MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 30 2015, 8:42 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Gregory F. Zoeller
Joas & Stotts Attorney General of Indiana
Madison, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary Allen Gibson, January 30, 2015
Appellant-Defendant, Court of Appeals Cause No.
39A05-1404-CR-156
v. Appeal from the Jefferson Circuit
Court.
The Honorable Darrell M. Auxier,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 39C01-1308-FB-845
Darden, Senior Judge
Statement of the Case
[1] Gary Allen Gibson appeals his convictions by jury of aggravated battery
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 1 of 9
as a Class B felony1 and criminal confinement as a Class D felony2 as well as
the sixteen-year executed sentence imposed thereon. We affirm.
Issues
[2] Gibson raises two issues for our review:
I. Whether there is sufficient evidence to support his
aggravated battery and criminal confinement convictions;
and
II. Whether his sixteen-year executed sentence is
inappropriate.
Facts and Procedural History
[3] In July 2012, John Taulbee, his wife, Joyce, and his son, J.D., purchased
pseudoephedrine on the same day. The family’s purchases led to an
investigation by the Madison Police Department. During the investigation,
Detective Jonathan Simpson learned that the Taulbees purchased the
pseudoephedrine for Darci McFadden, who is Gibson’s stepdaughter. Based
on information received from the Taulbees, Madison Police Department
officers went to a home where methamphetamine was being manufactured.
The officers arrested the occupants of the house, including Darci and her
1
Ind. Code § 35-42-2-1.5 (1997).
2
Ind. Code § 35-42-3-3 (2006).
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 2 of 9
boyfriend, Christopher Peel. All members of the Taulbee family testified
pursuant to subpoenas at Peel’s trial. Peel was convicted of manufacturing
methamphetamine and sentenced to thirty years.
[4] On August 5, 2013, Taulbee and Brandon Cope were standing on a street
outside talking on opposite sides of a car while Cope was watching his three-
year-old son. Suddenly, Gibson walked up behind Taulbee, grabbed Taulbee’s
ponytail, and struck Taulbee in the head three or four times. Taulbee then ran
around the front of the car where Dustin McFadden, Darci’s brother, knocked
Taulbee to the pavement. While Taulbee was lying on the ground, both Gibson
and McFadden kicked Taulbee in the face. The two men told Taulbee, “[w]e
said we’d get you and we got you.” Tr. p. 139. Darci, who had arrived on the
scene at this point, yelled, “that’s what snitches get.” Id. at 295. Someone
yelled “cops,” and Gibson and McFadden fled. Id. at 139.
[5] Taulbee was transported by ambulance to the local hospital. As a result of the
beating, Taulbee suffered a fractured nose, eye trauma, and a subdural
hematoma, which is bleeding in the brain. He was transferred by helicopter to
the University of Louisville Hospital so that he could have immediate surgery if
the hematoma became life-threatening. Taulbee was discharged from the
hospital the following day when the hematoma did not worsen. Taulbee has
suffered from blurred vision since the beating to the point that he cannot obtain
his commercial driver’s license.
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 3 of 9
[6] A jury convicted Gibson of aggravated battery as a Class B felony and criminal
confinement as a Class D felony. At the sentencing hearing, the State presented
evidence that during phone calls while in jail after his arrest, Gibson referred to
Taulbee as, among other things, a “f***ing dumbs**t,” a “f***ing p***y a**
b***h,” and a “snitch’n a** little punk.” State’s Exhibit 40, p. 1. The trial
court found the following aggravating factors: 1) the motive for battering
Taulbee was retaliation for his testimony as a subpoenaed State’s witness in a
drug trial, which is an attack on the court system and has the effect of
discouraging potential witnesses from testifying; 2) Gibson demonstrated no
remorse as evidenced by the derogatory statements Gibson made about Taulbee
while Gibson was incarcerated, which indicated that Gibson was likely to
further injure Taulbee if given the opportunity to do so; 3) the crime of violence
was committed in front of a young child; and 4) Gibson has a significant
criminal history, which includes several misdemeanor convictions as well as
one felony conviction. The trial court found no mitigating factors and
sentenced Gibson to sixteen years for the Class B felony and two and one-half
years for the Class D felony. The trial court ordered the sentences to run
concurrently for a total executed sentence of sixteen years. Gibson appeals his
convictions and sentence.
Discussion and Decision
I. Sufficiency of the Evidence
[7] Gibson argues that there is insufficient evidence to support his convictions. In
reviewing the sufficiency of the evidence, this Court will affirm the convictions
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 4 of 9
if the probative evidence and reasonable inferences to be drawn therefrom could
allow a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). On appeal, we do
not reweigh the evidence or judge the credibility of witnesses. Fields v. State,
679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the evidence and
reasonable inferences supporting the judgment to determine whether the trier of
fact could reasonably reach the conclusion. Id. If there is substantial evidence
of probative value supporting a conviction, this Court will not set the judgment
aside. Id.
A. Aggravated Battery
[8] Gibson first contends there is insufficient evidence to support his aggravated
battery conviction. To convict Gibson of aggravated battery as a Class B
felony, the State had to prove that Gibson knowingly or intentionally inflicted
injury on Taulbee that created protracted loss or impairment of the function of a
bodily member or organ. See Indiana Code § 35-42-2-1.5. Gibson’s sole
contention is that the State failed to prove that the “injury inflicted on Taulbee
created a protracted . . . impairment . . . .” Appellant’s Br. pp. 11-12.
[9] This Court has previously explained that protracted means “to draw out or
lengthen in time,” Neville v. State, 802 N.E.2d 516, 518 (Ind. Ct. App. 2004),
trans. denied, and that impairment means the “fact or state of being damaged,
weakened, or diminished.” Fleming v. State, 833 N.E.2d 84, 89 (Ind. Ct. App.
2005). In Mann v. State¸ 895 N.E.2d 119, 122 (Ind. Ct. App. 2008), this Court
held that the victim experiencing “muffled hearing” for two months after the
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 5 of 9
attack met the statutory definition of protracted impairment and provided
sufficient evidence to support Mann’s aggravated battery conviction. Similarly,
Taulbee experiencing blurred vision for fifteen months after the attack meets the
statutory definition of protracted impairment and provides sufficient evidence
to support Gibson’s conviction. Furthermore, his injury was severe enough to
prevent him from obtaining a commercial driver’s license.
B. Criminal Confinement
[10] Gibson also challenges the sufficiency of the evidence to support his criminal
confinement conviction as an accomplice. To convict Gibson of criminal
confinement as a Class D felony, the State had to prove that Gibson knowingly
or intentionally confined Taulbee without Taulbee’s consent. See Ind. Code §
35-42-3-3. To confine means to substantially interfere with the liberty of a
person. Ind. Code § 35-42-3-1 (1977). The essence of the offense is the
restriction of the person’s movement and liberty against his will. Cornelius v.
State, 508 N.E.2d 548, 549 (Ind. 1987).
[11] The accomplice liability statute, Indiana Code Section 35-41-2-4 (1977), does
not set forth a separate crime, but merely provides a separate basis of liability
for the crime. Hampton v. State, 719 N.E.2d 803, 807 (Ind. 1999). Therefore, an
individual who aids another person in committing a crime is as guilty as the
actual perpetrator. Id. The particular facts and circumstances of each case must
be considered in determining whether a person participated in the commission
of an offense as an accomplice. Griffin v. State, 16 N.E.3d 997, 1003 (Ind. Ct.
App. 2014). The following four factors are relevant to show that one acted as
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 6 of 9
an accomplice to a crime: 1) presence at the scene of the crime; 2)
companionship with another at the scene of the crime; 3) failure to oppose the
commission of the crime; and 4) course of conduct before, during, and after the
occurrence of the crime. Id. at 1004.
[12] Here, the evidence reveals that Gibson was present when McFadden knocked
Taulbee to the ground and restricted Taulbee’s liberty and movement against
his will. Gibson did not oppose the confinement. Rather, while Taulbee was
confined on the ground, Gibson kicked Taulbee in the head. Gibson’s conduct
before, during, and after the criminal confinement supports his conviction of
criminal confinement as an accomplice.
II. Inappropriate Sentence
[13] Gibson next argues that his sentence is inappropriate. Article VII, section 4 of
the Indiana Constitution authorizes independent appellate review of sentences.
Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is implemented
through Indiana Appellate Rule 7(B), which states that we may revise a
sentence, even if authorized by statute, if after due consideration of the trial
court’s decision, the sentence is inappropriate in light of the nature of the
offense and the character of the offender. In determining whether a sentence is
inappropriate, this Court looks at 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. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 7 of 9
Gibson bears the burden on appeal of persuading us that his sentence is
inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[14] As to the nature of the offense, Gibson severely beat Taulbee for testifying
pursuant to a subpoena against Gibson’s stepdaughter’s boyfriend. We agree
with the trial court that this was an attack upon the criminal justice system. In
addition, Taulbee was so badly beaten that he has had blurred vision for over a
year and was unable to obtain a commercial driver’s license as a result. Lastly,
the beating occurred in the presence of a three-year-old child.
[15] As to the character of the offender, we note that the significance of a criminal
history in assessing a defendant’s character is based on the gravity, nature, and
number of prior offenses in relation to the current offense. Moss v. State, 13
N.E.3d 440, 447 (Ind. Ct. App. 2014), trans. denied. Here, Gibson has an
extensive criminal history that includes one felony and several misdemeanor
convictions, including convictions for resisting law enforcement and battery
resulting in bodily injury. Clearly, Gibson has not reformed his criminal
behavior despite his numerous contacts with the criminal justice system. In
addition, after the beating, Gibson continued to make derogatory comments
about Taulbee. We agree with the trial court that these comments demonstrate
Gibson’s lack of remorse for the beating and indicate Gibson is likely to further
harm Taulbee given the opportunity to do so. Considering the nature of the
offense and Gibson’s character, Gibson has not met his burden of proving that
his sentence is inappropriate.
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 8 of 9
[16] Affirmed.
[17] Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 39A05-1404-CR-156 | January 30, 2015 Page 9 of 9