                                                                                FILED
                                                                           Dec 19 2017, 7:29 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Larry D. Allen
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Lori Barcroft,                                            December 19, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1704-CR-844
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G04-1205-MR-33537



      Najam, Judge.


                                        Statement of the Case
[1]   Lori Barcroft appeals her convictions, following a bench trial, for murder and a

      sentencing enhancement for the unlawful use of a firearm in the commission of



      Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017                   Page 1 of 23
      an offense. Barcroft raises one issue on appeal, namely, whether the trial court

      erred when it rejected her insanity defense and found her guilty but mentally ill.


[2]   We reverse and remand with instructions.


                                  Facts and Procedural History
[3]   In 2007, Jordan Ashbury, one of Barcroft’s adult sons, became concerned about

      Barcroft’s deteriorating mental state, which he believed was caused because she

      was “demonically possessed.” Add. at 5. According to Ashbury, Barcroft had

      begun to see messages on the refrigerator and she had become obsessed with the

      colors of cars. Ashbury asked Pastor Jaman Iseminger, the pastor at the church

      Barcroft and Ashbury attended, to help Barcroft. Pastor Iseminger told

      Ashbury that Barcroft needed to be prayed over and also hospitalized. After the

      ensuing death of her father, Barcroft deteriorated further, and Ashbury

      attempted to hospitalize her, but she refused. At the time, Barcroft lived with

      Ashbury and his wife, Tamia. However, on the advice of Pastor Iseminger,

      Ashbury told Barcroft that she could no longer live with them, as Tamia was

      fearful for her life. Barcroft then moved in with her mother.


[4]   On the morning of May 19, 2012, Pastor Iseminger arrived at the church at

      approximately 6:45 a.m. in order to open the church kitchen for Jeff Harris,

      who was preparing to lead a workshop. Harris was in the kitchen when he

      noticed Barcroft walking around the outside of the church. Barcroft wore a

      black hooded sweatshirt with its hood up and dark jeans, and she carried a

      backpack. Harris went outside and saw Barcroft standing in an exterior

      Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 2 of 23
      stairwell that led to the church’s basement, where Pastor Iseminger’s office was

      located, and looking in through a basement window. Harris asked Barcroft if

      he could help her, and Barcroft asked if Pastor Iseminger was there.


[5]   Harris entered the church and went down the interior stairs to the basement,

      where he found Pastor Iseminger in his office. Harris told Pastor Iseminger that

      a woman was there to see him. Although Harris was not aware of it, Barcroft

      had entered the church behind him and was waiting near the top of the interior

      stairs. Pastor Iseminger followed Harris back up the stairs, and after Harris

      passed Barcroft, Barcroft shot at Pastor Iseminger. Barcroft turned, pointed the

      gun at Harris, and said “go, go.” Tr. Vol. II at 119. Harris ran outside and

      called 9-1-1. As he ran, he heard two more gunshots. Harris then saw Barcroft

      leave the church and walk or jog along the building, cross the street, and go

      between two houses. Pastor Iseminger came up the exterior stairs, yelled for

      help, and collapsed on the ground. Lisa Walden, an attendee of the workshop,

      had been asleep in her car in the church parking lot when she heard the

      gunshots. Walden saw Pastor Iseminger fall to the ground, and she saw a

      woman dressed in all black walk away quickly. Walden rushed to help Pastor

      Iseminger while Harris talked to the 9-1-1 operator.


[6]   Officers from the Southport and Indianapolis Metropolitan Police Departments,

      along with paramedics, responded to the 9-1-1 call. After they obtained a

      description of Barcroft and learned the direction of her flight, Officers John

      Czankusch and Daniel Ryan used a police dog to search for her. The dog

      alerted to an area about a block from the church that was overgrown with

      Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 3 of 23
      vegetation. Barcroft was hidden under a blanket of vegetation in such a manner

      that the officers could only see some red fabric from her clothing or backpack.

      Officer Czankusch later testified that Barcroft was so well-hidden that the

      officers probably would not have found her without the police dog or unless

      they had actually stepped on her. Officer Ryan ordered Barcroft twice to come

      out. Barcroft did not respond to the first command. When he made the second

      command, Officer Ryan told Barcroft that he would shoot her if she did not

      come out or if she did not show her hands. Barcroft then crawled out from

      under the vegetation and Officer Czankusch placed Barcroft in handcuffs.

      Officer Ryan asked Barcroft if she had a gun, and Barcroft said she did and

      informed him that the gun was in her jacket pocket. At the time of her arrest,

      Officer Ryan described Barcroft’s demeanor as “very quiet and calm” and

      cooperative. Id. at 65. Detective Michael Mitchell arrived at the scene, and

      Barcroft volunteered to him, “I’m the one you’re looking for.” Id. at 142.

      Detective Mitchell also described her demeanor at the scene as calm. Officers

      soon learned that Pastor Iseminger had been pronounced dead at the hospital

      from a gunshot wound to his chest.


[7]   Officers took Barcroft into custody and placed her in an interview room.

      Detective Mitchell entered the room, told Barcroft to have a seat, and informed

      her that he was conducting an investigation. Detective Mitchell read Barcroft

      her Miranda rights. Detective Mitchell did not ask any questions, but Barcroft

      gave a lengthy narrative in which she admitted that she had shot Pastor

      Iseminger.


      Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 4 of 23
[8]   During her statement to Detective Mitchell, Barcroft disclosed a complex and

      extensive system of beliefs and delusions that experts later diagnosed as

      schizophrenia, paranoid type, or delusional disorder, persecutory type.

      According to her statement to Detective Mitchell, the delusions began around

      1999 or 2000, when Barcroft took in a pregnant woman from Colombia. When

      the woman’s baby was one year old, Barcroft traveled to Colombia for the

      baby’s baptism, where she met the baby’s father, whom she said was named

      Rafael Medina. She often called him “R” or “Rafa.” Add. at 7. Barcroft

      believed that this man controlled most of the world’s cocaine and was the

      wealthiest man in the world. Barcroft said that in 2007, R asked her to marry

      him, which made her a “Class KK, uh, 9-9-5-5-7-7” in the Colombian mafia

      and also pitted Barcroft against his enemies, which included the family of

      Presidents George H.W. and George W. Bush. Id. According to Barcroft, the

      Bush family was allied with the Mexican mafia and was involved in cocaine

      and human trafficking. Barcroft thought the Bush family had asked Osama Bin

      Laden to commit the September 11, 2001, terrorist attacks and had tried to kill

      President Barack H. Obama in order for Jeb Bush to take over the White

      House. Barcroft stated she had twice intervened to save President Obama’s life.

      Barcroft also said that R had a network of spy satellites and that they were

      being watched at that moment. Barcroft further stated that President George

      W. Bush and Ambassador William Brownfield were “slaughtering the

      handicapped in Columbia. They handicapped the babies[,] and they human

      traffic.” Id. at 8. They also put Barcroft up for an “electronic auction.” Id.



      Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 5 of 23
[9]    Pastor Iseminger was an integral part of Barcroft’s delusional scheme in that

       she thought he was controlled by the Bush family and the Mexican mafia. In

       particular, in her statement to Detective Mitchell Barcroft stated that Pastor

       Iseminger was responsible for the death of her father in 2010. Although her

       father’s official cause of death was congestive heart failure, Barcroft claimed to

       have received a message that Pastor Iseminger had caused her father to be

       smothered to death. Barcroft also believed that Jeb Bush had killed her

       grandmother and that the Bush family and Pastor Iseminger had caused her

       grandson to be infected with Kawasaki disease. Barcroft further said that

       Pastor Iseminger had been lying about her to make people hate her and have

       her appear to be of a lower class than she was to get her killed.


[10]   During her statement to Detective Mitchell, Barcroft further stated:


               Ah, uh, what happened is, uh, Jaman, who I shot, he, um,
               basically is the cause of all of this. And he’s 4. Nobody else can
               do this but me. I’m 5. And what he’s been doing is uh . . . I’m
               not a killer, by the way, but I’m the only one (chuckling) that can
               do it.


       Id. at 8 (ellipses in original). She went on to state that


               I’m the only one that could take care of Jaman. That’s the
               reason why I did it. It wasn’t even vengeance for . . . I mean, he
               was gonna try to pick off my family one by one. Not himself, the
               people that, that act for him. And I was basically told that, uh,
               since he’s 4A . . . Bush family is 4A . . . [.] And he’s not Mafia
               O, by the way. He’s Z. Uh, and I’m Mafia O. I’m the only one,
               uh, I’m top “O” Queen.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 6 of 23
                                                       * * *


               They want me dead. So they lie, lie, lie, and lie. Jaman’s a big
               part of it.


       Id. at 11 (some ellipses in original).


[11]   Near the end of her statement, Detective Mitchell told Barcroft, “you

       understand that you have to be arrested for this . . . .” Id. at 15. Barcroft

       replied, “I do understand that.” Id. She further stated: “I actually planned on

       not getting caught[,] but I did.” Id. Barcroft continued, “And like I said, I’m

       not some sort of murderer or anything.” Id.


[12]   Barcroft’s mental health records showed that she had been seen at Midtown

       Mental Health in Indianapolis intermittently between 2004 and 2006 and again

       between 2008 and 2010. At that time she was diagnosed with attention deficit

       hyperactivity disorder and prescribed Adderall, although the experts who

       evaluated her in the instant case had reviewed her mental health records and

       believed that her symptoms were more suggestive of psychosis. Her records

       also reflected that, in 2007, Barcroft presented at Halifax Medical Center in

       Florida and was seen in the psychiatric ward where she claimed to have

       hitchhiked from Indiana. Barcroft was dehydrated, and she was afraid federal

       agents were pursuing her. Despite those paranoid symptoms, Barcroft did not

       meet Florida’s standards for involuntary commitment and only stayed in the

       psychiatric ward for three days. After Barcroft’s arrest in the instant case, she



       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 7 of 23
       refused anti-psychotic medications and claimed that she did not suffer from a

       mental illness.


[13]   On May 21, 2012, the State charged Barcroft with murder and sought a

       sentencing enhancement for the use of a firearm. On August 29, 2012, Barcroft

       filed a motion for a competency and sanity evaluation. On December 14, the

       trial court found that Barcroft lacked the ability to understand the proceedings

       or to assist in her defense, but the court subsequently reversed that

       determination. On November 16, 2016, Barcroft, who was represented by

       counsel, waived her right to a jury trial. The trial court held a bench trial on

       February 21 and March 1, 2017.1


[14]   During the trial, three expert witnesses testified: defense psychologist Dr.

       Stephanie Callaway, court-appointed psychologist Dr. Don Olive, and court-

       appointed psychiatrist Dr. George Parker. Dr. Olive and Dr. Callaway

       diagnosed Barcroft with schizophrenia, paranoid type, while Dr. Parker

       diagnosed her with delusional disorder. But each of the expert witnesses

       concluded that Barcroft had a mental illness, and, based on that mental illness,

       she was unable to appreciate the wrongfulness of her conduct at the time she

       killed Pastor Iseminger.




       1
          The trial court held a bench trial on January 27 and March 5, 2014, and found Barcroft guilty but mentally
       ill on March 14. Barcroft appealed and this court reversed her conviction and remanded for a new trial.
       Barcroft v. State, 26 N.E.3d 641 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017                      Page 8 of 23
[15]   Specifically, Dr. Callaway determined that Barcroft was mentally ill and could

       not appreciate the wrongfulness of her conduct. Prior to writing her report, Dr.

       Callaway did not review the medical records from the jail or the videotaped

       statement Barcroft made to Officer Mitchell. Instead, she relied on Barcroft’s

       medical and pharmaceutical records, an interview Dr. Callaway had with

       Barcroft, letters and notes that Barcroft had written, and an interview Barcroft

       had had with a social worker after the arrest. After she had written her report

       based on that information, Dr. Callaway then reviewed Barcroft’s videotaped

       statement to Officer Mitchell. In her testimony, Dr. Callaway testified that the

       video “cemented my opinion.” Tr. Vol. II at 192.


[16]   Dr. Callaway testified that Barcroft’s delusions were driving Barcroft’s

       behavior. She stated that Barcroft had purchased a gun because “she [saw] a

       sign.” Id. at 208. Dr. Calloway also stated that Barcroft’s actions of hiding the

       weapon and not harming the witness were motivated by her delusion. Dr.

       Callaway further testified: “it also speaks to there’s [sic] a witness standing in

       plain sight, and she does this anyway. So to me, that speaks more to the fact

       that she doesn’t think it’s wrong versus . . . anything else.” Id. at 211. Dr.

       Calloway testified that Barcroft’s behavior when she fled and hid after the

       shooting was important. She stated that Barcroft “described being fearful that

       [Pastor Iseminger] was coming after her.” Id. Finally, she testified that

       Barcroft’s calm behavior after her arrest was consistent with her delusions

       because “she thought it was absolutely legal, and she had the right to do what




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 9 of 23
       she did. And so being calm and cooperative fits with that.” Id. at 212. Dr.

       Calloway testified that there was no evidence of malingering.


[17]   Dr. Olive also concluded that Barcroft did not appreciate the wrongfulness of

       her conduct at the time she shot Pastor Iseminger. In order to make this

       determination, Dr. Olive reviewed the videotaped statement to Detective

       Mitchell, the probable cause affidavit, records from the Marion County Jail, Dr.

       Callaway’s report, medical and pharmaceutical records, notes from the social

       worker, and Barcroft’s letters. In addition, Dr. Olive interviewed Barcroft, but

       she did not provide much detailed information to Dr. Olive. During trial, Dr.

       Olive testified that there was no reality-based explanation for why Barcroft shot

       Pastor Iseminger. He also testified that it is part of his training to look at an act

       that might appear rational to somebody who can appreciate the wrongfulness of

       her conduct and to put those actions in the eyes of somebody who acts under a

       delusion. He stated that nothing he had heard about Barcroft’s demeanor had

       changed his opinion that she could not appreciate the wrongfulness of her

       conduct. Dr. Olive also testified that he looked for signs of malingering, but

       even after he was told that Barcroft had almost obtained a degree in

       psychology, his opinion did not change.


[18]   Dr. Parker also determined that Barcroft could not appreciate the wrongfulness

       of her conduct at the time she shot Pastor Iseminger. Prior to writing his report,

       Dr. Parker reviewed the probable cause affidavit, jail mental health records, Dr.

       Callaway’s report, letters Barcroft wrote to the court, medical records, and a

       summary of meetings between Barcroft and the social worker. He also

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 10 of 23
       interviewed Barcroft. Dr. Parker testified that he was “almost certain [Barcroft]

       was actively delusional at the time of the alleged offense” and “it is clear that

       Miss Barcroft’s delusions obviously affected her overall functioning, and in fact

       her behavior on the day of the alleged offense,” such that she could not

       appreciate the wrongfulness of her conduct at the time of the offense. Tr. Vol.

       III at 22. Dr. Parker further testified that Barcroft believed she was “justified

       and that she was not doing a wrong thing.” Id. at 24.


[19]   Barcroft’s counsel asked Dr. Parker about her behavior on the day of the

       shooting. In response, Dr. Parker testified as follows:


               Well, you . . . have to understand that her behaviors are all
               driven by the delusions themselves. So if she’s convinced with
               complete certainty, absolute certainty, that she is the nexus of
               this complex grandiose delusional scheme which involves
               Columbian cartels, Mexican mafia, the Bush family, satellites in
               the sky, her family being at risk of being killed, herself at risk,
               well, then taking actions to keep yourself safe, to prevent harm
               from coming to you or your family, that becomes rational in that
               context. And so what looks like planning and preparation shows
               not that she’s disorganized; she’s organized. But it’s all driven by
               the delusional system. There is not a rational reason to do all
               that because she’s preparing for something that might involve
               shooting somebody.


       Tr. Vol. III at 46-47. Dr. Parker further testified that the evidence of Barcroft’s

       calm demeanor with police did not change his opinion as to her mental state at

       the time she shot Pastor Iseminger. He also stated that he saw no evidence of

       malingering.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 11 of 23
[20]   In addition to the expert witnesses, several lay witnesses testified, including

       Officer Ryan, Officer Czenkusch, Detective Mitchell, Harris, and Walden.

       None of these witnesses knew Barcroft prior to the day of the shooting and

       none of them testified as to whether she understood the wrongfulness of her

       conduct when she shot Pastor Iseminger.


[21]   The trial court found Barcroft guilty but mentally ill and convicted her of

       murder and the firearm sentencing enhancement. While, the trial court found

       that Barcroft “clearly” had a mental disease or defect, the court concluded that

       she appreciated the wrongfulness of her conduct at the time she shot Pastor

       Iseminger based on the following demeanor evidence: she had a motivation to

       commit the crime outside of her delusion because Pastor Iseminger advised

       Ashbury to have Barcroft move out of their home; she told a witness to leave

       the scene of the shooting; she planned the offense in advance; she waited for

       Pastor Iseminger; she found a place to hide after the offense that was so well-

       hidden the officers could only find her with the use of a police dog; and she told

       Officer Mitchell that she did not intend to get caught. Tr. Vol. III at 104.

       Thereafter, the trial court sentenced Barcroft to an aggregate term of fifty-five

       years in the Indiana Department of Correction with five years suspended to

       mental health probation. This appeal ensued.


                                       Discussion and Decision
[22]   Barcroft asserts that the trial court erred when it rejected her insanity defense

       and found her guilty but mentally ill based on its conclusion that she

       appreciated the wrongfulness of her conduct. To be convicted of a criminal
       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 12 of 23
       offense, the State must prove each element of the offense beyond a reasonable

       doubt. See Ind. Code § 35-41-4-1(a) (2017). Criminal responsibility can be

       avoided if the defendant can successfully raise and establish the “insanity

       defense.” Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010); see also I.C. § 35-

       41-3-6(a). To successfully assert that 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.” Galloway, 938

       N.E.2d at 708. “Thus, mental illness alone is not sufficient to relieve criminal

       responsibility.” Id.


[23]   We note that Barcroft asserted an insanity defense, but the trial court found her

       guilty but mentally ill. “A successful insanity defense results in the defendant

       being found not responsible by reason of insanity.” Kelley v. State, 2 N.E.3d

       777, 783 (Ind. Ct. App. 2014); see also I.C. § 35-41-3-6(a). However, “a

       defendant who is mentally ill but fails to establish that he is she was unable to

       appreciate the wrongfulness of his or her conduct may be found guilty but

       mentally ill.” Galloway, 938 N.E.2d at 708


[24]   Barcroft’s argument on appeal is that there was insufficient evidence in the

       record from which the trial court could have inferred that she was sane at the

       time she shot Pastor Iseminger, contrary to what the three experts determined.

       In particular, Barcroft asserts that the State failed to present sufficient evidence

       to show that she understood the wrongfulness of her conduct at the time of the



       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 13 of 23
offense. As our Supreme Court has explained, we review such appeals as

follows:


        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. Indiana Code [S]ection 35-36-2-2 provides for the use of
        expert testimony to assist the trier of fact in determining the
        defendant’s insanity. Such expert testimony, however, is merely
        advisory, and even unanimous expert testimony is not conclusive
        on the issue of sanity. The trier of fact is free to disregard the
        unanimous testimony of experts and rely on conflicting
        testimony by lay witnesses. And even if there is no conflicting
        lay testimony, the trier of fact is free to disregard or discredit the
        expert testimony.


        Because it is the trier of fact’s province to weigh the 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. A defendant claiming the insanity
        defense should have prevailed at trial faces a heavy burden
        because he or she is in the position of one appealing from a
        negative judgment. A court on review will not reweigh evidence,
        reassess witness credibility, or disturb reasonable inferences made
        by the trier of fact (even though more reasonable inferences could
        have been made).


        Although this standard of review is deferential, it is not
        impossible, nor can it be. The Indiana Constitution guarantees
        “in all cases an absolute right to one appeal.” Ind. Const. art.
        VII, § 6. An impossible standard of review under which
        appellate courts merely “rubber stamp” the fact finder’s
        determinations, no matter how unreasonable, would raise serious
        constitutional concerns because it would make the right to an
        appeal illusory. As such, this Court has long held that where the
        defendant claims the insanity defense should have prevailed, the

Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 14 of 23
               conviction will be set aside when the evidence is without conflict
               and leads only to the conclusion that the defendant was insane
               when the crime was committed.


       Galloway, 938 N.E.2d at 709-10 (footnote, citations, and quotation marks

       omitted).


[25]   Here, the three mental-health experts unanimously agreed that Barcroft’s

       mental illness made her incapable of appreciating the wrongfulness of her

       conduct at the time of the offense. There was no lay opinion testimony to the

       contrary. Nonetheless, where, as here, there is no conflict among the expert

       and lay witnesses, the trial court can still find a defendant sane at the time of the

       crime if there is probative demeanor evidence from which an inference of sanity

       can be drawn. See Galloway, 938 N.E.2d at 712.


[26]   Nevertheless, while demeanor evidence is often useful, “there are limits to its

       probative value.” Id. As our Supreme Court has made clear:


               [D]emeanor evidence is of more limited value when the
               defendant has a long history of mental illness with psychosis. As
               the Court of Appeals previously explained[:]


                        While the jury is the ultimate finder of fact, we fail to
                        see how evidence of a defendant’s demeanor before
                        and after a crime can have much probative value
                        when a schizophrenic defendant is involved . . . .


                                                        * * *




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 15 of 23
                        The proposition that a jury may infer that a person’s
                        actions before and after a crime are “indicative of his
                        actual mental health at the time of the” crime is
                        logical when dealing with a defendant who is not
                        prone to delusional or hallucinogenic episodes.
                        However, when a defendant has a serious and well-
                        documented mental disorder, such as schizophrenia,
                        one that causes him to see, hear, and believe realities
                        that do not exist, such logic collapses . . . .


       Id. at 713 (quoting Moler v. State, 782 N.E.2d 454, 458-59 (Ind. Ct. App. 2003))

       (omissions original to Galloway). Further, our Supreme Court stated that “as a

       general rule, demeanor evidence must be considered as a whole, in relation to

       all the other evidence.” Galloway, 9387 N.E.2d at 714.


[27]   Here, the trial court concluded that Barcroft appreciated the wrongfulness of

       her conduct at the time she shot Pastor Iseminger based only on demeanor

       evidence. In particular, the court’s conclusion was based exclusively on the

       following demeanor evidence: she had a motivation to commit the crime

       outside of her delusion because Pastor Iseminger advised Ashbury to have

       Barcroft move out of their home; she told a witness to leave the scene of the

       shooting; she planned the offense in advance; she waited for Pastor Iseminger;

       she found a place to hide after the offense; and she told Officer Mitchell that she

       did not intend to get caught.


[28]   On appeal, Barcroft contends that the trial court failed to consider the

       demeanor evidence in relation to all other evidence. She further contends that,

       when the demeanor evidence is properly considered in relation to all other

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 16 of 23
       evidence, in particular the unanimous opinions of the expert witnesses, the

       demeanor evidence does not support a reasonable inference that she was able to

       appreciate the wrongfulness of her conduct at the time of the offenses. In

       essence, Barcroft asserts that the evidence is without conflict and leads only to

       the conclusion that she was unable to appreciate the wrongfulness of her

       conduct at the time of the offense. We must agree.


[29]   In Galloway, the Indiana Supreme Court reversed the defendant’s guilty but

       mentally ill conviction for murder. The defendant in that case had a long

       history of mental illness. At his trial, the experts unanimously agreed that the

       defendant was insane at the time of the murder, and the testimony of the lay

       witnesses did not conflict with the testimony of the expert witnesses. In its

       opinion, our Supreme Court stated:


               [The trial court] found as probative of sanity the fact that, over
               the course of an hour, the defendant shopped, ate, and filled a car
               with gasoline without incident. It also found as probative the fact
               that the defendant cooperated with police after the fact. Viewed
               in isolation, each of these events may indeed represent the
               normal events of daily life. However, when viewed against the
               defendant’s long history of mental illness with psychotic
               episodes, the defendant’s demeanor during the crime, as testified
               to by three eyewitnesses, and the absence of any suggestions of
               feigning or malingering, this demeanor evidence is simply neutral and
               not probative of sanity.


       Id. at 715 (emphasis added).




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 17 of 23
[30]   Galloway is on all fours with Barcroft’s case. Here, the trial court found as

       probative of Barcroft’s sanity the fact that she had a motivation to commit the

       crime outside of her delusion; that she told a witness to leave; that she planned

       the offense in advance; that she waited for Pastor Iseminger; that she found a

       place to hide after the offense; and that she told Officer Mitchell that she did not

       intend to get caught. “Viewed in isolation, each of these events may indeed”

       represent sanity in a person with no history of serious mental illness. Id.

       However, when viewed in light of Barcroft’s long-standing and complex

       delusional system, the unanimous opinions of the three experts, each of whom

       took Barcroft’s behavior during the incident into account, and in the absence of

       any evidence of malingering, the demeanor evidence relied on by the trial court

       simply had no probative value on the question of her sanity.


[31]   Our opinion today is also consistent with our holding in Kelley, 2 N.E.3d at 786,

       where this court reversed the defendant’s guilty but mentally ill conviction for

       criminal confinement, three counts of battery resulting in bodily injury, and

       resisting law enforcement. In that case, the defendant had a documented

       history of mental illness, there was no evidence of feigning or malingering, and

       both expert witnesses testified that the defendant was unable to appreciate the

       wrongfulness of her conduct. The defendant also had made a statement to the

       psychiatrist that she had told the victim’s father that he “knew what would

       happen.” Id. at 781. Following the incident, the defendant was originally calm,

       but she then began yelling for water and said she did not do anything. There

       was no lay witness testimony.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 18 of 23
[32]   The trial court based its judgment only on the demeanor evidence, namely, the

       defendant’s interaction with police after the incident and her statement to the

       victim’s father. On appeal, we held that the statement to the victim’s father that

       he knew what would happen may have indicated that the defendant understood

       the conduct, but it did “not necessarily indicate that she appreciated the

       wrongfulness of that conduct at the time of the action.” Id. at 786 (emphasis in

       original). Further, we held that the experts had already explicitly considered

       the statement to the victim’s father when they had unanimously determined

       that the defendant was insane at the time of the offense. Id.


[33]   As in Kelley, the experts in the current case had taken into consideration

       Barcroft’s demeanor when they unanimously determined that she was unable to

       appreciate the wrongfulness of her actions at the time she committed the

       offense. Specifically, Dr. Callaway testified that Barcroft purchased the gun

       because of “a sign” in her delusion, that she did not harm the witness because

       he was not a part of her delusion, that she fled and hid because she was fearful

       of Pastor Iseminger, and that she was cooperative with police because she

       believed she had done nothing wrong. Tr. Vol. II at 208. Based on that

       evidence, Dr. Callaway believed Barcroft’s behavior confirmed that she did not

       appreciate the wrongfulness of her conduct because she believed it was legal to

       shoot Pastor Iseminger.


[34]   Dr. Olive likewise testified that there was no reality-based explanation for

       Barcroft’s actions. He testified that the additional evidence of her behavior at

       the time of her arrest did not change his opinion that she did not appreciate the

       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 19 of 23
       wrongfulness of her conduct at the time of the offense. And Dr. Parker also

       testified that he was “almost certain she was actively delusional at the time of

       the alleged offense” and she thought she was “justified and that she was not

       doing a wrong thing.” Tr. Vol. III at 22, 24. He further testified that her

       behaviors were driven by the delusions themselves and that her behavior

       immediately after the shooting did not change his opinion about her mental

       state at the time of the offense.


[35]   The demeanor evidence relied on by the trial court was of no probative value

       due to Barcroft’s lengthy history of a mental illness, which includes complex

       delusions, and because the expert witnesses took into consideration the

       demeanor evidence when they concluded that she could not appreciate the

       wrongfulness of her conduct at the time of the offense. The evidence that is of

       probative value is without conflict and leads only to the conclusion that

       Barcroft was unable to appreciate the wrongfulness of her conduct and,

       therefore, was insane at the time of the offense. Accordingly, we reverse the

       trial court’s judgment that Barcroft is guilty but mentally ill and remand for the

       trial court to enter a finding of not guilty by reason of insanity.


[36]   Reversed and remanded.


       Kirsch, J., concurs.


       Brown, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 20 of 23
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Lori Barcroft,
       Appellant-Defendant,                                    Court of Appeals Case No.
                                                               49A05-1704-CR-844
               v.
       State of Indiana,
       Appellees-Defendants.




       Brown, Judge, dissenting.


[37]   I respectfully dissent from the majority as to its finding that the evidence of

       probative value leads only to the conclusion that Barcroft was insane, or unable

       to appreciate the wrongfulness of her conduct, at the time of the offense.


[38]   The Indiana Supreme Court has noted that a “finding that a defendant was not

       insane at the time of the offense warrants substantial deference from reviewing

       courts.” Myers v. State, 27 N.E.3d 1069, 1074 (Ind. 2015) (citing Galloway v.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017         Page 21 of 23
       State, 938 N.E.2d 699, 709 (Ind. 2010) (citing Barany v. State, 658 N.E.2d 60, 63

       (Ind. 1995))). Thus, when a defendant claims that an insanity defense should

       have been successful, the conviction will be set aside 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 Galloway, 938 N.E.2d at 710

       (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (emphasis added

       in Galloway))). “[T]estimony regarding behavior before, during, and after a

       crime may be more indicative of actual mental health at [the] time of the crime

       than mental exams conducted weeks or months later.” Id. at 1076 (citing

       Thompson, 804 N.E.2d at 1149 (citing Barany, 658 N.E.2d at 64)). Even if there

       is no conflicting lay testimony, the factfinder is free to disregard or discredit the

       expert testimony. Galloway, 938 N.E.2d at 709 (citing Thompson, 804 N.E.2d at

       1149).


[39]   Though it is undisputed that Barcroft is mentally ill, her demeanor, behavior,

       and statements before, during, and immediately after the crime, are probative

       and supportive of a reasonable inference of sanity. The trial court observed that

       she planned the murder and attempted to avoid culpability: Barcroft “lay in

       wait for [Pastor Iseminger],” “found a place to hide after the offense by the fact

       that it was so quick from the time that – and the police arrives at like one

       minute after the 911 call,” “scoped that out and knew there was a good place to

       hide,” and “talked to the detective,” stating “I had to take him out.” Transcript

       Volume 3 at 105-106. More importantly, the trial court determined that




       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 22 of 23
                 at the same time, there exists a big separate and conflicting
                 motivation to commit this crime. [Barcroft] was well aware of
                 [Pastor Iseminger’s] ability to talk with her family and that – that
                 – that [Pastor Iseminger] knew about what her family thought.
                 And I believe the actions that she took that day were in response
                 to that motivation. The motivation to avoid having to be
                 somehow under an immediate detention to be reviewed for any
                 sort of a problem that she was having. . . . [S]he’s well aware of
                 the things that are oaky [sic] to do and things that aren’t okay to
                 do. I think she just had an alternative mot – motive. And I’m
                 persuaded by the alternative motion [sic]. . . . I think it’s easy for
                 her to co-op [sic] things in reality into that delusion.”


       Id. at 104, 106-107. This Court should not invade the factfinder’s

       determinations, and accordingly I would conclude that the trial court did not

       err in finding that Barcroft failed to prove her insanity defense. See Carson v.

       State, 963 N.E.2d 670, 678 (Ind. Ct. App. 2012) (holding that the evidence

       supported a reasonable inference that defendant appreciated the wrongfulness

       of his conduct and “therefore the evidence is not without conflict and does not

       lead only to the conclusion that [defendant] could not appreciate the

       wrongfulness of his actions,” and reviewing “a number of Indiana cases” where

       the appellate court has upheld the guilty but mentally ill convictions of

       defendants “claiming that he or she should have been found [not responsible by

       reason of insanity] on the basis of nonconflicting expert testimony”), trans.

       denied.


[40]   For the foregoing reasons, I respectfully dissent and would affirm the trial

       court’s finding that Barcroft was guilty but mentally ill.


       Court of Appeals of Indiana | Opinion 49A05-1704-CR-844 | December 19, 2017   Page 23 of 23
