from the Floyd Superior Court 1, No. 22D01-1205-MR-1145. The
Honorable Susan L. Orth, Judge.
FOR APPELLANT; Steven E. Ripstra, Ripstra Law Office, Jasper,
Indiana; Laura Paul, Indianapolis, Indiana.
FOR APPELLEE: Gregory F. Zoeller, Attorney General of
Indiana; Andrew A. Kobe, Deputy Attorney General,
Chief Justice. Dickson, Rucker, David, and Massa, JJ.,
Clyde Gibson III pleaded guilty to murdering Stephanie Kirk,
and the trial court sentenced him to death. Gibson directly
appeals his sentence to this Court, raising four issues: (1)
whether there was insufficient evidence to prove two
aggravators--that he murdered Kirk while committing two forms
of criminal deviate conduct--beyond a reasonable doubt; (2)
whether allowing the State to amend the charging information
was fundamental error; (3) whether the court manifestly
abused its discretion in weighing mitigators and aggravators;
and (4) whether his death sentence is inappropriate in light
of his character and the nature of the offense. We affirm the
trial court in all respects.
and Procedural History
Clyde Gibson met Stephanie Kirk on March 24, 2012. The next
day, he sexually assaulted, strangled, and ultimately killed
her. In three written confessions and multiple police
interviews, Gibson detailed the day's events and the
attack in his own words: He met Kirk at a bar, got her phone
number, and later called her to arrange a date the next day.
When Gibson arrived at Shooter's Saloon to meet Kirk the
following afternoon, he saw her behind the building and
approached her. The two finished Kirk's marijuana and
then left to go to another bar. He and Kirk spent the rest of
the day driving around " just drinking[,] smoking pot[,]
and doing pain pills,"  and eventually went to
his house where they " had sex in the living room"
and then " continued to drink[,] smoke more pot and do
more pain pills." State's Ex. 3, Exs. Vol. I at 41.
then described in detail how the attack unfolded: He "
took some of [Kirk's] pot and pain pills," and
" she got mad and we started fighting about it."
Id. The argument escalated into an attack when he
" put [his] hands in front of her throat" and began
strangling her. State's Ex. 2, Exs. Vol. I at 24. Upon
quickly subduing Kirk, Gibson put his " whole hand in
[her vagina] as far in as [he] could get it" and "
played around inside of [her] with [his] hand until [he] got
tired of that." State's Ex. 7, Exs. Vol. I at 103.
He then described what happened next: " I got [Kirk]
naked" and " pulled [her] ass up against my chest
and bent [her] double" and began " bitting [sic]
and chewing and pulling on" her labia " with my
teeth." Id. At some point during this attack,
told police he " panicked, completely panicked"
after the murder, State's Ex. 2, Exs. Vol. I at 29, and
said, " I just went out in the van, drove around
drinking. I just had to get away. But I was driving around
drinking thinking--trying to figure out a place to put
her," id. at 27. When Gibson returned home in the early
morning, he hid Kirk's nearly naked body in his garage
and dug a shallow hole in his backyard by the back
deck--telling his neighbor " he was replacing a rotten
deck post." Tr. 1255.
later, under cover of darkness, he dragged Kirk's still
nearly naked body through the house, across the deck to her
shallow grave. He folded her backwards and buried her. Gibson
watered the grave and scattered the excess dirt under a
nearby tree and around the house before concealing the grave
with leaves. Kirk's body lay there undisturbed until
police exhumed it a month later.
Gibson began having sexual thoughts about his next victim,
his late mother's dear seventy-five-year-old friend
Christine Whitis. And three weeks after murdering Kirk,
Gibson attacked Whitis in the very same living room--luring
her to the house under the guise of needing a friend to talk
to, then attacking her when she rebuffed his sexual advances.
As he did with Kirk, he stripped off Whitis's clothes,
sexually assaulted her by " biting and violently
plunging his fist into her vagina," strangled her to
death, and manipulated her body so forcefully that he broke
her back. Gibson v. State, 43 N.E.3d 231, 234 (Ind.
2015). And, finally, as with Kirk, he hid Whitis's body
in his garage. Id. However, before Gibson could
dispose of Whitis's body, his sisters discovered it and
called the police.
in jail on the Whitis murder, Gibson approached Sergeant
Steve Bush and Detective Carrie Bush with information about a
missing person--Stephanie Kirk. He told them he remembered
seeing " some kind of sign . . . [with] a little missing
girl on it" in Shooter's Saloon before being
arrested. Defendant's Ex. A, Exs. Vol. II at 268. Without
prompting, he named the woman as " Stephanie."
Id. at 269. Initially, he said it was "
possible" he " might've went out with her"
but " wouldn't say that [he] killed her."
Id. at 275; see also Tr. 766. The next day, Gibson
talked to police again, admitted actually spending time with
Kirk, and eventually confessed to killing her. But he claimed
he could not remember where he put her body.
manipulative tactics continued throughout the Kirk
investigation. Generally, Gibson would request to speak to
police about the Kirk murder but would only reveal
information bit by bit--withholding information until he
received a perk like cigarettes or coffee or biscuits and
gravy or time out of general lock-up. Sergeant Bush described
Gibson as " a very controlling person, manipulative in
the sense of . . . he would send us on goose chases and guide
us in a direction that wasn't the truth." Tr. 762.
For example, Gibson initially said he dumped Kirk's body
in the Ohio River, but then he said he buried her in a wooded
area off Mount Tabor Road. Police searched both areas and did
not find the body. Only when police informed Gibson that he
would be returning to general lock-up and would not receive
coffee, did he reveal that he buried Kirk's body in his
backyard. When police exhumed Kirk's body from the yard,
they found it " folded and contorted in different
directions," Tr. 1223, clad only in a black leather vest
and torn bra.
State charged Gibson with murder, alleged he was a habitual
offender, and sought the death penalty based on four
aggravating circumstances--specifically, that during the
murder, Gibson used force or threat of force to commit or
attempt to commit criminal deviate conduct on Kirk (1) with
his mouth and (2) with his fingers or fist; (3) that he had
committed another murder (namely, of Whitis); and (4) that he
was on probation (namely, for D-felony auto theft) when he
second day of jury selection, Gibson agreed to plead guilty
to murder in exchange for the State dropping the habitual
offender allegation. Gibson also waived jury trial for the
penalty phase, agreeing the court alone would decide whether
to sentence him to death, life imprisonment without parole,
or a term of years. The State simultaneously amended, without
objection, the charging information, changing Aggravator 3
from Gibson having committed the Whitis murder to
having been convicted of it.
a four-day sentencing hearing with fourteen witnesses and
forty-seven exhibits, the court issued a twenty-six page
sentencing order setting out its findings, including that the
State proved all four death--penalty aggravators beyond a
reasonable doubt. Specifically, it determined that
Gibson's acts of deviate conduct with Kirk were compelled
by force or threat of force, based on Kirk's ripped bra,
bruising on her arm, and Gibson's acknowledgment that he
caused her pain; that Gibson had been convicted of the Whitis
murder on October 25, 2013; and that Gibson was on probation
when he murdered ...