Gregory Kincaid v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 13 2019, 10:04 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
Daniel Hageman Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Kincaid, November 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-829
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1808-F5-26970
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 1 of 9
[1] Gregory Kincaid appeals the sentence imposed by the trial court for one count
of Level 5 felony domestic battery, arguing that (1) the trial court erred by
relying on an improper sentence aggravator; and (2) the sentence should be
revised in light of the nature of the offense and Kincaid’s character. Finding no
error and the sentence not inappropriate, we affirm.
Facts
[2] In August 2018, Kincaid was dating T.H. T.H. and her two children, a son and
a daughter, lived with Kincaid at the time. On August 14, 2018, while the
family was spending the evening at home, Kincaid was intoxicated and being
“[v]ery rude” towards T.H. Tr. Vol. II p. 85. After dinner, T.H. watched a
television show, and then around 11:00 or 11:30 p.m., she went to go relax in
the bath.
[3] While in the bath, T.H. heard “very loud music” coming from Kincaid’s
bedroom. Id. at 86. She texted him multiple times asking to turn the music
down due to the late hour and because her son had an important I.E.P.
Assessment at school the next day. Kincaid did not respond to the messages.
Instead, he came “storming in the bathroom . . . in a rage,” and yelled and
cussed at T.H. as she sat in the bath. Id. at 87. Kincaid then proceeded to put
his hand around T.H.’s neck, strangled her until she could not breathe, and told
her “I’ll f*cking kill you.” Id. At some point while T.H. struggled to get free and
stand up, the shower curtain fell and startled Kincaid, after which he released
T.H. and fled the house. T.H. called her mother and told her, “[h]e tried to kill
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 2 of 9
me. Come, please. Call the cops.” Id. at 89. T.H. also locked the doors to the
house so that Kincaid could not get back inside. T.H.’s mother testified that
T.H. told her Kincaid had punched her in the face; T.H.’s mother then called
911 and reported the same.
[4] When the responding officer arrived at the house, Kincaid was sitting on the
porch and spoke with the officer. The officer observed that Kincaid was
intoxicated. He then went inside and spoke with T.H., who was crying and
visibly upset, and he “immediately noticed that there had been some kind of
damage to her—her throat was obviously not in good condition. . . . it was very
obvious that something had happened that night.” Id. at 143. He described the
injuries: “obvious red marks on her neck . . . especially on the sides of the
neck.” Id. at 144. Upon entering the bathroom where the attack occurred, the
officer observed that “[i]t [was] in complete disarray.” Id.
[5] On August 16, 2018, the State charged Kincaid with part I of Count I, Class A
misdemeanor domestic battery; part II of Count I, Level 5 felony domestic
battery for a prior battery conviction with the same victim; Count II, Level 6
felony strangulation; Count III, Level 6 felony domestic battery committed in
the presence of a child; and Count IV, Level 6 felony intimidation. Before trial,
the State filed a motion to dismiss Count III, and Count IV was renumbered as
Count III.
[6] A jury trial was held February 28, 2019, at the conclusion of which Kincaid was
found guilty of Count I and not guilty of Counts II and III. Kincaid pleaded
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 3 of 9
guilty to the enhancement under part II of Count I, resulting in a conviction of
Level 5 felony domestic battery. The trial court sentenced Kincaid to five years,
with two years executed in the Department of Correction, three years
suspended, and 545 days on probation. Kincaid now appeals.
Discussion and Decision
I. Sentence Aggravator
[7] Kincaid first argues that the trial court erred during sentencing by relying on the
cumulative impact of Kincaid’s behavior on T.H. and her children as a sentence
aggravator. Sentencing decisions are within the sound discretion of the trial
court and we thus afford great deference to the trial court’s judgment. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. The
trial court may err in its sentencing process if, among other things, it relies on
aggravators not supported by the record or that are improper as a matter of law.
Id. at 490-91. We will not review the relative weight the trial court gave to any
properly found aggravators. Id. at 491.
[8] During sentencing, the State read aloud three letters from T.H., her son, and
her daughter that described the various ways in which Kincaid’s actions had
impacted their long-term mental, physical, and emotional health. The trial court
then considered these impacts as one of many aggravators in determining
Kincaid’s sentence. Kincaid argues that these letters fail to demonstrate lasting
impacts beyond what is normally associated with the offense of domestic
battery, and, therefore, that their contents were an improper aggravator.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 4 of 9
[9] “Generally, the impact that a victim or a family experiences as a result of a
particular offense is accounted for in the [advisory] sentence. ‘In order to validly
use victim impact evidence to enhance a[n advisory] sentence, the trial court
must explain why the impact in the case at hand exceeds that which is normally
associated with the crime.’” Simmons v. State, 746 N.E.2d 81, 91 (Ind. Ct. App.
2001) (quoting Davenport v. State, 689 N.E.2d 1226, 1233 (Ind. 1997)) (internal
citation omitted).
[10] We acknowledge that every victim of domestic abuse suffers long-term impacts
on all aspects of their well-being beyond what most of us could imagine. T.H.
described herself as “scarred for life” by her abusive relationship with Kincaid,
during which she “felt like [she] wasn’t living anymore, everyday was a
survival.” Tr. Vol. II p. 215-16. But what we find particularly noteworthy in this
case are the additional impacts suffered by T.H.’s daughter as a result of the
physical abuse Kincaid inflicted upon her mother. Her letter detailing these
impacts reads, in relevant part, as follows:
. . . First off, I would like to start by saying, Gregory Kincaid has
actually messed me up, whether it’s mentally, physically or
emotionally. He’s messed me up on levels that I didn’t think was
possible. His physical abuse towards my mom, [T.H.], and his
mental abuse towards me and my brother caused me to need
therapy. I can’t tell you how many nights I was sleepless because
of his actions. I would hear him beat on my mom, throw things
at her, talk down to her, and I would be too scared to sleep
because I knew if it got too bad, I would get up and try to stop it.
I missed many days of school due to not sleeping, but it doesn’t
stop there. I would physically have to get between them just so
that he would stop hurting her. This man truly broke me and my
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 5 of 9
spirit. . . . After dealing with this abuse and living with it for four
years, he’s caused me to have PTSD. I have to be on two
different medications. One so I could sleep because I’d wake up
hour after hour because of nightmares. Nightmares about him
killing my mom or hurting my younger brother. The other
medication also for my PTSD, I needed it because anytime I
heard a lot of noise, or someone yelling, I would have a flashback
of something he’d done. It would cause me to breakdown and
start crying. I would tense up, and I remember being so scared
that I would have to see this man again.
. . . [T]here’s so many stories I could tell you about what Gregory
Kincaid has done, but then this letter would be at least 20 pages
long. He made me feel like I was nothing, that I shouldn’t even
be here. . . . And I guess what bothers me the most is how he
would treat my mom and turn around and try to be nice to me
and my brother. As I’m writing this letter, I just feel sick to my
stomach.
***
In conclusion, what I’m trying to explain is that he really is a
dangerous person. He feeds off of mentally and physically
abusing people. I’m scared that he’s going to get out and try to
come back for us, and I would feel safe if I knew for sure that
he’s gone.
Id. at 213-15.
[11] The lasting and traumatic impacts suffered by T.H.’s daughter—who was not
even the direct victim of the offense at hand—far exceed those typically
associated with a domestic battery offense, and certainly far exceed what any
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 6 of 9
bystander should have to endure. The trial court did not err in considering these
impacts to be an aggravator in determining Kincaid’s sentence.
II. Sentence Appropriateness
[12] Kincaid next argues that the sentence imposed by the trial court is inappropriate
in light of the nature of the offense and his character. Indiana Appellate Rule
7(B) provides that this Court may revise a statutorily authorized sentence “if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” In conducting this review, “substantial deference” must be
given 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).
[13] For Level 5 felony domestic battery, Kincaid faced a term of one to six years,
with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). The trial
court imposed a sentence of five years, with two years executed in the
Department of Correction, three years suspended, and 545 days on probation.
[14] With respect to the nature of the offense, we again reiterate the cumulative
impacts Kincaid’s actions had not only on T.H. as the victim, but on her
children as well. Kincaid also strangled T.H. while she was relaxing in the bath,
threatened to kill her, and left visible marks and bruises on T.H.’s neck—all in
response to T.H. merely texting him asking to turn his music down.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 7 of 9
[15] Further, this was not the first time Kincaid had physically abused T.H., and
instead was simply the last straw in an ongoing pattern of domestic violence.
The letter from T.H.’s daughter went into detail about multiple other incidents,
stating, for example, that “for one month straight, he beat my mom every single
night,” and that she once jumped in front of T.H. to prevent Kincaid from
“tr[ying] to hit my mom with a two-by-four piece of wood.” Tr. Vol. II p. 214-
15. T.H. stated in her letter that this offense marked the point when she “finally
found the strength and courage to have Mr. Kincaid arrested for his actions”
after years of enduring his abusive behavior. Id. at 216.
[16] With respect to Kincaid’s character, we first take note of Kincaid’s criminal
history, which includes convictions for misdemeanor operating while
intoxicated, felony criminal recklessness (for which he was ordered to complete
domestic violence counseling), misdemeanor domestic battery, and
misdemeanor invasion of privacy. This is certainly not the worst pattern of
offenses, but when reviewing sentences under Rule 7(B), “[e]ven a minor
criminal history is a poor reflection of a defendant’s character.” Moss v. State, 13
N.E.3d 440, 448 (Ind. Ct. App. 2014). It is noteworthy that Kincaid was on
probation for domestic battery on T.H. when he again attacked her in this case.
He has also been arrested and charged with domestic battery on multiple
occasions, demonstrating an ongoing and persistent tendency to commit
violence. See, e.g., Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)
(holding that we may consider a defendant’s history of arrests as a reflection of
his character).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 8 of 9
[17] Kincaid points to his good work history and emphasizes that he was assessed to
be in the low-risk category to reoffend as evidence of his good character. While
these are valid considerations, the trial court took them into account by
suspending three years of his sentence, with only two years to be served in
prison.
[18] We do not find the five-year sentence imposed by the trial court to be
inappropriate in light of the nature of the offense and Kincaid’s character.
[19] The judgment of the trial court is affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-829 | November 13, 2019 Page 9 of 9