Jerome W. Gibbs v. State of Indiana ( 2020 )

FILED
Oct 29 2020, 9:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana Steven J. Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerome Gibbs, October 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-770
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Mark Stoner, Judge
The Honorable
Jeffrey Marchal, Magistrate
Trial Court Cause No.
49G06-1905-F5-20339
Vaidik, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-770 | October 29, 2020 Page 1 of 5
Case Summary
[1] Domestic battery is generally a Class A misdemeanor but is elevated to a Level
5 felony if, among other reasons, it results in bodily injury to a family or
household member who has a mental or physical disability and who is in the
care of the defendant. Jerome Gibbs was convicted under this provision, and he
appeals, arguing the State failed to prove the victim was in his care. We agree
and therefore remand this matter to the trial court for the entry of a conviction
and sentence for a Class A misdemeanor.
Facts and Procedural History
[2] On May 16, 2019, Gibbs was in an alley on the east side of Indianapolis with
his girlfriend, Tonja Smith. Gibbs was on foot, and Smith, who was obese, had
bad knees, and struggled to stand, was on an electric scooter. They argued, and
Gibbs knocked Smith off her scooter onto the ground and then shoved her back
down when she tried to get up. As a result, Gibbs suffered injuries to her face,
hand, and knee.
[3] The State charged Gibbs with domestic battery as a Level 5 felony under
Indiana Code section 35-42-2-1.3(c)(5)(B), which applies if the battery results in
bodily injury to “[a] family or household member who has a mental or physical
disability if the offense is committed by an individual having care of the family
or household member with the disability, regardless of whether the care is
Court of Appeals of Indiana | Opinion 20A-CR-770 | October 29, 2020 Page 2 of 5
assumed voluntarily or because of a legal obligation.”1 The case proceeded to a
bench trial in February of this year. The trial court found Gibbs guilty as
charged and sentenced him accordingly.
[4] Gibbs now appeals.
Discussion and Decision
[5] Gibbs contends the evidence is insufficient to support his conviction for
domestic battery as a Level 5 felony. When reviewing sufficiency-of-the-
evidence claims, we neither reweigh the evidence nor judge the credibility of
witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only
consider the evidence supporting the judgment and any reasonable inferences
that can be drawn from the evidence. Id. A conviction will be affirmed if there is
substantial evidence of probative value to support each element of the offense
such that a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Id.[6] A person who knowingly or intentionally touches a family or household
member in a rude, insolent, or angry manner commits domestic battery, a Class
A misdemeanor. Ind. Code § 35-42-2-1.3(a)(1). But as noted above, the offense
1
Regarding the “family or household member” element, Gibbs was not married or related to Smith, and
there is no evidence that the two were living together. However, an individual is considered a “family or
household member” of another person if the individual “is dating or has dated the other person” or “is or was
engaged in a sexual relationship with the other person[.]” Ind. Code § 35-31.5-2-128(a)(2), (3). At trial, Gibbs
acknowledged he was in a “dating” and “sexual” relationship with Smith. Tr. p. 38.
Court of Appeals of Indiana | Opinion 20A-CR-770 | October 29, 2020 Page 3 of 5
is a Level 5 felony if, among other things, it results in bodily injury to a family
or household member who has a mental or physical disability and who is in the
care of the defendant, either because the defendant voluntarily assumed the care
or is under a legal obligation to provide it. Id. at (c)(5)(B). To convict Gibbs
under this provision, the State had to prove beyond a reasonable doubt that (1)
Gibbs knowingly or intentionally touched Smith in a rude, insolent, or angry
manner, (2) Smith was injured as a result, (3) Smith was a member of Gibbs’s
family or household, (4) Smith had a mental or physical disability, and (5)
Smith was in Gibbs’s care.
[7] Gibbs does not dispute the first four elements. He argues only that the State
failed to prove Smith was in his care and that as a result his conviction should
be reduced to a Class A misdemeanor. In response, the State does not contend
Gibbs had a “legal obligation” to care for Smith. Therefore, the issue is whether
there is sufficient evidence to support a conclusion that Gibbs voluntarily
assumed care of Smith. There is not.
[8] The domestic-battery statute does not define “care,” and the parties do not
direct us to any other statute that defines what it means for a person to be in
another person’s “care.” The State asserts “Gibbs assumed the care of Smith
voluntarily through being in a relationship with a woman who is disabled and
unable to walk.” Appellee’s Br. p. 11. There are two problems with this
argument. First, there was no evidence presented that Smith was in anyone’s
care, let alone Gibbs’s care, or that she even needed or wanted any care. In fact,
the word “care” was never uttered at trial—by a witness, by counsel, or by the
Court of Appeals of Indiana | Opinion 20A-CR-770 | October 29, 2020 Page 4 of 5
trial court. The State’s argument assumes that any person who is unable to walk
needs to be cared for by another person, which is obviously not the case.
Second, even if Gibbs needed some level of care because of her disability, the
State cites no authority supporting the proposition that anybody who enters a
romantic relationship with such a person necessarily assumes the care of that
person.
[9] The State adds, “By entering an intimate relationship with Smith, Gibbs would
have cared for Smith and assisted Smith in carrying out activities like picking
up, retrieving, or moving items when alone with Smith and assisting her in
moving from one area to another, thereby providing physical or psychological
comfort.” Id. But this is just another unsupported assumption. While evidence
that a defendant assisted another person “in carrying out activities like picking
up, retrieving, or moving items” or “moving from one area to another” might
help demonstrate that the defendant assumed “care” as required by the statute,
there is no such evidence in this case. All we know is Gibbs was Smith’s
boyfriend and he was with her while she was on her scooter. That evidence,
standing alone, is an insufficient basis on which to conclude Gibbs voluntarily
assumed care of Smith. Therefore, we reverse Gibbs’s Level 5 felony conviction
and remand this matter to the trial court with instructions to enter a conviction
and sentence for Class A misdemeanor domestic battery.
[10] Reversed and remanded.
Bailey, J., and Weissmann, J., concur.
Court of Appeals of Indiana | Opinion 20A-CR-770 | October 29, 2020 Page 5 of 5