FOR PUBLICATION
ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JAMES D. CRUM                                GREGORY F. ZOELLER
Coots, Henke & Wheeler, P.C.                 Attorney General of Indiana
Carmel, Indiana
                                             NICOLE M. SCHUSTER
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           FILED
                                                                     Mar 20 2012, 9:26 am


                             IN THE                                          CLERK
                                                                           of the supreme court,


                   COURT OF APPEALS OF INDIANA                             court of appeals and
                                                                                  tax court




LUKE KEYS CARSON,                            )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 29A04-1106-CR-278
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable Steven R. Nation, Judge
                             Cause No. 29D01-0904-FA-45



                                   March 20, 2012


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Luke Keys Carson entered a woman‟s trailer without permission and left. Later that

day, he returned and cut her hand with a knife. He also fought with another man and poked

him in the abdomen with the knife. The State charged Carson with two counts of attempted

murder, two counts of battery by means of a deadly weapon, burglary, and resisting law

enforcement. Carson filed a notice of insanity defense. Carson was found incompetent to

stand trial and was diagnosed with paranoid schizophrenia. When he was restored to

competency, a bench trial was held. Two experts found that Carson was mentally ill and, as a

result of that mental illness, he was unable to appreciate the wrongfulness of his conduct at

the time of the crimes. The trial court found Carson not guilty of the two counts of attempted

murder. As to the remaining counts, the trial court found, based on Carson‟s demeanor

during and after the crimes, that Carson was able to appreciate the wrongfulness of his

conduct at the time of the crimes, thereby rejecting Carson‟s insanity defense. The trial court

found him guilty but mentally ill of two counts of battery by means of a deadly weapon,

burglary, and resisting law enforcement.

       On appeal, Carson argues that the trial court erred in rejecting his insanity defense

because the evidence is without conflict and leads only to the conclusion that he was unable

to appreciate the wrongfulness of his conduct at the time of the crimes. In the alternative, he

argues that the evidence is insufficient to support his burglary conviction.

       We conclude that the evidence of Carson‟s demeanor during and after the crime

supports the trial court‟s determination that he was able to appreciate the wrongfulness of


                                              2
actions at the time of the crimes and therefore was guilty but mentally ill. We also find that

the evidence is sufficient to support his burglary conviction. We therefore affirm his

convictions.

                                   Facts and Procedural History

        In the spring of 2009, Carson lived in a Westfield trailer park. Angelina Zuniga lived

in the same trailer park, but the two were not acquainted. On the morning of April 16, 2009,

Zuniga was in her trailer home eating breakfast when she heard someone opening her

unlocked door. She turned and saw an unknown man, later determined to be Carson,

standing a couple feet inside her trailer. He was holding a black Bible and some paper and

spoke to her in English, which she did not understand. After a couple minutes, Carson said

“never mind” and left. Tr. at 64. Zuniga locked the door.

        Thirty to forty-five minutes later, Carson returned to Zuniga‟s trailer and tried to open

the door. Zuniga was in her trailer with a friend. When Zuniga saw Carson at the door, she

went to the door, opened it, and asked what he wanted. As she stood in the doorway, Carson

again spoke to her in English, and she asked him in her “broken English if he had any

problems.” Id. at 70. Carson came toward Zuniga and cut her right hand with a knife.1

Zuniga went back inside and yelled to her friend to close the door. Zuniga and her friend

struggled to close the door as Carson pushed from the outside. Zuniga and her friend got the

door closed, and Carson walked away. Zuniga saw Carson hit the window of a blue car as he


        1
           The “Sheridan EMS Field Report SOR/Life Line” describes Zuniga‟s injury as “a superficial
defensive laceration to her right hand between her ring and middle finger” with “no active bleeding.” State‟s
Ex. 31.


                                                     3
walked by it. Zuniga also saw Carson walk back and forth between trailers. Id. at 74. Later,

Zuniga saw that the car window was scratched where Carson had hit it. Id. at 73.

       That same morning, Jorge Hernandez, who lived in a nearby trailer in the same trailer

park, saw an unknown man, later determined to be Carson, walk by his trailer twice.

Hernandez went outside to get a better look at who it was. Carson saw Hernandez and asked

him if he was “Richard.” Id. at 29. Carson approached Hernandez and continued to ask him

if he was “Richard.” Id. When Carson came too close, Hernandez pushed him away, and

they began to fight. Carson continued to ask Hernandez if he was Richard. During the fight,

Hernandez felt something “poking” him in the abdomen. Id. Hernandez pulled Carson‟s

jacket over Carson‟s head and realized that Carson had a knife in his hand. Hernandez

backed away from Carson and told him to calm down. Hernandez ran away in fear, and

Carson threw the knife at him. When Hernandez realized that Carson no longer had the

knife, he turned around and went back toward Carson. Carson retrieved his knife.

       At about 10:00 a.m., Westfield Police Officer Joshua Harrell was dispatched to the

trailer park. As Officer Harrell pulled into the trailer park, he saw Carson and Hernandez

fighting and then voluntarily separate. Officer Harrell got out of his car and saw Hernandez

pointing at Carson. “[A]t that point [Carson] started to run and [Officer Harrell] gave chase.”

Id. at 10. During the chase, Officer Harrell commanded Carson to drop the knife. Initially,

Carson did not “acknowledge [Officer Harrell] in any way.” Id. Officer Harrell took out his

firearm and yelled that he would shoot Carson if Carson did not drop the knife. Carson

dropped the knife near a tree but continued to run until he tripped in some gravel. Officer


                                              4
Harrell put his firearm away and grabbed his taser. He commanded Carson to show his

hands, which were underneath his body. Carson “kinda turned towards” Officer Harrell, but

Officer Harrell “still couldn‟t see his hands so he deployed his taser.” Id. at 11.

       Westfield Police Officer Greg Marlow arrived to assist. Officer Marlow saw Carson

lying on the ground. Another police officer asked Carson for his identification, and Carson

did not comply. Officer Marlow spoke briefly to Carson, who asked for an attorney.

       Carson was taken to the police department, where he submitted to a recorded

interview. During the interview, Carson repeatedly stated that Isaac, from the movie

Children of the Corn, would kill kids and drag them to the cornfield, and that he, Carson,

tried to kill a baby and drag it to a cornfield like Isaac in Children of the Corn. State‟s Ex.

33-A.2 He repeatedly stated that what Isaac did was “insane,” “crazy,” and “stupid,” and that

he, Carson, was not insane. Id. But he also repeatedly said that he was doing “stupid stuff”

that Isaac would have done. Id. He repeatedly stated that he was going to “slice” or “cut” a

“kid” or a “baby” because that is what Isaac would have done, but “[he] couldn‟t do that, [he]

couldn‟t stab a baby.” Id. He mentioned several times that there were black birds that were

driving him crazy. Carson also stated that “they” sent him texts and referred to “the little

trick they played about looking up this stuff.” Id. He said that he had to go back to the Bible

days for “Children of the Corn stuff,” and “I just know how to read good and figure stuff out

… that‟s why they made me do it.” Id. He said, “They told me my name was Luke, and it all


       2
           The record before us includes both a VHS tape and a DVD of Carson‟s recorded interview.
However, the DVD was cracked in two. State‟s Ex. 33. Fortunately, we were able to view the VHS tape.
State‟s Ex. 33-A.


                                                 5
came down to me and my bloodline. I started to look through stuff and it did. I‟m in the

Bible for some reason. I don‟t know why. I‟m an atheist.” Id. Carson did remember

fighting with Hernandez. Carson said that he fought Hernandez because he thought

Hernandez was calling the police. Toward the end of the interview, Carson said that he

thought he cut the baby. Finally, he said that he wanted to talk about the “big picture” and

that he needed “the pieces of paper and the Bible” to show the police. Id.

       On April 17, 2009, the State charged Carson with two counts of class A felony

attempted murder, two counts of class C felony battery by means of a deadly weapon, one

count of class B felony burglary, and one count of class D felony resisting law enforcement.

On April 24, 2009, Carson filed a notice of insanity defense and a notice of incompetency.

On April 27, 2009, the trial court entered an order appointing two psychiatrists, Drs. Martin

Groff and Ned Masbaum, to examine Carson to assess his competency to stand trial and

determine whether he was insane at the time of the crimes; that is, whether he had a “severely

abnormal mental condition that grossly and demonstrably impair[ed his] perception” and

rendered him “unable to appreciate the wrongfulness of his conduct at the time of the

[alleged] offenses.” Ind. Code § 35-41-3-6.

       Dr. Groff and Dr. Masbaum independently examined Carson on May 2 and 6, 2009,

respectively. On May 7, 2009, the doctors performed a joint examination of Carson, lasting

seventy-five minutes. Both doctors reviewed the probable cause affidavit. Dr. Groff also

reviewed Carson‟s jail records. Dr. Groff‟s report indicated that on April 21, 2009, Dr. Brett

Presley described Carson‟s thinking as “delusional and grossly disorganized” and prescribed


                                              6
Thorazine.3 Def.‟s Ex. B at 4. On May 6, 2009, Carson was put in a padded cell because he

was hitting his head against the wall and had tried to put a plastic bag over his head. Id. Dr.

Groff concluded that Carson had a psychiatric disorder that substantially disturbed his

thinking and rendered him incompetent to stand trial. However, due to Carson‟s confused

mental state at the time of the exam, Dr. Groff was unable to determine whether Carson had a

severely abnormal mental condition that rendered him unable to appreciate the wrongfulness

of his conduct at the time of the alleged offenses. Id. at 7.

        In his report, Dr. Masbaum diagnosed Carson with a psychotic disorder and concluded

that Carson was mentally ill as defined by Indiana Code Section 35-36-1-14 and that he was

not competent to stand trial at that time.5 Def.‟s Ex. A. at 4. Dr. Masbaum was also unable

to assess Carson‟s soundness of mind at the time of the alleged offenses due to his




        3
            Thorazine is a brand name for Chlorpromazine.

                Chlorpromazine is used to treat the symptom of schizophrenia (a mental illness that
        causes disturbed or unusual thinking, loss of interest in life, and strong or inappropriate
        emotions) and other psychotic disorders (conditions that cause difficulty telling the difference
        between things or ideas that are real and things or ideas that are not real) and to treat the
        symptoms of mania (frenzied, abnormally excited mood) in people who have bipolar disorder
        (manic depressive disorder; a condition that causes episodes of mania, episodes of depression,
        and other abnormal moods).

PUBMED HEALTH, U.S. NATIONAL LIBRARY OF                           MEDICINE,      http://www.ncbi.nlm.nih.gov/
pubmedhealth/PMH0000553/ (last visited Feb. 8, 2012).
        4
           “„Mentally ill‟ means having a psychiatric disorder which substantially disturbs a person‟s thinking,
feeling, or behavior and impairs the person‟s ability to function; „mentally ill‟ also includes having any mental
retardation.” Ind. Code § 35-36-1-1.
        5
          Dr. Masbaum described Carson‟s speech as extremely disorganized and called it a “word salad.”
Def.‟s Ex. A. at 3.


                                                       7
“disordered mental state” and opined that it would be necessary to reexamine Carson after he

was restored to competency to stand trial. Id.

        On May 29, 2009, the trial court held a hearing on Carson‟s competency to stand trial

and found that he was not competent.6 The trial court continued the cause and committed

Carson to the Indiana Division of Mental Health and Addiction. Carson was then admitted to

Logansport State Hospital, where he was diagnosed with paranoid schizophrenia. Def.‟s Ex.

G. After ninety days, Carson had not attained competency to stand trial, and Logansport

requested a ninety-day extension.7 Appellant‟s App. at 49. After the ninety-day extension,

Carson still had not attained competency to stand trial, and on November 13, 2009,

Logansport initiated involuntary commitment proceedings.8 On November 16, 2009, the trial

court held a hearing on Carson‟s involuntary commitment. The trial court found that Carson



        6
          The standard of competency to stand trial is whether the defendant “„has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understandingand ... has a rational as well as
factual understanding of the proceedings against him.‟” Corcoran v. State, 820 N.E.2d 655, 659 (Ind. 2005)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).
        7
           Pursuant to Indiana Code Section 35-36-3-3, the superintendent of the state institution to which the
defendant is committed is required to certify that “the defendant has a substantial probability of attaining the
ability to understand the proceedings and assist in the preparation of the defendant‟s defense within the
foreseeable future.” (Emphasis added.) Our review of the record before us shows that the superintendent
merely certified that Carson had not yet attained the ability to understand the proceedings and assist in the
preparation of his defense and requested a ninety-day extension. Appellant‟s App. at 4, 49. Likewise, the
August 7, 2009, comprehension to stand trial report submitted by the Logansport doctor who examined Carson
failed to provide an assessment on whether it was substantially probable that Carson would attain competency
in the foreseeable future. Def.‟s Ex. G. Carson has not raised this as an issue, but we are troubled by
Logansport‟s noncompliance with Section 35-36-3-3.
        8
           If a defendant has not attained competency within six months of the defendant‟s admission to a state
institution, the state institution “shall institute regular commitment proceedings under IC 12-26.” Ind. Code §
35-36-3-4. The petitioner seeking involuntary commitment “is required to prove by clear and convincing
evidence that: (1) the individual is mentally ill and either dangerous or gravely disabled; and (2) detention or
commitment of that individual is appropriate.” Ind. Code § 12-26-2-5.


                                                       8
was suffering from paranoid schizophrenia and was gravely disabled and ordered him

committed to Logansport.

       On October 25, 2010, Logansport filed a comprehension to stand trial report

informing the trial court that Carson was competent to stand trial. The parties submitted an

agreed entry requesting the trial court to order Drs. Groff and Masbaum to reexamine Carson

to determine whether he had a severely abnormal mental condition that grossly and

demonstrably impaired his perception and rendered him unable to appreciate the

wrongfulness of his conduct at the time of the alleged offenses. Dr. Groff examined Carson

on January 27, 2011, and Dr. Masbaum examined him on February 11, 2011.

       On February 28, 2011, a bench trial was held. The doctors‟ reports were admitted into

evidence. Both doctors determined that Carson had a severely abnormal mental condition

that rendered him unable to appreciate the wrongfulness of his conduct at the time of the

alleged offenses. Def.‟s Exs. C and E. Officers Harrell and Marlow testified for the State,

and the State submitted the videotapes of the police interviews with Carson and Zuniga and

Hernandez‟s written statement. The trial court found Carson not guilty of the two counts of

attempted murder. The trial court found Carson guilty but mentally ill on all the remaining

counts. Specifically, the trial court found that

       [Carson] did make statements concerning how the actions were stupid. He
       apologized. He stopped fighting when he saw a police officer approach him
       and ran from the police officer and obeyed the police officer‟s command to
       drop the knife or he would shoot him. All of those items taken together shows
       [sic] that he had an appreciation of the wrongfulness of the act that he had just
       committed.



                                              9
Tr. at 127. The trial court sentenced Carson to an aggregate term of ten years. Carson

appeals his convictions.

                                  Discussion and Decision

           I. Carson’s Ability to Appreciate the Wrongfulness of His Conduct

       To sustain a conviction, the State must prove each element of the charged offense

beyond a reasonable doubt. Ind. Code § 35-41-4-1(a). Even if the State meets its burden,

when a defendant raises the insanity defense, the trier of fact has the additional option of

finding the defendant “not responsible by reason of insanity at the time of the crime” (“NRI”)

or “guilty but mentally ill at the time of the crime” (“GBMI”). Ind. Code § 35-36-2-3.

Carson argues that the trial court erred in finding him GBMI rather than NRI. The insanity

defense is governed by Indiana Code Section 35-41-3-6, which 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.

       The insanity defense is an affirmative defense for which the defendant carries the

burden of proof by a preponderance of the evidence. Ind. Code § 35-41-4-1. The defendant

must establish both that (1) he or she suffers from a mental disease or defect and (2) the

mental disease or defect rendered him or her unable to appreciate the wrongfulness of his or

her conduct at the time of the offense. Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010).

“A defendant who is mentally ill but fails to establish that he or she was unable to appreciate

                                              10
the wrongfulness of his or her conduct may be found [GBMI].” Id. Our supreme court has

set forth our standard of review:

               Whether a defendant appreciated the wrongfulness of his or her conduct
       at the time of the offense is a question for the trier of fact. Indiana Code
       section 35-36-2-2 provides for the use of expert testimony to assist the trier of
       fact in determining the defendant‟s insanity. Such expert testimony, however,
       is merely advisory, and even unanimous expert testimony is not conclusive on
       the issue of sanity. The trier of fact is free to disregard the unanimous
       testimony of experts and rely on conflicting testimony by lay witnesses. And
       even if there is no conflicting lay testimony, the trier of fact is free to disregard
       or discredit the expert testimony.

              Because it is the trier of fact‟s province to weigh the evidence and
       assess witness credibility, a finding that a defendant was not insane at the time
       of the offense warrants substantial deference from reviewing courts. A
       defendant claiming the 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. A court on review will not reweigh evidence, reassess
       witness credibility, or disturb reasonable inferences made by the trier of fact
       (even though more reasonable inferences could have been made).

               Although this standard of review is deferential, it is not impossible, nor
       can it be. The Indiana Constitution guarantees “in all cases an absolute right to
       one appeal.” Ind. Const. art. VII, § 6. 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. As such, this 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 (footnote, citations, and quotation marks omitted).

       Here, Drs. Groff and Masbaum both agreed that Carson was mentally ill and, as a

result, was unable to appreciate the wrongfulness of his conduct at the time of the offenses.

There was no lay opinion testimony as to Carson‟s ability to appreciate the wrongfulness of


                                                11
his conduct. Accordingly, we will consider whether there is demeanor evidence from which

a conflicting inference of sanity may reasonably be drawn, and if there is, then we must

affirm the trial court. See id. at 712 (“Even where there is no conflict among the experts and

the lay witnesses, a finding that a defendant was sane at the time of the crime still may be

sustained by probative demeanor evidence from which a conflicting inference of sanity may

be drawn.”)

       Our supreme court has explained that demeanor evidence has its strengths and

weaknesses. “Demeanor is useful because a defendant‟s behavior before, during, and after a

crime may be more indicative of actual mental health at the time of the crime than mental

exams conducted weeks or months later.” Id. (citation, quotation marks, and brackets

omitted). When there is some indication that the defendant is feigning mental illness,

demeanor evidence is more “useful.” Id. at 713. Demeanor evidence is less valuable when

the defendant has a history of mental illness with psychosis. Id. “Finally, demeanor

evidence before and after a crime is of more limited value than the defendant‟s demeanor

during the crime.” Id. at 714. Our supreme court has emphasized that “demeanor evidence

must be considered as a whole, in relation to all the other evidence. To allow otherwise

would give carte blanche to the trier of fact and make appellate review virtually impossible.”

Id.

       Here, the trial court found that Carson appreciated the wrongfulness of his conduct at

the time he committed his crimes based on the following demeanor evidence: (1) Carson

stopped fighting and ran when he saw Officer Harrell: (2) Carson dropped his knife when


                                             12
Officer Harrell told him to drop the knife or he would shoot him; (3) during his police

interview, Carson described his actions as “stupid;” and (4) Carson apologized.9 Tr. at 127.

Carson contends that the trial court failed to consider the “demeanor evidence as a whole, in

relation to all other evidence,” Galloway, 938 N.E.2d at 714, and that when the demeanor

evidence is properly considered, it does not support a reasonable inference that he was able to

appreciate the wrongfulness of his conduct at the time of his offenses. In that event,

according to Carson, the evidence is without conflict and leads only to the single conclusion

that he was unable to appreciate the wrongfulness of his conduct.

        In a number of Indiana cases, defendants have appealed their GBMI convictions,

claiming that he or she should have been found NRI on the basis of nonconflicting expert

testimony that the defendant was unable to appreciate the wrongfulness of his or her conduct

at the time of the offense(s). In all these cases, except for Galloway, the appellate court

upheld the GBMI conviction(s) because the evidence regarding the defendant‟s ability to

appreciate the wrongfulness of his or her conduct was conflicting. For purposes of

comparison, we review a few of these cases and then discuss Galloway.

        In Barany v. State, 658 N.E.2d 60 (Ind. 1995), the defendant murdered his girlfriend.

He was sitting naked on a pier, and his girlfriend came out of their house and covered him

with a blanket. He bit off his girlfriend‟s finger and swallowed it. She ran into the house.




        9
           Our review of the record has not revealed the apology to which the trial court refers, and neither
party provides a citation to the record for it. However, the sound quality of the VHS tape of Carson‟s interview
was less than perfect, and it is possible that he apologized but we were unable to understand it.


                                                      13
Barany went into the water and then went into the house. He saw his girlfriend talking on the

telephone, got a handgun, and shot her eight times in the head. Our supreme court held,

               In this case, the medical experts were unanimous in concluding that
       appellant was insane at the time of the killing. However, the State offered
       testimony from several lay witnesses that indicated that appellant was sane.
       Indiana State Police Detective Stotts described how, only a few hours after the
       crime, appellant talked about the victim‟s complaints and nagging. One of
       appellant‟s friends, Chris Brockman, testified as to unusual topics of
       conversation, such as conspiracies, but indicated that appellant “seemed O.K.”
       In a conversation with his sister, appellant indicated that he believed that the
       victim was calling the police when he killed her. The jury could have decided
       that this testimony about appellant‟s behavior was more indicative of his actual
       mental health at the time of the killing than medical examinations conducted
       four weeks after the arrest. Given this conflicting evidence, we will not invade
       the jury‟s fact-finding province.

Id. at 64.

       In Moler v. State, 782 N.E.2d 454 (Ind. Ct. App. 2003), trans. denied, the defendant

lived with Neil Wright; Neil‟s mother, Nina Wright; and Nina‟s mother, Ethel Cummins.

Moler helped care for the elderly Cummins.          Neil and Nina knew that Moler had

schizophrenia. One morning, Jean Sarver took Moler to Lifespring Mental Health Services

for an injection of antipsychotic medication. Later, Moler, Neil, and Cummins spent the

afternoon watching television. Moler appeared fine and behaved normally. Neil and Nina

left Moler with Cummins while they went to run an errand. When they returned, Cummins

was lying next to the couch with blood everywhere. Moler told police that Cummins turned

into a witch so he had to kill her. The Moler court concluded,

               Here, as in Barany, the medical experts unequivocally testified that
       Moler was insane at the time he killed the victim. However, lay witnesses
       testified about Moler‟s behavior before the crime occurred. Neil testified that
       Moler “seemed to be fine” during the afternoon of January 6, 1998. Nina

                                             14
       testified that she saw nothing unusual in Moler‟s behavior the afternoon before
       the murder occurred. Jean Sarver testified that her conversation with Moler
       was normal during the morning drive to Lifespring. Sheri Goode, who gave
       Moler the injection at Lifespring, testified that “every time” a patient came for
       a shot, the patient was asked questions about suicidal or homicidal ideas.
       Goode also testified that nothing unusual was detected during Moler‟s January
       6, 1998 visit.

               Lay witnesses also testified about Moler‟s demeanor following the
       attack on Cummins. Captain Stephan, who had known Moler for twelve years,
       testified that Moler seemed “pretty normal” after the attack. Officer Hartman
       testified that Moler‟s general demeanor was “very calm, very relaxed” except
       for Moler‟s anxiety about not being allowed into the Wright residence to
       retrieve some cigarettes. Officer True observed that Moler‟s demeanor
       remained calm while Moler told him about how he killed Cummins.

Id. at 457-58 (citations omitted). The Moler court held that there was sufficient evidence to

support the jury‟s verdict that Moler was GBMI. Id. at 458.

       In Thompson v. State, 804 N.E.2d 1146 (Ind. 2004), the defendant, who had a history

of mental illness, was convicted of residential entry. Thompson went to Alisha Beeler‟s

home to use her bath. Beeler observed Thompson talking strangely to the children. When

Thompson went to her car to retrieve some bath items, Beeler locked the door. When

Thompson came back, Beeler told her to leave. Thompson became irate and broke the

window. She climbed in through the window, collected her things, and departed through the

front door. The expert opinions were unanimous that Thompson was insane at the time of the

offense. The Court of Appeals found this evidence uncontradicted and reversed Thompson‟s

conviction. However, our supreme court affirmed Thompson‟s conviction, explaining,

               The State contends that non-medical evidence of Thompson‟s sanity
       could be gleaned from the affidavit. Specifically, it cites Thompson‟s removal
       of only her own possessions from Beeler‟s home as indicating her awareness
       of the propriety of taking only what belonged to her and hence her awareness

                                              15
       of right and wrong. It further argues that because the officers who stopped
       Thompson when she was leaving the scene felt comfortable releasing her, they
       must have felt she was sufficiently lucid to be allowed to go about her
       business. The Court of Appeals rejected the State‟s argument, correctly stating
       that in reviewing the judgment, we review only the reasonable inferences to be
       drawn from the facts and finding that there were other more reasonable
       inferences that could be drawn from those facts. The question, however, is
       whether the inferences supporting the judgment were reasonable, not whether
       there were other more reasonable inferences that could have been made.
       Reaching alternative inferences such as this is a function of the trier of fact,
       not this Court. We cannot reverse the conviction merely because this inference
       is a plausible one that might have been drawn from the evidence.

Id. at 1149-50 (citations and quotation marks omitted) (emphasis added).

       Our supreme court stated that the “trier of fact was entitled to prefer [the demeanor

evidence] over the psychiatric examinations conducted weeks or months later,” and that the

trial court had provided insight into why he did so. Id. at 1150.        The trial court cited

“Thompson‟s history of avoiding criminal responsibility through her illness, her conflicting

stories about what happened to her medication, her decision to use illegal drugs and drink

alcohol while on her medication, and the lies she told one of the examining psychiatrists

regarding that use of drugs and alcohol.” Id. Our supreme court concluded that the evidence

of Thompson‟s insanity was clearly in conflict and “the trier of fact could have found that

Thompson was able to distinguish right from wrong.” Id. See also, e.g., Gambill v. State,

675 N.E.2d 668, 671 (Ind. 1996) (concluding that evidence of defendant‟s sanity was

conflicting where lay witnesses testified that defendant was able to appreciate the

wrongfulness of her actions at the time of offense, defendant failed to tell medical personnel

that she took large quantities of methamphetamine before killing her son, and defendant lied

to person who found her wandering the streets on the morning after murder when she claimed

                                             16
she had been beaten and raped and her former boyfriend had hurt her son); Fernbach v. State,

954 N.E.2d 1080, 1086 (Ind. Ct. App. 2011) (concluding that evidence of defendant‟s sanity

was conflicting where lay witnesses testified that defendant was acting normally at

convenience store where shooting occurred, defendant fled the scene of the crimes, jail nurse

testified she thought defendant was faking the extent of his mental illness, and police officers

who interviewed defendant after shootings testified they thought he knew the difference

between right and wrong), trans. denied; Jones v. State, 825 N.E.2d 926, 930 (Ind. Ct. App.

2005) (concluding that evidence of defendant‟s sanity was conflicting where police officer

testified that defendant was in “very normal state” when he said he had killed victims,

detective testified that defendant‟s behavior did not cause him to be concerned about

defendant‟s state of mind, and defendant indicated that, before he shot victims, he wrapped

gun so that “neighbors wouldn‟t hear it” because “he had a plan,” and after shooting

defendant took victim‟s keys and money, stopped and bought cigarettes and a drink, and

drove around looking for “weed”), trans. denied.

       As noted above, Galloway is the only case in which a defendant‟s GBMI conviction

was reversed. In Galloway, the defendant murdered his grandmother, with whom he lived.

The defendant had a long history of mental illness. He had been diagnosed with bipolar

disorder by up to twenty different physicians, often with accompanying psychotic and manic

symptoms, and had been voluntarily or involuntarily detained or committed for short-term

treatment more than fifteen times.




                                              17
       At trial, the experts unanimously agreed that the defendant was insane at the time of

the murder. In addition, the opinions of five lay witnesses supported the experts‟ opinion.

Nevertheless, the trial court found the defendant GBMI based on demeanor evidence. On

appeal, a majority of our supreme court disagreed, concluding that “there was not sufficient

demeanor evidence of probative value from which an inference of sanity could be drawn.”

938 N.E.2d at 715.

       [The trial court] found as probative of sanity the fact that, over the course of an
       hour, the defendant shopped, ate, and filled a car with gasoline without
       incident. It also found as probative the fact that the defendant cooperated with
       police after the fact. Viewed in isolation, each of these events may indeed
       represent the normal events of daily life. However, when viewed against the
       defendant‟s long history of mental illness with psychotic episodes, the
       defendant‟s demeanor during the crime, as testified to by three eyewitnesses,
       and the absence of any suggestions of feigning or malingering, this demeanor
       evidence is simply neutral and not probative of sanity.

Id. Further, the Galloway court found that the trial court improperly relied on several facts as

being indicative of sanity: the absence of plan or motive and the defendant acting without

warning; the defendant‟s deterioration during trial to the point of incompetency to stand trial;

the defendant‟s failure to take medication; and that the defendant was alert and oriented at

trial nearly a year after the murder. Id. Finally, the Galloway court found that it was

inappropriate for the trial court to consider the conditions of Indiana‟s mental health system

in rejecting the defendant‟s insanity defense. Id. at 716.

       What these cases illustrate is that determining whether demeanor evidence supports an

inference of sanity sufficient to create a conflict with nonconflicting expert testimony that the

defendant was insane is fact-sensitive and not amenable to a clear-cut standard. In the case at


                                               18
bar, the evidence does not provide any indication that Carson was feigning or malingering,

which reduces the value of demeanor evidence. In addition, demeanor evidence is less

valuable because Carson was diagnosed as paranoid schizophrenic, a mental illness with

delusions and hallucinations.10 The severity of his illness is shown by the fact that he was not

restored to competency to stand trial until a year and a half after he committed the crimes.

Although the demeanor evidence is less useful here than it might be for mental illnesses

without delusions and hallucinations, Carson did not have a long history of mental illness11 as

did Galloway, so perhaps the demeanor evidence should not be discounted to the extent that

it was in Galloway.

        Let us first consider the evidence relied on by the trial court of Carson‟s demeanor at

the time of the crimes and immediately thereafter. The fact that Carson ran when he saw the

police officer supports a reasonable inference that Carson knew that fighting with Hernandez

was wrong. The fact that Carson dropped the knife when the police officer threatened to

shoot him does not seem quite as probative. Although it indicates that Carson was thinking

clearly enough to protect himself, it is not necessarily indicative of an awareness of right and

wrong. Nevertheless, we cannot say that drawing an inference of sanity from it is

unreasonable.



        10
          “Persons that suffer from schizophrenia can experience unpredictable delusions and hallucinations.”
Moler, 782 N.E.2d at 458 (citing Am. Psychiatric Ass‟n, DSM–IV: Diagnostic and Statistical Manual of
Mental Disorders 274–75 (4th ed. 1994)).
        11
         In fact, the record shows that for about two months before the crime, Carson lived with his invalid
grandmother and was able to provide her with complete nursing care. Def.‟s Ex. A at 2.


                                                     19
       The rest of the demeanor evidence relied on by the trial court concerns events that

occurred after the crime. Such evidence may be less valuable than evidence of demeanor

during the crime, but it is not meaningless. The record shows that Carson asked Officer

Marlow for an attorney. In his recorded interview, Carson stated that he fought Hernandez

because Carson thought that Hernandez was calling the police. Carson also described what

he had done as “stupid” and “crazy.” State‟s Ex. 33-A. More probative of Carson‟s state of

mind at the time of the crimes are Carson‟s statements that he tried to do “crazy stuff” that

Isaac would have done, but “[he] couldn‟t do it.” Id. All support a reasonable inference that

Carson knew his conduct was wrong.

       Carson claims that the trial court did not consider the demeanor evidence presented by

lay witnesses Zuniga and Hernandez. He directs us to Zuniga‟s testimony that he came into

her trailer with a Bible and a piece of paper. He notes that Hernandez thought that his

behavior was strange enough to cause Hernandez to come out to investigate, and that

Hernandez testified that Carson kept asking Hernandez if he were “Richard.” Tr. at 29. We

find nothing in the record that would cause us to think that the trial court did not consider all

the demeanor evidence. The evidence that Carson highlights indeed supports a finding that

he was suffering from a mental illness at the time of the crimes. It does not necessarily

indicate that he could not appreciate the wrongfulness of his actions. Therefore, it does not

undercut the demeanor evidence that does support a reasonable inference that he was able to

appreciate the wrongfulness of his conduct.




                                               20
       Carson ran when he saw a policeman, asked for an attorney, stated that he fought with

Hernandez because he thought that Hernandez was calling the police, and stated that he was

unable to go through with the stupid, crazy things that he intended to do. We think that

considering the demeanor evidence as a whole, in relation to all other evidence, there is

probative evidence such that a reasonable inference of Carson‟s ability to appreciate the

wrongfulness of his conduct at the time of the crimes can be drawn. We emphasize that the

question before us is whether the inferences supporting the judgment are reasonable, not

whether there are other more reasonable inferences that could have been drawn. See

Thompson, 804 N.E.2d at 1149-50. Here, a reasonable inference that Carson appreciated the

wrongfulness of his conduct is supported by the evidence, and therefore the evidence is not

without conflict and does not lead only to the conclusion that Carson could not appreciate the

wrongfulness of his actions. That being the case, we will not invade the fact-finder‟s

province. See Barany, 658 N.E.2d at 64. Accordingly, we affirm the trial court‟s judgment

that Carson is GBMI.

                              II. Sufficiency of the Evidence

       Carson also contends that there is insufficient evidence to support his conviction for

class B felony burglary. Our standard of review is well settled.

       When reviewing the sufficiency of the evidence, we neither reweigh the
       evidence nor judge witness credibility. Instead, we examine only the evidence
       favorable to the judgment, together with the reasonable inferences to be drawn
       therefrom. We will affirm the conviction if evidence of probative value exists
       from which a fact-finder could find the defendant guilty beyond a reasonable
       doubt.

Gray v. State, 797 N.E.2d 333, 334-35 (Ind. Ct. App. 2003) (citations omitted).

                                             21
        Indiana Code Section 35-43-2-1 provides that a person who breaks and enters a

dwelling of another person, with intent to commit a felony in it, commits class B felony

burglary. “To establish the intent to commit a felony element of a burglary charge, the State

must prove beyond a reasonable doubt the defendant‟s intent to commit a felony specified in

the charge.” Freshwater v. State, 853 N.E.2d 941, 942 (Ind. 2006) (emphasis added).12 To

sustain Carson‟s conviction for class B felony burglary, the State was required to prove

beyond a reasonable doubt that Carson “did break and enter the dwelling of Angelina Zuniga;

with the intent to commit a felony therein, to-wit; Murder, to intentionally kill an unknown

child.” Appellant‟s App. at 12.

        Carson had two encounters with Zuniga, but our focus will be on the first because

Carson opened Zuniga‟s door and entered her home without permission. The second time, in

contrast, Zuniga opened the door herself. Therefore, only the first encounter satisfies the

breaking and entering element of burglary, and Carson concedes as much. See Thompson v.

State, 692 N.E.2d 474, 477 (Ind. Ct. App. 1998) (“Breaking is proved by showing that even

slight force was used to gain unauthorized entry including opening an unlocked door.”); see

also Henley v. State, 522 N.E.2d 376, 379 (Ind. 1988) (evidence sufficient to show breaking

and entering where defendant entered victim‟s home by opening unlocked door).

        Although Carson concedes that entering Zuniga‟s trailer without permission is

breaking and entering, he initially contends that there is no evidence that he “committed or



        12
           Where the State cannot establish intent to commit a particular underlying felony, residential entry is
the appropriate charge. See Ind. Code § 35-43-2-1.5 (“A person who knowingly or intentionally breaks and
enters the dwelling of another person commits residential entry, a Class D felony.”).

                                                       22
attempted to commit any type of felony.” Appellant‟s Br. at 11. No such evidence was

required because the burglary statute does not require the actual commission of or an attempt

to commit a felony. See Blackmon v. State, 455 N.E.2d 586, 590 (Ind. 1983) (noting that

State was not required to prove defendant completed theft to sustain burglary conviction).

The burglary statute only requires the State to prove that the defendant intended to commit a

felony. See Ind. Code § 35-43-2-1. The evidence shows that Carson intended to commit a

murder in Zuniga‟s trailer; that is, he told the police that he went to the trailer to kill a baby.

Carson contends this evidence is insufficient under the circumstances because he was

delusional and the existence of a baby in Zuniga‟s trailer was part of his delusion. According

to Carson, his delusion negates the “intent to commit a felony” element of the burglary

statute. The State counters that the “fact that there was no child in [Zuniga‟s] home or that

[Carson] might be delusional does not negate [his] possession of the intent to commit the

underlying felony of murder.” Appellee‟s Br. at 14 n.6 (citing Anez v. State, 408 N.E.2d

1315, 1317 (Ind. Ct. App. 1980)).

        Anez dealt with the application of the mistake of fact defense governed by Indiana

Code Section 35-41-3-7, which provides, “It is a defense that the person who engaged in the

prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the

culpability required for commission of the offense.”13 “„[I]n order for mistake of fact to be a


        13
            In Anez, the defendant was convicted of burglary after the police saw him with his hands and arms
inside a broken restaurant window, and he told police that he used a rock to break the window to get “anything
valuable.” Anez, 408 N.E.2d at 1316. On appeal, Anez argued that his conviction must be reversed because
he was mistaken in the belief that he could reach something valuable. The Anez court rejected his argument,
concluding that “[i]t is obvious through Anez‟ statement of his intent to get „anything valuable‟ from the
restaurant that his culpability was not negated by his mistake.” Id. at 1317.

                                                     23
valid defense, three elements must be satisfied: (1) the mistake must be honest and

reasonable; (2) the mistake must be about a matter of fact; and (3) the mistake must negate

the culpability required to commit the crime.‟” Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct.

App. 2007) (quoting Giles v. State, 699 N.E.2d 294, 300 (Ind. Ct. App. 1998)) (emphasis

added), trans. denied. Because there is no evidence that Carson was reasonably and honestly

mistaken that a baby was in Zuniga‟s trailer, the mistake of fact defense does not apply here.

See Payne v. State, 854 N.E.2d 7, 20 (Ind. Ct. App. 2006) (“[T]he mistake of fact defense is

available where the defendant, acting under a reasonable and honest mistake concerning a

fact or facts commits an act which, if the facts were as the defendant believed them to be,

would not be criminal.”) (emphasis added).

        Indeed, Carson does not rely on the mistake of fact defense. Rather, he argues that

“an insane delusion is much more than a mistake of fact.” Appellant‟s Reply Br. at 1 (citing

Barr v. Summer, 183 Ind. 402, 107 N.E. 675 (1915)).14 In essence, Carson‟s argument is that

his delusions preclude the possession of the requisite mens rea or “guilty mind” when

literally translated into English from the Latin. Id. at 2. Mens rea is defined as “[t]he state

of mind that the prosecution, to secure a conviction, must prove that a defendant had when

committing a crime; criminal intent or recklessness.” BLACK‟S LAW DICTIONARY 1006 (8th

ed. 2004). We have described mens rea as a “subjective blameworthiness.” Carter v. State,

408 N.E.2d 790, 797 (Ind. Ct. App. 1980); see also Markoff v. State, 553 N.E.2d 194, 196



        14
          Barr dealt with whether the testatrix was of sound mind and possessed full testamentary capacity
when she executed her will, so it is not helpful to the resolution of the issue before us.


                                                   24
(Ind. Ct. App. 1990) (“intent is a mental state of the actor”); Long v. State, 166 Ind. App.

282, 285, 335 N.E.2d 631, 632 (1975) (“intent is a subjective state of mind”).

        Carson does not cite any case law in which an appellate court was asked to examine

whether a defendant, suffering from delusions caused by mental illness or disease, was found

unable to form the requisite criminal intent due to those delusions. Our own review of

Indiana case law does not reveal any such cases.15

        Here, the evidence shows that Carson entered Zuniga‟s trailer with the intent to kill a

baby. Regardless of whether he was deluded as to the actual existence of a baby, he entered

her trailer with the subjective intent to commit murder, a felony, as alleged in the charging

information. Moreover, in his videotaped interview, Carson repeatedly stated that he was

going to “cut” or “slice” a baby but could not do it. State‟s Ex. 33-A. Those statements

show that he was able to appreciate the wrongfulness of the intent to commit murder. Thus,

we conclude that Carson‟s delusions did not preclude the formation of a “guilty mind.”

Although there may be circumstances under which insane delusions negate the culpability of

a defendant‟s crime,16 such is not the case here. We conclude that there was sufficient



        15
            Cases dealing with a defendant‟s drug-induced delusions and ability to form the requisite criminal
intent are not on point. See Norris v. State, 275 Ind. 608, 614-15, 419 N.E.2d 129, 132-33 (1981) (concluding
that there was sufficient evidence for jury to conclude that the defendant, suffering from delusions and
paranoia cause by his ingestion of PCP, intended to kill someone, and therefore affirming defendant‟s
conviction for attempted murder based on the doctrine of transferred intent).

        16
           For example, in State v. Herrera, 993 P.2d 854, 858 (Utah 1999), cert. denied, the defendant shot
and killed his girlfriend and was charged with murder. The doctor who examined Herrera concluded that when
Herrera shot his girlfriend, he was suffering from the delusion, associated with his paranoid schizophrenia, that
the Mafia had replaced his girlfriend with a nonhuman double, and therefore, Herrera did not believe that he
was killing a human being. Based on the doctor‟s opinion, the State stipulated that Herrera was not guilty
pursuant to Utah‟s insanity statute. Id. See Utah Code Ann. § 76-2-305 (“It is a defense to a prosecution

                                                       25
evidence to support Carson‟s conviction for class B felony burglary and affirm his

conviction.

        Concluding that there was sufficient evidence to support the trial court‟s judgment that

Carson was able to appreciate the wrongfulness of his conduct at the time he committed his

crimes and that there was sufficient evidence to support his conviction for burglary, we

affirm Carson‟s GBMI convictions.

        Affirmed.

MAY, J., and BROWN, J., concur.




under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required
as an element of the offense charged.”).


                                                       26
