MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Nov 19 2015, 8:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian J. May                                            Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana
                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Telly S. Bracey,                                        November 19, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A04-1506-CR-621
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable J. Jerome Frese,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        71D03-1305-FB-66



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 1 of 10
[1]   Telly S. Bracey appeals his conviction for attempted robbery as a class B felony.

      Bracey raises one issue which we revise and restate as whether the trial court

      clearly erred in rejecting his insanity defense and finding him guilty of

      attempted robbery. We affirm.


                                      Facts and Procedural History

[2]   On May 11, 2013, Larry Clifford took the South Shore train to South Bend and

      noticed that Bracey was also onboard. After Clifford exited the train, Bracey

      approached him and asked to borrow his phone, explaining that his phone was

      not working and that he could not “get ahold of [his] ride.” Transcript at 23.

      After using the phone, Bracey asked Clifford for a ride, offering him money for

      gas, and Clifford agreed. The men entered Clifford’s pickup truck, and as they

      started for Bracey’s grandmother’s house, they had a seemingly normal

      conversation about Clay High School, the weather, and Bracey’s need for a

      ride, but then Bracey pulled out a gun and said: “take me to your bank.” Id. at

      26. Clifford observed a police cruiser and pulled up next to it, attracting the

      attention of Officer Joseph Leszczynski of the South Bend Police Department.

      Bracey reacted by throwing the gun onto the floorboard of Clifford’s truck, and

      then tried to exit the truck but was blocked from doing so by Officer

      Leszczynski’s police cruiser, and was detained. Other officers arrived and

      found a handgun on the floorboard of Clifford’s truck, with its hammer pulled

      back and four live .38 caliber rounds inside.


[3]   On May 13, 2013, the State charged Bracey with attempted robbery as a class B

      felony. On November 20, 2013, Bracey filed a motion for evaluation requesting
      Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 2 of 10
      that he be evaluated to determine his ability to understand the consequences of

      statements made to investigators. The next day the court ordered mental

      competency examinations to determine whether Bracey could understand the

      proceedings and assist in the preparation of his defense, appointing Dr. Jennifer

      Cummings, Ph.D. and Dr. Evert VanderStoep, M.D. The court received the

      reports from the doctors on July 9, 2014. Dr. Cummings noted that Bracey

      stated he heard voices from his deceased female cousin and opined that Bracey

      was competent to proceed to trial. Dr. VanderStoep’s report noted that Bracey

      stated he was in a conversation with his deceased female cousin at the time of

      the attempted robbery and that he was “following a movie script in which a gun

      was pointed at a victim and he learned ‘you get money that way.’” Appellant’s

      Supplemental Appendix at 4. Dr. VanderStoep noted his belief that “[t]he

      balance of evidence points to understanding he was insane at the time of the

      crime, and he is unable to assist an attorney in his defense.” Id. at 5. He also

      diagnosed Bracey with Moderate Mental Retardation and with simple

      Schizophrenia.


[4]   On January 31, 2014, the court ordered a third mental competency examination

      by Dr. Linda Monroe, Ph.D. and later issued an order appointing her to further

      evaluate whether, as a result of a mental disease or defect, Bracey was unable to

      appreciate the wrongfulness of his conduct at the time he attempted to rob

      Clifford. On April 4, 2014, Dr. Monroe filed her report noting that “[a]lthough

      it at first seems unbelievable, Mr. Bracey was extremely consistent about his

      report that he constantly experiences auditory and visual hallucinations of his


      Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 3 of 10
      cousin who was killed in 2009,” including hearing those voices directing him

      what to do during the attempted robbery. Id. at 7. Dr. Monroe’s report

      concluded that, based on those symptoms, Bracey was legally insane at the time

      of the crime and that he was not currently competent to stand trial.1


[5]   On April 17, 2014, the court held a competency hearing and reviewed the

      reports, issued a commitment order finding that Bracey lacked the ability to

      understand the proceedings or assist in the preparation of his defense, and

      committed him to the Indiana Division of Mental Health. On June 24, 2014,

      Bracey was admitted to Logansport State Hospital. At the time of his

      admission, “he was well-groomed and expressed logical and pertinent

      thinking,” and “[h]e described experiencing some hallucinations of a deceased

      cousin’s voice beginning several years ago but that [those] experiences had

      ceased approximately three months before his hospitalization at Logansport.”

      Transcript at 53. Based upon his history and on the previous reports from Dr.

      Monroe and Dr. VanderStoep, Bracey’s admitting physician diagnosed him

      with major depression disorder with psychotic features.


[6]   In the days following his admission, however, concerns arose regarding

      whether Bracey actually suffered from an underlying psychotic disorder or

      instead had feigned his symptoms of mental illness. Approximately four days

      after his admission, he was documented as saying, “my cousin told me that if I



      1
       Although these reports were not formally admitted into evidence at trial, the court stated that it would
      consider the reports, to which neither party objected.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015           Page 4 of 10
      pled insanity, I wouldn’t go to jail.” Id. at 54. Within the first week of his

      admission, Bracey explained to his attending psychiatrist that he had not

      previously experienced auditory hallucinations or heard voices and “largely

      admitted to feigning insanity to avoid prison and to be sent to a mental hospital

      instead . . . .” Id. He also told hospital staff that he “just played crazy to get in

      here.” Id. at 67. Throughout his hospitalization, he “remained objectively free

      from symptoms of a major mental disorder,” and “[h]e continued to display

      logical and pertinent thinking . . . .” Id. at 55.


[7]   On August 22, 2014, Dr. Douglas Morris, M.D., met with Bracey to complete a

      formal competency review at the hospital, and diagnosed him with a history of

      malingering and with antisocial personality disorder. On August 25, 2014,

      based on Dr. Morris’s evaluation, Logansport State Hospital filed

      correspondence reporting that Bracey was presently competent to stand trial

      and requesting that the court direct the sheriff to return him to the county jail.


[8]   On January 15 and February 9, 2015, the court held a bench trial at which

      evidence consistent with the foregoing was presented. At the outset, Bracey’s

      counsel stipulated to the facts of the attempted robbery and that the police

      reports would be admissible regarding the facts of the crime, and stated that

      “the only issue in this case is whether or not Mr. Bracey was sane at the time of

      the offense.” Id. at 15. Dr. Morris testified that, in his opinion, Bracey had

      “feigned symptoms of mental illness . . . to avoid prosecution and gain access to

      a mental hospital” but that “once here he decided that was not the tact that he

      wished to take and therefore did not further feign these symptoms or engage in

      Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 5 of 10
       efforts that would lead to prolonged hospitalization.” Id. at 64. After Dr.

       Morris’s testimony, Dr. Monroe was called as a witness by the court, and she

       acknowledged that in her March 2014 report she had found Bracey to be insane

       at the time of the offense based upon his claimed visual and auditory

       hallucinations about his cousin. Dr. Monroe testified that “if it weren’t for the

       fact that [Bracey] was describing being instructed to do this by an hallucinatory

       figure, [she] would have thought he was not insane,” that based on the

       information from Dr. Morris following Bracey’s hospitalization she had

       changed her opinion regarding Bracey’s sanity at the time of the crime, and that

       she believed that Bracey “was not legally insane at the time of the crime.” Id. at

       91, 99.


[9]    The court also called Dr. VanderStoep who testified that at the time he

       evaluated Bracey he “had a hard time deciding whether or not [Bracey] was

       actually following command hallucinations” or whether Bracey “was trying to

       create something.” Id. at 110-111. Dr. VanderStoep testified that, after

       reviewing Dr. Morris’s report, he was of the opinion that any hallucinations

       Bracey may have experienced at the time of the crime were not command

       hallucinations and that Bracey could appreciate the wrongfulness of his

       conduct.


[10]   The court found that Bracey “could appreciate the wrongfulness of his conduct

       at the time of the offense,” and found him guilty as charged. Appellant’s

       Appendix at 48. On March 10, 2015, Bracey was sentenced to fifteen years,



       Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 6 of 10
       with six years executed in the Department of Correction (“DOC”) and nine

       years suspended.


                                                   Discussion

[11]   The issue is whether the court clearly erred in rejecting Bracey’s insanity

       defense. To be convicted of a criminal offense, the State must prove each

       element of the offense beyond a reasonable doubt. Myers v. State, 27 N.E.3d

       1069, 1074-1075 (Ind. 2015) (citing Ind. Code § 35-41-4-1(a) (2014)), reh’g

       denied. “Criminal responsibility can be avoided if the defendant can

       successfully raise and establish the ‘insanity defense.’” Id. at 1075 (citing

       Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010), reh’g denied; Ind. Code § 35-

       41-3-6(a)). To successfully assert this defense, an individual must prove by a

       preponderance of the evidence: “(1) that he or she suffers from a mental illness

       and (2) that the mental illness rendered him or her unable to appreciate the

       wrongfulness of his or her conduct at the time of the offense.” Id. (quoting

       Galloway, 938 N.E.2d at 708). Thus, proof of mental illness alone is

       insufficient. Id. (citing Galloway, 938 N.E.2d at 708 (citing Weeks v. State, 697

       N.E.2d 28, 29 (Ind. 1998))).


[12]   It is for the trier of fact to determine whether the defendant appreciated the

       wrongfulness of his conduct at the time of the offense. Id. (citing Thompson v.

       State, 804 N.E.2d 1146, 1149 (Ind. 2004)). The defendant is in the position of

       having to appeal a negative judgment. Id. A reviewing court “will reverse only

       when the evidence is without conflict and leads only to the conclusion that the

       defendant was insane when the crime was committed.” Id. (quoting Thompson,
       Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 7 of 10
       804 N.E.2d at 1149). The reviewing court “will not reweigh the evidence or

       assess the credibility of witnesses but will consider only the evidence most

       favorable to the judgment and the reasonable and logical inferences to be drawn

       therefrom.” Id. (quoting Thompson, 804 N.E.2d at 1149 (citing Metzler v. State,

       540 N.E.2d 606, 608-609 (Ind. 1989))).


[13]   Bracey argues that Dr. Moore rendered an opinion only regarding Bracey’s

       competency to stand trial and did not address the issue of insanity at the time of

       the offense, and that accordingly it was error for the other doctors to change

       their opinions regarding whether he was sane at the time of the offense based

       thereon. He asserts that Dr. Moore did not offer any insight on Bracey’s ability

       to appreciate the wrongfulness of his conduct and that claiming to be “faking it

       may be very well consistent with a troubled mind at the time of the incident.”

       Appellant’s Brief at 9. The State argues that the evidence is without conflict

       that Bracey was legally sane at the time of the offense. It asserts that Bracey’s

       arguments are merely a request to reweigh the evidence.


[14]   The evidence presented reveals that, although Dr. VanderStoep and Dr.

       Monroe had previously filed reports with the court stating that they believed

       Bracey was insane when he attempted to rob Clifford, they both changed their

       diagnoses based upon Bracey’s behavior and statements while at Logansport

       State Hospital as reported by Dr. Morris. Specifically, Dr. Morris testified that

       Bracey had stated while at the hospital that “my cousin told me that if I pled

       insanity, I wouldn’t go to jail,” that Bracey “largely admitted to feigning

       insanity to avoid prison and to be sent to a mental hospital instead,” and that he

       Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 8 of 10
       told hospital staff that he “just played crazy to get in here.” Id. at 54, 67. Dr.

       Morris further testified that Bracey “remained objectively free from symptoms

       of a major mental disorder,” and “[h]e continued to display logical and

       pertinent thinking . . . .” Id. at 55. Dr. Monroe further testified that “if it

       weren’t for the fact that [Bracey] was describing being instructed to do this by

       an hallucinatory figure, [she] would have thought he was not insane” and that

       she believed that Bracey “was not legally insane at the time of the crime.” Id. at

       91, 99. Also, Dr. VanderStoep testified that he struggled at the time he filed his

       report whether or not Bracey was faking his command hallucinations and that,

       after reviewing Dr. Morris’s report, he was of the opinion that any

       hallucinations Bracey may have experienced at the time of the crime were not

       command hallucinations and that he could appreciate the wrongfulness of his

       conduct.


[15]   We are not persuaded that it was error for the court to consider the facts that

       Dr. Monroe and Dr. VanderStoep changed their medical opinions based upon

       the observations of Bracey at Logansport State Hospital and especially Bracey’s

       admissions while there that he feigned insanity in order to avoid prison time.

       We cannot say that the evidence is without conflict and leads only to the

       conclusion that Bracey was insane at the time he attempted to rob Clifford.

       Bracey’s arguments to the contrary are merely a request to reweigh the evidence

       or judge the credibility of the witnesses, which we may not do. See Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We conclude that the court did not

       clearly err when it rejected Bracey’s insanity defense.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 9 of 10
                                                   Conclusion

[16]   For the foregoing reasons, we affirm Bracey’s conviction for attempted robbery.


[17]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1506-CR-621 | November 19, 2015   Page 10 of 10
