MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 29 2016, 7:50 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                     Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jennifer M. Wright,                                     November 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A02-1604-CR-841
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable George A.
Appellee-Plaintiff.                                     Hopkins, Judge
                                                        Trial Court Cause No.
                                                        34D04-1502-F3-17



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016        Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jennifer Wright (Wright), appeals the trial court’s

      judgment, finding her guilty but mentally ill for aggravated battery, a Level 3

      felony, Ind. Code § 35-42-2-1.5, after a bench trial.


[2]   We affirm.


                                                    ISSUE

[3]   Wright raises one issue on appeal, which we restate as: Whether the State

      established sufficient evidence to support her conviction of guilty but mentally

      ill beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   On December 18, 2014, Wright was spending time with Natasha Adams

      (Adams) and Adams’ fiancé, Charles Sanders (Sanders). Wright and Sanders

      had previously dated, and Sanders was Wright’s current landlord. On that day,

      Adams and Sanders had taken Wright and her husband out to lunch, after

      which they all returned to Adams’ home in Kokomo, Indiana, to listen to music

      and spend the rest of the day together. At some point, Sanders and Wright’s

      husband went outside, while Adams and Wright remained inside the residence.


[5]   Adams went to the kitchen to start preparations for dinner. When she turned

      around, she saw Wright “standing with a hammer, getting ready to hit.”

      (Transcript p. 14). Adams attempted “to grab the hammer before [Wright] hit

      [her] in the head and she ended up hitting [Adams] in [her] knee instead.” (Tr.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016   Page 2 of 10
      p. 14). Wright “all of a sudden [] just went crazy.” (Tr. p. 19). Adams noticed

      that Wright “knew what she was doing” because she called Adams by her name

      and cursed at her, “saying she was going to kill [her].” (Tr. pp. 19, 14). Wright

      hit Adams’ left knee with the claw side of the hammer. As a result of the

      injury, Adams required reconstructive knee surgery and was unable to walk for

      four to five months after the surgery.


[6]   Upon her arrest, Wright was voluntarily admitted to St. Joseph Hospital Trinity

      House, where she admitted to using methamphetamine two to three weeks

      earlier. On December 20, 2014, Wright reported that “she had done

      methamphetamine just the night before and her friend had slid it under the

      door.” (Def. Exh. B, p. 11). When she was told that she would have to submit

      to a drug screen, “she changed her story and said ‘I didn’t do it.’” (Def. Exh.

      B., p. 11). On December 21, 2014, the treating physician reported that Wright

      felt “disoriented” and still did “not recall [the] event [with the] hammer.” (Def.

      Exh. B, p. 76). Wright was also diagnosed with “Depression NOS” and the

      physician noted “malingering[ 1] likely.” (Def. Exh. B., p. 76). On December

      22, 2014, Wright was again diagnosed with “Depression NOS” and

      “Unspecified Amphetamine Use DO.” (Def. Exh. B., p. 66). The following

      day, Wright’s diagnosis evolved to “Unspecified Psychotic DO” and she was




      1
        Dr. George Parker testified to the medical meaning of the verb ‘to malinger,’ as “consciously faking
      symptoms to achieve a measurable gain[.]” (Tr. p. 43).

      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016           Page 3 of 10
      prescribed Haldol. (Def. Exh. B., p. 114). Wright was discharged on

      December 26, 2014, with a primary discharge diagnosis of depression.


[7]   On February 10, 2015, the State filed an Information, charging Wright with

      Count I, aggravated battery, a Level 3 felony, I. C. § 35-42-2-1.5; Count II,

      battery, a Level 5 felony, I.C. § 35-42-2-1; Count III, battery, a Level 6 felony,

      I.C. § 35-42-2-1; and Count IV, battery, a Class A misdemeanor, I.C. § 35-42-2-

      1. On April 21, 2015, Wright filed a motion for psychological examination “to

      determine her mental health status at the time” of the incident, which was

      granted by the trial court. (Appellant’s App. p. 66). In its order, the trial court

      appointed Dr. George Parker (Dr. Parker) and Dr. Paul Roberts (Dr. Roberts)

      “to conduct a psychological evaluation of [Wright] to determine mental disease

      or defect at the time of the offense[.]” (Appellant’s App. p. 68).


[8]   On February 9, 2016, the trial court conducted a bifurcated bench trial and

      competency hearing. Dr. Parker testified that at the time of the incident it

      appeared that Wright suffered from “some sort of psychotic episode,” which

      was a “relatively short experience of psychosis lasting about a week or so and it

      appeared to start to resolve on its own[.]” (Tr. pp. 47, 48). Dr. Parker

      concluded that Wright “suffered from a mental illness” which “rendered her

      unable to appreciate the wrongfulness of her conduct at the time of the” offense.

      (Tr. p. 51). On the other hand, Dr. Roberts opined that Wright suffered from a

      mental disease—a long-standing depression disorder, with “border on

      personality features”—and could “appreciate the difference between right and

      wrong.” (Tr. p. 77-78). At the close of the evidence, the trial court took the

      Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016   Page 4 of 10
       matter under advisement. On February 10, 2016, the trial court found Wright

       guilty of Count I, aggravated battery, a Level 3 felony, but mentally ill at the

       time of the offense. On March 18, 2016, Wright was sentenced to 1,096 days

       executed at the Indiana Department of Correction.


[9]    Wright now appeals. Additional facts will be provided as necessary.


                                       DISCUSSION AND DECISION


[10]   Wright contends that the State failed to establish sufficient evidence to sustain

       her conviction of guilty but mentally ill beyond a reasonable doubt. Instead,

       she asserts that the evidence supports a judgment of not guilty by reason of

       insanity. 2


[11]   To sustain a conviction, the State must prove each element of the charged

       offense beyond a reasonable doubt. See I.C. § 35-41-4-1(a). Even where the

       State meets this burden, a defendant in Indiana can avoid criminal

       responsibility by successfully raising and establishing the “insanity defense.” 3

       See I.C. § 35-41-3-6(a). A successful insanity defense results in the defendant

       being found not responsible by reason of insanity. See I.C. § 35-36-2-3.




       2
         We agree with the State’s observation that Wright did not affirmatively plead an insanity defense but
       merely filed a motion for a psychological evaluation, which was granted by the trial court. However, during
       a pretrial hearing on November 13, 2015, Wright informed the trial court that the legal posture of the case
       revolved around the “mental disease or defect statute.” (Tr. p. 3).
       3
         The rationale underlying the insanity defense is that a legally insane person is unable to form the requisite
       criminal intent. See Truman v. State, 481 N.E.2d 1089, 1089-90 (Ind. 1985) (“[T]he inability to form intent by
       reason of insanity” is a defense to crime in Indiana.).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016            Page 5 of 10
[12]   The defendant bears the burden of establishing the insanity defense by a

       preponderance of the evidence. Galloway v. State, 938 N.E.2d 699, 709 (Ind.

       2010). To meet this burden, the defendant must establish both (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. See I.C. § 35-41-3-6(a). Thus, mental illness alone is not sufficient to

       relieve criminal responsibility. See Weeks v. State, 697 N.E.2d 28, 29 (Ind. 1998).

       Rather, a defendant who is mentally ill but fails to establish that he or she was

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

       but mentally ill. See, e.g., Taylor v. State, 440 N.E.2d 1109, 1112 (Ind. 1982).


[13]   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. Thompson v. State, 804

       N.E.2d 1146, 1149 (Ind. 2004). Indiana Code section 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. Cate v.

       State, 644 N.E.2d 546, 547 (Ind. 1994). The trier of fact is free to disregard the

       unanimous testimony of experts and rely on conflicting testimony by lay

       witnesses. Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995). And even if there is

       no conflicting lay testimony, the trier of fact is free to disregard or discredit the

       expert testimony. Thompson, 804 N.E.2d at 1149.


[14]   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

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016   Page 6 of 10
       warrants substantial deference from reviewing courts. See Barany, 658 N.E.2d

       at 63. 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.” Thompson, 804 N.E.2d at 1149. A court on review will

       not reweigh evidence, reassess witness credibility, or disturb reasonable

       inferences made by the trier of fact, even though a “more reasonable” inference

       could have been made. Id. at 1149-50.


[15]   However, Wright now argues that this is “an almost impossible burden,”

       rendering the right of appeal “dim or illusory.” (Appellant’s Br. p. 7).

       “Although this standard of review is deferential, it is not impossible, nor can it

       be.” Galloway, 938 N.E.2d at 709. 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.” Galloway, 938 N.E.2d at 709 (quoting Serino v. State, 798

       N.E.2d 852, 856 (Ind. 2003)). As such, our supreme court has long held that

       where the defendant claims the insanity defense should have prevailed, the

       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, 798 N.E.2d at 709.


[16]   As a matter of law, a person is either sane or insane at the time of the crime;

       there is no intermediate ground. Id. at 711. The trier of fact therefore has one

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016   Page 7 of 10
       of only two options with regard to insanity. Id. Its decision must be based on

       probative evidence, which means evidence that tends to prove or disprove a

       point in issue. Id. An expert witness who is called to testify as to his or her

       opinion, in an effort to aid the trier of fact, and who testifies that he or she has

       no opinion does not provide probative evidence. Id.


[17]   Here, the State called two expert witnesses and one lay witness. Dr. Parker,

       who evaluated Wright approximately six months after the incident, diagnosed

       her with an unspecified psychosis, which rendered her unable to appreciate the

       wrongfulness of her conduct at the time of the offense. On the other hand, Dr.

       Roberts testified that while Wright suffered from a mental disease, she was

       nevertheless able to appreciate the difference between right and wrong. Adams,

       the lay witness, noticed that Wright “knew what she was doing” because she

       called Adams by her name and cursed at her, “saying she was going to kill

       [her].” (Tr. pp. 19, 14). Faced with this conflicting testimony, the trial court

       concluded that Wright was guilty but mentally ill, thereby rejecting Wright’s

       allegation of insanity.


[18]   The trial court’s conclusion is supported by substantive evidence. As noted by

       the State, Wright did not attack a random person but instead targeted her ex-

       boyfriend’s fiancée. She intentionally took steps to arm herself with a hammer,

       rather than entering into a fist fight, and waited until she was alone with

       Adams. When Wright approached Adams from behind, she got Adams’

       attention by calling her by her name, and stated that she was “going to kill

       [her].” (Tr. p. 19). Wright then swung the hammer towards Adams while

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016   Page 8 of 10
       uttering Sanders’ name. Based on Wright’s demeanor, Adams concluded that

       Wright knew what she was doing when swinging the hammer.


[19]   The record reflects that Wright has no history of mental illness or psychosis and

       that she had previously only been diagnosed with a recurring and long-standing

       depression. However, Wright did admit to having a long history of drug abuse,

       which Dr. Parker opined could have contributed to her psychosis. Dr. Roberts

       clarified that in some situations, drugs have long-lasting effects even after usage

       has stopped. He believed that Wright suffered from a major depression

       disorder, but added that those suffering from depression can generally

       appreciate the difference between right and wrong. Accordingly, based on the

       evidence presented at trial, we cannot say that the evidence is without conflict

       and leads only to the conclusion that Wright was insane when the crime was

       committed. 4 See Galloway, 798 N.E.2d at 709.


                                                  CONCLUSION

[20]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Wright’s conviction of guilty but

       mentally ill.




       4
         We deny Wright’s request to remand this cause to the trial court for “findings that reviewing courts can use
       to evaluate an appeal.” (Appellant’s Br. p. 8). “In a criminal case, the judge need not make findings of fact
       or conclusions of law to explain the mental processes he engaged in as the trier of fact.” Nation v. State, 445
       N.E.2d 565, 570 (Ind. 1983).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1604-CR-841 | November 29, 2016            Page 9 of 10
[21]   Affirmed.


[22]   Crone, J. and Altice, J. concur




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