FOR PUBLICATION



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                  GREGORY F. ZOELLER
Office of the Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                                 J.T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                           Apr 29 2014, 9:42 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMAL AHMAD GORE,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 45A03-1305-CR-163
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-1005-MR-8


                                       April 29, 2014

                                OPINION - FOR PUBLICATION

MAY, Judge
          Jamal Ahmad Gore appeals the jury’s finding that Gore was guilty of murder1 and

Class C felony battery,2 but mentally ill at the time of the crime. Gore asserts the jury clearly

erred in finding Gore guilty but mentally ill, instead of not guilty by reason of insanity. We

affirm.

                             FACTS AND PROCEDURAL HISTORY

          Gore was diagnosed as schizophrenic around age thirteen. He attended various

schools without much success and was in and out of the family home due to his

confrontational behavior. Gore’s parents had him hospitalized for mental health reasons at

least five times between 2002 and 2009. In mid-May of 2010, Gore’s parents again

requested an emergency detention order for their son because Gore was dressing heavily in a

hot room, he was accusing a nephew of taking his property, he drove his car on its wheel rim

to the body shop and claimed the tire had been shot, and he was not taking his medication.

That order was never executed, and Gore was never picked up.

          On May 24, 2010, Gore called an old friend from school, John Davis, Jr., numerous

times until Davis finally answered. Gore sounded upset on the phone, so Davis and his

girlfriend, Melissa Maida, went to pick up Gore at his home. Gore came out of his home

overdressed for the warm day, wearing all black attire, including a hoodie sweat shirt, black

pants, and a hat. Gore did not appear agitated. The three drove to a gas station, where Davis

bought cigarettes, and then, at Gore’s request, they drove around attempting to buy


1
    Ind. Code § 35-42-1-1.
2
    Ind. Code § 35-42-2-1.

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marijuana. As Maida was driving the three down the road after a failed attempt to buy

marijuana, Maida heard gunshots. Gore had shot Davis five times in the head, neck, and

back, and had shot Maida in the leg. Gore kicked open the back door and ran away. When

police arrived they found Davis dead in the car. They found Gore four blocks east of where

the shooting occurred. Homicide Detective William Fazekas described Gore as calm and

straightforward, not agitated or aggressive, and answering questions like a “normal person”

would. (Tr. at 202.) Within 24 hours of Gore’s arrest, medical and mental health personnel

at the jail noted Gore was agitated, withdrawn, depressed and paranoid.

       The State charged Gore with Murder and Class C felony battery. The trial court held a

competency hearing on September 30, 2010, and found Gore not competent to stand trial.

Following a report from the Division of Mental Health dated January 4, 2011, the court found

Gore competent to stand trial. The trial court appointed Dr. Jill Miller, Dr. R. Bhawami

Prasad, and Dr. Douglas Caruana to evaluate Gore, and Gore retained an expert, Dr.

Stephanie Calloway. The jury trial commenced on October 30, 2012, and all four experts

testified. The jury concluded that Gore was guilty but mentally ill with respect to both

offenses. The court sentenced Gore to fifty years for murder and two years for battery.

                            DISCUSSION AND DECISION

       A person is not responsible for engaging in prohibited conduct if he is “unable to

appreciate the wrongfulness of the conduct at the time of the offense” because of a mental

disease or defect. Ind. Code § 35-41-3-6(a). Mental illness alone is insufficient, the

qualifying mental disease or defect must be a “severely abnormal mental condition that

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grossly and demonstrably impairs a person’s perception.” Ind. Code § 35-41-3-6(b). If the

mental illness does not reach the level required by statute, the jury may find the defendant

“guilty but mentally ill” at the time of the crime. Ind. Code § 35-36-2-3(4). Whether a

defendant appreciated the wrongfulness of his or her conduct at the time of the offense is a

question for the trier of fact. Galloway v. State, 938 N.E.2d 699, 709 (Ind. 2010), reh’g

denied.

       An appellant who complains he or she ought to have been found not guilty by reason

of insanity faces a heavy burden on appeal. Id. Because it is the trier of fact’s province to

weigh evidence and assess witness credibility, a finding that a defendant was not insane at

the time of the offense warrants substantial deference from reviewing courts. Id. Thus, we

may not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made

by the trier of fact. Id. We may set aside set aside a conviction only “when the evidence is

without conflict and leads only to the conclusion that the defendant was insane when the

crime was committed.” Id. at 710 (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.

2004)).

       Gore asserts there was no conflict among experts and, therefore, no sufficient

probative evidence from which a conflicting inference of sanity reasonably could be drawn.

Expert testimony may be offered to assist the trier of fact in determining the defendant’s

mental status, Ind. Code § 35-36-2-2, but such testimony is merely advisory, as even

unanimous expert testimony is not conclusive on the issue of sanity. Galloway, 938 N.E.2d

at 709. If all experts testify that a defendant was insane, a jury still may find a defendant was

                                               4
sane if there is other sufficient probative evidence from which a conflicting inference of

sanity reasonably could be drawn. Id. at 710. The strongest showing of an evidentiary

conflict occurs where the experts disagree as to whether the defendant was insane at the time

of the offense, id., and here, such conflict existed.

       Dr. Callaway testified that she looked for an “impaired” ability to appreciate

wrongfulness, not a total inability to appreciate wrongfulness as is required by the statute.

(Tr. at 531.) She conceded that she used the “impaired ability” and “total inability” standard

interchangeably. (Id. at 554.) Her incorrect application of the “impaired ability” standard

would permit the jury to give Dr. Calloway’s testimony little or no weight.

       Dr. Miller applied the correct standard, but her testimony did nothing to help Gore’s

insanity defense. Dr. Miller originally filed a report stating that Gore could appreciate the

wrongfulness of his conduct, but she amended this report and testified at trial that she thought

Gore’s mental state “might” have interfered with his ability to appreciate the wrongfulness of

his actions. (Id. at 677.) Her position on the issue was so equivocal that Gore moved to

strike her testimony altogether for not being an opinion.

       Gore argues Dr. Caruana also did not state an opinion. Dr. Caruana testified Gore was

not insane at the time of the murder. He said Gore’s behavior leading up to the shooting was

consistent with mental illness, but Dr. Caruana still could not say Gore was insane at the time

of the murder because his behavior did not reflect the “grossly and demonstrably impaired

functioning of thinking” required by the statute. Ind. Code § 35-41-3-6(b).



                                               5
          The final expert, Dr. Prasad, testified he believed Gore was insane at the time of the

offense based on his interviews with Gore’s mother and cousin. Dr. Prasad interviewed

Gore, but his conclusion Gore was insane was based not on his interview with Gore, but

“based on what his mother and his cousin said.” (Tr. at 791.)

          In summary, the testimony did not, as Gore asserts, reflect that three experts found

Gore insane and one expert provided no opinion. On the contrary, it showed Dr. Calloway

applied an incorrect standard, Dr. Miller testified Gore’s ability to appreciate wrongfulness

“might” have been affected by his mental illness, (id. at 677), Dr. Caruana testified Gore was

not insane, and Dr. Prasad testified Gore was insane based on his interviews with Gore’s

mother and cousin. The disagreement among the experts as to whether Gore was insane at

the time of his offense amounts to an evidentiary conflict. See Galloway, 938 N.E.2d at 710.

This is not a case of consistent testimony leading only to the conclusion Gore was insane.

Therefore, Gore is essentially asking that we reweigh the evidence, which we cannot do. Id.

at 709.

                                        CONCLUSION

          Gore has not shown that the evidence is without conflict and leads only to the

conclusion that he was insane when the crime was committed. Accordingly, we affirm.

          Affirmed.

VAIDIK, C.J., and RILEY, J., concur.




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