MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 16 2019, 6:04 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Grant County Public Defender                             Attorney General of Indiana
Marion, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Ray Gipson,                                        January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-51
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana Kenworthy,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         27D02-1509-FA-4



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019                 Page 1 of 7
[1]   James Ray Gipson appeals following his convictions of four counts of Class B

      felony child molesting, 1 seven counts of Class A felony child molesting, 2 four

      counts of Class B felony incest, 3 one count of Class D felony child solicitation, 4

      and one count of Class B felony attempted incest. 5 He argues the trial court

      abused its discretion when sentencing him to consecutive sentences. We affirm.



                            Facts and Procedural History
[2]   Gipson has two daughters, C.G. and J.S., born in 1984 and 1986, respectively.

      Gipson’s inappropriate behavior began when C.G. was nine years old. On

      multiple occasions Gipson walked in while C.G. was taking a bath. Gipson

      also showered with C.G. and would become aroused during those showers.

      When C.G. was between the ages of ten and twelve, Gipson would rub C.G.’s

      legs, using shin splints as an excuse. Gipson would eventually slide his hands

      all the way up C.G.’s legs and touch C.G.’s vagina.


[3]   When C.G. was in fifth grade, Gipson discovered love notes from boys to C.G.

      Gipson read the notes with C.G. and told her the boys wanted to have sex with

      her. Gipson told C.G. she needed to have her first sexual experience with him.




      1
          Ind. Code § 35-42-4-3 (a) (1994).
      2
          Ind. Code § 35-42-4-3(a)(1) (Three counts in 1996) (Four counts in 1998).
      3
          Ind. Code § 35-46-1-3 (1994).
      4
          Ind. Code § 35-42-4-6 (a)(1) (1994).
      5
          Ind. Code § 35-46-1-3 (1994) & Ind. Code § 35-41-5-1 (1977).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019   Page 2 of 7
      When C.G. was thirteen, Gipson told C.G. incest was allowed, because it was

      in the Bible, and Gipson read multiple verses about incest to C.G.


[4]   Gipson also molested J.S. regularly, at least once a week for six years. Starting

      when J.S. was in third grade, Gipson used shin splints as an excuse to rub J.S.’s

      legs. Gipson would slide his hands up her leg and then put his fingers in her

      vagina. Gipson would also have J.S. put her feet on his lap against his penis.

      Gipson would become aroused when this happened. Whenever J.S. was in the

      pool Gipson would make J.S. kiss him while he rubbed her body. Gipson told

      J.S. the molestation means “I love you and it means you love me and this is

      what we’re supposed to do.” (Tr. Vol. III at 83.)


[5]   The last incident occurred during a sleepover. J.S. and her friends were

      sleeping in the backyard. J.S. woke up while Gipson was standing over her

      with his fingers in her vagina. J.S. told C.G. what Gipson did and how he had

      molested her for years. C.G. and J.S. agreed to stay away from Gipson.


[6]   In April 2015, C.G. and J.S. reported Gipson to the police. Gipson was

      charged with of four counts of Class B felony child molesting, seven counts of

      Class A felony child molesting, four counts of Class B felony incest, one count

      of Class D felony child solicitation, and one count of Class B felony attempted

      incest. A jury found Gipson guilty on all seventeen counts.


[7]   The trial court sentenced Gipson to thirty-five years for each Class A felony, ten

      years for each Class B felony, and one-and-a-half years for the Class D felony.

      The trial court ordered the Class B felonies, the Class D felony, and four of the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019   Page 3 of 7
      Class A felonies served concurrent with three Class A felonies, but ordered

      those three Class A felonies served consecutively, for an aggregate sentence of

      one-hundred-and-five years in prison.



                             Discussion and Decision
[8]   “We initially observe that sentencing decisions rest within the sound discretion

      of the trial court and are reviewed on appeal only for an abuse of discretion.”

      Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). 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.” Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A trial court abuses its

      discretion by: “(1) issuing an inadequate sentencing statement, (2) finding

      aggravating or mitigating factors that are not supported by the record, (3)

      omitting factors that are clearly supported by the record and advanced for

      consideration, or (4) finding factors that are improper as a matter of law.”

      Gleason, 965 N.E.2d at 710.


[9]   “[T]he court shall determine whether terms of imprisonment shall be served

      concurrently or consecutively. The court may consider the aggravating and

      mitigating circumstances in Indiana Code § 35-38-1-7.1(b) and Indiana Code §

      35-38-1-7.1(c) in making a determination under this subsection.” Ind. Code §

      35-50-1-2(c) (1996). Gipson argues the trial court abused its discretion in



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019   Page 4 of 7
       ordering consecutive sentences because it failed to articulate evidence to justify

       the sentence.


[10]   The trial court found many aggravating factors that allowed the consecutive

       sentence. Gipson was in a position of trust with his victims. C.G. and J.S were

       Gipson’s daughters and lived with him and their mother in the family’s home.

       See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (defendant

       violating position of trust with victim allowed for an enhanced sentence), trans.

       denied. The trial court also pointed out that J.S. was nine-years-old at the time

       of the first offense and the abuse went on for many years. C.G. and J.S.

       continued into their adulthood to experience negative consequences from the

       abuse. Specifically, J.S. continues to experience panic attacks and struggle with

       adult relationships and low self-esteem. (See Tr. Vol. IV at 211-13.) C.G. said

       she still is “not right” after what Gipson did to her. (Tr. Vol. II at 236.) The

       trial court noted Gipson has a narcissistic personality, is a repeat offender, and

       used religion to perpetrate his crimes. The trial court stated:


               I think the evidence in this case was clear throughout particularly
               during Mr. Gipson’s testimony that he is what I would say is the
               worst of the worst. Um, he is narcissistic. He is a pedophile. He
               is a predator, and he enlisted religion to perpetrate his crimes,
               um, on his biological children.


       (Tr. Vol. IV at 224.)


[11]   The trial court found no mitigating factors. Gipson argues that, when

       sentencing him, the court did not consider his “traumatic injury.” (Br. of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019   Page 5 of 7
       Appellant at 9.) “When a defendant offers evidence of mitigators, the trial

       court has the discretion to determine whether the factors are mitigating, and it is

       not required to explain why it does not find the proffered factors to be

       mitigating.” Johnson v. State, 855 N.E.2d 1014, 1016 (Ind. Ct. App. 2006), trans.

       denied. During trial, reference was made to hand injuries. Gipson explained he

       was involved in a gasoline accident that left him without the use of his hands

       for two years. (Tr. Vol IV at 10-11.) During sentencing, Gipson referred to a

       “traumatic brain injury,” and mental health issues. 6 (Id. at 221-222.) We are

       unsure whether Gipson asserts the trial court should have found a mitigator in

       his hand injury, a traumatic brain injury, or his self-reported mental health

       issues. Because it is unclear which injury is the traumatic injury the court

       should have found, we cannot conclude the trial court abused its discretion. See

       Battle v. State, 688 N.E.2d 1230, 1237 (Ind. 1997) (trial court’s failure to find any

       mitigating circumstances was not an abuse of discretion).


[12]   In summary, the trial court found a number of aggravators that could be used to

       justify consecutive sentences, and Gipson has not demonstrated the trial court

       abused its discretion in failing to find his purported mitigator. We accordingly

       find no abuse of discretion in the court’s imposition of consecutive sentences for

       three of Gipson’s seventeen convictions. See O’Connell v. State, 742 N.E.2d 943,




       6
         In the Presentence Investigation, Gipson reported being diagnosed with depression four different times.
       Gipson also reported being diagnosed with Post Traumatic Stress Disorder (PTSD) in 1970, 1973, 1991
       through 1993, and 2001. Gipson received counseling for his PTSD for two years after burning his hands, but
       quit going in 1991. (App. Vol. III at 11.) We found no mention of a brain injury in the Presentence
       Investigation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019                 Page 6 of 7
       952 (Ind. 2001) (multiple victims or multiple crimes justifies imposing

       consecutive sentences).



                                           Conclusion
[13]   The trial court properly found aggravators allowing it to sentence Gipson to

       consecutive sentences and did not have to consider the same mitigating factors

       the defense did. Thus, the trial court did not abuse its discretion when

       sentencing Gipson. Accordingly, we affirm.


[14]   Affirmed


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-51 | January 16, 2019   Page 7 of 7
