KRISTEN GOBER v. State of Indiana

Indianapolis, IN - Criminal defense attorney represented Kristen Alyse Gober with two counts of neglect of a dependent resulting in death.

In March 2018, Gober was living in an apartment in Gary, Indiana with her

three children, J.G., Kh.G, and Ka.G ("the Children”). Appellant's App. Vol. 2

at 19, 67. At that time, J.G. was six years old, Kh.G. was four years old, and

Ka.G. was two years old. Id. at 19. On March 24, 2018, at approximately 7:00

p.m., Gober left her apartment before dinner and went downstairs to the

apartment of Jonas Pierce ("Pierce”), the building's maintenance man, with

whom she was in a relationship. Id. at 19-20, 67. Gober left the Children alone

in the locked apartment. Id. at 19-21. While at Pierce's apartment, Gober

drank vodka, and the two got into an argument about their relationship. Id. at

20, 67. Pierce asked Gober to leave the apartment, but Gober refused, so Pierce

allowed her to spend the night in his apartment. Id. at 20.

2

See Ind. Code § 35-46-1-4(a).

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[4] The next morning, on March 25, 2018, the Children woke up, and in

attempting to make breakfast for themselves, they played with fire on the stove.

Id. at 19; Tr. Vol. 2 at 33, 35-36. In doing so, either a pair of jeans or a blanket

caught on fire and "was smoking real bad.” Appellant's App. Vol. 2 at 19; Tr. Vol.

2 at 33. The Children were afraid and put the burning item in a bedroom closet.

Appellant's App. Vol. 2 at 19; Tr. Vol. 2 at 33-34. The Children then hid under a

blanket in Gober's room. Appellant's App. Vol. 2 at 19. J.G. came out from

under the blanket, saw a lot of smoke, and ran out of the apartment. Id. The

burning item ignited "combustible materials inside the closet” and quickly

spread throughout the apartment. Id. at 19, 20; Tr. Vol. 2 at 33, 34.

[5] When Pierce woke up at approximately 10:00 a.m. on the morning of March

25, 2018, Gober was still in his apartment, and Pierce went into the bathroom

to get ready for the day. Appellant's App. Vol. 2 at 20. While Pierce was in the

bathroom, the apartment's fire alarm went off, and he exited the bathroom to

attend to the alarm and noticed that Gober had left. Id. at 19, 20. Gober did

not tell Pierce that her children were in her upstairs apartment before leaving.

Id. at 20. Pierce exited his apartment and saw Gober leave the building through

the back exit. Id. at 19. She told him that the fire was in her apartment. Id.

Pierce began to go up the stairs to check the origin of the fire and observed J.G.

coming down the stairs without his glasses on and without a shirt. Id. at 19, 20.

J.G. told Pierce that his siblings were still in the apartment. Id. at 19.

[6] J.G. did not see his mother when he escaped the fire and had not seen her at all

that day. Id. After Gober exited the apartment building, she sat down in the

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playground area. Id. at 20. She later told law enforcement that she could not

watch the fire because she thought her children were dead, so she began

walking away and found someone to drive her to a nearby McDonald's. Id. at

20-21. Gober did not inform the firefighters on the scene that her children were

in the apartment, and she did not call for help because she thought it was a "lost

cause.” Id. at 20. Although J.G. was able to escape the apartment, Kh.G. and

Ka.G. were not, and they perished in the fire. Id. at 19, 21; Tr. Vol. 2 at 34, 36-

37. When the fire was extinguished, their bodies were discovered in the living

room of the apartment, and it was later determined that Kh.G. and Ka.G. "died

of smoke inhalation.” Appellant's App. Vol. 2 at 21; Tr. Vol. 2 at 34, 36-37. The

temperature of the living room would have been between 300 and 400 degrees

during the fire. Tr. Vol. 2 at 41. The fire affected the residents of the other

apartments, and all of the residents of the eighty units were displaced. Id. at 29.

In one instance, a four-year-old child in another apartment was forced to jump

from a fourth story window in order to escape the fire. Id. at 40.

[7] Gober was arrested at the McDonald's shortly after the fire and was

interviewed by the police. Appellant's App. Vol. 2 at 19-21. During her

interview, she told police that, on the evening of March 24, she had gone

downstairs to do laundry and then went to Pierce's apartment for an hour or

two while the children were sleeping but that she later went back upstairs to her

apartment and slept in the Children's bedroom. Id. at 20. She also told police

that, when she woke up on March 25, she again went downstairs to do laundry

and left the Children sleeping in the apartment. Id. Gober claimed that she

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went upstairs when she noticed the smoke and tried to open the door but was

not able to because of the smoke and flames. Id. She said that she could hear

her children and told them to come out. Id. Gober said that she was at the

door for approximately five minutes trying to get the children out of the burning

apartment. Id. The detective that interviewed Gober observed that her clothing

did not smell of smoke. Id. During the interview, Gober told the police that

she "she did the best that she could trying to save [the Children] and that it was

a lost cause because the whole apartment was engulfed.” Id. at 21. Gober also

stated that, in the past, she left the Children alone in the apartment several

times a week, and there had never been a problem. Id. at 20, 21.

[8] On March 27, 2018, the State charged Gober with two counts of Level 1 felony

neglect of a dependent resulting in death, one count of Level 6 felony neglect of

a dependent, and one count of Class B misdemeanor possession of marijuana.

Id. at 17-18. On February 3, 2020, Gober pleaded guilty to two counts of Level

1 felony neglect of a dependent resulting in death and one count of Level 6

felony neglect of a dependent. Id. at 108, 111, 115; Tr. Vol. 2 at 11-14, 74.

Under the plea agreement, the sentences for the Level 1 felonies were capped at

thirty years, and the sentence for the Level 6 felony was capped at one year,

which are the respective advisory sentences for each level of felony. Appellant's

App. Vol. 2 at 64-65.

[9] At sentencing, the trial court found three aggravating factors and three

mitigating factors. Appellant's App. Vol. 2 at 108, 111-12; Tr. Vol. 2 at 74-76.

The trial court found that the nature and circumstances of the crime was an

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aggravating factor and noted that "this crime not only affected [Gober's] three

children . . . but the entire complex, and . . . that entire neighborhood.”

Appellant's App. Vol. 2 at 108, 111-12; Tr. Vol. 2 at 75. The trial court further

stated that "the whole community was devastated . . . and directly those people

who lived in that . . . complex who had to lose their belongings, be relocated, all

the stuff that went along with having to get out of there.” Tr. Vol. 2 at 75. The

trial court found the "significant trauma to the surviving victim” to be an

aggravating factor because "[h]e's never going to forget that fire. He's never

going to forget that he . . . wanted to help . . . his siblings get out of that room

and he couldn't. He's going to carry that burden with him for the rest of his

life.” Appellant's App. Vol. 2 at 108, 112; Tr. Vol. 2 at 76. The trial court also

found "[t]he youthful age of [Gober's] two children that died in the fire” to be

an aggravating factor. Appellant's App. Vol. 2 at 108, 112; Tr. Vol. 2 at 76. The

trial court found as mitigating factors that Gober pleaded guilty, appeared to be

remorseful, and had a minimal criminal history. Appellant's App. Vol. 2 at 108,

111; Tr. Vol. 2 at 74. The trial court ordered Gober to serve twenty-five years

for each of her convictions for Level 1 felony of neglect of a dependent resulting

in death and one year for her conviction for Level 6 felony neglect of a

dependent. Appellant's App. Vol. 2 at 109, 112, 115; Tr. Vol. 2 at 80. The

sentences were ordered to be served consecutively for an aggregate sentence of

fifty-one years executed. Appellant's App. Vol. 2 at 109, 112, 115; Tr. Vol. 2 at 80-

81. Gober now appeals.

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Discussion and Decision

[10] Sentencing determinations are within the trial court's discretion and will be

reversed only for an abuse of discretion. Harris v. State, 964 N.E.2d 920, 926

(Ind. Ct. App. 2012), trans. denied. An abuse of discretion occurs if the decision

is "clearly against the logic and effect of the facts and circumstances before the

court, or the reasonable, probable, and actual deductions to be drawn

therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans.

denied. A trial court abuses its discretion if it: (1) fails "to enter a sentencing

statement at all”; (2) enters "a sentencing statement that explains reasons for

imposing a sentence -- including a finding of aggravating and mitigating factors

if any -- but the record does not support the reasons”; (3) enters a sentencing

statement that "omits reasons that are clearly supported by the record and

advanced for consideration”; or (4) considers reasons that "are improper as a

matter of law.” Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified

on reh'g, 875 N.E.2d 218 (Ind. 2007). The relative weight or value assignable to

reasons properly found, or those which should have been found, is not subject

to review for abuse of discretion. Id. at 491. The decision to impose

consecutive sentences lies within the discretion of the trial court. Gross, 22

N.E.3d at 869 (citing Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009)).

A trial court is required to state its reasons for imposing consecutive sentences

or enhanced terms. Id. A single aggravating circumstance may be sufficient to

support the imposition of consecutive sentences. Id.

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I. Aggravating Factors

[11] Gober argues that the trial court abused its discretion in its determination of all

three of the aggravating factors found. Gober first asserts that the nature and

circumstances of the crime should not have been found to be an aggravating

factor because the impact on others can only be considered aggravating when

the impact is of a nature not normally associated with the commission of the

offense and is foreseeable to the defendant. She asserts that, with the crime of

neglect, it may be foreseeable that some harm could have befallen the children

if left alone, but "it was not foreseeable that some harm may come to others in

the apartment building as that harm would not normally be associated with the

commission of neglect.” Appellant's Br. at 13-14. Gober next contends that the

trial court's consideration of the trauma experienced by J.G. was improper

because the emotional and psychological effects are inappropriate aggravators

unless the impact, harm, or trauma is greater than that usually associated with a

crime. She argues that this was an improper aggravator because trauma to J.G.

could not serve as an aggravator to Counts I and II, which pertained to different

victims, and because there was no evidence to support that J.G. would carry

this burden for the rest of his life. Gober lastly alleges that the trial court

improperly used the age of the victims as an aggravating factor because the age

of the victim is an element of neglect of a dependent and there was no further

showing by the trial court to justify relying on the victims' age.

[12] Gober pleaded guilty to two counts of Level 1 felony neglect of a dependent

resulting in death and one count of Level 6 felony neglect of a dependent.

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Appellant's App. Vol. 2 at 108, 111, 115; Tr. Vol. 2 at 11-13. Per the terms of the

plea agreement, both parties agreed that the maximum sentence that could be

imposed for the Level 1 felonies was thirty years and the maximum sentence for

the Level 6 felony was one year. Appellant's App. Vol. 2 at 64. The trial court

imposed a sentence of twenty-five years for each Level 1 felony conviction and

a sentence of one year for the Level 6 felony conviction. Id. at 109, 112, 115;

Tr. Vol. 2 at 80. The sentences were ordered to be served consecutively, for an

aggregate sentence of fifty-one years. Appellant's App. Vol. 2 at 109, 112, 115; Tr.

Vol. 2 at 80-81. Therefore, Gober was sentenced to a term below the advisory

sentence for the neglect of a dependent resulting in death convictions and was

sentenced to the advisory sentence for the neglect of a dependent conviction.

See Ind. Code § 35-50-2-4; Ind Code § 35-50-2-7. In sentencing Gober, the trial

court found three aggravating factors and three mitigating factors, of which

Gober takes issue only with the finding of the aggravating factors.

[13] Gober first challenges the determination that the nature and circumstances of

the crime was aggravating factor. A trial court may not use a material element

of the offense as an aggravating factor, but it may find the nature and

particularized circumstances surrounding the offense to be an aggravating

factor. Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied.

In finding that the nature and circumstances of the crime were aggravating, the

trial court specified, "this crime not only affected [Gober's] three children . . .

but the entire complex, and . . . that entire neighborhood.” Appellant's App. Vol.

2 at 108, 111-12; Tr. Vol. 2 at 75. The trial court further stated that "the whole

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community was devastated . . . and directly those people who lived in that . . .

complex who had to lose their belongings, be relocated, all the stuff that went

along with having to get out of there.” Tr. Vol. 2 at 75. The impact on others

may qualify as an aggravator only where the defendant's actions "had an

impact on other persons of a destructive nature that is not normally associated

with the commission of the offense in question and this impact must be

foreseeable to the defendant.” Comer v. State, 839 N.E.2d 721, 727 (Ind. Ct.

App. 2005), trans. denied.

[14] Gober's crime of neglecting her children by leaving them alone in their

apartment for fifteen hours led to a fire started by the Children, which quickly

engulfed the whole apartment and resulted in the death of two of the Children,

and it displaced the residents of the eighty units of the apartment complex.

Further, after learning that the fire was in her apartment, instead of attempting

to extricate her children from the apartment or even calling for help, Gober fled

the scene and did not alert anyone that her children were still in the apartment.

This impact on others was clearly of a destructive nature that is not normally

associated with neglect of a dependent. The impact was foreseeable. It was

foreseeable that leaving young children, all under the age of six, alone for

fifteen hours in an apartment could result in the Children inadvertently starting

a fire, and it was foreseeable that a fire in an apartment building could affect

and impact all of the residents of the apartment complex. The trial court did

not abuse its discretion in finding the nature and circumstances of the crime to

be an aggravating factor.

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[15] Gober next contests the finding that the significant trauma to the surviving

victim was an aggravating factor. "[T]he emotional and psychological effects of

a crime are inappropriate aggravating factors unless the impact, harm, or

trauma is greater than that usually associated with the crime.” Thompson v.

State, 793 N.E.2d 1046, 1053 (Ind. Ct. App. 2003). Here, the trial court

specifically found that the trauma to J.G. should be an aggravating factor

because "[h]e's never going to forget that fire. He's never going to forget that he

. . . wanted to help . . . his siblings get out of that room and he couldn't. He's

going to carry that burden with him for the rest of his life.” Tr. Vol. 2 at 76.

[16] Initially, we find Gober's contention that the trauma to J.G. was an improper

aggravating factor because the trauma to one victim cannot aggravate the

sentence for a crime committed against another victim to be misplaced. This

aggravating factor was not used to enhance the underlying sentence for Gober's

Level 1 felony convictions, for which she received sentences under the advisory

sentence. It was used to order that the sentences be served consecutively.

Gober does not cite to any authority that supports her proposition that the

trauma to one victim may not be used to order consecutive sentences when

there are other victims.

[17] Although J.G. did not testify at the sentencing hearing, the State advised the

trial court that in speaking to J.G., it learned that J.G. was "still quite

traumatized by what happened and feels somewhat responsible because he

wasn't able to save his two-year old and four-year old siblings” and "that's

something he's going to have to live with for the rest of his life.” Tr. Vol. 2 at

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44. Additionally, the fire investigator described exposure to smoke and fire as

"unimaginable” and "terrifying” and said there is "zero visibility,” "it's hot,

there's sounds, stuff falling from the fire melting” things in "the apartment or

the room of origin or the building itself.” Id. at 37. He also described what it is

like to breathe in smoke and said that it is a "sudden shock” and an "instant

coughing reflex” where your body "automatically [wants] to cough and take a

deep breath, causing you to inhale more smoke.” Id. at 38. The emotional

harm and trauma suffered by J.G. was significantly greater than that usually

associated with the crime of neglect of a dependent. J.G. was in an apartment

that was engulfed in flames and filled with smoke. He experienced

"unimaginable” terror. Id. at 37. He also feels responsibility and guilt for the

death of his siblings because he was not able to save their lives. The trial court

did not abuse its discretion in finding the trauma that J.G. suffered as an

aggravating factor.

[18] Gober further argues that the young age of the victims could not properly be

found to be an aggravating factor. "'When the age of a victim constitutes a

material element of the crime,' the trial court cannot treat it as an aggravating

circumstance unless it sets forth 'particularized circumstances' justifying such

treatment.” McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018) (citing

McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001)). Although the neglect of a

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dependent statute requires the victim to be under eighteen years of age,3

it does

not necessarily require that victim to be of an age as young as the Children were

in this case. See Edwards v. State, 842 N.E.2d 849, 855 (Ind. Ct. App. 2006)

(finding that the age of the victim in a neglect of a dependent conviction could

be used as an aggravating factor where the trial court considered the child's age

of fifteen months in relation to the nature and circumstances of the crime).

Here, Ka.G. was two years old at the time of her death, Kh.G. was four years

old at the time of his death, and J.G. was six years old at the time of the fire.

All were of a significantly young age and, at the time of the crime, were much

younger than the threshold requirement of under eighteen years of age. It was

clear from the record that the trial court considered the very young ages of the

victims in relation to the nature and circumstances of the crime as a valid

aggravating circumstance. The trial court, therefore, did not abuse its discretion

in finding the youthful age of the victim as an aggravating factor or in the

determination of any of the three aggravating factors.

II. Consecutive Sentences

[19] Gober argues that the trial court abused its discretion in ordering her sentences

to be served consecutively. She first contends that, because the trial court

imposed sentences less than the advisory sentence on each of her convictions,

the aggravators and mitigators were in equipoise, and consecutive sentences

3

"Dependent” is defined as "an unemancipated person who is under eighteen years of age.” Ind. Code § 35-

46-1-1.

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could not be ordered. She further asserts that the trial court abused its

discretion in ordering an aggregate sentence of fifty-one years because her

crimes constituted a single episode of criminal conduct as they arose out of the

same facts and circumstances occurring at the same time and the same place.

Therefore, because neither neglect of a dependent resulting in death nor neglect

of a dependent is a crime of violence, Gober maintains that the trial court was

constrained to impose an aggregate sentence of no more than forty-two years.

[20] The decision to impose consecutive sentences lies within the discretion of the

trial court. Gross, 22 N.E.3d at 869. A trial court is required to state its reasons

for imposing consecutive sentences or enhanced terms, and a single aggravating

circumstance may be sufficient to support the imposition of consecutive

sentences. Id. As discussed above, the trial court properly identified three

aggravating factors, and because a single aggravating factor is sufficient to

impose consecutive sentences, the trial court was within its discretion to order

that Gober's sentences be served consecutively.

[21] As to Gober's argument that because the trial court imposed sentences less than

the advisory sentence on each of her convictions, the aggravators and mitigators

were in equipoise, and consecutive sentences could not be ordered, we disagree.

In its oral sentencing statement, the trial court clearly stressed that the nature

and circumstances of Gober's offenses, the trauma the offenses caused to the

surviving victim, and the fact that the victims were of such a young age were

significant and worthy of being applied to aggravate the sentence imposed. In

reviewing the trial court's statements during sentencing, it is clear that the

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aggravating and mitigating factors were not in equipoise, and we do not agree

that that the trial court was constrained from ordering that the sentences be

served consecutively.

[22] However, we do agree with Gober that the trial court erred in the length of the

consecutive sentences ordered. The imposition of consecutive or concurrent

terms is governed by Indiana Code section 35-50-1-2, which provides that,

except for crimes of violence,

Except as provided in subsection (c), the total of the consecutive

terms of imprisonment to which the defendant is sentenced for

felony convictions rising out of an episode of criminal conduct

may not exceed the following:

. . . .

(6) if the most serious crime for which the defendant is sentenced

is a Level 1 felony, the total of the consecutive terms of

imprisonment may not exceed forty-two (42) years.

Ind. Code § 35-50-1-2(d). "An 'episode of criminal conduct' means offenses or

a connected series of offenses that are closely related in time, place, and

circumstance.” Ind. Code §35-50-1-2(b).

In determining whether multiple offenses constitute an episode of

criminal conduct, the focus is on the timing of the offenses and

the simultaneous and contemporaneous nature, if any, of the

crimes. [A]dditional guidance on the question can be obtained

by considering whether the alleged conduct was so closely related

in time, place, and circumstance that a complete account of one

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charge cannot be related without referring to the details of the

other charge.

Grimes v. State, 84 N.E.3d 635, 643 (Ind. Ct. App. 2017) (quoting Williams v.

State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (internal citations and

quotations omitted)), trans. denied.

[23] Here, Gober's convictions arose out of her actions in leaving her three young

children alone in their locked apartment for fifteen hours, during which time,

the Children inadvertently started a fire that engulfed the apartment and

resulted in the death of two of the Children. Although she was charged with

three separate counts of neglect of a dependent, this was because there were

three victims. However, her convictions arose out of the same facts and

circumstances occurring at the same time and the same place. Her actions as

they related to each victim occurred simultaneously and contemporaneously.

Therefore, we conclude that her convictions arose out of a single episode of

criminal conduct. Because neglect of a dependent resulting in death is not a

crime of violence as specified in Indiana Code section 35-50-1-2(a), the trial

court was constrained to impose an aggregate sentence of no more than fortytwo years under subsection (d). The trial court abused its discretion in

imposing an aggregate sentence of fifty-one years, and we, therefore, reverse

Gober's sentence and remand for resentencing with instructions for the trial

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court to limit the aggregate term of imprisonment to not more than forty-two

years.4

Affirmed in part, reversed in part, and remanded with instructions.