                                                                              FILED
                                                                         May 15 2019, 9:02 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                           Curtis T. Hill, Jr.
      Bargersville, Indiana                                     Attorney General of Indiana

                                                                Ian McLean
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jesse L. Payne,                                           May 15, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1359
              v.                                                Appeal from the Parke Circuit
                                                                Court
      State of Indiana,                                         The Honorable Sam A. Swaim,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                61C01-0505-FB-79



      Najam, Judge.


                                        Statement of the Case
[1]   In Barcroft v. State, 111 N.E.3d 997, 1002-06 (Ind. 2018), the Indiana Supreme

      Court held that a fact-finder’s conclusion that a criminal defendant was sane at

      the time of the commission of an offense could be supported by circumstantial
      Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                            Page 1 of 22
      demeanor evidence 1 alone, even if the unanimous opinion of three court-

      appointed mental-health experts was that the defendant was suffering from a

      delusional psychosis at the time of the offense and that the circumstantial

      demeanor evidence was consistent with the defendant’s delusions. In this

      appeal, Jesse L. Payne, a diagnosed schizophrenic who has suffered from

      delusions and hallucinations for a substantial part of his life, asserts that the

      State failed to present sufficient evidence to show that he was sane at the time

      he burned down two covered bridges in Parke County and attempted to burn

      down a third. In particular, he argues that the unanimous opinion of three

      court-appointed mental-health experts was that he was not sane at the time of

      the offenses and that the State’s circumstantial demeanor evidence was not

      probative of his sanity because that evidence was consistent with Payne’s

      delusions.

[2]   Following Barcroft, we hold that the State’s circumstantial demeanor evidence

      of Payne’s behavior before, during, and after his offenses is sufficient to support

      the fact-finder’s conclusion that Payne was sane at the time of those offenses,

      notwithstanding the unanimous opinion to the contrary by the three court-

      appointed mental-health experts, and Payne’s arguments on appeal are merely

      requests for this Court to reweigh the evidence, which we cannot do. We also

      reject Payne’s other arguments in this appeal. Accordingly, we affirm his



      1
        Our Supreme Court defines “demeanor evidence” in such cases as “circumstantial evidence of a
      defendant’s actions before, during, and after the crime to infer his or her mental state.” Barcroft, 111 N.E.3d
      at 1004.

      Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                                    Page 2 of 22
      convictions for two counts of arson, one count of attempted arson, and for

      being an habitual offender, and we also affirm Payne’s aggregate sentence of

      ninety years in the Department of Correction.


                                  Facts and Procedural History
[3]   In 2002, the Jeffries Ford Covered Bridge in Parke County burned down. The

      first Parke County firefighters to arrive at the scene got there less than five

      minutes after the fire had been reported. When they arrived, however, the

      “entire bridge was on fire” and “the south span was already collapsed” into the

      creek below. Tr. Vol. 4 at 10. Subsequent investigation ruled out natural

      causes for the initiation of the fire and determined that “an ignitable liquid” had

      likely been used to burn down the bridge. Id. at 25.


[4]   In April of 2005, Kristopher Bunting stayed at the Lighthouse Mission in Terre

      Haute for a time. During that time, Payne, who was out on parole, also stayed

      at the Lighthouse Mission. Around April 24, comments Payne made led

      Bunting to conclude that Payne “had a lot of hate,” especially toward “Parke

      County.” Id. at 38. Bunting also observed Payne reading numerous law-related

      books. Bunting was not comfortable being around Payne.


[5]   At the Lighthouse Mission, Payne shared a room with David Nolan. In the

      evening hours of April 27, Payne asked Nolan “where the Mill Dam was,” and

      Nolan told Payne that it was a little ways “up north” in Bridgeton. Id. at 48.

      Payne then “took off.” Id. The Bridgeton Covered Bridge was “very close” to

      the mill dam. Id. at 11.

      Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019            Page 3 of 22
[6]   That same evening, Jason Doddridge was working at a Jiffy Mini Mart in

      northwest Terre Haute. Shortly after Payne left the Lighthouse Mission,

      Doddridge observed Payne enter the Mini Mart and purchase one two-liter

      bottle of soda and prepay for one gallon of gasoline. Doddridge then observed

      Payne exit the store and “dump[] the soda from the bottle.” Id. at 67.

      Doddridge also noted that Payne “did not pump a full gallon” of gasoline. Id.

      Not long thereafter, a little past midnight on April 28, Michael Long drove

      through Bridgeton and observed a red Honda parked near a vending machine

      just south of the Bridgeton Covered Bridge, which stood out to Long as “not

      typical for the town of Bridgeton.” Id. at 71.


[7]   At 12:42 a.m. on April 28, Parke County firefighters received a report that the

      Bridgeton Covered Bridge was on fire. The first firefighters to arrive at the

      bridge got there “less than a minute” after the fire had been reported, but the

      bridge was already “fully engulfed.” Id. at 12. The Parke County Sheriff’s

      Department then instructed “the full-time deputies . . . to check bridges”

      elsewhere in Parke County. Id. at 84.


[8]   Meanwhile, in the early morning hours of April 28, Samantha Hill, an

      employee of the BP gas station in Groveland, observed Payne enter the store.

      Payne purchased one two-liter bottle of soda and “some gas.” Id. at 80. Hill

      then observed Payne “[p]our[] . . . out” the two-liter bottle of soda and the put

      “gas in the two[-]liter” bottle. Id. at 81. Payne then left.




      Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019         Page 4 of 22
[9]    Around 1:40 a.m., Parke County Sheriff’s Deputy Mike Watts went to

       Mansfield, which is between Bridgeton and Groveland, “to check the covered

       bridge there.” Id. Deputy Watts observed Payne near the Mansfield Covered

       Bridge and asked Payne for his identification. Payne immediately responded

       that he “had a receipt to show where he had been.” Id. at 85. Payne also

       volunteered that “he had a bottle of gasoline in his vehicle,” a nearby red

       Honda. Id. at 86. Deputy Watts observed that Payne was not “nervous at all”

       and did not present himself in a manner that suggested to Deputy Watts that

       Payne may have suffered from mental illness. Id. at 94.


[10]   Parke County Sheriff’s Deputy Eddie McHargue joined Deputy Watts shortly

       after Deputy Watts had arrived in Mansfield. Deputy McHargue “didn’t see

       any problems with [Payne] at all” that suggested Payne may have suffered from

       mental illness. Id. at 117. Deputy McHargue read Payne his Miranda warnings

       and then inquired about Payne’s recent routes of travel. Payne responded by

       saying that he had left Terre Haute to camp at Raccoon Lake and needed some

       gasoline for a campfire, and so Payne went to a nearby gas station, in

       Groveland, to get that gasoline, which he put in a two-liter bottle. Payne

       further responded that, after having obtained that gasoline, he decided not to

       camp at Raccoon Lake after all, that he wanted a soda, and that he knew there

       was a vending machine near the Mansfield Covered Bridge.


[11]   When asked why he did not get his gasoline at a more convenient gas station in

       Rockville given Payne’s described route of travel, Payne said that he must not

       have seen any open gas stations in Rockville. When asked why he went out of

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019         Page 5 of 22
       his way to go to Mansfield for a soda, Payne simply said “he knew there was a

       pop machine” there. Id. at 104. And when Deputy McHargue asked Payne

       how Payne had navigated around some construction on Payne’s described

       route of travel, which construction did not in fact exist, Payne gave an

       explanation for navigating around the nonexistent construction.


[12]   Deputy McHargue informed Payne that he did not think Payne was “being

       truthful,” and he asked Payne if Payne would submit to a polygraph

       examination. Id. at 108. Payne agreed and the officers immediately escorted

       him to a nearby police station where Parke County Sheriff Charles L. Bollinger

       administered the test. Following that examination, Sheriff Bollinger concluded

       that Payne had exhibited a “strong likelihood of deception” and

       “untruthfulness.” Id. at 154. Officers then detained Payne in the Parke County

       Jail on a parole hold. Less than one week later, Payne agreed to take an

       additional polygraph examination regarding the Jeffries Ford Covered Bridge

       fire in 2002. However, before that examination commenced, Payne admitted to

       having started that fire as well as having set fire to the Bridgeton Covered

       Bridge.


[13]   The State charged Payne with arson of the Jeffries Ford Covered Bridge, arson

       of the Bridgeton Covered Bridge, attempted arson of the Mansfield Covered

       Bridge, and for being an habitual offender. At his ensuing jury trial, Payne

       asserted the defense of insanity. Dr. Ashan Mahmood, a court-appointed

       psychiatrist, reviewed Payne’s lengthy medical history, the police reports of the

       incidents in question, and the probable cause affidavit. He also interviewed

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019           Page 6 of 22
       Payne. Dr. Mahmood testified that “the records have been quite consistent in a

       long[-]term mental illness with a similar pattern of delusions, hallucinations,

       [and] non-adherence to medications[ and] requirement[s] of treatment.” Tr.

       Vol. 5 at 74-75. Dr. Mahmood further testified that Payne’s mental illness and

       symptoms have been “prevalent.” Id. at 75. He then testified that he had

       diagnosed Payne with “schizophrenia” with “prominent delusions[ and]

       hallucinations,” which illness had prohibited Payne from appreciating the

       wrongfulness of his arsons and attempted arson. Id. at 92.


[14]   Dr. Jeffrey Huttinger, a court-appointed psychologist, similarly reviewed

       Payne’s long medical history and Payne’s “interact[ion] with the officers.” Id.

       at 112. Dr. Huttinger also interviewed Payne. Like Dr. Mahmood, Dr.

       Huttinger testified that he had diagnosed Payne with “schizophrenia, paranoid

       type” at the time of the arsons and attempted arson, and Dr. Huttinger testified

       that Payne’s illness prohibited Payne from appreciating the wrongfulness of his

       conduct at those times. Id. at 99-102. Dr. Huttinger further testified that

       Payne’s demeanor near the time of the 2005 crimes—including “leaving

       suddenly from the Mission house . . . , purchasing gas[,] and . . . when he

       interacted with the police officers,” and also including Payne having a “plan”

       for the crimes and an apparent cover story ready—would not be inconsistent

       with schizophrenia if those acts were “driven by some type of delusion.” Id. at

       112-18. As Dr. Huttinger explained, “sometimes schizophrenics . . . can make

       rational decisions even though they are . . . going through a . . . psychosis . . . .

       [T]hey can look like they are doing okay” but under proper questions and


       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019             Page 7 of 22
       examination a professional might discover that there are “more bizarre”

       thoughts at issue. Id. at 118.


[15]   Payne and the State also jointly stipulated to the admission of a report by Dr.

       Rebecca Mueller, a court-appointed psychiatrist. Dr. Mueller reviewed the

       charging information, the probable cause affidavit, and Payne’s medical history.

       She also interviewed Payne. According to Dr. Mueller’s report, at the time of

       the offenses Payne suffered from schizophrenia; he “had extended periods of

       time where he experienced auditory and/or visual hallucinations[] and

       delusions”; he was “insane at the time of the alleged offenses”; and he “was

       unable to appreciate the wrongfulness of his conduct at the time of the alleged

       offenses.” Ex. Vol. 7 at 125-26 (emphases removed).2 No other experts testified

       or provided other evidence for or against Payne’s insanity defense.


[16]   The jury rejected Payne’s insanity defense and instead found Payne guilty but

       mentally ill3 for the arson of the Jeffries Ford Covered Bridge, the arson of the

       Bridgeton Covered Bridge, and the attempted arson of the Mansfield Covered




       2
         Our pagination of the Exhibits Volume is based on the .pdf pagination, and the parties’ refusal to do the
       same and instead merely cite a given exhibit’s labeled number has hindered our review.
       3
           As our Supreme Court has explained:
                 A verdict of guilty but mentally ill requires an evaluation and treatment of the defendant’s
                 mental illness during his or her incarceration “in such a manner as is psychiatrically
                 indicated,” but otherwise imposes the same criminal sentence as a standard conviction of
                 guilt. Ind. Code § 35-36-2-5(a), (c). By contrast, a verdict of nonresponsibility by reason
                 of insanity may result in the defendant’s civil commitment if the trial court finds by clear
                 and convincing evidence that the defendant is mentally ill and either dangerous or
                 gravely disabled. I.C. § 35-36-2-4.
       Barcroft, 111 N.E.3d at 1001 n.2.

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                                    Page 8 of 22
       Bridge. The jury also found Payne to be an habitual offender. The trial court

       entered its judgment of conviction accordingly, and, following a separate

       hearing, the court sentenced Payne to an aggregate term of ninety years in the

       Department of Correction. This appeal ensued.


                                       Discussion and Decision
                                         Issue One: Insanity Defense

[17]   On appeal, Payne first asserts that the State failed to present sufficient evidence

       to rebut the evidence favorable to his defense of insanity. As our Supreme

       Court made clear in Barcroft:


               A factfinder’s determination that a defendant was not insane at
               the time of the offense warrants substantial deference from an
               appellate court. On review, we do not reweigh evidence, reassess
               witness credibility, or disturb the factfinder’s reasonable
               inferences. We will instead affirm the [defendant’s] conviction
               unless the evidence is without conflict and leads only to the
               conclusion that the defendant was insane when the crime was
               committed.


       111 N.E.3d at 1002 (citations and quotation marks omitted). Further:


               To convict a criminal defendant, the State must prove each
               element of the offense beyond a reasonable doubt. But a
               defendant may avoid criminal responsibility by invoking the
               insanity defense. This plea requires the defendant to prove by a
               preponderance of the evidence (1) that [he] suffers from a
               “mental disease or defect” and (2) that the “mental disease or
               defect” rendered [him] unable to appreciate the wrongfulness of
               [his] conduct at the time of the offense.


       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019           Page 9 of 22
       Id. (citations and footnote omitted).


[18]   In Barcroft, the defendant shot and killed her pastor. At her ensuing murder

       trial, two court-appointed mental-health experts concluded that, at the time of

       the offense, the defendant suffered from schizophrenia. A third court-appointed

       mental-health expert concluded that, at the time of the offense, she suffered

       from delusional disorder. But the three experts agreed that the defendant’s

       mental illness caused her to experience delusions that prevented her from

       appreciating the wrongfulness of her conduct. They also each testified that the

       defendant’s demeanor evidence before, during, and after the shooting was

       consistent with her delusional psychosis and supportive of their respective

       diagnoses. Nonetheless, the trial court rejected the defendant’s insanity defense

       and instead found her guilty but mentally ill.


[19]   Our Supreme Court affirmed the trial court’s judgment and held that the State’s

       “demeanor evidence [was] more than sufficient to support the [fact-finder’s]

       rejection of [the defendant’s] insanity defense” notwithstanding the unanimous

       opinion of the three court-appointed mental-health experts. Id. at 1006. The

       court explained:


               First, [the defendant] exhibited deliberate, premeditated conduct
               in the weeks and days leading up to the crime: She asked
               another member of the church when [the pastor] planned to
               return from a mission trip. She purchased a handgun and waited
               for a permit. She prepared goodbye letters to members of her
               family. She packed several rounds of ammunition, a pair of
               binoculars, and other personal items in her backpack. And she
               planned to confront the pastor during the early morning hours,

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019        Page 10 of 22
               before the day’s activities had started and to avoid potential
               witnesses. [The defendant’s] choice of clothing—black pants and
               a black, hooded sweatshirt—likewise show a calculated attempt
               to evade detection or to obscure her identity.


               [The defendant’s] actions during and right after the shooting also
               suggest a consciousness of guilt. As she spoke with [another
               church member] outside the church, she kept her handgun—a .22
               caliber pistol—concealed in her front pocket. Even more
               revealing was her decision to spare [that church member’s] life.
               Expert testimony suggested that this conduct reflected [the
               defendant’s] delusional state, the inference being that a sane
               person would have shot the eyewitness to avoid criminal
               implication. But a factfinder could have reasonably come to the
               opposite conclusion: that [the defendant’s] decision not to shoot
               showed an understanding that killing is wrong.


               Cloaked by the hood of her sweatshirt, [the defendant] then fled
               from the crime scene and attempted to hide, taking great pains to
               conceal herself under the foliage of an overgrown lot. She lay
               motionless in her hiding spot even as police ordered her to
               surrender, emerging only when an officer threatened to shoot.


               Finally, when the detective asked whether [the defendant]
               understood that she “ha[d] to be arrested” for her crime, she
               replied that she had “actually planned on not getting caught.”
               This comment implies a consciousness of guilt. . . .


       Id. at 1005-06 (last alteration in original; citations, quotation marks, and

       footnote omitted).


[20]   In other words, the State’s demeanor evidence in Barcroft showed “deliberate,

       premediated conduct . . . leading up to the crime”; a “calculated attempt to


       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 11 of 22
       evade” after the crime; and “actions during and right after the [crime]” that

       suggested “consciousness of guilt.” Id. at 1005. Although the unanimous

       opinion of the mental-health experts in Barcroft was that the defendant was

       “legally insane at the time of the offense and could not appreciate the

       wrongfulness of her actions” due to a complex delusional psychosis, and

       although the experts agreed that the defendant’s demeanor evidence was

       consistent with her delusions, our Supreme Court held that it was within the

       fact-finder’s prerogative to consider that demeanor evidence for itself and to

       reject the mental-health experts’ unanimous opinion. Id. at 1002-06.


[21]   Following Barcroft here, we are obliged to conclude that the State’s demeanor

       evidence of Payne’s behavior before, during, and after the offenses is sufficient

       to support the jury’s finding that Payne was sane at the time of those offenses.

       That evidence suggests that Payne’s conduct surrounding the crimes was

       calculated, deliberate, and premeditated. He concealed his involvement in the

       Jeffries Ford Covered Bridge fire for about three years. The evening before the

       Bridgeton Covered Bridge fire, he asked where the mill dam was; he purchased

       one two-liter bottle of soda along with one gallon of gasoline, and then he

       poured out the soda and filled the bottle with gasoline; after having burned

       down the Bridgeton Covered Bridge, he drove out of his way to Groveland to

       again obtain gasoline and a two-liter bottle along with a paper receipt that

       would support an attempted alibi defense; in both Bridgeton and Mansfield he

       parked near vending machines in case someone engaged him, again in apparent




       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 12 of 22
       support of an attempted alibi; and he committed his acts late at night when the

       opportunity for witnesses would be diminished.


[22]   Payne’s actions during and right after the fires also suggest consciousness of

       guilt. Again, he concealed his involvement in the Jeffries Ford Covered Bridge

       fire for about three years. Further, in between the Bridgeton Covered Bridge

       fire and the attempted arson of the Mansfield Covered Bridge, Payne drove to

       the BP gas station in Groveland to obtain a time-stamped receipt as part of his

       attempted cover story; when asked for his identification by Deputy Watts in

       Mansfield, Payne immediately responded that he “had a receipt to show where

       he had been,” Tr. Vol. 4 at 85; and when officers asked him about his route of

       travel from Terre Haute to Mansfield by way of, supposedly, Rockville, Payne

       lied to the officers about navigating through nonexistent construction.


[23]   Payne’s arguments on appeal are, in essence, the same arguments our Supreme

       Court rejected in Barcroft. Specifically, Payne asserts that the jury could not

       reasonably infer sanity from the evidence because the expert witnesses

       unanimously concluded that he was not sane at the time of the offenses; the lay

       witnesses’ testimony—e.g., Bunting’s testimony and Nolan’s testimony—is not

       inconsistent with the expert testimony; ample evidence supports the experts’

       diagnoses of Payne; and the demeanor evidence was not inconsistent with the

       unanimous opinion of the court-appointed mental-health experts that Payne

       was suffering from a delusional psychosis at the time of the offenses. However,

       we conclude, following Barcroft, that Payne’s arguments are merely requests for



       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 13 of 22
       this Court to reweigh the evidence on appeal, which we cannot do. 111 N.E.3d

       at 1002.

[24]   In sum, in Barcroft our Supreme Court clarified that Indiana’s appellate courts

       are to review a fact-finder’s rejection of a claim of insanity the same way we

       review any other claim of insufficient evidence to support a fact-finder’s

       determinations. We review only the evidence most favorable to the fact-finder’s

       judgment, and we do not “reweigh evidence, reassess witness credibility, or

       disturb the factfinder’s reasonable inferences.” Id. Applying that standard here,

       we are obliged to conclude that the State presented sufficient evidence to show

       that Payne was able to appreciate the wrongfulness of his conduct at the time of

       the offenses and, thus, that he was legally sane at those times.


                                     Issue Two: Admission of Statements
                                    to Officers, Polygraph, and Confession

[25]   Payne next asserts that the trial court abused its discretion when it admitted into

       evidence Payne’s statements to the officers in Mansfield, a video-recording of

       Payne’s polygraph examination with Sheriff Bollinger, and Payne’s confession

       to Sheriff Bollinger less than one week after the polygraph examination.4 As

       our Supreme Court has stated:




       4
         We agree with the State’s assessment that Payne does not provide a separate and independent analysis of
       his rights under the Indiana Constitution, at least insofar as such an analysis relates to the only issue properly
       preserved for appellate review, and thus any arguments under the Indiana Constitution are waived. Myers v.
       State, 839 N.E.2d 1154, 1158 (Ind. 2005).

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                                    Page 14 of 22
                Generally, a trial court’s ruling on the admission of evidence is
                accorded “a great deal of deference” on appeal. Tynes v. State,
                650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
                able to weigh the evidence and assess witness credibility, we
                review its rulings on admissibility for abuse of discretion” and
                only reverse “if a ruling is ‘clearly against the logic and effect of
                the facts and circumstances and the error affects a party’s
                substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
                2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).


[26]   We initially note that Payne makes numerous arguments on appeal relating to

       the purported inadmissibility of his statements, the polygraph, and his

       confession. However, in the trial court, Payne objected to the admissibility of

       that evidence only on the ground that he “did not make a knowing and

       voluntary waiver of his right[s] . . . in light of [his] diminished capacity as a

       result of his mental illness . . . .” Tr. Vol. 4 at 99-100, 138-40.5 A party may not

       object to the admissibility of evidence in the trial court on one ground and then

       assert on appeal that that evidence was inadmissible on different grounds. Hitch

       v. State, 51 N.E.3d 216, 219 (Ind. 2016). Accordingly, we limit our review on

       appeal to Payne’s argument that his mental illness, standing alone, renders his




       5
         Payne further asserted in the trial court that Indiana v. Edwards, 554 U.S. 164 (2008), should apply to the
       admissibility of the evidence at issue, but Payne does not raise that question for our review on appeal. See
       Ind. Appellate Rule 46(A)(8)(a). We also note that, in a prior interlocutory appeal, we affirmed the trial
       court’s denial of Payne’s motion to suppress the evidence on other grounds. Payne v. State, 854 N.E.2d 1199,
       1202-05 (Ind. Ct. App. 2006), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                                Page 15 of 22
       statements, polygraph examination, and confession inadmissible. 6 And we

       reject that argument.


[27]   As we have explained:


               The trial court’s decision regarding admissibility of a confession
               or incriminating statement is controlled by determining from the
               totality of the circumstances whether the statement was given
               voluntarily[] rather than through coercion or other improper
               influence so as to overcome the free will of the accused.
               Standard indicators for voluntariness include whether the
               confession was freely self-determined, the product of a rational
               intellect and free will, without compulsion or inducement of any
               sort, and whether the accused’s will was overborne. “The mere
               fact a statement is made by the defendant while under the influence of
               drugs, or that the defendant is mentally ill, does not render it
               inadmissible per se.” Pruitt[ v. State], 834 N.E.2d [90,] 115 [(Ind.
               2005)] (citing Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995)).
               “Intoxication, drug use and mental illness are only factors to be
               considered by the trier of fact in determining whether a statement was
               voluntary.” Id. The State also bears the burden of proving
               beyond a reasonable doubt that the defendant’s confession was
               voluntarily given.




       6
         Arguments not preserved for our review on this issue include Payne’s argument that the stipulation he
       signed prior to the administration of the polygraph examination did not sufficiently advise him of his rights
       and was unlawfully ambiguous; that he was not properly Mirandized prior to his May confession; and that
       his confession resulted from “flagrant” misconduct by Parke County law enforcement officers in “exploit[ing]
       an obviously delusional man.” Appellant’s Br. at 34. Payne similarly has not preserved for our review his
       assertions that his statements to officers were not lawfully given because of “coercive tactics” allegedly
       utilized by Parke County law enforcement officers against Payne. Id. at 36. And Payne does not argue
       fundamental error on appeal. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019                               Page 16 of 22
       State v. Banks, 2 N.E.3d 71, 80-81 (Ind. Ct. App. 2014) (emphasis added; some

       citations omitted), trans. denied.


[28]   Thus, our case law is clear that one’s mental illness “does not render”

       statements to officers “inadmissible per se.” Id. at 81. Payne’s argument to the

       contrary on appeal is not consistent with Indiana precedent, and, as such, he

       has not met his burden on appeal to show that the trial court abused its

       discretion when it rejected that argument. Accordingly, we affirm the trial

       court’s judgment on this issue.


                                              Issue Three: Venue

[29]   We next consider Payne’s argument on appeal that the trial court abused its

       discretion when it declined Payne’s request to transfer venue out of Parke

       County. In particular, Payne asserts that the trial court erred because the entire

       population of Parke County was the victim of his acts. According to Payne, the

       implied bias of every possible juror in Parke County was summarized in pretrial

       statements made by the Parke County Prosecutor: Payne’s acts were a “direct

       attack on Parke County’s Heritage.” Appellant’s App. Vol. II at 65. In other

       words, Payne asserts that he was entitled to a transfer of venue because it was

       impossible for him to receive a fair trial in Parke County.

[30]   As our Supreme Court has explained:


               in order to obtain a change of venue [the defendant] bears the
               burden of showing that community prejudice exists which would
               prevent his obtaining a fair trial in that community, and to
               prevail on appeal from the denial of his motion he must

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 17 of 22
               demonstrate an abuse of the trial court’s discretion. . . . [T]o
               establish such an abuse of discretion, [the defendant] must
               demonstrate both prejudicial pretrial publicity and juror inability
               to render an impartial verdict on the evidence.


       Clemons v. State, 610 N.E.2d 236, 240 (Ind. 1993).


[31]   Among other deficiencies in his argument on this issue on appeal, Payne has

       not shown that any of the seated jurors were unable to set aside any

       preconceived notions of guilt and decide the case on the evidence. See id.

       Payne cites no portion of the voir dire that reveals partiality on the part of any

       jurors who heard his trial. See id. And we reject Payne’s speculation that all of

       the potential jurors were necessarily impliedly biased against anyone accused of

       these offenses. We therefore affirm the trial court’s denial of Payne’s motion to

       transfer venue.


                                Issue Four: Episode of Criminal Conduct

[32]   We next consider Payne’s argument that the trial court erred when it did not

       find the arson of the Bridgeton Covered Bridge and the attempted arson of the

       Mansfield Covered Bridge to be an episode of criminal conduct. “Separate

       offenses are not part of a single ‘episode of criminal conduct’ when a full

       account of each crime can be given without referring to the other offenses.”

       Reeves v. State, 953 N.E.2d 665, 671 (Ind. Ct. App. 2011), trans. denied.

       “[W]hether a series of crimes are related in some way is not the relevant test.”

       Id.




       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019            Page 18 of 22
[33]   Here, Payne’s assertions aside, the facts plainly demonstrate that Payne

       prepared for and completed the act of arson of the Bridgeton Covered Bridge.

       Thereafter, he drove to Groveland, obtained additional gasoline, and then

       drove to Mansfield in an attempt to burn down the Mansfield Covered Bridge.

       A full account of the Bridgeton Covered Bridge arson is readily given without

       reference to the attempted arson of the Mansfield Covered Bridge and vice

       versa. These were each independent crimes. The trial court did not error when

       it declined to find Payne’s two crimes to be an episode of criminal conduct.


                                Issue Five: Inappropriateness of Sentence

[34]   Finally, we address Payne’s argument that his aggregate term of ninety years in

       the Department of Correction is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       Court may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” “The

       principal role of appellate review should be to attempt to leaven the outliers,”

       not to “achieve a perceived ‘correct’ result in each case. Defendant has the

       burden to persuade us that the sentence imposed by the trial court is

       inappropriate.” Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (citations and

       omission removed).


[35]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 19 of 22
       2008). “The advisory sentence is the starting point the legislature has selected

       as an appropriate sentence for the crime committed.” Sanders v. State, 71

       N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied. Whether we regard a

       sentence as inappropriate at the end of the day turns on “our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Cardwell, 895

       N.E.2d at 1224. Deference to the trial court “prevail[s] unless overcome by

       compelling evidence portraying in a positive light the nature of the offense (such

       as accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[36]   The trial court entered judgment on each of Payne’s convictions for arson and

       attempted arson as a Class B felony, which, at all relevant times, carried a

       sentencing range of six to twenty years and an advisory sentence of ten years.

       See Ind. Code § 35-50-2-5 (2005). Following the jury’s finding, the trial court

       also entered judgment against Payne as an habitual offender, which carried an

       additional mandatory term of ten to thirty years. See I.C. § 35-50-2-8 (2005).

       Thus, Payne faced a maximum aggregate term of ninety years, which is the

       sentence the court imposed.


[37]   In imposing that sentence, the trial court stated as follows:


               the Court finds the following aggravating circumstances: The
               harm, injury[,] or loss associated with the offense[s] was greater
               than the elements necessary to prove the commission of the

       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019             Page 20 of 22
               offense[s], and the loss was significant in that the structures
               targeted and destroyed had historical significance. The
               defendant has a history of delinquent or criminal activity . . . .
               The defendant was recently released from prison and on parole at
               the time of the offense[s]. The defendant’s character indicates
               that he has a compulsion to commit crimes and if released would
               likely commit further crimes, particularly Arson. Court considers
               the following mitigating circumstances: The defendant suffers
               from mental illness, particularly paranoid schizophrenia.
               However, the defendant has a history of non-compliance with
               treatment, lack of a support system, and the Court finds that he
               can receive rehabilitative, structured supervision and treatment in
               the Indiana Department of Correction.


       Appellant’s App. Vol. VI at 213.

[38]   On appeal, Payne asserts that the nature of the offenses “does not justify a

       maximum sentence” but instead simply shows “that a sick man burned two

       bridges when no one was around or could get hurt, and intended to burn a

       third.” Appellant’s Br. at 45. He further asserts that his character justifies a

       downward revision of his sentence because “a person who is so mentally ill to

       be found Guilty But Mentally Ill is not one of the worst of the worst offenders.”

       Id. at 43.


[39]   But we cannot say that Payne’s sentence is such an outlier that our disruption of

       the trial court’s sentencing discretion is required. Although we agree with

       Payne that his mental illness is well documented and significant, the

       Department of Correction is not devoid of authority to address the needs of

       mentally ill prisoners. See Ind. Code §§ 11-10-4-1 to -9 (2018). Moreover, the

       nature of the offenses here was significant: Payne destroyed two historically
       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 21 of 22
       significant bridges and would have destroyed a third but for the intervention of

       local law enforcement officers. We also reject Payne’s assumption that the

       arsons here did not put any people at risk when each arson required an

       emergency response by local firefighters.


[40]   Neither does Payne’s character justify this Court’s revision of his sentence.

       Payne has a lengthy criminal history, including five juvenile delinquency

       adjudications and three adult felony convictions, one of which was for arson.

       He has a prior probation revocation, and he was on parole at the time he

       committed the Bridgeton Covered Bridge arson and attempted to commit the

       arson of the Mansfield Covered Bridge. Accordingly, we cannot say that

       Payne’s aggregate sentence of ninety years in the Department of Correction is

       inappropriate in light of the nature of the offenses and his character.


                                                  Conclusion
[41]   In sum, we affirm Payne’s convictions and his sentence.


[42]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1359 | May 15, 2019          Page 22 of 22
