      MEMORANDUM DECISION
                                                                     Jun 30 2015, 8:14 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
      Mark Olivero                                              Gregory F. Zoeller
      Fort Wayne, Indiana                                       Attorney General of Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      J.E.,                                                    June 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1409-CR-339
              v.                                               Appeal from the Allen Superior
                                                               Court
                                                               Cause No. 02D04-1306-FC-211
      State of Indiana,                                        The Honorable Frances C. Gull,
      Appellee-Plaintiff                                       Judge




      Bailey, Judge.



                                            Case Summary
[1]   J.E. appeals the trial court’s order of involuntary commitment to a state

      psychiatric hospital after a jury found him not responsible by reason of insanity

      on six criminal charges. We affirm.
      Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015     Page 1 of 15
                                                        Issues
[2]   J.E. presents one issue for our review, which we restate as the following two:

                 I.        Whether the trial court erred by ordering a regular commitment
                           under Indiana Code chapter 12-26-7 when there was evidence
                           that J.E. had previously been committed; and
                 II.       Whether there was sufficient evidence to support J.E.’s
                           commitment to Logansport State Hospital, where a report
                           required by Indiana Code section 12-26-7-3(b) was not included
                           in the trial court record.


                                   Facts and Procedural History
[3]   On June 16, 2013, in Allen County, J.E. stole a car from a residential

      subdivision. In the process of fleeing, J.E. caused two car accidents, one with

      injury, at which he did not stop. Based on these events, on June 27, 2013, the

      State charged J.E. with the following: Battery, as a Class C felony; 1 Attempted

      Residential Entry, as a Class D felony 2 (“Count 2”); Auto Theft, as a Class D

      felony; 3 Receiving Stolen Auto Parts, as a Class D felony; 4 Criminal

      Recklessness, as a Class D felony; 5 Failure to Stop after an Accident Resulting




      1
        Ind. Code § 35-42-2-1(a)(3) (2012). Due to substantial revisions to the Indiana Code effective July 1, 2014,
      this offense is now a Level 5 felony. Throughout this opinion, we refer to the versions of the statutes in effect
      at the time of J.E.’s offense.
      2
          I.C. §§ 35-43-2-1.5 & 35-41-5-1.
      3
          I.C. § 35-43-4-2.5(b)(1).
      4
          I.C. § 35-43-4-2.5(c).
      5
          I.C. §§ 35-42-2-2(b)(1) & (c)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015                 Page 2 of 15
      in Injury or Death, as a Class A misdemeanor; 6 and Failure to Stop after an

      Accident Resulting in Damage to a Vehicle, as a Class C misdemeanor. 7 On

      September 6, 2013, the court dismissed Count 2 on the State’s motion.


[4]   On September 4, 2013, J.E. filed his notice of intent to assert the defense of

      insanity. The court appointed Dr. Kevin Wieland (“Dr. Wieland”), a

      psychologist, and Dr. Rebecca J. Mueller (“Dr. Mueller”), a psychiatrist, to

      conduct mental evaluations of J.E. for purposes of the insanity defense.


[5]   On July 22, 2014, J.E.’s jury trial commenced. After the State’s presentation of

      evidence, Drs. Wieland and Mueller testified regarding their evaluations. Dr.

      Wieland found that J.E.’s test results were consistent with a diagnosis of

      paranoid schizophrenia. Based on her interview, Dr. Mueller also settled on a

      likely diagnosis of schizophrenia, paranoid type. Both doctors opined that as a

      result of mental disease or defect, J.E. was, at the time of his offenses, unable to

      appreciate the wrongfulness of his conduct and insane within the meaning of

      Indiana Code section 35-41-3-6. The State also elicited testimony from Dr.

      Wieland that, in his opinion, long-term commitment would be in J.E.’s best

      interest in part because “it is likely that [J.E.] will stop medication on his own

      and his erratic behavior would again return.” (Tr. 277.) Dr. Mueller

      concurred, noting that if J.E. “is un-medicated he may not only pose a risk to




      6
          I.C. §§ 9-26-1-1 & 9-26-1-8(a).
      7
          I.C. §§ 9-26-1-2 & 9-26-1-9.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 3 of 15
      himself but to other people.” (Tr. 306.) Her written report expressed that J.E.

      “would benefit from re-admission to a state facility for more intensive

      treatment.” (Tr. 229.)


[6]   On July 23, 2014, the jury returned a verdict of not responsible by reason of

      insanity on all counts. Immediately following the verdict, the prosecution filed

      in open court a petition for involuntary commitment. The court set a hearing

      on the petition for August 29, 2014. The court then ordered an updated

      psychiatric evaluation of J.E., which Dr. Mueller completed on August 6, 2014.

      On August 29, 2014, the court held a hearing on the prosecuting attorney’s

      petition. As permitted by Indiana Code section 35-36-2-4(b), the court took

      judicial notice of the evidence presented during J.E.’s trial. The court also

      reviewed Dr. Mueller’s updated evaluation.


[7]   At the conclusion of the hearing, the court found that the prosecuting attorney

      showed by clear and convincing evidence that J.E. was mentally ill and

      dangerous and, as a result of his mental illness, presented a substantial risk that

      he would harm himself or others. The court further found that J.E. was in need

      of custody, care, or treatment in a facility for a period expected to be more than

      ninety days. The court therefore ordered J.E. committed to a state institution,

      specifically Logansport State Hospital (“LSH”). By a letter dated September 4,

      2014, the Indiana Family and Social Services Administration (“FSSA”)

      designated LSH – Isaac Ray Unit as the appropriate facility for J.E.’s

      admission. (App. 188.) The court also ordered the clerk to open a mental



      Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 4 of 15
      health cause number for his involuntary commitment. J.E. now appeals the

      trial court’s order of involuntary commitment. 8



                                  Discussion and Decision
                                         Standard of Review
[8]   Following a verdict of not responsible by reason of insanity, the prosecuting

      attorney must file a written petition for civil commitment of the defendant

      under either Indiana Code section 12-26-6-2(a)(3) (temporary commitment) or

      chapter 12-26-7 (regular commitment). See I.C. § 35-36-2-4. Here, the

      prosecuting attorney filed the petition under the regular commitment statute,

      which governs proceedings for an individual who is (1) alleged to be mentally ill

      and either dangerous or gravely disabled; and (2) whose commitment is

      reasonably expected to require custody, care, or treatment in a facility for more

      than ninety days. I.C. § 12-26-7-1.


[9]   A petitioner who seeks the civil commitment of an individual is required to

      prove by clear and convincing evidence that (1) the individual is mentally ill

      and either dangerous or gravely disabled, and (2) detention or commitment of

      that individual is appropriate. I.C. § 12-26-2-5(e). When reviewing a decision

      made under the statutory requirement of clear and convincing evidence, we will




      8
        Although J.E. appeals only the trial court’s order of involuntary commitment, the appeal was filed under
      the trial court cause number in J.E.’s criminal case.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015              Page 5 of 15
       affirm if, considering only the probative evidence and the reasonable inferences

       supporting it, without weighing or assessing witness credibility, a reasonable

       trier of fact could find the necessary elements proven by clear and convincing

       evidence. In re Civil Commitment of T.K., 27 N.E.3d 271, 273 (Ind. 2015)

       (citation and quotation marks omitted).


[10]   In this case, we are also called upon to interpret certain provisions of the regular

       commitment statute. As this Court has set forth:

               A question of statutory interpretation is a matter of law. In such
               interpretation, the express language of the statute and the rules of
               statutory interpretation apply. We will examine the statute as a whole,
               and avoid excessive reliance on a strict literal meaning or the selective
               reading of words. Where the language of the statute is clear and
               unambiguous, there is nothing to construe. However, where the
               language is susceptible to more than one reasonable interpretation, the
               statute must be construed to give effect to the legislature’s intent. The
               legislature is presumed to have intended the language used in the
               statute to be applied logically and not to bring about an absurd or
               unjust result. Thus, we must keep in mind the objective and purpose
               of the law as well as the effect and repercussions of such a
               construction.
       Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008) (citations omitted),

       trans denied.


                                               Section 12-26-7-2

[11]   Here, the prosecuting attorney initiated regular commitment proceedings by

       filing a written petition in accordance with Indiana Code section 12-26-7-

       2(b)(8). Indiana Code section 12-26-7-2 provides:




       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 6 of 15
                 (a) This section does not apply to the commitment of an individual if
                     the individual has previously been committed under IC 12-26-6.
                 (b) A proceeding for the commitment of an individual who appears to
                     be suffering from a chronic mental illness may be begun by filing
                     with a court having jurisdiction a written petition by any of the
                     following:
                    [. . . .]
                    (8) A prosecuting attorney in accordance with IC 35-36-2-4 [after a
                        verdict of not responsible by reason of insanity].
       I.C. § 12-26-7-2.


[12]   J.E. argues that the express language of Indiana Code section 12-26-7-2(a)

       prohibits the regular commitment under Section 12-26-7-2(b) of an individual

       who has previously been the subject of a temporary commitment under Chapter

       12-26-6. Because J.E. was previously committed to LSH and Richmond State

       Hospital, he contends that he cannot now be committed under Section 12-26-7-

       2(b). 9


[13]   In In re Commitment of R.L., 666 N.E.2d 929 (Ind. Ct. App. 1999), R.L. was

       temporarily committed under Indiana Code section 12-26-6 following a brief

       emergency detention. Id. at 929-30. After less than ninety days of treatment in

       LSH, the hospital petitioned for an order of regular commitment, which the

       trial court eventually ordered. Id. at 930. On appeal, R.L. argued that the

       language of Section 12-26-7-2(a) expressly prohibited the regular commitment



       9
         As evidence of his prior commitments, J.E. points to trial testimony of Dr. Mueller, Dr. Wieland, and his
       father that he had been previously committed to LSH and Richmond State Hospital. It is not clear from the
       record whether these previous commitments were temporary under Indiana Code chapter 12-26-6 or regular
       under Chapter 12-26-7.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015             Page 7 of 15
       of an individual when that person was previously subject to temporary

       commitment under Chapter 12-26-6. Id.


[14]   In reviewing the statutory scheme as a whole, this Court found that Section 12-

       26-7-4 was helpful in interpreting the meaning of Subsection 12-26-7-2(a). Id. at

       932. Section 12-26-7-4 provides that:

               (a) Upon receiving:
                   (1) a petition under section 2 [I.C. § 12-26-7-2] of this chapter; or
                   (2) a report under IC 12-26-6-11 that recommends treatment in a
                       facility for more than ninety (90) days;
               the court shall enter an order setting a hearing date.


       The Court interpreted Section 12-26-7-4 as authorizing two separate paths to

       regular commitment: (1) a formal petition filed under Section 12-26-7-2, or (2) a

       report under Section 12-26-6-11. R.L., 666 N.E.2d at 932. The Court then

       explained the impact of Section 12-26-7-4 on Subsection 12-26-7-2(a):

               Recognizing that there are two independent avenues under I.C. § 12-
               26-7-4 from which the trial court can enter a regular commitment, the
               provision in I.C. § 12-26-7-2 that “this section” does not apply to those
               previously subject to a temporary commitment is logical. Ind. Code §
               12-26-7-2 does not apply to an individual who previously had been
               temporarily committed because that individual would not be
               committed pursuant to a petition for regular commitment. Instead, that
               individual would be processed pursuant to the report filed during the
               individual’s temporary commitment and on the recommendation of
               the facility superintendent or attending physician under I.C. § 12–26–
               6–11.
       Id.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 8 of 15
[15]   We agree with this Court’s interpretation of Section 12-26-7-2 in In re R.L.

       When the statute is read as a whole, the mandate in Subsection (a) that “this

       section” does not apply to the commitment of an individual previously subject

       to a temporary commitment refers to commitment proceedings that will be

       initiated via a report, rather than a petition, because of a previous temporary

       commitment under Chapter 12-26-6. This interpretation harmonizes the

       temporary and regular commitment statutes and allows for a regular

       commitment to follow a temporary commitment, a situation that likely often

       occurs in the mental health field and for which the legislature logically would

       have provided.


[16]   Even if J.E. was, in the past, temporarily committed under Chapter 12-26-6,

       Subsection 12-26-7-2(a) does not bar the prosecuting attorney from filing a

       petition under Chapter 12-26-7-2(b) following a verdict of not responsible by

       reason of insanity. The trial court did not err in ordering J.E. committed under

       Chapter 12-26-7 based on the prosecuting attorney’s petition.


                                              Sufficient Evidence

[17]   J.E. next argues that there was insufficient evidence to support the court’s order

       of commitment to the Logansport State Hospital.


[18]   Following a hearing on a petition for regular commitment and review of the

       record, if the trial court finds the individual to be mentally ill and either

       dangerous or gravely disabled, the court may enter either of the following

       orders: (1) for the individual’s custody, care, or treatment, or continued


       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 9 of 15
       custody, care, or treatment in an appropriate facility, or (2) for the individual to

       enter an outpatient therapy program. I.C. § 12-26-7-5(a). J.E. does not

       challenge the court’s finding that he is mentally ill and dangerous. Nor does he

       argue that outpatient therapy would be a more appropriate alternative for

       treatment than custody in a facility.


[19]   Rather, J.E. argues that there is insufficient evidence that LSH was an

       appropriate facility for his placement because the record does not contain a

       report from a community mental health center (“CMHC”) as required by

       Indiana Code section 12-26-7-3(b). Section 12-26-7-3(b) provides:

                (b) Except as provided in subsection (d) [commitment to a research
                    bed at Larue D. Carter Memorial Hospital], if the commitment is
                    to a state institution administered by the division of mental health
                    and addiction, the record of the proceedings must include a report
                    from a [CMHC] stating both of the following:
                    (1) The [CMHC] has evaluated the individual.
                    (2) Commitment to a state institution administered by the division
                        of mental health and addiction under this chapter is
                        appropriate.
[20]   I.C. § 12-26-7-3(b). 10 As used in Indiana Code title 12, a CMHC is a program

       of services that meets the following conditions:




       10
          As a threshold matter, J.E. contends that there was no evidence presented that LSH is a state institution
       administered by the division of mental health and addiction (“DMHA”) such that the reporting requirements
       of subsection (b) would apply to his case. By statute, DMHA “is responsible for administering . . . State
       institutions listed in IC 12-24-1-3.” I.C. § 12-21-5-1(6). Section 12-24-1-3 includes LSH in its enumerated list
       of state institutions under the control and responsibility of the director of DMHA. See I.C. § 12-24-1-3(a)(4).
       Although no specific evidence was presented at J.E.’s commitment hearing about the administration of LSH,
       we think the presentation of such evidence was unnecessary because, by statute, LSH is a state institution
       administered by DMHA. The requirements of Section 12-26-7-3(b) thus apply to this case.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015               Page 10 of 15
               (1) Is approved by the division of mental health and addiction.
               (2) Is organized for the purpose of providing multiple services for
                   persons with mental illness or a chronic addictive disorder.
               (3) Is operated by one (1) of the following or any combination of the
                   following:
                   (A) A city, a town, a county, or another political subdivision of
                      Indiana.
                   (B) An agency of the state.
                   (C) An agency of the United States.
                   (D) A political subdivision of another state.
                   (E) A hospital owned or operated by a unit of government
                       described in clauses (A) through (D).
                   (F) A building authority organized for the purpose of constructing
                       facilities to be leased to units of government.
                   (G) A corporation incorporated under IC 23-7-1.1 (before its repeal
                      August 1, 1991) or IC 23-17.
                   (H) A nonprofit corporation incorporated in another state.
                   (I) A university or college.
       I.C. § 12-7-2-38.


[21]   J.E. contends, and the State concedes, that there is no report in the record from

       a CMHC stating that (1) J.E. was evaluated and (2) commitment to LSH was

       appropriate. He therefore argues that there was insufficient evidence to support

       the court’s order of commitment to LSH.


[22]   Under the statutory scheme set forth in Chapter 12-26-7, a petition for

       involuntary commitment must include a physician’s written statement that (1)

       the physician examined the individual within the past thirty days, and (2) the

       physician believes that the individual is mentally ill and either dangerous or


       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 11 of 15
       gravely disabled, and in need of custody, care, or treatment in a facility for a

       period expected to be more than ninety days. I.C. § 12-26-7-3(a). After the trial

       court finds that a person is mentally ill and either dangerous or gravely

       disabled, the court may enter an order for placement in either an appropriate

       facility or an outpatient therapy program. I.C. § 12-26-7-5(a). Sections 12-26-7-

       3(b)-(e) require certain reports to support the court’s placement depending on

       the facility to which the individual is committed.


[23]   Based on the statutory scheme, we think the reporting requirement in Section

       12-26-7-3(b) is a requirement designed to ensure that, after a determination that

       a person is mentally ill and either dangerous or gravely disabled, a trial court

       places the individual into a facility appropriately suited to address his or her

       mental health needs. In other words, “the purpose of the report requirement of

       Section 12-26-7-3(b) is to insure that . . . qualified persons have evaluated the

       individual and determined that commitment to a state institution is

       appropriate.” A.J. v. Logansport State Hospital, 956 N.E.2d 96, 108 (Ind. Ct.

       App. 2011).


[24]   We first observe that J.E. did not raise an objection at his hearing that

       placement at a state psychiatric hospital, specifically LSH, was inappropriate.

       Nor did J.E. object to the absence of the required CMHC report. More

       importantly, on appeal J.E. has failed to show how the absence of the report

       has prejudiced his substantial rights. See Ind. Trial Rule 61 (“The court at every

       stage of the proceeding must disregard any error or defect in the proceeding

       which does not affect the substantial rights of the parties.”).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 12 of 15
[25]   Despite the report’s absence, there was ample evidence in the record showing

       that qualified persons evaluated J.E. and that a state psychiatric hospital is an

       appropriate facility for J.E.’s treatment. The evidence shows that J.E. has a

       “long standing history of mental illness,” including a diagnosis of paranoid

       schizophrenia. (App. 224.) Results of tests administered by Dr. Wieland

       showed that J.E. has “some degree of adequate functioning while under the

       benefit of regular psychiatric medication” but that he had “significant difficulty

       managing his medications in the past.” (App. 224.) Further, because “it is

       likely that [J.E.] will stop medication on his own and his erratic behavior would

       again return,” Dr. Wieland opined that long-term commitment would be in

       J.E.’s best interest. (Tr. 277.) Dr. Mueller concurred, noting that if J.E. “is un-

       medicated he may not only pose a risk to himself but to other people.” (Tr.

       306.) Dr. Mueller’s written report expressed that J.E. “would benefit from re-

       admission to a state facility for more intensive treatment.” (Tr. 229.) In her

       updated psychiatric assessment, Dr. Mueller found that J.E. “continues with a

       mental state characteristic of a psychotic thought disorder” and that it “is in his

       best interest to be committed involuntary [sic] to a treatment facility for a period

       expected to be more than 90 days.” (App. 233-34.) J.E. had previously been

       committed to both LSH and Richmond State Hospital.


[26]   In addition, the record contains a letter from FSSA, which oversees DMHA,

       dated September 4, 2014, stating:

               We are in receipt of the Order dated August 29, 2014 civilly
               committing [J.E.] following a finding of Not Guilty by Reason of


       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 13 of 15
               Insanity. We are hereby designating Logansport State Hospital – Isaac
               Ray Unit as the appropriate facility to be admitted.


       (App. 188.) As the State observes “[g]iven the requirement that the record

       include a report from a division-approved [CMHC], it is unlikely that [FSSA]

       would inform the trial court of [LSH’s] designation as the appropriate facility

       for commitment . . . without the existence of a report.” (Appellee’s Br. 14.)

       Although the FSSA letter itself does not meet the requirements of Section 12-

       26-7-3(b), the letter indicates that J.E. was evaluated by qualified persons such

       that FSSA was able to designate LSH as the appropriate facility for his care and

       treatment.


[27]   This is not to say that the statutory reporting requirement should be readily

       disregarded or waived in cases of civil commitment. “Civil commitment is a

       significant deprivation of liberty that requires the petitioner to show ‘that the

       individual suffers from something more serious than is demonstrated by

       idiosyncratic behavior.’” In re Commitment of Bradbury, 845 N.E.2d 1063, 1065

       (Ind. Ct. App. 2006) (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)).

       For this reason, the commitment statutes provide a person who is the subject of

       an involuntary commitment proceeding a plethora of rights, including the right

       to a hearing and notice thereof. See I.C. §§ 12-26-7-4(c)-(d); 12-26-6.


[28]   Although the record in this case does not contain the report required by Indiana

       Code section 12-26-7-3(b), we are satisfied from the record before us that

       qualified persons evaluated J.E. and determined that commitment to a state

       institution was appropriate. Accordingly, we hold that there was sufficient
       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 14 of 15
       evidence to support the trial court’s order committing J.E. to a state psychiatric

       hospital for treatment.



                                               Conclusion
[29]   The trial court did not err in ordering regular commitment under Indiana Code

       section 12-26-7-2 where J.E. had a prior history of commitment. Sufficient

       evidence supported the trial court’s order committing J.E. to Logansport State

       Hospital.


[30]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1409-CR-339 | June 30, 2015   Page 15 of 15
