, make him a dangerous individual.


[11]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offenses and Kimbrough’s

       character.


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


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-470 | August 1, 2018   Page 5 of 5
