      MEMORANDUM DECISION
                                                                        Nov 12 2015, 8:41 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                  Gregory F. Zoeller
      Marion County Public Defender                          Attorney General of Indiana
      Appellate Division
                                                             Angela N. Sanchez
      Indianapolis, Indiana
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Nathan Robinson,                                           November 12, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1504-CR-217

              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Barbara C.
                                                                 Crawford, Judge
      Appellee-Plaintiff.
                                                                 Trial Court Cause No. 49F09-1405-
                                                                 FD-22785




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Defendant Nathan Robinson kicked in the door of the house

      occupied by Marty Nealy, who was alone at the time. Robinson pointed a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-217 | November 12, 2015   Page 1 of 6
      firearm at Marty and asked where Sebastian Jones (Marty’s great-nephew) was.

      Robinson looked in Jones’s bedroom for him and then left. The State charged

      Robinson with Class D felony residential entry, Class A misdemeanor pointing

      a firearm, Class A misdemeanor carrying a firearm without a license, and Class

      B misdemeanor criminal mischief. A jury found Robinson guilty as charged,

      and the trial court entered judgment of conviction for all four counts. The trial

      court imposed sentences for all four convictions, with Robinson receiving a

      one-year aggregate sentence with 355 days suspended to probation. Robinson

      contends that the trial court abused its discretion in declining to admit evidence

      regarding Marty’s mental health and that his convictions for residential entry

      and criminal mischief violate prohibitions against double jeopardy. We affirm

      in part and remand with instructions to vacate Robinson’s conviction for

      criminal mischief.



                            Facts and Procedural History
[2]   In April of 2013, brothers Mark and Marty Nealy lived in an Indianapolis home

      with two of their great-nephews, one of whom is Sebastian Jones. On the

      afternoon of April 15, 2013, Robinson came to visit Jones; the duo smoked

      marijuana in Jones’s bedroom before going outside to meet one of Jones’s

      friends in order to purchase more marijuana. According to Robinson, he ended

      up in the friend’s truck as the friend grabbed Robinson’s money and attempted

      to drive off. At some point, either Jones or the friend struck Robinson on the




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      head and pushed him out of the truck. Robinson received three staples for a cut

      over his left ear.


[3]   Later that evening, Marty was home alone when he heard someone banging on

      the door. As Marty ran downstairs, Robinson kicked in the front door.

      Robinson pointed a firearm at Marty and demanded to know where Jones was.

      Marty told Robinson that Jones was not home, but Robinson went to Jones’s

      bedroom anyway. Robinson left after being unable to find Jones.


[4]   On May 7, 2014, the State charged Robinson with Class D felony residential

      entry, Class A misdemeanor pointing a firearm, Class A misdemeanor carrying

      a firearm without a license, and Class B misdemeanor criminal mischief. At

      trial on February 4, 2015, Robinson sought to introduce evidence from Mark

      and Marty about Marty’s mental health. In an offer of proof, Robinson elicited

      testimony from Mark that Mark believed Marty had been diagnosed with

      schizophrenia in his twenties but did not know how such a diagnosis would

      have been made. Mark testified that his parents told him that they committed

      Marty after his divorce and suspected he was a schizophrenic but that the

      diagnosis was “not a confirmed thing[.]” Tr. p. 61. The trial court ruled the

      proffered evidence inadmissible.


[5]   Defendant also made an offer of proof of Marty’s testimony regarding his

      alleged mental health issues. Marty denied that he had ever been diagnosed

      with a mental illness or taken medicine for one. Marty admitted that he had

      been committed around the age of forty, but said that his “dad pulled that stuff


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      on me.” Tr. pp. 99-100. When asked if he sometimes heard voices that were

      not there, Marty answered, “No. I mean, I hear (inaudible) thinking, pushing,

      you know, stuff in me, whatever you want to call it” and “It’s, you know,

      pushing all the stuff in your mind.” Tr. p. 101. The trial court reiterated its

      earlier ruling on the evidence.


[6]   A jury convicted Robinson as charged. On March 19, 2015, the trial court

      sentenced Robinson to one year each for residential entry, pointing a firearm,

      and carrying a handgun without a license and 180 days for criminal mischief.

      The trial court ordered that all four sentences were to be served concurrently

      and suspended 355 days to probation.



                                Discussion and Decision
                                  I. Admission of Evidence
[7]   Robinson contends that the trial court abused its discretion in refusing to allow

      him to present evidence regarding Marty’s alleged mental illness. We will only

      reverse a trial court’s decision on the admissibility of evidence upon a showing

      of an abuse of that discretion. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App.

      2002). An abuse of discretion may occur if the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court, or if

      the court has misinterpreted the law. Id. The Court of Appeals may affirm the

      trial court’s ruling if it is sustainable on any legal basis in the record, even

      though it was not the reason enunciated by the trial court. Moore v. State, 839

      N.E.2d 178, 182 (Ind. Ct. App. 2005). We do not reweigh the evidence and
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      consider the evidence most favorable to the trial court’s ruling. Hirsey v. State,

      852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006).


[8]   We conclude that the trial court did not abuse its discretion by declining to

      admit the evidence in question. The trial court, who makes all findings of facts

      relevant to admissibility of evidence pursuant to Indiana Evidence Rule 104(a),

      heard conflicting and vague evidence regarding whether Marty had ever been

      diagnosed with schizophrenia, or any other mental illness, with Mark testifying

      that his parents told him Marty had been and Marty denying it. While Marty

      did concede that he had been committed at one point, he indicated that his

      father “pulled” it on him, implying that it was not warranted. Tr. p. 100. The

      trial court was in the best position to evaluate this conflicting evidence.


[9]   Moreover, Robinson failed to establish that evidence of Marty’s alleged mental

      illness, even assuming that it is true, was relevant. It is true that “[t]he

      credibility of a witness may be attacked by showing a defect of capacity in the

      witness to observe, remember or recount the matters testified about.” Lusher v.

      State, 390 N.E.2d 702, 704 (Ind. Ct. App. 1979). However, information about a

      witness’s mental state is relevant only when it is shown to impact the ability to

      recall or perceive the events in question or relate them at trial. See, e.g., Williams

      v. State, 681 N.E.2d 195, 199 (Ind. 1997) (trial court did not abuse its discretion

      in refusing to admit testimony about witness’s prior drug use when there was no

      evidence of drug use at trial or at the time of the events related). Here, to the

      extent that Marty suffered from mental illness that may have affected his ability

      to recall events in general, there was no evidence presented that he was

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       experiencing such symptoms on April 15, 2013, or at trial. We conclude that

       the trial court did not abuse its discretion in refusing to allow Robinson to

       present evidence of Marty’s alleged mental illness.


           II. Whether Two of Robinson’s Convictions Violate
                 Prohibitions Against Double Jeopardy
[10]   Article I, Section 14 of the Indiana Constitution provides, in part, that “[n]o

       person shall be put in jeopardy twice for the same offense.” In Richardson v.

       State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court held “that two or

       more offenses are the ‘same offense’ in violation of Article I, Section 14 of the

       Indiana Constitution, if, with respect to … the actual evidence used to convict,

       the essential elements of one challenged offense also establish the essential

       elements of another challenged offense.” Id. at 49-50. Robinson contends that

       his convictions for residential entry and criminal mischief were supported by

       the same actual evidence (i.e., evidence of him kicking in the door),

       necessitating the vacation of his conviction for criminal mischief. Because the

       State concedes that this is so, we need not address this argument further.


[11]   The judgment of the trial court is affirmed in part and reversed in part, and we

       remand with instructions to vacate Robinson’s conviction of and sentence for

       Class B misdemeanor criminal mischief.


       May, J., and Crone, J., concur.




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