 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before                        Nov 03 2014, 10:06 am
 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:

SUSAN D. RAYL                                        GREGORY F. ZOELLER
Smith Rayl Law Office                                Attorney General of Indiana
Indianapolis, Indiana
                                                     LARRY D. ALLEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

GEORGE IVORY,                                        )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 49A02-1404-CR-263
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


       APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION 2
                     The Honorable Amy Barbar, Magistrate
                       Cause No. 49G02-1301-FC-003955


                                          November 3, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        George Ivory appeals his conviction of Burglary,1 a class C felony, presenting the

following restated issue for review: Was the evidence sufficient to support the trial court’s

finding that, notwithstanding his diminished mental capacity, Ivory possessed the requisite

mens rea to commit burglary?

        We affirm.

        The facts favorable to the conviction are that at approximately 6:15 p.m. on January

16, 2013, Zachary Neiditch, who was staying at his parents’ home, heard noises coming

from outside. He went to a window and saw a man, later identified as Ivory, stealing

various items from his parents’ garage, including a lawnmower. After confirming that his

father had not given anyone permission to take anything, Neiditch called police.

Indianapolis Metropolitan Police Department Officers Joel Reierson and Thomas White

responded to the call.         They found Ivory attempting to pull a lawnmower through

Neiditch’s fence gate. Other items that had been removed from the garage lay between the

house and the gate.

        After he was Mirandized, Ivory agreed to speak with the officers. He claimed that

he previously knew the people who lived at the house and that he found a lawnmower in




1
    The version of the governing statute, i.e., Ind. Code Ann. § 35-43-2-1 (West, Westlaw 2013) in effect
at the time this offense was committed classified it as a class C felony. This statute has since been revised
and in its current form reclassifies this as a Level 5 felony. See I.C. § 35-43-2-1 (West, Westlaw current
with all 2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the
118th General Assembly). The new classification, however, applies only to offenses committed on or after
July 1, 2014. See id. Because this offense was committed on January 16, 2013, it retains the former
classification.
                                                     2
the backyard. He admitted, however, that he had taken a weedeater, a crate of tools, and a

gas can from inside the garage. Ivory was arrested and charged with burglary and theft.

       Prior to trial, the trial court ordered an examination to determine Ivory’s state of

mind on the date of the alleged offenses and his competence to stand trial. A hearing was

conducted on the subject of Ivory’s competency. Dr. Don Olive is a licensed clinical

psychologist who was appointed by the court to evaluate Ivory’s competency, i.e, to assess

his ability to understand the nature of the proceedings and assist his attorney at trial. Dr.

Olive also performed an evaluation to determine Ivory’s mental state on the date of the

alleged offense. Dr. Olive testified that Ivory understood the charges against him. He “had

some idea of the potential severity of the punishment if convicted.” Transcript at 5. The

report issued by Dr. Olive stated, in pertinent part:

       based upon what appears to be significantly limited intellect, as well as Mr.
       Ivory’s style of communication, ascertaining his comprehension of certain
       terms and concepts often required additional inquiry from this evaluator.
       Defense counsel would do well to consider this tendency when interacting
       with Mr. Ivory. Although, as previously noted, Mr. Ivory has significantly
       limited intellect, and, per the records from Marion County Jail, has recently
       been diagnosed with a Major Depressive Disorder, I currently do not see
       significant signs of mental disease or mental defect that might significantly
       compromise the current competencies at issue. Thus, the aforementioned
       impairments notwithstanding, It [sic] is my opinion that Mr. Ivory does
       possess sufficient present ability to consult with his attorney with a
       reasonable degree of rational understanding and a rational, as well as a
       factual, understanding of the proceedings against him, i.e., he is competent.

Appellant’s Confidential Appendix at 17 (emphasis in original). On the question of Ivory’s

mental condition at the time of the offenses, Dr. Ivory’s report stated:



                                              3
       with regard to his mental state at the time of the offense, in reviewing his
       brief narrative as well as the Probable Cause Affidavit, there appears to be
       no clear evidence of mental disease or mental defect, e.g., symptomatology
       consistent with a psychotic disorder such as delusions or hallucinations or
       mental retardation, that militated against Mr. Ivory’s capacity to appreciate
       the wrongfulness of his conduct.

Id. Ultimately, Ivory was found competent to stand trial, and a bench trial was conducted.

With respect to both charges, the trial court found Ivory guilty but mentally ill. The court

merged the theft conviction into the burglary conviction and entered judgment of

conviction only on the latter.

       Ivory contends the evidence was not sufficient to prove that he had the requisite

mens rea at the time he committed the offense. In order to convict Ivory of burglary, the

State was required to prove that he broke and entered the Neiditches’ garage with the intent

to commit a felony or theft inside. See I.C. § 35-43-2-1. Ivory contends that the State

failed to prove the requisite intent. According to Ivory, he “suffers from diminished

capacity that made it unlikely that he could have entered the garage with the intent to

commit theft.” Appellant’s Brief at 5.

       When, as here, a defendant raises the insanity defense, the trier of fact has the

additional option of finding the defendant “not responsible by reason of insanity at the time

of the crime” or “guilty but mentally ill at the time of the crime”. See Ind. Code Ann. §

35-36-2-3 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular

Session and Second Regular Technical Session of the 118th General Assembly). The

insanity defense is an affirmative defense for which the defendant carries the burden of


                                             4
proof by a preponderance of the evidence. Ind. Code Ann. § 35-41-4-1 (West, Westlaw

current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular

Technical Session of the 118th General Assembly). In order to prevail, a defendant must

establish that he suffers from a mental disease or defect and that the mental disease or

defect rendered him unable to appreciate the wrongfulness of his conduct at the time of the

offense. “[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[.]”

Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010).

       Our Supreme Court has set out the standard for reviewing claims of insufficient

evidence pertaining to whether a defendant appreciated the wrongfulness of his or her

conduct at the time of the offense, 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. 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. … 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.” Thompson, 804 N.E.2d at 1149. A court on review will
       not reweigh evidence, reassess witness credibility, or disturb reasonable


                                             5
       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.
       Cf. Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003) (standard of review for
       sentencing claims so high that it risked impinging upon the constitutional
       right to appeal). As such, this 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.” Thompson,
       804 N.E.2d at 1149 (emphasis added)[.]

Id. at 709-10 (emphasis in original) (some internal citations to authority omitted).

       There is no question as to Ivory’s identity as the person who took items from the

Neiditches’ garage. Zachary Neiditch watched Ivory do it, and police caught Ivory in the

act of trying to drag a lawnmower through the Neiditches’ fence gate when they arrived.

Moreover, Ivory admitted at the scene that he took several items out of the garage. The

issue presented is whether Ivory established by a preponderance of the evidence that he

was unable to appreciate the wrongfulness of his conduct at the time of the offense. Officer

Reierson, who responded to the burglary call and spoke with Ivory at the scene, testified

that he did not notice anything amiss with respect to Ivory’s mental condition. He further

testified that Ivory responded lucidly to the questions posed to him. The State also

presented the testimony of Dr. Olive at a pretrial competency hearing. Dr. Olive testified

that Ivory was not suffering from delusions or other conditions that would have impaired


                                             6
his appreciation of the wrongfulness of his conduct at the time of the crime. Consequently,

Dr. Olive opined that Ivory was able to appreciate the wrongfulness of his actions at the

time of the crime.

       In support of his argument that Dr. Olive and the trial court were mistaken, Ivory

points out that “[t]he mental health professionals who examined Mr. Ivory agreed that he

suffered from some level of mental retardation.” Appellant’s Brief at 8. In light of this, he

claims it is just as likely “that he wandered onto the property without any intent to commit

any crime and then simply grabbed some items that he saw and took them. He may or may

not have even understood that the items belonged to someone and that he shouldn’t take

them.” Id. at 10. Indeed, he claims “there is no evidence that he entered intending to steal

any items” from the Neiditches. Id. To the contrary, Dr. Olive’s professional opinion was

that Ivory did appreciate the wrongfulness of his conduct at the time of the offense. As

described by Officer Reierson, Ivory’s demeanor and interaction with law enforcement

officers at the scene did not reflect incapacity. In fact, the officer testified that Ivory

responded lucidly to the questions posed to him at the time. The bottom line is that this

was an issue of fact to be resolved by the trial court, and one to which we owe “substantial”

deference. Galloway v. State, 938 N.E.2d at 709. Mindful of our standard of review, we

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

was insane and thus unable to form the requisite mens rea when the crime was committed.

See Galloway v. State, 938 N.E.2d 699.

       Judgment affirmed.

                                             7
VAIDIK, C.J., and MAY, J., concur.




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