MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               May 10 2019, 9:59 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
K. Aaron Heifner                                         Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lazarus White, II,                                       May 10, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-975
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         48C03-1702-F4-435



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019                      Page 1 of 10
                                              Case Summary

[1]   Lazarus White appeals his convictions for unlawful possession of a firearm by a

      serious violent felon, a Level 4 felony, and theft, a Level 6 felony. We affirm.


                                                     Issues

[2]   White raises two issues on appeal, which we restate as:


              I.      Whether the trial court erred in finding White guilty but
                      mentally ill instead of not guilty by reason of insanity.


              II.     Whether the evidence is sufficient to convict White of
                      unlawful possession of a firearm and theft.


                                                     Facts

[3]   On February 8, 2017, Michael Hennis was taking his lunch break at his sister’s

      home in Madison County when White knocked on the door. Hennis allowed

      White in the home to use the phone and restroom. Hennis’ sister lives at the

      home with her boyfriend and three children. While White was not an invited

      guest at the home that day, he had been there before, and it was not unusual for

      him to visit.


[4]   While inside the home, White made himself something to eat, used the

      restroom, and called for a ride. During this time, according to Hennis, White

      was acting “[k]ind of sketchy[,]” and “like he really didn’t want to be there.”

      Tr. p. 35. Hennis played video games while White waited for his ride. After

      using the upstairs restroom, White took Hennis’ AR-15 gun that was stored in

      an upstairs bedroom. Hennis observed White leaving the home with the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 2 of 10
      weapon, which Hennis could see partially tucked inside White’s coat.

      Approximately three hours later, Hennis filed a police report with Officer

      Brandon Reynolds at the Anderson Police Department. Based on the record, it

      does not appear the weapon was ever recovered; however, the State produced

      photos of the weapon that Hennis had on his phone.


[5]   White was arrested, and a bench trial was set to begin in March 2018. On

      March 3, 2018, White filed a belated notice of insanity defense. On March 7-8,

      2018, the trial court heard evidence with regard to White’s insanity defense and

      held a bench trial on the charges.


[6]   Dr. Susan Anderson testified that she did not believe White was suffering from

      a mental disease or defect at the time of the offense to the point that White

      should be excused from responsibility for his criminal acts. In reaching this

      determination, Dr. Anderson reviewed the arrest report, spoke with White’s

      mother, and spoke with White on November 29, 2017. White admitted to Dr.

      Anderson that, on the day of the alleged crime, White used cocaine and was

      not on his psychiatric medications. Further, Dr. Anderson testified regarding

      her diagnosis of White—namely, that she believed that White suffered from

      paranoid schizophrenia and substance abuse. White also suffered as a child

      from attention deficit hyperactivity disorder.


[7]   Dr. Ned Masbaum testified that White “was of unsound mind at the time of the

      alleged offenses. He was not able to appreciate the wrongfulness of his

      behavior at that time.” Id. at 17. In reaching this determination, Dr. Masbaum


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 3 of 10
      reviewed (1) the probable cause affidavit, (2) the charging informations, (3) the

      court order for the examination, and (4) White’s past medical history, personal

      history, and mental status examination. Additionally, Dr. Masbaum spoke

      with White’s mother and father and spoke with White on October 12, 2017.

      Dr. Masbaum also opined that White has a severe mental disease of

      schizophrenia. White told Dr. Masbaum that White was “dependent on

      marijuana, heroin, crack cocaine, and alcohol but he denied using any of those

      substances at the time of the alleged offenses.” Id. at 22. Dr. Masbaum stated

      that, although White did not admit to any substance abuse at the time of the

      offense, even if he had, that would not have impacted Dr. Masbaum’s opinion

      of White’s insanity.


[8]   During presentation of the State’s evidence, Hennis testified to the foregoing

      facts. Hennis, however, provided somewhat inconsistent or confusing

      testimony. First, Hennis was unclear as to why he allowed White to stay and

      eat lunch in the home, while awaiting a ride despite Hennis’ accusation that

      White was acting “sketchy.” Id. at 33. Second, Hennis was unclear as to why

      he waited three hours to report the stolen weapon, other than stating that he

      “tried to give [White] a chance to bring [the weapon] back . . .” Id. at 53.

      Third, Hennis was unclear about whether he initially saw White come down

      the stairs with the weapon, or whether it was some time after White used the

      restroom that Hennis observed White with the weapon. Fourth, the police

      report indicates that Hennis told Officer Reynolds that he chased White as

      White left the home, shouting, “Are you really going to do this to me?!”;


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 4 of 10
       whereas, at trial, Hennis testified that he did not chase after White. Appellant’s

       App. Vol. II p. 18. Fifth, the police report does not mention anything about

       Robert Anderson, the individual who picked White up from the home, coming

       into the home; whereas, at trial, Hennis testified that Anderson came in the

       home and spoke with Hennis before leaving with White.


[9]    The trial court found White guilty of theft, a Level 6 felony. Subsequently, the

       State admitted a certified copy of White’s previous convictions for burglary and

       theft. White’s counsel “stipulate[d] to the priors.” Tr. p. 88. Accordingly, the

       trial court found White guilty of unlawful possession of a firearm by a serious

       violent felon, a Level 4 felony. At sentencing, the trial court amended White’s

       verdict for both convictions to guilty but mentally ill. White now appeals.


                                                        Analysis

                                                   A. Insanity defense

[10]   White first argues that the trial court erred in finding him guilty but mentally ill

       instead of finding White guilty by reason of insanity. 1 “To convict a criminal

       defendant, the State must prove each element of the offense beyond a

       reasonable doubt.” Barcroft v. State, 111 N.E.3d 997, 1002 (Ind. 2018) (citing

       Ind. Code § 35-41-4-1(a)). However,




       1
         The trial court did not appear to explicitly reject White’s insanity defense. The trial court heard evidence on
       the insanity defense and then continued directly to evidence on the theft charge. At the close of the evidence,
       the trial court found White guilty, thereby implicitly denying White’s insanity defense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019                         Page 5 of 10
               [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. Proof of mental illness alone
               is not enough.


       Id. (citations and quotations omitted).


[11]   When reviewing a trial court’s conclusion that a defendant was not insane at

       the time of the offense, we give substantial deference to the trial court. See id.

       “On review, we do not reweigh evidence, reassess witness credibility, or disturb

       the factfinder’s reasonable inferences.” Id. (citing Myers v. State, 27 N.E.3d

       1069, 1074 (Ind. 2015)). “We will instead affirm the trial court’s conviction

       unless ‘the evidence is without conflict and leads only to the conclusion that the

       defendant was insane when the crime was committed.’” Id. (quoting Thompson

       v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)).


[12]   Here, Dr. Anderson and Dr. Masbaum agreed that White suffered from

       schizophrenia, which satisfies the first prong of the insanity defense. This

       alone, however, is not enough. See Barcroft, 111 N.E.3d at 1002. Additionally,

       White was required to prove that this mental illness rendered him unable to

       appreciate the wrongfulness of his conduct at the time of the offense. See id.

       Dr. Anderson and Dr. Masbaum disagreed about whether White was unable to

       appreciate the wrongfulness of his conduct at the time of the offense. This

       alone was sufficient for the trial court, as fact finder, to conclude that White


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 6 of 10
       was not suffering from insanity at the time of the offense. See Galloway v. State,

       938 N.E.2d 699, 708 (Ind. 2010) (“Our cases have consistently held that

       conflicting credible expert testimony is sufficiently probative of sanity.”).


[13]   The trial court was in the best position to weigh the two conflicting expert

       opinions and make a determination. The trial court ultimately made the

       determination that White was guilty but mentally ill. 2 Our review of the

       evidence does not “lead[] only to the conclusion that the defendant was insane

       when the crime was committed.” See Barcroft, 111 N.E.3d at 1002.

       Accordingly, the trial court did not err in finding White guilty but mentally ill

       instead of not guilty by reason of insanity.


                                                   B. Sufficient Evidence

[14]   Next, White challenges the sufficiency of the evidence for his convictions.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

       denied), cert. denied. Instead, “we ‘consider only that evidence most favorable to

       the judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some




       2
         Pursuant to Indiana Code Section 35-36-2-3, the trial court, as fact finder, could have found White either
       guilty, not guilty, not responsible by reason of insanity at the time of the crime, or guilty but mentally ill at
       the time of the crime.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019                            Page 7 of 10
       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

       affirm the conviction unless no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[15]   Specifically, White contends that the main issue regarding the evidence

       surrounds Hennis, the State’s witness who provided the facts supporting the

       theft conviction. White contends that a “review of the incredible dubiosity of

       the State’s witness” is required. Appellant’s Br. p. 7. The incredible dubiosity

       rule “allows an appellate court to impinge upon the fact-finder’s assessment of

       witness credibility when the testimony at trial was so ‘unbelievable, incredible,

       or improbable that no reasonable person could ever reach a guilty verdict based

       upon that evidence alone.’” Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App.

       2015) (quoting Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015)). “Incredible

       dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent

       testimony that ‘runs counter to human experience.’” Id. (quoting Edwards v.

       State, 753 N.E.2d 618, 622 (Ind. 2001)). In Moore, our Supreme Court held that

       “the appropriate scope of the incredible dubiosity rule as utilized in Indiana and

       other jurisdictions requires that there be 1) a sole testifying witness; 2) testimony

       that is inherently contradictory, equivocal, or the result of coercion; and 3) a

       complete absence of circumstantial evidence.” Moore, 27 N.E.3d at 756.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 8 of 10
[16]   While we agree with White that there were some inconsistencies in Hennis’

       testimony, as described above, these inconsistencies do not rise to the level of

       incredible dubiosity. 3 First, as to the discrepancies between Hennis’ pretrial

       statements and trial testimony, “When a witnesss’s trial testimony contradicts a

       statement she made before trial, it is the jury’s province to decide which

       statement to believe.” Chambless v. State, 119 N.E.3d 182, 193 (Ind. Ct. App.

       2019), trans. denied. “Discrepancies between pretrial statements and trial

       testimony go to the weight of testimony and credibility of the witness but do not

       render such testimony incredibly dubious.” Id. The defense pointed out the

       inconsistencies in Hennis’ pretrial and trial testimony, and the trial court

       ultimately decided that Hennis was credible.


[17]   As to Hennis’ trial testimony, while some of the details may have been unclear,

       Hennis was clear that White was in the home that day, went upstairs to use the

       restroom, and left the home with Hennis’ AR-15 without Hennis’ permission.

       Hennis’ testimony is not so “unbelievable, incredible, or improbable that no

       reasonable person could ever reach a guilty verdict based upon that evidence

       alone.” Carter, 44 N.E.3d at 52. Instead, several of these inconsistencies were

       “put squarely before the fact-finder, and the judge made a credibility call.” Id.

       at 54. The evidence is sufficient to sustain White’s convictions.




       3
        We would not necessarily describe all of Hennis’ corrected statements as inconsistent as White does. For
       example, at one point during his testimony, Hennis stated he lived with his sister until 2017, but then almost
       immediately corrected that statement to 2016. See Tr. p. 32.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019                       Page 9 of 10
                                                  Conclusion

[18]   Based on the foregoing, the trial court did not err in finding White guilty but

       mentally ill instead of not guilty by reason of insanity, and there is sufficient

       evidence to sustain White’s convictions. We affirm.


[19]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-975 | May 10, 2019   Page 10 of 10
