                                                                          FILED
                                                                     Mar 17 2017, 9:58 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                       Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael Miller,                                           March 17, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                28A04-1603-CR-634
              v.                                                Appeal from the Greene Circuit
                                                                Court
      State of Indiana,                                         The Honorable Erik C. Allen,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                28C01-1408-F1-2



      Barnes, Judge.


                                              Case Summary
[1]   Michael Miller appeals his conviction for attempted murder. We reverse and

      remand.



      Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017                Page 1 of 29
                                                      Issues
[2]   The issues we address today are:

              I.       whether Miller was denied his right to a speedy trial under
                       Indiana Criminal Rule 4(B);


              II.      whether the trial court properly rejected his insanity
                       defense; and


              III.     whether the trial court applied an incorrect standard in
                       convicting Miller of attempted murder.


                                                      Facts
[3]   At about 11:30 p.m. on the night of August 10, 2014, Jeremy Kohn was sitting

      on the porch of his residence in Bloomfield with his girlfriend, Kylee Bateman.

      Kohn and Bateman observed Miller twice approach a neighboring house, knock

      on the door or ring the door bell, and then walk away. Kohn did not know

      Miller personally but believed he may have gone to school with him. Kohn and

      Bateman waved at Miller. Bateman was telling Kohn a story that may have

      made them both laugh; Miller apparently believed Kohn and Bateman were

      laughing at him. He then approached Kohn “nonchalantly,” drew a

      pocketknife with a three-to-four-inch blade, and cut Kohn’s throat without

      saying a word. Tr. p. 53. Miller, who had a “blank look” on his face, then

      turned around and left, still without saying anything. Id. The cut to Kohn’s

      neck was not deep enough to damage his jugular vein, carotid artery, or




      Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017    Page 2 of 29
      trachea, although a slightly deeper cut could have done so and would have

      posed a risk of death. The wound required over forty stiches to close.


[4]   On August 13, 2014, Marshall Randy Raney of the Worthington Police

      Department responded to a report of a suspicious person in a local cemetery.

      Worthington is about twelve miles from Bloomfield. The suspicious person

      was Miller. Marshall Raney believed Miller seemed “backward” and quiet. Id.

      at 74. Miller told Marshall Raney that he was trying to hitchhike his way to

      Indianapolis. At the time of this encounter with Marshall Raney, Miller had

      not yet been identified as a suspect in the attack on Kohn.


[5]   Later on August 13, Miller was arrested in Worthington, about twelve miles

      away from Bloomfield. As Miller was being placed in handcuffs by Deputy

      Harvey Holt of the Greene County Sheriff’s Department, he said that he knew

      why he was being arrested and asked what charges he would face. Miller then

      submitted to an interview conducted by Officer Marvin Holt of the Bloomfield

      Police Department after waiving his Miranda rights.


[6]   During the interview, Miller said he had been attempting to return a textbook

      and some flashcards to a former teacher; Miller was twenty-four years old at the

      time of the crime. He volunteered several times that he was not “paranoid” or

      “psychotic” or on drugs, but he also said that people he encountered often

      attempted to frighten him or laughed at him. Ex. 7. He then admitted that he

      cut Kohn’s throat with a knife after Kohn and Bateman smiled at him, and

      Kohn looked at Bateman and shook his head. Officer Holt related that family


      Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 3 of 29
      members had expressed concern about Miller’s mental health and asked Miller

      whether he believed he needed help or medication; Miller denied that he did so

      and said he believed he was fine. Miller said that, because he did not hear any

      sirens after cutting Kohn’s throat, he assumed neither Kohn nor Bateman called

      police or the police did not care, and he decided to go to Indianapolis,

      apparently by a combination of walking and hitchhiking. Miller also engaged

      Officer Holt in conversation about why it had taken several days for police to

      contact him and said he was aware that what he had done was against the law.

      Officer Holt asked Miller whether he wanted to kill Kohn, and Miller replied

      that he did not care. He said that he accepted responsibility for what he had

      done and that he assumed he would go to jail and asked Officer Holt if he could

      bring his Bible to jail. At one point, after Officer Holt asked Miller whether he

      might hurt someone again in the future, Miller explained, “Some people can

      view human life the same way but have different outcomes because of emotion.

      I don’t have the emotion.” Id. at 15:50. Miller had a calm demeanor during

      the interview, spoke throughout in an even and emotionless tone of voice, and

      ate a candy bar and drank a soda while he talked to Officer Holt.


[7]   On August 14, 2014, the State charged Miller with one count of Level 1 felony

      attempted murder and one count of Level 3 felony aggravated battery. The

      charging information for attempted murder read in part that Miller “did

      knowingly or intentionally attempt to commit the crime of Murder, to-wit: to

      knowingly kill Jeremy Kohn, and Michael A. Miller did engage in conduct

      which constituted a substantial step toward the commission of the crime of


      Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 4 of 29
       murder, to-wit: cut Jeremy Kohn’s throat with a knife . . . .” App. p. 29. The

       State later amended the information to reduce the battery charge to a Level 5

       felony.


[8]    It is undisputed that Miller has a lengthy history of mental illness. His mother

       reported that he was oxygen-deprived during birth and began exhibiting

       abnormal behavior at age two, such as hyperactivity and self-isolation from

       other children. Miller was learning disabled, and in second grade, he began

       attending therapy and taking medication. Miller regularly attended therapy

       between the ages of nine and seventeen, when he quit because it “wasn’t really

       going well.” Tr. p. 117. As a child, Miller was diagnosed with attention deficit

       hyperactivity disorder and depression, and apparently was suspected at one

       point of having autism. Testing at age nine revealed Miller had brain

       abnormalities, although the precise nature of those abnormalities is unclear.


[9]    After graduating high school, Miller’s behavior became more bizarre, and he

       was unable to hold down a job. He would often whistle, though just one note

       and not a melody. He would approach people and touch their faces. He would

       constantly tap on things. In the three years leading up to the crime, Miller was

       very withdrawn and isolated, and he had rarely if ever left his family’s property

       during that time.


[10]   On August 15, 2014, Miller’s attorney filed a notice of defense of mental

       disease or defect. At the end of September 2014, a court-appointed

       psychologist, Mark Hickman, reported to the trial court his belief that Miller


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 5 of 29
       was suffering from “Delusional Disorder, Paranoid Type . . . .” App. at 135.

       Hickman further believed that, because of this mental disorder, there was

       “reason to doubt both his sanity at the time of the alleged crime, as well as his

       current comprehension and competency to stand trial and to work with an

       attorney on his own defense.” Id.


[11]   A court-appointed psychiatrist, Dr. Gregory Sidell, also examined Miller and

       submitted a report to the trial court at the end of January 2015. Dr. Sidell

       stated that Miller had described a “bizarre delusional system” that included

       hearing the voice of his grandmother, whom Miller called “a witch.” Id. at 137.

       Miller said his grandmother controlled demons, who in turn controlled

       Freemasons, and that Miller was somehow under the control of a Freemason

       when he cut Kohn’s throat. Id. at 139. Miller also related his belief that

       persons often mocked him, which was part of a “prophecy” that had been

       revealed to Miller. Id. Dr. Sidell believed that, “although [Miller was] aware at

       the time of the wrongful nature of his actions, [he] nevertheless appears to have

       been operating under the influence of a complicated psychotic delusional

       system, consistent with schizophrenia.” Id. at 140. Dr. Sidell also believed that

       Miller’s “ability to assist his defense counsel is very limited, because he believes

       counsel to be a member of the Freemasons.” Id.


[12]   On March 16, 2015, the trial court, with the consent of both the prosecutor and

       defense counsel, entered an order finding Miller incompetent to stand trial and

       committed him to the Division of Mental Health and Addictions. Miller was

       transported to Logansport State Hospital (“the Hospital”), where he received

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 6 of 29
       treatment, including medication, for schizophrenia. On July 21, 2015, the

       Hospital certified to the trial court that Miller was competent to stand trial,1 and

       he was transported back to the Greene County Jail to await trial.


[13]   On August 25, 2015, Miller filed a motion for speedy trial. The trial court

       scheduled a jury trial to begin on October 19, 2015, within the seventy-day

       speedy trial limit; the seventy-day deadline would have expired on November 3,

       2015. Miller later requested a bench trial, and one was scheduled for the same

       date, October 19, 2015. On August 26, 2015, the trial court entered an order

       requiring the Hospital to produce to Miller’s attorney, by September 9, 2015, all

       of Miller’s medical and mental health records. There is no indication in the

       record that the Hospital failed to produce the records by that date, and/or that

       such records could not be or were not available to the State in a similar time

       frame.


[14]   On September 10, 2015, the State filed a motion to compel Miller to submit to

       an examination by a psychiatrist it had retained, Dr. David Crane. The State

       represented that it had “provided to Dr. Crane the relevant documents and discs

       in its file to assist him in his evaluation of the Defendant but is requesting a

       Court Order authorizing the Defendant to be evaluated by Dr. David Crane as

       soon as possible . . . .” Id. at 70. The trial court granted the motion to compel

       on September 15, 2015.




       1
           Miller denied experiencing hallucinations or delusions to the examining psychiatrist at the Hospital.


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017                            Page 7 of 29
[15]   On September 21, 2015, the State scheduled an evaluation of Miller by Dr.

       Crane to be conducted on October 8, 2015. On September 22, 2015, the State

       filed a motion to continue the trial to allow Dr. Crane additional time to review

       medical records and prepare a report about Miller. Specifically, Dr. Crane

       wrote a letter provided to the trial court stating:


               I have reviewed the material you [the prosecutor] sent regarding
               Michael Miller.


               Based on that review, it would be extremely helpful to have
               records from any previous medical care he received while in
               Logansport, as well as, the examinations that were done by the
               two appointed experts.


               Recognizing the potential delays in gathering this information, I
               would like to request a delay from the court in regard to his
               current litigation.


       Id. at 75. Miller objected to the State’s continuance request on the basis that it

       would violate his speedy trial request. Miller also noted that, in addition to the

       two court-appointed specialists who had examined him before he was

       determined to be incompetent and committed to the Hospital, he also had been

       examined by a third specialist retained by the defense and the results of that

       examination had been provided to the State. On September 24, 2015, the trial

       court overruled the objection and re-scheduled trial to begin on January 20,

       2016.




       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017    Page 8 of 29
[16]   On October 15, 2015, the trial court appointed a third expert to examine Miller,

       psychiatrist Dr. Frederick Nolen. Dr. Nolen examined Miller at the end of

       October. Dr. Nolen then filed a report with the trial court concluding that

       Miller suffered from paranoid schizophrenia and was not sane at the time of the

       offense.


[17]   Miller’s bench trial began as scheduled on January 20, 2016. Miller did not

       make a motion for discharge based on the alleged violation of his speedy trial

       rights. The State did not present any evidence from Dr. Crane regarding his

       examination of Miller. Miller first presented the testimony of psychologist

       Jeffrey Huttinger. Huttinger examined Miller in October 2014. He opined that

       Miller suffered from a moderate to severe case of paranoid schizophrenia,

       suffering from delusions and auditory hallucinations that were influencing or, in

       some cases, controlling him. Ultimately, Huttinger believed that, at the time of

       the crime, Miller suffered from a mental disease or defect that affected his

       ability to appreciate the wrongfulness of his conduct. Huttinger stated that,

       although Miller acknowledged he had done something wrong, he lacked

       understanding of why it was wrong.


[18]   Next, Dr. Sidell testified. He agreed that Miller suffered from schizophrenia.

       However, he differed slightly from Huttinger in that he believed Miller

       “probably did understand the wrongfulness of his actions, but I think that he

       was unable to resist the strong urge to nevertheless take those actions at the

       time that they occurred . . . .” Tr. p. 170. The final expert to testify was Dr.

       Nolen. As with Huttinger and Dr. Sidell, he believed Miller suffered from

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 9 of 29
       paranoid schizophrenia. He further believed Miller suffered from delusions at

       the time of the attack and was unable to appreciate the wrongfulness of his

       conduct.


[19]   At the conclusion of trial, the trial court took the case under advisement. On

       January 27, 2016, it entered detailed, written “Findings, Conclusions and

       Judgment of Conviction.” App. p. 102. In those findings, the trial court

       explained why it was discounting the expert opinions regarding Miller’s sanity

       or lack thereof and rejecting his defense of mental disease or defect. It noted

       that it was relying instead upon courtroom observations of Miller, as well as his

       comportment during the police interview and his actions and demeanor near

       the time of the crime.


[20]   The findings also repeated the language of the charging information for

       attempted murder, namely that Miller “did knowingly or intentionally attempt

       to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn . . . .”

       Id. The trial court found and concluded “that Defendant had the requisite

       intent to kill as he used a knife, which is a deadly weapon, to deliberately cut

       the victims [sic] throat in a manner that was likely to cause death or great

       bodily harm.” Id. at 104. The trial court also expressly found beyond a

       reasonable doubt that Miller “did knowingly or intentionally attempt to commit

       the crime of Murder, to-wit: to knowingly kill Jeremy Kohn . . . .” Id. at 105.


[21]   The trial court entered judgments of conviction of guilty but mentally ill for

       both Level 1 felony attempted murder and Level 5 felony battery. At


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 10 of 29
       sentencing, the trial court merged the battery conviction with the attempted

       murder conviction. It sentenced Miller to a term of thirty years, with twenty

       years executed and ten years suspended to probation. Miller now appeals.


                                                    Analysis
                                        I. Speedy (or “Early”) Trial

[22]   We first address Miller’s claim that his rights under Indiana Criminal Rule 4(B)

       were violated when his trial was held more than seventy days after he requested

       a speedy trial. Criminal Rule 4(B) provides in part:

               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.


       Additionally, Criminal Rule 4(D) states:


               If when application is made for discharge of a defendant under
               this rule, the court be satisfied that there is evidence for the state,
               which cannot then be had, that reasonable effort has been made
               to procure the same and there is just ground to believe that such
               evidence can be had within ninety (90) days, the cause may be
               continued, and the prisoner remanded or admitted to bail; and if
               he be not brought to trial by the state within such additional
               ninety (90) days, he shall then be discharged.


[23]   The overall goal of Criminal Rule 4 “is to provide functionality to a criminal

       defendant’s fundamental and constitutionally protected right to a speedy trial.”
       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017      Page 11 of 29
       Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013). “It places an affirmative

       duty on the State to bring the defendant to trial, but at the same time is not

       intended to be a mechanism for providing defendants a technical means to

       escape prosecution.” Id. Although Criminal Rule 4(B)’s intent is to effectuate

       speedy trial rights under the United States and Indiana Constitutions, review of

       claimed violations of Rule 4(B) “is separate and distinct from reviewing claimed

       violations of those constitutional provisions.” Id. at 1037 n.7.


[24]   Miller contends the trial court erred in continuing his trial so that the State’s

       expert could have additional time to examine him and review his mental health

       records. Miller objected to granting the continuance and scheduling a trial date

       beyond the seventy-day limit. However, he did not subsequently move to be

       discharged.


[25]   Some cases have held that, even if a defendant objects to a trial date outside the

       limits of Criminal Rule 4, he or she must also move for discharge prior to trial

       in order to preserve any claim of error. See Parker v. State, 965 N.E.2d 50, 52

       (Ind. Ct. App. 2012) (quoting Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. Ct.

       App. 2001), trans. denied), trans. denied; see also Sundling v. State, 679 N.E.2d 988,

       991 (Ind. Ct. App. 1997). If a defendant does not make such a motion, the

       claim is waived on appeal. Parker, 965 N.E.2d at 52. These holdings trace back

       to Lloyd v. State, 448 N.E.2d 1062 (Ind. 1983). In that case, our supreme court

       stated that a motion for discharge “provides an enforcement mechanism for

       Criminal Rule 4(B) and defendant’s failure to attempt to enforce his request for

       a speedy trial waives any issue thereon. Failure to make a timely motion for

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017    Page 12 of 29
       discharge prior to trial constitutes a waiver of that right to discharge.” Id. at

       1066. The defendant in Lloyd also had not objected to the setting of a trial date

       outside the seventy-day deadline, and the court also found “acquiescence and

       waiver” for that reason. Id. The defendants in Hampton and Sundling also had

       in fact failed to object to trial dates outside the Criminal Rule 4 time limits in

       addition to failing to move for discharge.


[26]   By contrast, in Otte v. State, 967 N.E.2d 540 (Ind. Ct. App. 2012), trans. denied,

       this court rejected the State’s argument that the defendant had waived his

       Criminal Rule 4 complaint by failing to move for discharge in addition to

       objecting to a too-late trial date. The State had relied upon Brown v. State, 725

       N.E.2d 823 (Ind. 2000), which discussed the requirements for preserving a

       Criminal Rule 4 error. After parsing Brown’s language, the Otte panel

       concluded it stood for the proposition that a defendant may preserve such an

       error by either objecting to a trial date or by moving for discharge and that both

       are not required. Otte, 967 N.E.2d at 544. The Otte panel observed that the

       defendant had not “sat idly by and waited for deadlines to pass, only that he

       used a single means, namely timely objections, to bring it to the court’s

       attention. We are satisfied that this was enough to preserve the claim and

       decline the State’s invitation to resolve this appeal on waiver grounds.” Id.; see

       also King v. State, 61 N.E.3d 1275, 1280 n.3 (Ind. Ct. App. 2016) (holding

       defendant preserved claim of Criminal Rule 4(B) error by objecting to trial date

       and did not need to also move for discharge), trans. denied.




       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 13 of 29
[27]   Given the current conflicting state of affairs on this question, we will err on the

       side of addressing Miller’s claim of error on the merits. Miller did not

       completely stand idly by and wait for the seventy-day deadline to pass before

       complaining. Rather, he objected to continuance of the trial precisely because it

       would put the trial date past that deadline and violate his speedy trial rights.


[28]   Criminal Rule 4(D)2 permits trial courts to grant a continuance beyond a

       seventy-day early trial deadline if “(1) there is evidence for the State that cannot

       then be had, (2) reasonable effort has been made by the State to procure the

       evidence, and (3) there is just ground to believe that such evidence can be had

       within ninety days.” Smith v. State, 982 N.E.2d 393, 401 (Ind. Ct. App. 2013),

       trans. denied. Exigent circumstances may allow a reasonable delay beyond the

       limitations of Criminal Rule 4. Id. We review a trial court’s decision to grant a

       continuance under Criminal Rule 4(D) for an abuse of discretion, and the

       reasonableness of any delay must be judged in the context of the particular case.

       Id. “‘Rule 4(D) does not mandate the evidence be essential or unique, only that

       it be unavailable and that the State be entitled to present it.’” Wilhelmus v. State,

       824 N.E.2d 405, 413 (Ind. Ct. App. 2005) (quoting Smith v. State, 502 N.E.2d

       485, 488 (Ind. 1987)).




       2
        The State also essentially argues that, because Miller filed notice of intent to pursue an insanity defense, any
       delays related to investigating that defense were attributable to Miller, including delays related to the State’s
       hiring of its own expert. We reject any claim that, merely by pursuing an insanity defense, a defendant
       waives his or her speedy trial rights or that all delays associated with investigating that defense automatically
       are attributable to the defendant.

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017                           Page 14 of 29
[29]   When a defendant files notice of intent to pursue an insanity defense, the State

       is entitled to hire its own expert to examine the defendant. See Taylor v. State,

       659 N.E.2d 535, 541 (Ind. 1995); Esmond v. State, 20 N.E.3d 213, 216 (Ind. Ct.

       App. 2014). Such examinations and the reports following them may take some

       time to conduct and prepare, depending on the complexity of the issues

       involved. The State’s hired expert, Dr. Crane, represented that he needed

       additional time to acquire and review Miller’s medical records in order to fully

       assess his mental health. That representation is not facially unreasonable.

       Although there was an order issued at the end of August 2015 for the Hospital

       records to be released to defense counsel, there is no clear indication one way or

       the other whether the records were in fact timely released and whether they

       were or could have been made available to Dr. Crane in time for him to review

       them thoroughly and prepare a report prior to the October 19, 2015 trial date

       after examining him in person just eleven days before.


[30]   Miller questions why the State did not previously hire an expert to examine

       him, noting that he filed notice of his intent to pursue an insanity defense the

       day after he was charged. Additionally, although the time that Miller spent in

       the Hospital after being found incompetent to stand trial may have excused any

       trial preparation by the State during those several months, Miller was not found

       incompetent until approximately seven months after charges were filed and he

       had filed notice of pursuing an insanity defense. During that time, Miller was

       examined by two court-appointed experts and one expert hired by the defense.




       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 15 of 29
       We concede that the State could have hired its own expert as well during that

       time frame.


[31]   However, we also note that Miller did not move for a seventy-day early trial

       until after he was released from the Hospital, at the end of August 2015. In

       other words, the State was not on notice that Miller would be seeking an early

       trial until August 25, 2015. After Miller filed his early trial request, the State

       proceeded expeditiously to find and hire an expert and to schedule an

       examination of Miller.


[32]   Further, we place little emphasis on the fact that the State ended up not calling

       Dr. Crane at trial or utilizing any of his reports or opinions. It may indeed be

       the case that Dr. Crane’s opinion regarding Miller’s sanity largely paralleled

       those of the other experts who examined him. However, we reiterate, “‘Rule

       4(D) does not mandate the evidence be essential or unique, only that it be

       unavailable and that the State be entitled to present it.’” Wilhelmus, 824 N.E.2d

       at 413. At the time the State requested an evaluation of Miller by Dr. Crane, it

       was unknown what Dr. Crane ultimately would conclude. Regardless, the

       State was entitled to pursue that evaluation in preparing to rebut Miller’s

       insanity defense. We evaluate the reasonableness of the State’s request for a

       trial delay in light of the information known or available to it at the time of the

       request. There is no evidence here that the State was mistaken or

       misrepresented the facts when it requested more time for its expert to complete

       an evaluation of Miller. Cf. Chambers v. State, 848 N.E.2d 298, 304 (Ind. Ct.

       App. 2005) (holding State failed to establish that missing lab test results could

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 16 of 29
       not be procured before trial date where, in fact, State crime lab had already

       completed test results but they were not yet in prosecutor’s physical possession),

       trans. denied.


[33]   We reiterate that our standard of review with respect to granting of the State’s

       continuance request under Criminal Rule 4(D) is for an abuse of discretion.3 In

       general, an abuse of discretion occurs if a decision is clearly against the logic

       and effect of the facts and circumstances before the trial court or if it

       misinterprets or misapplies the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind.

       Ct. App. 2013). We also emphasize that constitutional considerations are not

       directly implicated here. See Austin, 997 N.E.2d at 1037 n.7. Given that

       whether to grant the State’s continuance was a matter within the trial court’s

       sound discretion, and given the complexity that a defense of insanity can

       present in a case, we cannot say the trial court abused its discretion in granting

       the State’s continuance request and by extending the start of Miller’s trial for

       ninety days. Cf. Wilhelmus, 824 N.E.2d at 413 (affirming granting of fourteen-

       day continuance to State under Criminal Rule 4(D) where very large

       methamphetamine lab was involved, two key witnesses were unavailable on the

       trial date, critical lab test results were procured by the State only four days




       3
         Our supreme court has clarified that, when reviewing a trial court’s finding of court congestion as a reason
       for delaying an early trial request under Criminal Rule 4(B), the correct standard of review is for clear error,
       not an abuse of discretion. Austin, 997 N.E.2d at 1040. Although the court expressly said its holding should
       also apply to issues arising under Criminal Rules 4(A) and 4(C), it was silent with respect to review of State
       continuance requests under Criminal Rule 4(D). See id. at 1038 n.8. Thus, we will continue to apply the
       abuse of discretion standard in this case.

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017                           Page 17 of 29
       before trial, computer encryption analysis was still underway, and State had

       received information of improper conduct between the local sheriff and the

       defendant and two co-defendants). Miller’s trial began within the limits

       prescribed by Criminal Rules 4(B) and 4(D).


                                     II. Rejection of Insanity Defense

[34]   Next, we address Miller’s claim that the trial court improperly rejected his

       insanity defense. Even if the State proves every element of a crime beyond a

       reasonable doubt, a defendant can avoid criminal responsibility for that crime

       by raising and proving an insanity defense. Lawson v. State, 966 N.E.2d 1273,

       1278 (Ind. Ct. App. 2012), trans. denied. Indiana Code Section 35-41-3-6

       provides:

               (a) A person is not responsible for having engaged in prohibited
               conduct if, as a result of mental disease or defect, he was unable
               to appreciate the wrongfulness of the conduct at the time of the
               offense.


               (b) As used in this section, “mental disease or defect” means a
               severely abnormal mental condition that grossly and
               demonstrably impairs a person’s perception, but the term does
               not include an abnormality manifested only by repeated unlawful
               or antisocial conduct.


       A defendant bears the burden of proving an insanity defense by a

       preponderance of the evidence. Ind. Code § 35-41-4-1(b).


[35]   Miller is appealing from a negative judgment with respect to the trial court’s

       rejection of his insanity defense. See Lawson, 966 N.E.2d at 1279. “When
       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 18 of 29
       reviewing a negative judgment, this court will not reweigh evidence, reassess

       witness credibility, or disturb reasonable inferences made by the trier of fact,

       even if more reasonable inferences arguably could have been made.” Id. A

       defendant appealing rejection of his or her insanity defense must establish that

       the evidence is without conflict and leads only to the conclusion that he or she

       was legally insane when the crime was committed. Id. “Although this standard

       of review is deferential, it is not impossible. . . . An impossible standard of

       review under which appellate courts merely ‘rubber stamp’ the fact finder’s

       determinations, no matter how unreasonable, would raise serious constitutional

       concerns because it would make the right to an appeal illusory.” Galloway v.

       State, 938 N.E.2d 699, 709 (Ind. 2010).


[36]   If a number of mental health experts have examined a defendant and offered

       conflicting opinions on whether a defendant met the legal definition of insanity

       at the time of an offense, such conflict by itself is probative evidence of sanity.

       Lawson, 966 N.E.2d at 1279. Even if experts unanimously agree that a

       defendant was insane when a crime was committed, a fact finder “may still

       reject an insanity defense if there is ‘other evidence of probative value from

       which a conflicting inference of sanity can be drawn.’” Id. (quoting Galloway,

       938 N.E.2d at 712). “Such evidence may include ‘lay opinion testimony that

       conflicts with the experts or demeanor evidence that, when considered in light

       of the other evidence, permits a reasonable inference of sanity to be drawn.’”

       Id. (quoting Galloway, 938 N.E.2d at 712). An expert’s failure to give an

       opinion on a defendant’s sanity is tantamount to a lack of probative evidence as


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 19 of 29
       to sanity and does not create a conflict with other testimony that the defendant

       was insane. Id.


[37]   We first note that there is not uncontradicted testimony in this case that Miller

       was insane at the time of the offense, at least not insane as clearly defined by

       Indiana law. Specifically, psychologist Huttinger and psychiatrist Dr. Nolen

       indicated in their testimony that they believed Miller suffered from

       schizophrenia and was under the influence of delusions at the time of the

       offense such that he did not appreciate the wrongfulness of his conduct. This

       testimony met the legal definition of insanity. Psychiatrist Dr. Sidell, however,

       testified, “I think that probably Mr. Miller did appreciate the wrongfulness of

       his actions, but I think that Mr. Miller was unable to resist the urge or the

       impulse to do those actions anyhow because Mr. Miller was simply too

       psychotic and to [sic] symptomatic with his schizophrenia.” Tr. p. 171. Dr.

       Sidell essentially testified that Miller had an “irresistible impulse” to commit the

       crime even though he knew it was wrong, but that basis for a claim of insanity

       was removed by statute in 1984. See Benefiel v. State, 578 N.E.2d 338, 350 (Ind.

       1991), cert. denied. As such, Dr. Sidell’s testimony is that Miller did not meet

       the legal definition of insanity at the time he cut Kohn’s throat. This alone is

       sufficient probative evidence to reject Miller’s insanity defense.


[38]   The trial court also relied upon “demeanor” evidence in rejecting Miller’s

       insanity defense, specifically eyewitness testimony at the time of the attack and

       Miller’s police interview a few days later. We are cognizant that there are limits



       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 20 of 29
       to the value of such evidence. As this court and our supreme court have

       explained:


               “The proposition that a jury may infer that a person’s actions
               before and after a crime are ‘indicative of his actual mental health
               at the time of the’ crime is logical when dealing with a defendant
               who is not prone to delusional or hallucinogenic episodes.
               However, when a defendant has a serious and well-documented
               mental disorder, such as schizophrenia, one that causes him to
               see, hear, and believe realities that do not exist, such logic
               collapses . . . .”


       Galloway, 938 N.E.2d at 713 (quoting Moler v. State, 782 N.E.2d 454, 458-59

       (Ind. Ct. App. 2003), trans. denied). “[I]nsanity is not limited to the stereotypical

       view of a ‘raging lunatic’—a person experiencing a psychotic delusion may

       appear normal to passersby.” Id. at 713-14.


[39]   The undisputed evidence in the record is that Miller does indeed suffer from

       schizophrenia and accompanying delusional thoughts. However, and while it

       is also true that Miller has long suffered from mental health difficulties of one

       kind or another, the mental health evaluations following the knife attack were

       the first time he was found to have schizophrenia. The fact that a defendant

       does not have a long-standing history of suffering from a particular mental

       illness does not automatically preclude a finding of insanity, but it is a

       circumstance that a fact-finder may consider in evaluating an insanity defense.

       Lawson, 966 N.E.2d at 1282. Additionally, the demeanor evidence here

       corroborated Dr. Sidell’s testimony that Miller understood the wrongfulness of

       his actions and, therefore, was not legally insane as defined by Indiana Code

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017     Page 21 of 29
       Section 35-41-3-6. Thus, we need not determine whether the demeanor

       evidence in this case could have by itself supported the rejection of Miller’s

       insanity defense. See id. In sum, despite substantial evidence of Miller’s serious

       mental health problems, there is sufficient evidence to support the trial court’s

       rejection of his insanity defense. See id. (affirming rejection of insanity defense

       based on conflicting expert testimony and demeanor evidence, where defendant

       killed her two-year-old child during an “exorcism” ceremony performed

       because defendant purportedly believed he was possessed by a demon).


                                     III. Attempted Murder Standard

[40]   Miller also argues more generally that there is insufficient evidence to sustain

       his conviction for attempted murder with respect to his mens rea. In a

       prosecution for attempted murder, the State must prove the defendant acted

       with the specific intent to kill the victim. Kiefer v. State, 761 N.E.2d 802, 805

       (Ind. 2002). It is not enough to show that the defendant knowingly engaged in

       conduct that constituted a substantial step toward the commission of murder.

       See Spradlin v. State, 569 N.E.2d 948, 949-50 (Ind. 1991). “Intent to kill may be

       inferred from the nature of the attack and the circumstances surrounding the

       crime.” Kiefer, 761 N.E.2d at 805. A trier of fact also may infer intent to kill

       from the use of a deadly weapon in a manner likely to cause death or great

       bodily harm. Id.


[41]   We will not, in this opinion, address whether there is sufficient evidence of

       Miller’s specific intent to kill to sustain his conviction for attempted murder.

       There is a specific sub-issue regarding that conviction raised by Miller that we
       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 22 of 29
       conclude compels reversal and remand; it would be premature at this time to

       address whether there was sufficient evidence of specific intent to kill. First, the

       charging information in this case alleged in part that Miller “did knowingly or

       intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill

       Jeremy Kohn . . . .” App. p. 29. Second, the trial court here entered detailed

       findings explaining its thought process in finding Miller guilty. Those findings

       repeated the language of the charging information and concluded “that

       Defendant had the requisite intent to kill as he used a knife, which is a deadly

       weapon, to deliberately cut the victims [sic] throat in a manner that was likely

       to cause death or great bodily harm.” Id. at 104. The trial court also expressly

       found beyond a reasonable doubt that Miller “did knowingly or intentionally

       attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn

       . . . .” Id. at 105. Miller contends that these references to a “knowing” mens

       rea indicate the trial court applied the wrong standard of proof in convicting

       him. The State did not address Miller’s contentions regarding the charging

       information language or trial court’s findings in its brief.


[42]   In 1979, our supreme court first addressed the necessary mens rea to support an

       attempted murder conviction under our current criminal code. It held:

               Although there are somewhat varying definitions of what
               conduct actually constitutes an attempt, there is fundamental
               agreement on the two necessary elements of the crime. First, the
               defendant must have been acting with a specific intent to commit
               the crime, and second, he must have engaged in an overt act
               which constitutes a substantial step toward the commission of the
               crime.

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 23 of 29
       Zickefoose v. State, 270 Ind. 618, 622, 388 N.E.2d 507, 510 (1979).


[43]   In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), our supreme court thoroughly

       analyzed the manner in which a jury must be instructed on an attempted

       murder charge. It relied in part upon an earlier case, which held:

               “Thus we are left with instructions which would lead the jury to
               believe that the Defendant could be convicted of attempted
               murder if he knowingly engaged in conduct which constituted a
               substantial step toward the commission of murder. Although
               one may be guilty of murder, under our statute, without
               entertaining a specific intent to kill the victim, he cannot be guilty
               of attempted murder without entertaining such intent.”


       Spradlin, 569 N.E.2d at 950 (quoting Smith v. State, 459 N.E.2d 355, 358 (Ind.

       1984)). The Spradlin opinion stated:


               Henceforth, we hold that an instruction which purports to set
               forth the elements which must be proven in order to convict of
               the crime of attempted murder must inform the jury that the State
               must prove beyond a reasonable doubt that the defendant, with
               intent to kill the victim, engaged in conduct which was a
               substantial step toward such killing.


       Id. The court reversed the attempted murder conviction before it because the

       jury had erroneously been instructed that it could find the defendant guilty if he

       had “knowingly or intentionally” engaged in conduct that was a substantial step

       toward the commission of murder. Id. at 950-51. “Instructing the jury with a

       list of elements which suggests that it may convict on a lesser mens rea, such as




       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017    Page 24 of 29
       ‘knowingly,’ constitutes error.” Beasley v. State, 643 N.E.2d 346, 348 (Ind.

       1994).


[44]   In the decades following Spradlin, numerous attempted murder convictions

       have been reversed because the jury was erroneously instructed that a

       “knowing” mens rea could be sufficient to support such a conviction. See, e.g.,

       Rosales v. State, 23 N.E.3d 8, 15 (Ind. 2015); Guyton v. State, 771 N.E.2d 1141,

       1144 (Ind. 2002); Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind. 1999); Beasley,

       643 N.E.2d at 348; Jones v. State, 868 N.E.2d 1205, 1213-14 (Ind. Ct. App.

       2007), trans. denied; Edwards v. State, 773 N.E.2d 360, 363 (Ind. Ct. App. 2002),

       trans. denied; Majors v. State, 735 N.E.2d 334, 339 (Ind. Ct. App. 2000).

       Moreover, many of these reversals—including the ones in Rosales, Metcalfe,

       Beasley, Jones, and Majors—occurred even when there was no objection to the

       erroneous instructions; i.e., “Spradlin error” frequently has amounted to

       fundamental error. “Spradlin error” may not be fundamental, however, in cases

       where the defendant’s intent was not a central issue at trial, or if the wording of

       the charging information sufficiently suggested the requirement of intent to kill.

       Metcalfe, 715 N.E.2d at 1237.


[45]   We further note that, in Patton v. State, 810 N.E.2d 690 (Ind. 2004), our

       supreme court reversed a defendant’s guilty plea to attempted murder where the

       charging information erroneously failed to allege that he had acted with specific

       intent to kill. The court held that the information failed to give the defendant

       adequate notice of the charges against him, rendering his plea invalid where the

       defendant had not unambiguously admitted to acting with specific intent to kill
       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017    Page 25 of 29
       and there was a lack of other evidence in the record establishing specific intent

       to kill beyond a reasonable doubt. Patton, 810 N.E.2d at 698-99.


[46]   In short, as has been made clear repeatedly over the past several decades, a

       “knowing” mens rea is insufficient to sustain a conviction for attempted

       murder. “‘[T]he stringent penalties for attempted murder and the ambiguity

       often involved in its proof’ make it appropriate to ‘single[ ] out attempted

       murder for special treatment.’” Rosales, 23 N.E.3d at 8 (quoting Hopkins v. State,

       759 N.E.2d 633, 637 (Ind. 2001)). We are unaware of any case that has directly

       applied the principles of Zickefoose and Spradlin in the context of a bench trial,

       but we see no reason why they should not be applied here. Also, we

       acknowledge an analysis dependent upon jury instruction case law is not

       always appropriate when the defendant was convicted after a bench trial. See

       Denning v. State, 991 N.E.2d 160, 164 (Ind. Ct. App. 2013). However, we

       believe it is appropriate to do so here, given the “special treatment” accorded to

       attempted murder cases.


[47]   We further are cognizant that a trial court is never required to make any

       findings or conclusions following a criminal bench trial or otherwise explain the

       thought process it engaged in before finding a defendant guilty, and any such

       statements need not be considered by a court on appeal. See Dozier v. State, 709

       N.E.2d 27, 30 (Ind. Ct. App. 1999). However, given the severity of the charge

       against Miller and the incorrect language of the charging information, we find it

       impossible to ignore the trial court’s findings that clearly misstate the proper

       standard for convicting a defendant of attempted murder. In a jury trial, there

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 26 of 29
       is no way to divine a jury’s thought process except by reference to the jury

       instructions; here, without jury instructions, we can divine that process by the

       trial court’s findings.


[48]   Both the charging information and the trial court’s findings refer to the long-

       discredited notion that a “knowing” mens rea was sufficient to convict Miller of

       attempted murder. It was not. Moreover, Miller’s intent was a central issue in

       this case. Despite our affirmance of the rejection of Miller’s insanity defense,

       we offer no opinion at this time as to whether there is sufficient evidence that

       Miller acted with the specific intent to kill Kohn. It suffices to say that, even if

       the evidence could have supported that finding, we believe it also could support

       the conclusion he did not act with such intent.


[49]   The difference between acting intentionally and knowingly is that a person acts

       “intentionally” when “it is his conscious objective to do so,” while a person acts

       “knowingly” when “he is aware of a high probability that he is doing so.” I.C.

       § 35-41-2-2. Miller did indeed cut Kohn’s throat, which is always a dangerous

       act, but the cut was not extremely deep, did not damage any internal structures,

       and was performed with a three-to-four-inch smooth-bladed pocket knife. The

       only statement Miller made regarding the act and his mens rea was that he did

       not care whether Kohn lived or died, which would be indicative of only a

       knowing or possibly even reckless act, not one done with the intent to kill

       Kohn. The motive to attack Kohn, such as it was, was to seek some kind of

       revenge for Kohn and Bateman’s perceived mocking of him—Miller was not

       previously acquainted with Kohn and did not have any grudge against him.

       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 27 of 29
       Miller was completely silent while he performed the act and made no attempt

       to harm Kohn further after not-deeply cutting his neck.


[50]   We are left with grave questions here of whether the trial court as fact finder

       would have found Miller guilty of attempted murder if the charging information

       had been correct and if it had applied the correct standard of specific intent to

       kill. We are aware that this was a bench trial. Still, the principles of cases such

       as Zickefoose and Spradlin are so deeply-rooted and fundamental in Indiana law

       that we cannot allow Miller’s attempted murder conviction to stand in clear

       contravention of those principles.


[51]   The question we are confronting is whether the trial court in a bench trial,

       where the judge is presumed to know the law and correctly apply it, used the

       faulty “knowing” element to arrive at the guilty but mentally ill decision. We

       have concluded this presumption has been rebutted and that it appears the trial

       court applied the incorrect standard in deciding Miller’s guilt. This is a

       circumstance that may be one of first impression. We are concerned as to what

       the appropriate legal remedy for Miller is, particularly considering his

       undisputed mental health issues.


[52]   If this had been a jury trial, the answer would have been, naturally, to set aside

       the verdict and order a new trial. This being a bench trial presents a different

       and unique circumstance. To reverse and remand for a new trial is one

       alternative. To reverse and remand with instructions for the trial court to apply

       the correct legal standard to the evidence presented in the first trial is another


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 28 of 29
       path, and one that might be employed were this a civil case. See Johnson v.

       Wysocki, 990 N.E.2d 456, 466–67 (Ind. 2013). The danger is that once we

       reverse and remand, the trial court judge who originally heard the case may

       have a difficult, if not impossible, task of distancing himself from the evidence

       already considered and in considering the case entirely anew, as we believe

       must be done in a criminal case. Thus, we reverse Miller’s conviction and

       remand for a new trial, upon the filing of an amended and correctly-worded

       information, and after consideration and application of the proper standard of

       whether Miller acted with the specific intent to kill Kohn. See Spradlin, 569

       N.E.2d at 951; Jones, 868 N.E.2d at 1214. The nearly forty-year guidelines of

       Zickefoose and its progeny must be followed. In order to allow Miller a clean

       slate, this remedy is, in our view, the most equitable.


                                                  Conclusion
[53]   Miller’s speedy trial rights were not violated by the trial court’s granting of the

       State’s continuance motion. There was sufficient evidence as a matter of law to

       reject Miller’s insanity defense. However, it is apparent the trial court as fact

       finder applied the incorrect standard of a “knowing” mens rea rather than

       “specific intent to kill” in deciding to convict Miller of attempted murder. We

       reverse and remand for a new trial in accordance with this opinion.


[54]   Reversed and remanded.


       Kirsch, J., and Robb, J., concur.


       Court of Appeals of Indiana | Opinion 28A04-1603-CR-634 | March 17, 2017   Page 29 of 29
