John Kimbrough, III v. State of Indiana
2012 Ind. LEXIS 993
Ind.2012Background
- Kimbrough was convicted of multiple counts of child molesting and sentenced to 80 years.
- The victims were approximately five and seven at onset; offenses spanned about two years.
- Trial evidence included victim testimony and Dr. Watts' findings of hymenal injuries and redness.
- The trial court defined 'female sex organ' in final instructions and applied aggravating factors.
- Court of Appeals remanded for a 40-year aggregate term; Supreme Court granted transfer and affirmed.
- Anglemyer sentencing standards govern appellate review of discretion; 7(B) allows independent review of sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May age of victims be used as an aggravator? | Kimbrough argues age was element; improper as aggravator. | State contends age supports aggravation as a particularized circumstance. | Age supported aggravation; no abuse of discretion. |
| Was the multiple-occurrence factor supported by the record? | Kimbrough contends no evidence for multiple occasions. | State shows molestations occurred over nearly two years. | Record supports multiple-occurrence aggravator; no abuse. |
| Did lack of criminal history properly mitigate without error? | Kimbrough lacked prior history; mitigating factor warranted weight. | Trial court weighed factors; no requirement to weigh against each other post-Anglemyer. | Trial court properly weighted factors; no abuse. |
| May appellate review under Rule 7(B) revise or reduce the sentence? | Kimbrough sought 7(B) relief for inappropriateness. | No 7(B) request; not appropriate for appellate revision. | No 7(B) review sought; court declined to revise. |
Key Cases Cited
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing discretion reviewed for abuse; weighing not required post-Anglemyer)
- Buchanan v. State, 767 N.E.2d 967 (Ind. 2002) (victim age can support aggravation in child molesting cases)
- Comer v. State, 839 N.E.2d 721 (Ind. Ct. App. 2005) (duty to correct sentencing errors sua sponte discussed)
- McCullough v. State, 900 N.E.2d 745 (Ind. 2009) (appellate review of sentence under constitutional authority)