                                                                       FILED
                                                                  Dec 03 2018, 3:01 pm

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




                               IN THE

       Indiana Supreme Court
                 Supreme Court Case No. 18S-CR-135

                            Lori Barcroft
                          Appellant (Defendant)

                                    –v–

                          State of Indiana
                            Appellee (Plaintiff)


           Argued: April 24, 2018 | Decided: December 3, 2018

                 Appeal from the Marion Superior Court
                        No. 49G04-1205-MR-33537
                   The Honorable Lisa F. Borges, Judge

        On Petition to Transfer from the Indiana Court of Appeals
                          No. 49A05-1704-CR-844



                        Opinion by Justice Massa
               Chief Justice Rush and Justice David concur.
Justice Goff dissents with separate opinion in which Justice Slaughter joins.
Massa, Justice.

   The jurisprudence of the insanity defense in Indiana—spanning nearly
two centuries—is deeply rooted in the Anglo-American legal tradition,
marked by periodic policy changes to the standards for evaluating
criminal responsibility. Throughout this evolution, one principle stands
the test of time: Whether the defendant meets the standards of insanity is
a question for the trier of fact, that “sole sentinel in the protection of both
the rights of the accused and the welfare of society.” Hill v. State, 252 Ind.
601, 616–17, 251 N.E.2d 429, 438 (1969). And in rendering its judgment, the
factfinder—whether judge or jury—may consider all evidence relevant to
the defendant’s mental state. Id.

   In this case, all three mental-health experts concluded that the
defendant was legally insane at the time of the offense and could not
appreciate the wrongfulness of her actions. No lay witnesses offered
opinion testimony. The trial court rejected the insanity defense and relied
on evidence of the defendant’s demeanor in rendering its verdict of guilty
but mentally ill (GBMI). Because the factfinder may discredit expert
testimony and rely instead on other probative evidence from which to
infer the defendant’s sanity, we affirm the trial court’s GBMI conviction.


Facts and Procedural History
   Born in 1965, Lori Barcroft grew up as an only child. The product of a
generally stable family environment, she described her formative years as
“great” and free of any physical or emotional abuse. Court’s Ex. A, p. 4.
She advanced through public school as an average student and, upon
graduation, attended college where she studied nursing and psychology.
Although she soon withdrew from her full-time studies to marry and raise
a family, she continued with her coursework for the next twenty years,
balancing several jobs along the way.

   By the early 2000s, Barcroft’s marriage had failed, leaving her in a state
of depression. She sought counseling and underwent periodic mental-
health evaluations on an outpatient basis. But other than ADHD, medical
records indicate no formal diagnoses of a psychiatric disorder. Still, her


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018        Page 2 of 17
cognitive faculties continued to wane. And, in 2007, Barcroft—living then
with her son, Jordan Asbury, and his wife Tamia—began to exhibit
increasingly odd behavior. According to Asbury, his mother described
seeing messages on the refrigerator, she became obsessed with the color of
cars, and she often rambled nonsensical codes. This behavior
progressively worsened after her father died in 2010.

   Concerned with his mother’s deteriorating mental health, and fearful
for Tamia’s life, Asbury confided in Jaman Iseminger, a pastor at the
family’s church. Pastor Jaman believed Barcroft needed prayers and
hospitalization. And he urged Asbury to have his mother leave the home.
Indeed, Barcroft moved out sometime in early 2012 to live with her
mother.

   Two or three months later, on the morning of May 19, 2012, Pastor
Jaman was working in his church office. He had arrived early, having
arranged to meet Jeff Harris, a church volunteer planning to lead a
workshop that day. Just before 7:00 a.m., as Harris was preparing coffee in
the church kitchen, he noticed someone walking alongside the building
outside, dressed in black clothing and carrying a backpack.

   Harris went outside to find this person—later identified as Barcroft—
peering into a window of the church basement. When he approached her,
Barcroft asked if Pastor Jaman was there. Harris reentered the church to
find the pastor in his basement office, unaware that Barcroft had followed
him into the building. With the pastor in tow, Harris then led the way
back to where he had left the visitor. As they ascended the basement
stairs, Barcroft stood waiting above at the landing. Harris walked past her,
unsuspecting and without comment. Suddenly, a single gunshot shattered
the early-morning silence. Harris turned to find Barcroft pointing a gun in
his direction, commanding him to “Go. Go.” Tr. Vol. II, p. 119.

   Harris fled to safety as two more gunshots rang out. From the parking
lot, he saw Barcroft run, “crouched down” along the building, and then
disappear between two houses across the street. Tr. Vol. II, p. 123. Lisa
Walden, another church volunteer, also witnessed Barcroft flee while
covering her head with the hood of her black sweatshirt. Moments later,
Pastor Jaman emerged from the church, gasping for help as he staggered


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 3 of 17
and then collapsed to the ground. By the time Harris and Walden reached
him, Pastor Jaman had lost consciousness. The twenty-nine-year-old
clergyman died soon after, having suffered a fatal gunshot wound to the
chest.

   When police arrived, a K-9 unit led them to a nearby area overgrown
with vegetation. Barcroft, fully hidden under the brush, lay motionless
despite an officer’s order for her to surrender. On the second command,
when police threatened to shoot, she finally emerged from her hiding
spot. Quiet, calm, and cooperative with the officers, Barcroft relinquished
her weapon and submitted to arrest. “I’m the one you’re looking for,” she
told police. Tr. Vol. II, p. 142.

   With Barcroft in custody, the lead detective informed her of the
investigation and advised her of her Miranda rights. When asked if she
understood these rights, Barcroft responded that she did. She then gave
her statement, without prompting or questioning from the detective. The
long, often unintelligible monologue that followed described a world in
which Pastor Jaman—as part of a larger conspiracy involving drug
smuggling and human trafficking by officials from the highest levels of
the federal government—had plotted to kill her and her family. The
pastor, she insisted, was an agent of the Mexican mafia who intended to
“pick off” her family members “one by one,” leaving her no choice but to
kill him. Defendant’s Ex. A1, p. 9. Still, Barcroft swore that she was “not
some sort of murderer,” noting that she had “actually planned on not
getting caught.” Defendant’s Ex. A at 9:05:28–31, 9:05:36–37.

   The State charged Barcroft with murder and sought a sentencing
enhancement for the use of a firearm. See Ind. Code § 35-42-1-1 (2012)
(murder); Ind. Code § 35-50-2-11 (2012) (sentencing enhancement).
Barcroft invoked the insanity defense and waived her right to a trial by
jury. 1




1The trial court initially found Barcroft incompetent to stand trial but reversed that finding
after evaluations during her commitment determined otherwise.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                       Page 4 of 17
   Three mental-health experts testified at Barcroft’s bench trial: court-
appointed psychiatrist Dr. George Parker, court-appointed psychologist
Dr. Don Olive, and defense psychologist Dr. Stephanie Callaway. All three
experts concluded that Barcroft was legally insane at the time of the
offense and could not appreciate the wrongfulness of her actions. No
expert found evidence of feigning or malingering.

   Several eyewitnesses also testified at trial: the responding officers, the
lead detective, and Harris and Walden. These witnesses—none of whom
knew Barcroft prior to the day of the crime—testified only to the
defendant’s demeanor before, during, and just after the shooting.

   The trial court judge found Barcroft GBMI, 2 sentencing her to fifty-five
years with five years suspended to mental-health probation. While
acknowledging Barcroft’s “complex delusions,” the court ultimately
concluded that she understood the gravity of her crime. Tr. Vol. III, pp.
104, 107. In reaching this decision, the court relied on evidence of
Barcroft’s demeanor: her sophisticated plan to commit the crime, her self-
restraint in waiting for Pastor Jaman at the church, her decision to spare
the life of an eyewitness to the shooting, her later escape and attempt to
hide, her cooperation with police, and her stated intent of avoiding arrest.
The court also found that Barcroft had a “separate and conflicting
motivation” for the crime, a motivation to avoid scrutiny of—and possible
detention for—her mental illness because of Pastor Jaman’s advice to her
son. 3 Id. at 104.




2A verdict of guilty but mentally ill requires an evaluation and treatment of the defendant’s
mental illness during his or her incarceration “in such a manner as is psychiatrically
indicated,” but otherwise imposes the same criminal sentence as a standard conviction of
guilt. Ind. Code § 35-36-2-5(a), (c). By contrast, a verdict of nonresponsibility by reason of
insanity may result in the defendant’s civil commitment if the trial court finds by clear and
convincing evidence that the defendant is mentally ill and either dangerous or gravely
disabled. I.C. § 35-36-2-4.
3This was the second time a court had found Barcroft GBMI. See Barcroft v. State, 26 N.E.3d
641 (Ind. Ct. App. 2015). After her first bench trial, the Court of Appeals reversed and
remanded for a new trial, holding that the admission of Barcroft’s initial request for counsel as
evidence of sanity violated her due process rights. Id. at 646–47.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                       Page 5 of 17
    A divided Court of Appeals reversed. Barcroft v. State, 89 N.E.3d 448,
458 (Ind. Ct. App. 2017), vacated. The majority, relying on this Court’s
decision in Galloway v. State, 938 N.E.2d 669 (Ind. 2010), concluded that—
absent evidence of malingering and because of Barcroft’s history of mental
illness and the unanimous expert opinion—“the demeanor evidence relied
on by the trial court simply had no probative value.” 89 N.E.3d at 457. The
dissent, however, would have affirmed in deference to the factfinder,
concluding that Barcroft’s “demeanor, behavior, and statements before,
during, and immediately after the crime,” supported “a reasonable
inference of sanity.” Id. at 458.

   We granted the State’s petition to transfer, thus vacating the Court of
Appeals opinion. Ind. Appellate Rule 58(A). Additional facts follow in our
discussion below.


Standard of Review
   A factfinder’s determination that “a defendant was not insane at the
time of the offense warrants substantial deference from” an appellate
court. Galloway, 938 N.E.2d at 709. On review, we do not reweigh
evidence, reassess witness credibility, or disturb the factfinder’s
reasonable inferences. Myers v. State, 27 N.E.3d 1069, 1074 (Ind. 2015). We
will instead affirm the trial court’s conviction unless “the evidence is
without conflict and leads only to the conclusion that the defendant was
insane when the crime was committed.” Thompson v. State, 804 N.E.2d
1146, 1149 (Ind. 2004).


Discussion and Decision
   To convict a criminal defendant, the State must prove each element of
the offense beyond a reasonable doubt. Ind. Code § 35-41-4-1(a). But a
defendant may avoid criminal responsibility by invoking the insanity
defense. Myers, 27 N.E.3d at 1075. This plea requires the defendant to
prove by a preponderance of the evidence (1) that she suffers from a
“mental disease or defect” and (2) that the “mental disease or defect”
rendered her unable to appreciate the wrongfulness of her conduct at the


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 6 of 17
time of the offense. 4 I.C. §§ 35-41-4-1(b), 35-41-3-6(a). Proof of mental
illness alone is not enough. Myers, 27 N.E.3d at 1075.

   There is no dispute here that Barcroft suffered from mental illness
when she shot and killed Pastor Jaman. So, the question is whether, at the
time of the shooting, she understood the wrongfulness of her actions.


I. The Evidentiary Dimensions of the Insanity
   Defense
   When a person invokes the insanity defense, all relevant evidence is
admissible, including evidence which a court may otherwise find
inadmissible. 5 Garner v. State, 704 N.E.2d 1011, 1014 (Ind. 1998). Most
defendants attempt to satisfy their evidentiary burden through the
testimony of expert witnesses. Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994).
But in deciding whether a defendant has met this burden, the factfinder
may rely on other probative evidence, including lay opinion testimony
and proof of demeanor. 6 Galloway, 938 N.E.2d at 712.


    A. Expert Testimony
   Opinion testimony from psychiatrists, psychologists, and other mental-
health experts is central to a determination of insanity. Tyler v. State, 250
Ind. 419, 423, 236 N.E.2d 815, 817 (1968). Through examinations,
interviews, and other sources, these experts gather facts from which they




4Prior to 1984, a “mental disease or defect” did “not include an abnormality manifested only
by repeated unlawful or antisocial conduct.” I.C. § 35-41-3-6(b) (1982). The amended law,
which remains in force today, expanded on this definition by describing the term as “a
severely abnormal mental condition that grossly and demonstrably impairs a person’s
perception.” Pub. L. No. 184-1984, § 1(b), 1984 Ind. Acts 1501, 1501 (codified at I.C. § 35-41-3-
6(b) (2018)).
5Evidence is relevant if it tends to make a fact more or less probable than it would be without
the evidence. Ind. Evidence Rule 401.
6Probative evidence is simply evidence that tends to prove or disprove a point of issue.
Black’s Law Dictionary 1397 (10th ed. 2014).



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                        Page 7 of 17
“draw plausible conclusions about the defendant’s mental condition, and
about the effects of any disorder on behavior.” Ake v. Oklahoma, 470 U.S.
68, 80 (1985). At trial, “they offer opinions about how the defendant’s
mental condition might have affected his behavior at the time in
question.” Id. “Unlike lay witnesses, who can merely describe symptoms
they believe might be relevant to the defendant’s mental state,” mental-
health experts “can identify the elusive and often deceptive symptoms of
insanity and tell the jury why their observations are relevant.” Id. (internal
citations and quotations omitted). In short, their goal is to assist
factfinders, “who generally have no training in psychiatric matters, to
make a sensible and educated determination about the mental condition
of the defendant at the time of the offense.” Id. at 81 (internal citations and
quotations omitted).

    Expert opinion provides “a strong justification for raising the insanity
defense.” Cate, 644 N.E.2d at 547. Their testimony, however, is purely
advisory, not conclusive. Id. Indeed, once the expert offers an opinion, “it
is society as a whole, represented by judge or jury, which decides whether a man
with the characteristics described should or should not be held accountable for his
acts.” Hill, 252 Ind. at 617, 251 N.E.2d at 438 (internal quotation marks
omitted). Even when experts are unanimous in their opinion, the
factfinder may discredit their testimony—or disregard it altogether—and
rely instead on other probative evidence from which to infer the
defendant’s sanity. Galloway, 938 N.E.2d at 710. This evidence may include
lay testimony or demeanor evidence.


   B. Lay Testimony

   “Opinion testimony is not the exclusive domain of experts.” McCall v.
State, 273 Ind. 682, 688, 408 N.E.2d 1218, 1222 (1980). Indiana courts have
long admitted lay testimony about a defendant’s sanity. Id. (citing Doe ex
dem. Sutton v. Reagan, 5 Blackf. 217, 218 (1839)). Lay testimony—often from
a family member, acquaintance, or other person with whom the defendant
has interacted—is admissible not because of the witness’s specialized
knowledge but because of his or her particular experience with the
defendant. Id. at 689, 408 N.E.2d at 1222; Galloway, 938 N.E.2d at 712.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018           Page 8 of 17
   Lay testimony is especially useful in identifying a defendant’s
“behavior before, during, and after a crime,” and is often “more indicative
of actual mental health at the time of the crime than mental exams
conducted weeks or months later” by psychiatrists or other mental-health
experts. Thompson, 804 N.E.2d at 1149. Ultimately, a factfinder need not
“give more weight to the testimony of medical experts than to that of non-
expert witnesses who state facts within their own knowledge.” Sanders v.
State, 94 Ind. 147, 149 (Ind. 1884). And it “is not for the court to pronounce
as a matter of law which of the two classes of witnesses shall receive the
greater weight. That is a question for the jury,” id., or, in this case, the
judge sitting as factfinder. A conviction may stand based solely on lay
testimony, even in the presence of conflicting expert opinion. Barany v.
State, 658 N.E.2d 60, 63 (Ind. 1995).


    C. Demeanor Evidence
   Indiana’s test for insanity is a “purely cognitive” one, as it looks only to
“what the defendant was thinking and whether he or she could appreciate
the wrongfulness of his or her conduct.” 7 Galloway, 938 N.E.2d at 714. But
a factfinder may rely on circumstantial evidence of a defendant’s actions
and statements before, during, and after the crime to infer his or her
mental state. Wayne R. LaFave, 1 Substantive Criminal Law § 8.3(b) (3d
ed. 2017). And demeanor evidence may sufficiently prove a defendant’s
sanity, even when expert and lay witnesses conclude otherwise. Galloway,
938 N.E.2d at 712.




7 The State’s former “irresistible impulse” test, by contrast, included a volitional factor, which
considered whether the defendant could “conform his conduct to the requirements of law.”
I.C. § 35-41-3-6(a) (1982), repealed by Pub. L. No. 184-1984, § 1, 1984 Ind. Acts at 1501. Because
of this volitional component, demeanor evidence—whether in negating an insanity defense or
in supporting it—carried more probative value than under the modern cognitive test. See
Galloway, 938 N.E.2d at 714. By removing the volitional factor, the new law no longer excused
those mentally-ill defendants who understood that it was “wrong to inflict bodily harm upon
another person,” but who, “owing to a mental derangement,” were “incapable of controlling
the impulse to commit such an act.” See Hill v. State, 252 Ind. 601, 607, 251 N.E.2d 429, 433
(1969). In effect, the amendment significantly narrowed the substantive test for insanity.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                        Page 9 of 17
    As with lay testimony, evidence of demeanor is useful in identifying
the defendant’s mental health before, during, and after the crime. Id.
Demeanor evidence is also helpful in determining whether the defendant
is feigning mental illness. Id. But even with no apparent deception, this
evidence may still be appropriate. Id. at 713 (citing Barany, 658 N.E.2d at
64).


II. Weighing the Totality of the Evidence
   Barcroft contends that it was contrary to law for the trial court to find
her GBMI. In support of her argument, she points to (1) the unanimous
agreement among the experts, (2) the lack of lay testimony, and (3) the
lack of demeanor evidence sufficiently probative to show sanity. Her
actions, she insists, “were motivated completely by her complex
delusion,” not by any threat Pastor Jaman may have posed in counseling
her son. Appellant’s Br. at 31.

   The State, on the other hand, argues that Barcroft’s conviction rests
firmly on probative demeanor evidence reflecting her appreciation of the
crime at the time of its commission. In urging us to affirm the trial court,
the State also points to flaws or contradictions in the experts’ opinion
testimony.

   For the reasons below, the State’s argument prevails.


    A. Ample demeanor evidence supports the trial court’s
       rejection of Barcroft’s insanity defense.
   Barcroft argues that Galloway dictates the outcome of this case. There,
the trial court rendered a GBMI verdict despite unanimity among the
experts that the defendant was insane. Galloway, 938 N.E.2d at 703. This
Court reversed, concluding that the defendant’s conduct on the day of the
crime—shopping, eating, refueling his car, and cooperating with police—
was “simply neutral and not probative of sanity” given the defendant’s
long history of mental illness. Id. at 715. In short, this Court, over the
strong dissent of Chief Justice Shepard joined by Justice Dickson, found



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 10 of 17
“very little evidence” of the defendant’s demeanor during the crime to
support the trial court’s conviction. Id.

   Here, by contrast, we find ample demeanor evidence—before, during,
and after the crime—to support the trial court’s rejection of Barcroft’s
insanity defense. 8

   First, Barcroft exhibited deliberate, premeditated conduct in the weeks
and days leading up to the crime: She asked another member of the
church when Pastor Jaman planned to return from a mission trip. She
purchased a handgun and waited for a permit. She prepared goodbye
letters to members of her family. She packed several rounds of
ammunition, a pair of binoculars, and other personal items in her
backpack. And she planned to confront the pastor during the early
morning hours, before the day’s activities had started and to avoid
potential witnesses. Barcroft’s choice of clothing—black pants and a black,
hooded sweatshirt—likewise show a calculated attempt to evade
detection or to obscure her identity. See Cate, 644 N.E.2d at 548 (evidence
showing defendant’s “deliberation in accomplishing the killing”
supported the factfinder’s rejection of insanity defense).

   Barcroft’s actions during and right after the shooting also suggest a
consciousness of guilt. As she spoke with Harris outside the church, she
kept her handgun—a .22 caliber pistol—concealed in her front pocket. See
Jones v. State, 825 N.E.2d 926, 930–31 (Ind. Ct. App. 2005) (finding that
defendant’s attempt to silence a gun used in shooting so that his
“neighbors wouldn’t hear it” supported the jury’s rejection of the insanity
defense), trans. denied. Even more revealing was her decision to spare
Harris’s life. Expert testimony suggested that this conduct reflected




8We acknowledge that evidence of the defendant’s demeanor during the crime may have
greater probative value than such evidence before and after the crime. See Galloway, 938
N.E.2d at 714. But neither Galloway nor any other decision from this Court has imposed strict
temporal limitations on the utility of this evidence. And as the Galloway Court recognized,
demeanor evidence “‘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
712 (emphasis added) (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2010)).



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                    Page 11 of 17
Barcroft’s delusional state, the inference being that a sane person would
have shot the eyewitness to avoid criminal implication. But a factfinder
could have reasonably come to the opposite conclusion: that Barcroft’s
decision not to shoot showed an understanding that killing is wrong. See
Carson v. State, 807 N.E.2d 155, 160–61, 163 n.3 (Ind. Ct. App. 2004)
(concluding that, just after the attempted murder, defendant’s statement
to eyewitness that “they had to leave” suggested sanity).

   Cloaked by the hood of her sweatshirt, Barcroft then fled from the
crime scene and attempted to hide, taking great pains to conceal herself
under the foliage of an overgrown lot. She lay motionless in her hiding
spot even as police ordered her to surrender, emerging only when an
officer threatened to shoot. See Myers, 27 N.E.3d at 1077 (fleeing, hiding,
and refusing to comply with police orders is probative of defendant’s
sanity).

   Finally, when the detective asked whether Barcroft understood that she
“ha[d] to be arrested” for her crime, she replied that she had “actually
planned on not getting caught.” This comment implies a consciousness of
guilt. See Lawson v. State, 966 N.E.2d 1273, 1281 (Ind. Ct. App. 2012)
(concluding that defendant’s concern with going to jail if anyone
discovered her crime was sufficiently probative of sanity), trans. denied.

   We thus find the demeanor evidence more than sufficient to support
the trial court’s rejection of Barcroft’s insanity defense. Cf. Galloway, 938
N.E.2d at 715 (finding “very little evidence” of the defendant’s demeanor
during the crime to support the trial court’s conviction).


    B. Issues in the experts’ opinion testimony likewise
       support the trial court’s rejection of Barcroft’s insanity
       defense.
  Barcroft acknowledges that a factfinder may disregard or discredit the
opinion testimony of a mental health expert. Still, she insists that the trial
court, “by unreasonably disregarding the experts’ unanimous
conclusions,” failed to properly consider the legislative intent behind
Indiana Code section 35-36-2-2, the statute requiring court-appointed


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018       Page 12 of 17
experts in cases involving the insanity defense. Appellant’s Br. at 47–49.
This requirement, Barcroft contends, “speaks to the value our society
places on verdicts being informed by the science of mental health.” Id. at
48.

   We agree that mental-health experts play an important role in cases
involving the insanity defense. See supra Section I.A. But we refuse to
elevate the value of expert opinion over other forms of probative
evidence, as Barcroft would have us do. See Thompson, 804 N.E.2d at 1149;
Galloway, 938 N.E.2d at 710.

   Barcroft also overlooks another important reason for the statutory
requirement: avoiding the so-called “battle of the experts.” LaFave, 1
Substantive Criminal Law § 8.2(c). A court-appointed expert introduces an
element of neutrality to the trial proceedings, countering the inherent bias
of opinion testimony from experts retained by the opposing parties. Id. See
also I.C. § 35-36-2-2 (the court shall appoint two or three “competent
disinterested” mental-health experts) (emphasis added).

   Even with the benefit of this statutory protection, psychiatry and
psychology are imprecise sciences, and experts in these fields “disagree
widely and frequently on what constitutes mental illness” and “on the
appropriate diagnosis to be attached to given behavior and symptoms.”
Ake, 470 U.S. at 81. While each of the experts here ultimately agreed on
Barcroft’s insanity, their underlying diagnoses varied: Drs. Callaway and
Olive diagnosed Barcroft with paranoid type schizophrenia. Dr. Parker,
on the other hand, diagnosed her with delusional order of the persecutory
type. And while Dr. Calloway observed signs of disorganized thought
and behavior in Barcroft, Dr. Parker specifically premised his diagnosis on
the absence of these symptoms. These conflicting diagnoses could have
reasonably deprived the expert opinions of credibility in the eyes of the
trial court. See Satterfield v. State, 33 N.E.3d 344, 349–51 (Ind. 2015)
(conflicting diagnoses may support an inference of sanity); Lawson, 966
N.E.2d at 1281 (factfinder may consider discrepancies in expert opinion
when rejecting the insanity defense).

  The lapse in time between Barcroft’s commission of the crime and the
experts’ mental-health examinations likewise could have discredited their


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018    Page 13 of 17
opinion testimony. See Thompson, 804 N.E.2d at 1149. Dr. Parker first met
with Barcroft on September 18, 2012—four months after the crime had
taken place. And Dr. Olive’s examination took place even later, on
October 2. Dr. Calloway examined Barcroft on July 20, much closer in time
to the offense than the court-appointed experts. But even then, Dr.
Calloway testified that Barcroft’s mental health had deteriorated by the
time they first met for the assessment.

   Other issues with the experts’ analysis could have reasonably led the
trial court to refute the probative value of their opinion. For example, in
preparing her report, Dr. Calloway failed to review psychiatric
evaluations prepared at the time of Barcroft’s arrest. The defense
psychologist also admitted to not having reviewed Barcroft’s statement to
the detective before issuing her report and only later reviewing portions
of the videotaped statement. Dr. Calloway also reviewed the eyewitness
statements from Harris and Walden only in part and had no discussions
with the officers present at the scene to corroborate evidence of Barcroft’s
demeanor. And yet despite these omissions in her analysis, Dr. Calloway
acknowledged that demeanor evidence from the day of the crime is the
“most reliable” evidence in determining a defendant’s mental state. Tr.
Vol. II, pp. 230–31.

   Dr. Olive, for his part, appears to have conducted a thorough review of
the records in preparing his report. He examined Barcroft’s videotaped
statement to the detective, the probable-cause affidavit, medical records
from the Marion County Jail, and other material. But at trial, the court-
appointed psychologist admitted his interview with Barcroft “was
somewhat abridged” as she “did not wish to provide the type of detailed
information that [he] would’ve liked at the time.” Id. at 246. As a result, he
acknowledged, “a large part, perhaps a disproportionate part,” of his
evaluation “consisted of the other sources of data.” Id. at 248. Dr. Olive
also noted that Barcroft, when asked whether she understood the
wrongfulness of her conduct at the time of the offense, “didn’t directly
answer that to [his] satisfaction.” Tr. Vol. III, p. 3.

  As with Dr. Olive, Barcroft also declined to answer questions from Dr.
Parker related to the events that took place on the day of the shooting. Dr.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018      Page 14 of 17
Parker admitted to having reviewed only the probable-cause affidavit and
Barcroft’s interview with the detective, the former source containing no
evidence of Barcroft’s demeanor on the day of the crime. The court-
appointed psychiatrist likewise failed to review the statement from Harris,
the principal eyewitness to the shooting, to corroborate Barcroft’s
demeanor. Without this corroboration, the trial court could have placed
greater weight on circumstantial evidence of Barcroft’s actions at the time
of the shooting. See Johnson v. State, 255 Ind. 324, 328, 264 N.E.2d 57, 60
(1970) (the factfinder may “take into consideration other facts which the
psychiatrists did not consider”).

   Portions of the expert testimony could have also validated the trial
court’s finding that Barcroft had a motive for the crime. As Dr. Calloway
attested, Barcroft knew that her son was acting on Pastor Jaman’s advice
when he asked her to leave the home and seek medical treatment. Barcroft
saw this as an attempt to “brainwash the kids and the family,” the doctor
opined. Tr. Vol. II, p. 220. This testimony corroborates statements Barcroft
made to police immediately following her arrest. As she explained to the
detective, the pastor had infected the head of her son, who “believes every
word Jaman says.” Defendant’s Ex. A at 8:47:30–37.

     To be sure, Dr. Calloway attributed Barcroft’s retaliatory motivation to
her psychotic and delusional behavior. But the defense psychologist also
acknowledged that, “even if people have delusions, they can also have a
. . . logical reason for the behavior.” Tr. Vol. II, p. 220. The other two
experts made similar concessions. Dr. Olive admitted that Pastor Jaman’s
advice to Barcroft’s son could have been a motivating factor for the
shooting. And Dr. Parker, the court-appointed psychologist, admitted that
a person’s delusions “can coexist with the ability to make some rational
decisions.” Tr. Vol. III, p. 55. According to him, Barcroft “is able to
function at some level, despite living in a delusional world.” Id. at 56. It
was “possibl[e],” he admitted, for Barcroft’s anger toward Pastor Jaman to
have been a rational response to his interference with her family. Id. at 56–
57.

  Taken together, the flaws, inconsistencies, and concessions in the
experts’ opinion testimony also support the trial court’s rejection of



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 15 of 17
Barcroft’s insanity defense. 9 See Fernbach v. State, 954 N.E.2d 1080, 1085
(Ind. Ct. App. 2011), trans. denied.


    C. Barcroft’s history of mental illness provides little
       support for her insanity defense.
   Finally, Barcroft argues that evidence of her demeanor at the time of the
shooting is neutral and lacks probative value considering her long history
of mental illness. We find little support for this argument.

    Nothing in the record shows that Barcroft had ever been formally
diagnosed with schizophrenia, delusional disorder, or other acute mental
illness before her arrest and later evaluations. Her medical records show
periodic psychiatric assessments on an outpatient basis between 2004 and
2010. During that time, doctors diagnosed her only with ADHD,
describing her behavior as “agitated, irritable, and tangential.” Court’s Ex.
A. p. 3. And doctors also characterized her as “grandiose with dissociative
episodes.” Id. But even then, they questioned whether she was in fact
delusional. Psychiatric notes from a 2007 evaluation described Barcroft as
“very paranoid with questionable schizophrenia” and with a “questionable
history of ADHD.” Id. (emphasis added). And without a formal diagnosis,
doctors released her for failing to meet the standards for involuntary
hospitalization.

   Barcroft’s statements during her initial psychiatric appraisal at the
Marion County Jail, and during her evaluations with the experts,
corroborate this history. She has consistently acknowledged her past
symptoms of depression, diagnosis of and treatment for ADHD, and
mental-health evaluations on an outpatient basis. She has also consistently
denied experiencing symptoms of psychosis, insisting that there was
“never any sign of mental illness.” Court’s Ex. B at 2. These statements
suggest an awareness of her psychiatric history and tend to support her



9While emphasizing the experts’ unanimity that Barcroft was legally insane at the time of the
offense, the dissent does not address the weaknesses in their testimony as a factor supporting
the trial court’s findings.



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018                    Page 16 of 17
claim that she “was of sound mind” at the time of the shooting. Court Ex.
A at 7.

   The lack of a well-documented history of mental illness—whether
schizophrenia or other acute psychiatric disorder—does not necessarily
preclude a finding of insanity. But “the lack of such history is a
circumstance that a fact-finder may consider in evaluating an insanity
defense.” Lawson, 966 N.E.2d at 1282.


Conclusion
   In sum, we hold that evidence of Barcroft’s demeanor—taken together
with the flaws in the expert opinion testimony and the absence of a well-
documented history of mental illness—was sufficient to support an
inference of sanity. Although some evidence could have led to a contrary
finding, we cannot say that 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 710 (internal quotation marks
omitted).

   Affirmed.



   Rush, C.J., and David, J., concur.

   Goff, J., dissents with separate opinion in which Slaughter, J.,
joins.




Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018    Page 17 of 17
Goff, J., dissenting.

   As our legislature has recognized, when mental illness renders a person
incapable of distinguishing right from wrong, the law excuses her would-
be criminal conduct. This notion is foundational to our criminal justice
system.

   This case invokes that bedrock principle by presenting a simple
question: was there sufficient demeanor evidence that Lori Barcroft was
sane to create a conflict with three unanimous expert opinions that she
was not. All three experts testified that Lori Barcroft could not appreciate
the wrongfulness of her conduct the moment she shot Pastor Iseminger.
But the trial court, and now the majority, rejected that unanimous expert
opinion evidence in favor of dubious, non-probative demeanor evidence.
In so doing, the Court today retreats from the stand we took in Galloway,
where we said: “Thus, as a general rule, demeanor evidence must be
considered as a whole, in relation to all the other evidence. To allow
otherwise would give carte blanche to the trier of fact and make appellate
review virtually impossible.” Galloway v. State, 938 N.E.2d 699, 714 (Ind.
2010).

    There is no doubt that Barcroft’s conduct resulted in the senseless
death of a beloved community leader. But she engaged in that conduct
while suffering from complex delusions which, in the unanimous opinion
of three mental health experts, rendered her incapable of distinguishing
right from wrong. Unlike the majority, I would hold that the demeanor
evidence—when considered in light of all other evidence, particularly the
copious evidence of her chronic mental illness—is wholly consistent with
the experts’ unanimous conclusions that Barcroft was legally insane when
she shot and killed Pastor Iseminger. For this reason, I respectfully dissent
from the Court’s judgment affirming her conviction and sentence.
I. Indiana law distinguishes the insanity defense
   from other statutory defenses by requiring expert
   opinion evidence.
   Indiana law will not punish people who are not culpable for their
crimes, Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994)—including those who
cannot appreciate the wrongfulness of their conduct. The Indiana Code,
culling from the centuries-old common law, has set the insanity defense
apart from other criminal defenses. It is the one defense where the trial
court must appoint “two (2) or three (3) competent disinterested
psychiatrists, psychologists . . . , or physicians” who then must “examine
the defendant and testify at the trial.” Ind. Code § 35-36-2-2(b) (2008
Repl.). The legislature even specifies when the experts are to testify at
trial—after the State’s and defense’s cases-in-chief. Id. And since our 2010
Galloway opinion, the legislature amended that section, adding the
requirement that court-appointed psychiatrists, psychologists, or
physicians “have expertise in determining insanity.” I.C. § 35-36-2-2(c)
(2018). See also Pub.L. 54–2014, § 1, 2014 Ind. Acts 524. Clearly, Indiana
places great importance on expert opinion evidence when a defendant
invokes an insanity defense.


 II. Our Galloway opinion explained both the limited
     value of demeanor evidence and how to measure
     its sufficiency to support rejection of unanimous
     expert opinion evidence of insanity.
   Our Galloway opinion reinforced the importance of expert opinion
evidence without abdicating the factfinder’s role as final arbiter of the
defendant’s sanity. Recalling Indiana’s settled, cautionary rule that experts
do not provide the final word in sanity determinations, we explained that
expert opinion “assist[s] the trier of fact in determining the defendant’s
insanity” and therefore is “merely advisory, and even unanimous expert
testimony is not conclusive on the issue of sanity.” Galloway, 938 N.E.2d at
709. Yet we also recognized the significant role experts play in these



Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 2 of 10
decisions, effectively making unanimous expert opinions that a defendant
could not appreciate the wrongfulness of her conduct a rebuttable
presumption of insanity. Indeed, we instructed: “Where there is no
conflict among the expert opinions that the defendant was insane at the
time of the offense, there must be other evidence of probative value from
which a conflicting inference of sanity can be drawn.” Id. at 712.

   Galloway’s significance cannot be understated. Following a string of
decisions where this Court held the defendant was sane despite
nonconflicting expert testimony that he was insane, Galloway returned the
insanity defense to solid jurisprudential ground. See id. at 709–10. It
provides guidance to bench and bar for evaluating a defendant’s insanity
defense at the trial and appellate levels when the experts agree that the
defendant was insane when she committed the offense. The case instructs
that to disregard unanimous expert opinions, there must be other
probative evidence (either lay opinion testimony or demeanor evidence)
that conflicts with those expert opinions. With this direction, Galloway
provided an inflection point for the insanity defense generally and the
demeanor-evidence evaluation specifically.

   Under Galloway, demeanor evidence still represents the defendant’s
conduct before, during, and after the offense—what she did. Yet,
“[d]emeanor evidence requires the trier of fact to infer what the defendant
was thinking based on his or her conduct.” Id. at 713.

   Galloway observed there are two ways to use demeanor evidence in
evaluating a defendant’s sanity. First, “[d]emeanor [evidence] is useful
because a defendant’s ‘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 712 (second
alteration in original) (citation omitted). Second, “[d]emeanor evidence
may be most useful where there is some indication that the defendant is
feigning mental illness and insanity.” Id.

   But just as Galloway recognized the utility of demeanor evidence, we
also discussed its four limitations. First, demeanor evidence’s value is
limited when a defendant has a long history of mental illness marked by
psychosis because it is difficult to parse what is normal or abnormal


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018    Page 3 of 10
behavior for that defendant. Id. at 713. Second, its value is limited because
it can be used only to discern what the defendant was thinking at the time
of the offense. Id. at 714. Indeed, Galloway explained that demeanor
evidence had more probative value when Indiana’s insanity defense
included a volitional (irresistible impulse) component that emphasized
what the defendant did. Id. Third, demeanor evidence is most valuable
when limited to the defendant’s demeanor during the crime. Id. (stating
“demeanor evidence before and after a crime is of more limited value than
the defendant’s demeanor during the crime”). Fourth, demeanor evidence
cannot be considered in isolation, but “must be considered as a whole, in
relation to all the other evidence.” Id.

   Recognizing these limitations, Galloway considered whether there was
sufficient demeanor evidence to undermine the unanimous expert
opinions that the defendant was legally insane when he murdered his
grandmother. Id. at 714–16. The Court said no, employing a test I would
apply here to reach the same conclusion: “[W]hen viewed against the
defendant’s long history of mental illness . . . the defendant’s demeanor
during the crime . . . and the absence of any suggestions of feigning or
malingering, this demeanor evidence is simply neutral and not probative
of sanity.” Id. at 715.


III. There is insufficient demeanor evidence to
     support the trial court’s rejection of Barcroft’s
     insanity defense.
   This case, like Galloway, turns upon whether there was sufficient
demeanor evidence to establish a conflict with the experts’ opinions that
Barcroft was insane when she shot Pastor Iseminger. I would follow
Galloway’s approach and find the demeanor evidence provided was
insufficient to create such a conflict.

  Here the record shows all experts testified Barcroft suffered under
complex delusions. Dr. Callaway stated: “I’ve seen a handful of situations
where the psychotic delusions are that complex. But she is . . . one of the
more complex systems that I’ve ever seen.” Tr. Vol. II, p. 188, lines 23–25.


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 4 of 10
Dr. Olive testified that Barcroft suffered from “paranoid delusions, and . . .
grandiose delusions.” Id. at 249, lines 6–7. Dr. Parker agreed:


      Well, you . . . have to understand that her behaviors are 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 the
      Columbian [sic] 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.


Tr. Vol. III, pp. 46–47. Each expert went on to testify that these delusions
prevented Barcroft from appreciating that it was wrong to shoot Pastor
Iseminger. Tr. Vol. II, p. 185, lines 22–24, p. 249, lines 4–8; Tr. Vol. III, pp.
21–22.


   A. The record provides scant demeanor evidence.
   By contrast to these unanimous expert opinions, there is very little
demeanor evidence here, very little of what Barcroft did during the crime
that opens the window to what she was thinking, as the State astutely
acknowledged at oral argument, explaining:

      Here the . . . evidence that we’re mostly talking about as
      demeanor evidence isn’t necessarily demeanor evidence, it’s
      actually evidence of the crime. It’s evidence of what she did,
      which is a little different than demeanor. The demeanor
      evidence typically is what you say and how you communicate
      with other people, how you’re presenting yourself . . . .


Oral Argument at 21:57–22:14. But the majority doesn’t heed the State’s
warning and broadens demeanor evidence to include what Barcroft did
weeks before and hours after the murder. So, what exactly was the actual
demeanor evidence here?


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018           Page 5 of 10
   One witness testified that Lori Barcroft—clad in all black—asked if
Pastor Iseminger was in the church. After that witness led her into the
building, she calmly shot the pastor and then looked at the witness and
told him, “Go. Go.”, before she shot the pastor again. This is the only
evidence of what Barcroft did during the crime, and it doesn’t provide
much insight into what she was thinking. It certainly doesn’t show that
she appreciated the wrongfulness of her conduct at that moment.

  When compared to the unanimous expert opinions, this scant
demeanor evidence here appears even thinner.


   B. The scant demeanor evidence provided is of little value.
    Recall, under Galloway, demeanor evidence’s utility increases when
there is evidence that the defendant is feigning mental illness and
decreases when the defendant actually suffers a long history of psychotic
mental illness. The demeanor evidence here provides little value because
there was no indication that Barcroft feigned or malingered her
longstanding and well-documented mental illness. Tr. Vol. II, pp. 204–05;
Tr. Vol. III, pp. 12, 41–43. Further, unlike the majority, I find that the
record contains ample evidence that Barcroft suffered a long history of
mental illness.

   Barcroft long suffered from paranoid delusions and seemingly
everyone in her life, including the victim of her crime, thought she needed
professional medical care for her mental illness. Although the majority
notes that she received periodic psychiatric assessments between 2004 and
2010, see Slip Op., p. 16, it omits the fact that she received “outpatient
treatment in Florida, at St. Vincent from 1996 to 1999, and Midtown since
2000.” Court’s Ex. B, p. 2. The majority fails to note that Barcroft took
stimulant medication to treat attention deficit hyperactivity disorder
beginning in 1997 until mid-2003. Id. In 2005, after disclosing delusions to
her therapist, she “started on Neurontin, a mood-stabilizing medication.”
Id. at 3. The last page in her record from Midtown, where she was treated
between 2000 and 2008, is a note saying her parents appeared in person to
request an emergency detention order, fearing for their daughter’s safety.
Id. Barcroft also received in-patient services at Halifax Medical Center


Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018     Page 6 of 10
between November 4 and 7, 2011. But she did not meet the criteria for
involuntary hospitalization. Court’s Ex. A, p. 5. The majority also leaves
out the fact that Barcroft “reported a history of depression, bipolar
disorder, and alcohol abuse in her father,” id. at 6, which is at least as
relevant as the fact that she grew up in a home free of abuse, see Slip Op.,
p. 2.

   Everyone in Barcroft’s life thought she had a mental illness and needed
professional help. Her mother indicated to a doctor that “Ms. Barcroft
experienced significant deterioration in her mental status when she
moved to Florida with her husband as of approximately 2000.” Court’s Ex.
A, p. 4. Barcroft’s son indicated that his mother experienced significant
deterioration in her mental health in approximately 2007. Id. Most notably
around that time, she “was seeing messages on the refrigerator, and was
obsessed with the color of cars.” Id. According to the majority, the Pastor
at her church, the ultimate victim in this case, “believed Barcroft needed
prayers and hospitalization.” Slip Op., p. 3.

   The facts paint a clear picture of Barcroft as someone in denial of her
mental illness and who did not meet the legal requirements for
involuntary commitment. But she had been in and out of treatment and on
and off different medications for roughly 15 years at the time of her
offense, and every person in her life believed she needed professional
help. This compelling evidence of Barcroft’s chronic mental illness further
devalues the demeanor evidence the majority relies upon.

   Strict adherence to Galloway demands that we view the demeanor
evidence through the lens of Barcroft’s mental illness. Galloway, 938
N.E.2d at 715 (viewing demeanor evidence “against the defendant’s long
history of mental illness with psychotic episodes”). To be sure, neither
trial nor appellate courts may isolate the demeanor evidence from the
record evidence of mental illness. Id. at 714 (“[D]emeanor evidence must
be considered as a whole, in relation to all the other evidence.”). And so,
considering the demeanor evidence as a whole with all the evidence of her
complex delusions, her mental illness, and the unanimous expert opinions,
I would hold that this neutral, non-probative demeanor evidence does not




Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018      Page 7 of 10
create a conflict with the experts’ opinions that Lori Barcroft was insane at
the time of the shooting.


   C. The scant demeanor evidence provided also supports a
      determination that Barcroft was insane.
   Even if I could expand what Galloway says constitutes useful, probative
demeanor evidence—as the majority does here—by considering Barcroft’s
planning, preparation, her clothing, hiding her gun, sparing Harris’s life,
and fleeing from police, I still cannot agree that this “evidence [is] more
than sufficient to support the trial court’s rejection of Barcroft’s insanity
defense.” Slip op., p. 12. The majority’s wide collection of demeanor
evidence fits too well into Barcroft’s complex delusions to create a conflict
with the expert opinions that she was insane. In other words, the
demeanor evidence the majority cites is neutral at best because it points
just as fairly to insanity as it does to sanity for this particular defendant.

   And unlike the majority, I’m hesitant to count Barcroft’s flight from
police as probative demeanor evidence. My hesitation is threefold. First, it
is difficult, if not impossible, to separate Barcroft’s behavior from her
complex delusions that she was a Colombian mafiosa trying to settle a
drug feud, avenge her father’s death, and protect her family. Second,
Galloway cautioned that evidence of flight is not valuable evidence of
sanity since the opposite (staying and waiting for police) can also suggest
sanity. See 938 N.E.2d at 714 (comparing cases). Third, I believe Galloway
signals courts to elevate what the defendant did during the crime over
what she did afterwards. Id. at 714.

   Accordingly, whether applying Galloway’s measured evaluation of
demeanor evidence or the majority’s expanded approach, I would reverse
the trial court’s guilty-but-mentally-ill verdict and remand with
instructions for the trial court to enter a not-responsible-by-reason-of-
insanity verdict.




Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018       Page 8 of 10
Conclusion
   Indiana’s insanity defense stands apart from other criminal defenses,
and rightly so. It would be unjust to punish a person suffering from a
mental disease or defect that prevented her from appreciating the
wrongfulness of her conduct. And so Indiana law requires that mental
health experts aid factfinders in sanity determinations. While judges and
juries sit as the final authorities on a defendant’s sanity, our Galloway
opinion instructs that their authority cannot, and should not, go
unchecked. In my view, the majority loosens Galloway’s limitations on
demeanor evidence and thereby erodes Indiana’s insanity defense. I
respectfully dissent.


Slaughter, J., joins.




Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018    Page 9 of 10
ATTORNEYS FOR APPELLANT
Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana



ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Stephen R. Creason
Larry D. Allen
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-135 | December 3, 2018   Page 10 of 10
