Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Mar 18 2014, 10:22 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MARK SMALL                                          GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TIMOTHY R. HARTWELL,                                )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 84A04-1304-CR-208
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                         APPEAL FROM THE VIGO SUPERIOR COURT
                               The Honorable Michael J. Lewis, Judge
                        Cause Nos. 84D06-1202-FC-373, 84D06-0802-FD-413


                                          March 18, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
                                   CASE SUMMARY

        Appellant-Defendant Timothy Hartwell was found guilty but mentally ill of Class C

felony criminal stalking. Hartwell had interposed an insanity defense and was examined by

two court-appointed doctors, a psychologist and a forensic psychiatrist. While one evaluator

concluded that Hartwell was legally insane, the other concluded that he was not. Hartwell

contends that the jury’s rejection of his insanity defense was clearly erroneous. Because we

conclude that the jury’s rejection was not clearly erroneous, we affirm the judgment of the

trial court.

                       FACTS AND PROCEDURAL HISTORY

        On February 1, 2008, the State charged Hartwell with Class D felony auto theft in

cause number 84D06-0802-FD-413 (“Cause No. 413”). On June 2, 2010, Hartwell pled

guilty in Cause No. 413 and entered an adult mental health deferral program. In 2010,

Megan Loudermilk was a correctional officer with the Vigo County Sheriff’s Department.

During this period, Harwell was an inmate in the Vigo County Jail. Officer Loudermilk

never initiated any contact with Hartwell that was outside the scope of her duties. One day,

Hartwell passed a letter underneath his door to Officer Loudermilk. The letter was

“inappropriate[,] said something about wanting to get to know [Officer Loudermilk;]” the

letter was entitled “‘brown eyed bombshell[.]’” Tr. p. 46. Hartwell continued to write

Officer Loudermilk letters. As the frequency of the letters increased, reaching up to six

letters a night, Officer Loudermilk became intimidated and concerned. Hartwell did not stop

writing to Officer Loudermilk even after she went to his cell one night and told him to stop.


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       Meanwhile, on October 13, 2010, the State filed a notice of probation violation and

moved to revoke Hartwell’s adult mental health referral agreement. On March 16, 2011, the

trial court ordered Hartwell committed to the Department of Mental Health and Social

Services and placed in a mental health facility. In April of 2011, Hartwell was transferred to

the Evansville State Hospital. Hartwell continued to send Officer Loudermilk letters

following his transfer.

       On June 30, 2011, the Evansville State Hospital discharged Hartwell and he was

released on his own recognizance the next day. Hartwell continued to send Officer

Loudermilk letters and telephone her when she was working. In some of the letters to

Officer Loudermilk, Hartwell apologized and acknowledged that he may have hurt her. On

November 12, 2011, Officer Loudermilk left work and was walking to her car when she

noticed Hartwell standing approximately thirty to forty feet away pacing and “just saying

something.” Tr. p. 55. On November 15, 2011, Officer Loudermilk applied for a protective

order concerning Hartwell. Also on that date, a protective order was issued against Hartwell

to be effective until November 15, 2013. Despite receiving the protective order, Hartwell

continued to contact Officer Loudermilk, including mailing her a prayer rock and inscribed

bible on November 28, 2011.

       On February 2, 2012, the State charged Hartwell with Class C felony criminal stalking

in cause number 84D06-1202-FC-373 (“Cause No. 373”). On April 20, 2012, Hartwell filed

a notice of insanity defense. On May 14, 2012, the trial court appointed Dr. George F.

Parker, M.D., to examine Hartwell and appointed Dr. Howard Wooden, Ph.D., the next day.


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On January 4, 2013, the State moved to amend its charging information against Hartwell to

include allegations that the conduct constituting stalking had continued up to that date, when

Hartwell allegedly sent Officer Loudermilk four letters. On January 7, 2013, the trial court

granted the State’s motion to amend its charging information.

       Hartwell’s jury trial began on January 8, 2013, Drs. Wooden and Parker testified

regarding their evaluations of Hartwell. Dr. Wooden, a clinical psychologist, testified that he

evaluated Hartwell in May of 2012 and diagnosed him as a paranoid schizophrenic who

suffered from erotomania, a mental disorder where one develops a delusion that another is in

love with him. Dr. Wooden opined that, at the time of his evaluation, Hartwell was unable to

appreciate the wrongfulness of his actions. Dr. Parker, a forensic psychiatrist, testified that

he evaluated Hartwell in June of 2012 and determined that he was competent to stand trial

and opined that, although he had a mental illness at the time of his offenses, he was able to

appreciate the wrongfulness of his actions. Dr. Parker opined that Hartwell was best able to

appreciate the wrongfulness of his actions when he was in the Evansville State Hospital and

shortly afterwards (due to medication) but that even as far back as 2010 or 2011 he was able

to. Dr. Parker also opined that the letters in which Harwell apologized to Officer Loudermilk

indicated an understanding that what he was doing was wrong. On January 9, 2013, the jury

found Hartwell guilty but mentally ill of criminal stalking. On February 27, 2013, the trial

court sentenced Hartwell to four years of incarceration for criminal stalking in Cause No. 373

and ordered that he serve one and one-half years of his previously-suspended sentence for

auto theft in Cause No. 431, to be served consecutively.


                                              4
                             DISCUSSION AND DECISION

                  Whether the State Produced Sufficient Evidence to
                  Sustain the Jury’s Verdict of Guilty but Mentally Ill

       Hartwell claims that the jury’s finding that he was guilty but mentally ill, as opposed

to not guilty by reason of insanity, is clearly erroneous.

               To sustain a conviction, the State must prove each element of the
       charged offense … beyond a reasonable doubt. See Galloway v. State, 938
       N.E.2d 699, 708 (Ind. 2010), reh’g denied (citing Ind. Code § 35-41-4-1(a)
       (2004); In re Winship, 397 U.S. 358, 364, 90 S .Ct. 1068, 25 L. Ed. 2d 368
       (1970)). But even if the State meets this burden, a defendant in Indiana can
       avoid criminal responsibility by raising and successfully establishing what is
       commonly referred to as the “insanity defense.” Id. (citing Ind. Code § 35-41-
       3-6(a) (2004)). “A successful insanity defense results in the defendant being
       found not responsible by reason of insanity [.]” Id. (citing Ind. Code §§ 35-36-
       2-3, -4 (2004)).
               It is the defendant who bears the burden of establishing the insanity
       defense by a preponderance of the evidence. Id. (citing I.C. § 35-41-4-1(b)).
       To meet this burden, the defendant must establish both: (1) that he suffers
       from a mental illness, and (2) that this mental illness rendered him unable to
       appreciate the wrongfulness of his conduct at the time of the offense. Id.
       (citing I.C. § 35-41-3-6(a)). “Thus, mental illness alone is not sufficient to
       relieve [a defendant of] criminal responsibility.” Id. (citing Weeks v. State,
       697 N.E.2d 28, 29 (Ind. 1998)). Instead, a defendant who is mentally ill but
       fails to establish that he was unable to appreciate the wrongfulness of his
       conduct may be found guilty but mentally ill. Id. (citing Taylor v. State, 440
       N.E.2d 1109, 1112 (Ind. 1982)).
               The question of whether a defendant appreciated the wrongfulness of
       his conduct at the time of the offense is a question for the jury to determine.
       Id. at 709 (citing Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)).
       Although Indiana Code section 35-36-2-2 (2004) provides for the use of expert
       testimony to assist the jury in determining the defendant’s insanity, the jury has
       extremely wide latitude and such expert testimony is merely advisory. Id.
       “[E]ven unanimous expert testimony is not conclusive on the issue of sanity.”
       Id. (citing Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994)). The jury is free to
       disregard the unanimous testimony of experts and rely instead on conflicting
       testimony by lay witnesses. Id. (citing Barany v. State, 658 N.E.2d 60, 63 (Ind.
       1995)). Further, even if there is no conflicting lay testimony, the jury is free to
       disregard or discredit the expert testimony. Id. (citing Thompson, 804 N.E.2d

                                               5
       at 1149); see also Carson v. State, 807 N.E.2d 155, 161-62 (Ind. Ct. App.
       2004) (noting that our supreme court in Thompson reaffirmed that the finder of
       fact is entitled to decide whether to credit the opinions of experts on insanity,
       even in the absence of lay witness testimony).
               It is the jury’s province to weigh the evidence and assess the credibility
       of witnesses, and a finding that a defendant was not insane at the time of the
       offense thus warrants substantial deference from reviewing courts. Id. (citing
       Barany, 658 N.E.2d at 63). A defendant arguing on appeal that his insanity
       defense should have prevailed at trial faces “a heavy burden because he or she
       ‘is in the position of one appealing from a negative judgment.’” Id. (quoting
       Thompson, 804 N.E.2d at 1149). On appeal, we will not reweigh evidence,
       reassess witness credibility, or disturb reasonable inferences made by the trier
       of fact, even though “more reasonable” inferences might have been made. Id.
       Although this standard of review is deferential, it is not impossible, and our
       supreme court has long held that “where the defendant claims the insanity
       defense should have prevailed, the conviction will be set aside ‘when the
       evidence is without conflict and leads only to the conclusion that the defendant
       was insane when the crime was committed.’” Id. at 709-10 (citing Thompson,
       804 N.E.2d at 1149; Barany, 658 N.E.2d at 63–64).

Fernbach v. State, 954 N.E.2d 1080, 1084-85 (Ind. Ct. App. 2011).

       In order to convict Hartwell of Class C felony stalking the State was required to

establish that he “stalk[ed] another person [when a] protective order to prevent domestic or

family violence, a no contact order, or other judicial order … has been issued by the court to

protect the same victim or victims from the person and the person has been given actual

notice of the order[.]” Ind. Code § 35-45-10-5(b)(2). Hartwell does not claim that the State

failed to prove any of the elements constituting Class C felony criminal stalking, claiming

only that the jury erroneously failed to accept his insanity defense. This is, quite simply, not

a case where the evidence is without conflict and leads inexorably to the conclusion that

Hartwell was unable to appreciate the wrongfulness of his acts or stalking when he

committed them. At the very least, Dr. Parker opined on the stand that, although mentally ill,


                                               6
Hartwell was able to appreciate the wrongfulness of his actions and, indeed, had been able to

as far back as 2010, when Hartwell began writing letters to Officer Loudermilk. The jury

was entitled to accept Dr. Parker’s opinion and reject Dr. Wooden’s opinion to the contrary,

which it did. Harwell’s argument is nothing more than an invitation to reweigh the evidence,

which we will not do.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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