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Filed: November 13, 1987.


APPEAL FROM THE VANDERBURGH CIRCUIT COURT, The Honorable William H. Miller, Judge, Cause No. 4722.

Shepard, C.j., and Givan, J., concur. DeBruler, J., concurs in result with opinion in which Dickson, J., concurs.

Author: Pivarnik


Defendant-Appellant James E. Gibson was convicted of Murder and Battery, a class B misdemeanor, as an included offense of Child Molesting. The trial court found the aggravating circumstances outweighed the mitigating circumstance that Gibson had no prior record of violence. The aggravating circumstances included that the victim was a helpless two-year old child; Gibson admitted inflicting 20 blows to the head and body of the victim over a thirty-day period; Gibson admitted he knocked the victim against the door frame; Gibson admitted he knocked the victim against the door frame; and the victim died as a result of blows to the head. Gibson was sentenced to consecutive terms of fifty (50) years and six months, respectively.

Gibson here directly appeals, raising the following issues for our review: (1) admissibility of Gibson's incriminating statements, (2) whether jurors, who state they would wonder why a defendant does not testify, should have been stricken for cause, (3) whether the victim's dying of a staph infection was an extraordinary intervening cause that relieves Gibson of responsibility for her death, (4) whether the evidence was sufficient to prove Gibson knowingly killed the victim, and (5) whether the evidence was sufficient to prove Gibson was guilty of battery.

Gibson began living with Julie Taylor and her two year old daughter, Jolie, in December of 1984. Gibson is not the child's natural father. He babysat with Jolie while her mother worked. Two weeks after the couple started living together, Ms. Taylor noticed bruises on her daughter. She noticed the child had a black eye when Gibson and Jolie picked her up from work one Saturday. When questioned as to what happened to Jolie, Gibson stated he had thrown her up in the air playing with her and accidentally dropped her. The next day, friends inquired about the bruising around the victim's eyes and Gibson told them a little boy had hit Jolie with a toy truck.

On the morning of January 24, while Ms. Taylor remained in bed, Gibson attempted to dress Jolie. She pulled away and Gibson shoved her. Jolie hit her head against the side of the coffee table. Ms. Taylor got up when she heard Jolie crying and found the child sitting on Gibson's knee on the living room couch. Jolie passed in and out of consciousness, spoke a few words, and then passed out completely. Gibson and Ms. Taylor rushed Jolie to the hospital. Jolie entered the hospital in serious condition with head injuries which required brain surgery. In addition to her head injuries, Jolie's vaginal opening was larger than expected for a child her age and she had a bruise around her anal opening. Jolie died on February 10, 1985, of a staph infection she incurred while recovering from brain surgery.

When originally questioned about Jolie's condition, Gibson claimed she had been hurt by another child. Eventually, Gibson gave a statement to the police in which he admitted he had hit and kicked the child several times.

The State first points out that there has been no ruling on the Motion to Correct Errors and thus, this appeal should be dismissed. However, in the event a court fails to rule on a motion to correct error within forty-five days after filing, if no hearing is required, upon application of any interested party, the pending motion to correct error may be deemed denied. Ind. R. Tr. P. 53.3(A). Thus, we deem the Motion to Correct Errors denied.

A motion to correct errors must be filed within 60 days of sentencing. Ind. R. Tr. P. 59(C); Ind. R. Crim. P. R. 16. The Record of the Proceedings shows Gibson was sentenced on November 21, 1985. He filed his Motion to Correct Errors on January 21, 1986. Both the State and Gibson state that "Due to an intervening holiday, Gibson's Motion to Correct Errors was filed on the final day of the sixty day time period." However, according to our calculations, January 21 is 61 days after November 21. The intervening holiday does not affect the computation as it does not fall on the last day of the period. Ind. R. Tr. P. 6(A).

Gibson filed his Amended Motion to Correct Errors on February 28, 1986. The State further argues the amended motion, on which Gibson bases his arguments, was a nullity because it was not timely filed. Amendments to a motion to correct errors may be filed before ruling. However, the trial Judge has no jurisdiction to accept amendments after the 60 day time limit has elapsed. Matter of Adoption of H.S. v. Hoeing (1985), Ind. App., 483 N.E.2d 777, 779-80.

Gibson asserts he raises no new issues in his Amended Motion to Correct Errors and that the amended motion does nothing more than augment and more particularly specify issues 1(a) and 1(h). We feel the preferred procedure in this case is to consider the case on its merits since the State did not object to the filing of the Amended Motion to Correct Errors at the time of its filing and has fully briefed the issues. Thus, so as not to defeat an otherwise meritorious appeal we address the issues as raised.


Gibson first asserts the trial court erred in admitting into evidence statements he made to the police. He claims he was under the influence of Valium at the time. He further asserts his statements were the result of coercion and undue influence because the police got eight to ten inches from his face, yelled and ...

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