Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                              Sep 08 2014, 8:59 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

C. ROBERT RITTMAN                                   GREGORY F. ZOELLER
Grant County Public Defender                        Attorney General of Indiana
Marion, Indiana
                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

GARY WILDER,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 27A02-1311-CR-978
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                           The Honorable Mark E. Spitzer, Judge
                              Cause No. 27C01-1211-FC-252



                                        September 8, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Gary Wilder appeals his convictions,1 following a jury trial, for criminal

confinement2 as a Class C felony, criminal recklessness3 as a Class A misdemeanor, and

criminal mischief4 as a Class A misdemeanor. On appeal, Wilder raises only one issue,

whether the trial court erred by failing to conduct a hearing or make a finding regarding

Wilder’s competency to stand trial.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY

        On November 10, 2012, T.S. and E.J., fellow fifth-graders, walked toward a park in

Marion, Indiana. As the girls approached the intersection of First Street and the State Road

9 bypass, a car approached them that was operated by a man, later identified as Wilder.

Wilder pulled up next to the two girls, opened his door, and started to get out. E.J., who

did not feel safe, ran into the middle of the bypass.

        James Devine, who was driving by at the time, almost hit E.J. as he watched Wilder

grab T.S. from behind, pick her up, and carry her about five steps toward his vehicle.

Devine turned his vehicle around and yelled at Wilder through his window. Wilder put

T.S. down and fled in his vehicle. E.J. was pointing and yelling, so Devine followed

Wilder. A high speed chase through a residential neighborhood ensued. On Fourth Street,


        1
           We note that the General Assembly enacted a new version of the criminal statutes at issue, which
became effective July 1, 2014. Because Wilder committed his crimes in November 2012, we apply the
statutes in effect at the time he committed his crimes.
        2
            See Ind. Code § 35-42-3-3.
        3
            See Ind. Code § 35-42-2-2.
        4
            See Ind. Code § 35-43-1-2.


                                                    2
a vehicle struck Wilder’s car and caused it to crash into a large tree stump. The police

arrived and arrested Wilder. By that time, T.S. and E.J. had already fled to E.J.’s home

and reported the attempted abduction to E.J.’s father.

       Witnesses testified that Wilder told several people at the scene that he thought T.S.

was his niece. Officer Derrick Sessoms and Detective Benjamin Caudell, both of the

Marion Police Department, and Wilder, all testified that Wilder thought T.S. was his

friend’s daughter.

       On November 13, 2012, Wilder was charged with Class C felony confinement,

Class A misdemeanor criminal recklessness, and Class A misdemeanor criminal mischief.

Three days later, Wilder appeared at his initial hearing and informed the trial court that he

did not suffer from any mental or emotional disability and that he understood the charges

against him. The trial court appointed a public defender for Wilder.

       On April 1, 2013, the date set for the jury trial, a hearing was held outside the

presence of the venire panel. During that hearing, Wilder said that he was not satisfied

with his attorney and then questioned the integrity of the trial judge and the legal system.

While both attorneys stated that they were ready to proceed to trial that day, defense

counsel said he had evidence that would support the giving of an insanity instruction.

Following further discussion, the trial court granted defense counsel a ninety-day

continuance so that Wilder could be evaluated for competency to stand trial and to

determine his mental state at the time of the crimes charged.

       On April 12, 2013, Wilder filed a Motion for Psychiatric Evaluation, which the trial

court approved on April 23, 2013, appointing Frank H. Krause, Ed.D., HSPP, CSP and

                                             3
Craig Buckles, M.D. Drs. Krause and Buckles filed their reports with the trial court on

May 21, 2013 and May 23, 2013, respectively. In his report, Dr. Krause stated:

        Therefore, it is my professional opinion that after reviewing Court
        documents, including medical records, an interview, and the results of
        psychological testing, Gary Wilder is able to understand the charges and the
        Court proceedings in this matter, and to assist his attorney in the preparation
        of his defense. 5

Appellant’s App. at 72. Dr. Buckles noted that Wilder is intelligent, communicates well,

and understands his charges, and concluded that Wilder “is competent to stand trial.” 6 Id.

at 68. On May 24, 2013, Wilder filed a belated notice of insanity defense, and the trial

court allowed Wilder “to interpose the defense of insanity at trial.” Appellant’s App. at 5,

66.

        A two-day jury trial was held on June 3-4, 2013. Fourteen witnesses testified for

the State, Wilder and his niece testified for the defense, and Drs. Krause and Buckles

testified as witnesses of the court regarding the insanity defense. The jury returned verdicts

of guilty but mentally ill on each of the three counts. At sentencing, the trial court imposed

an eight-year executed sentence for the Class C felony confinement conviction, a

concurrent one-year executed sentence for the Class A criminal recklessness conviction,


        5
          Regarding the applicability of the insanity defense, Dr. Krause stated, “It is also my professional
opinion that Mr. Wilder suffers from a severely abnormal mental condition that grossly and demonstrably
impairs his condition so that he could not appreciate the wrongfulness of the charged conduct at the time
of the offense.” Appellant’s App. at 72
        6
          Regarding the applicability of the insanity defense, Dr. Buckles also concluded that, “Although
[Wilder] understands that it is wrong to confine, drive dangerously, or damage other’s property, at the time
it occurred his judgment was considerably impaired by his manic and delusional state.” Appellant’s App.
at 68. Dr. Buckles concluded, Wilder, “therefore, was not able to understand the wrongfulness of his
conduct at the time it occurred. I hope that Mr. Wilder can receive proper psychiatric treatment. He will
probably require a long term mental health commitment to compel medication and ensure compliance.” Id.


                                                     4
and a concurrent one-year executed sentence for the Class A misdemeanor criminal

mischief conviction. Additionally, the trial court stated:

       I am going to make a recommendation to the Department of Correction[] that
       the Defendant receive appropriate treatment for his mental health and that
       that be taken into consideration in his placement at the Department of
       Correction[]. It’s my hope that the Defendant will seek appropriate treatment
       because I think if he does seek appropriate treatment and that’s his best
       opportunity to return to being a productive member of society and one that
       does not present risk to our community . . . .

Tr. at 355.

       Wilder filed his motion to correct error on August 7, 2013, alleging that his trial

counsel was ineffective for failing to secure attendance of various witnesses at trial who

Wilder believed would have provided exculpatory evidence. Following a hearing, the trial

court denied Wilder’s motion on October 21, 2013. Wilder now appeals. Additional facts

will be supplied where needed.

                             DISCUSSION AND DECISION

       Wilder contends that the trial court erred by failing to conduct a hearing or make a

finding regarding his competency to stand trial. As the State correctly notes, defense

counsel waived this issue by failing to object to the lack of a hearing or to the fact that the

trial court did not make a formal competency determination. See Archer v. State, 996

N.E.2d 341, 351 (Ind. Ct. App. 2013) (citing Stafford v. State, 736 N.E.2d 326, 332 (Ind.

Ct. App. 2000) (there, defendant did not make timely objection to jury instructions, and

issue was waived for appellate review), trans. denied), trans. denied. Accordingly, Wilder

must show that the error, if any, rises to the level of fundamental error. Id. Fundamental

error is an extremely narrow exception that allows a defendant to avoid waiver of an issue.

                                              5
Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). “For an error to be fundamental, it must

be a ‘substantial, blatant violation of basic principles of due process that renders the trial

unfair to the defendant.’” Archer, 996 N.E.2d at 351 (quoting Stafford, 736 N.E.2d at 332).

As we explain below, while the fundamental error standard applies, here, the trial court

committed no error, fundamental or otherwise.

       Indiana Code section 35-36-3-1 provides:

       (a) If at any time before the final submission of any criminal case to the court
       or the jury trying the case, the court has reasonable grounds for believing that
       the defendant lacks the ability to understand the proceedings and assist in the
       preparation of a defense, the court shall immediately fix a time for a hearing
       to determine whether the defendant has that ability. The court shall appoint
       two (2) or three (3) competent, disinterested:

              (1) psychiatrists;
              (2) psychologists endorsed by the Indiana state board of examiners in
              psychology as health service providers in psychology; or
              (3) physicians;

       who have expertise in determining competency.

Our court has said that “‘the conviction of an incompetent defendant is a denial of federal

due process and a denial of a state statutory right as well.’” Minnick v. State, 965 N.E.2d

124, 131 (Ind. Ct. App. 2012) (quoting Gibbs. v. State, 952 N.E.2d 214, 219 (Ind. Ct. App.

2011), trans. denied), trans. denied. “A defendant is not competent to stand trial when he

is unable to understand the proceedings and assist in the preparation of his defense.” Id.

(citing Mast v. State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009), trans. denied).

Nevertheless, “the right to a competency hearing is not absolute.” Id. (citing Mast, 914

N.E.2d at 856). “Instead, such a hearing is required only when a trial court is confronted

with evidence creating a reasonable or bona fide doubt as to a defendant’s competency.”

                                              6
Id. (citing Mast, 914 N.E.2d at 856) (emphasis in original). “The decision regarding

whether there is a reasonable doubt is within the trial court’s discretion and depends upon

the specific facts and circumstances of each case.” Id. “We will only reverse the trial

court’s decision if we find that the trial court has abused its discretion.” Id. The trial court

has abused its discretion when its decision is clearly against the logic and effect of the facts

and circumstances before the court or when the trial court has misinterpreted the law. Id.

As we explain below, under the facts before us, the trial court had no evidence creating a

reasonable doubt as to Wilder’s competency, i.e., his ability to understand the proceedings

and assist in the preparation of his defense.

       During the initial hearing, Wilder coherently answered the trial judge’s questions

regarding Wilder’s age, date of birth, social security number, and address. Tr. at 2. Wilder

told the judge that he was not under the influence of drugs and did not suffer from any

mental or emotional disability that would affect his ability to understand the proceedings.

Id. The trial judge also confirmed that Wilder understood the allegations against him and

then set forth the rights he was entitled to in a criminal prosecution. Id. at 3-4. When

asked, Wilder confirmed that he had no questions concerning his rights. Id. at 4. At the

close of the hearing, the trial court appointed a public defender for Wilder. Id. at 5.

       The jury trial was set for April 1, 2013. During that hearing, and out of the presence

of the jury venire, Wilder stated his dissatisfaction with his attorney. Id. at 9-10. He also

made unusual comments to the court that: he was being “railroaded into prison to appease

the powers that be”; “[t]he corruption going on in front of and behind this bench is appalling

and unconstitutional”; and that “[y]ou are serving one of two masters, not both, God or

                                                7
Satan or one or the other.” Id. at 10. Both attorneys stated that they were ready to go to

trial that day. Wilder had previously refused to pursue an insanity defense; however,

defense counsel stated that Wilder now wanted the trial to focus on “his mental frame or

his culpability based on mental illness.” Id. at 19. Defense counsel noted that he had

“some evidence that would support, at least, the insanity instruction.” Id. at 18.

       When the trial judge asked whether Wilder should be evaluated, defense counsel

stated, “[W]e haven’t asked for competency.” Id. at 26. The trial court found two issues.

“One is competency and I’m not hearing anything about competency to stand trial.” Id. at

27. The second issue was whether Wilder “had the ability to develop a mens rea at the

time that the offense was committed so that’s an issue of insanity.” Id. The trial court

asked defense counsel, “I don’t hear you saying that you want a competency evaluation, .

. . is that right in terms of his ability to participate in trial and to assist or are you asking for

that as well?”, defense counsel responded, “I suppose I should ask for that as well.” Id.

       The trial court granted defense counsel a ninety-day continuance so that Wilder

could be evaluated for competency to stand trial and to determine his mental state at the

time of the crimes charged. Id. The trial court approved Wilder’s request for a psychiatric

evaluation on April 23, 2013 and appointed Drs. Krause and Buckles, who filed their

reports with the trial court on May 21, 2013 and May 23, 2013, respectively, concluding

that Wilder was competent to stand trial. Appellant’s App. at 68, 72. Drs. Krause and

Buckles also testified at trial, restating their respective opinions that Wilder was competent

to stand trial.

       During trial, Wilder testified in his own defense. Wilder clearly explained that he

                                                 8
was fifty-two years old, grew up in Marion, and had served in the Air Force from 1981 to

1983, at which time he received an honorable discharge. Tr. at 190. He attended high

school but left nine-weeks shy of graduation. Id. at 193-94. Since that time Wilder had

worked at various factory jobs. Id. at 191. Around the age of twelve years old, Wilder was

diagnosed with a psychiatric illness, and he received psychiatric care from the VA during

the 1980s and 1990s. Id. at 193, 195. From 2008 to 2011, Wilder had a court order to take

psychiatric medication. Id. at 196. Once the court order expired, Wilder quit taking his

medication. Id. at 197.

       Wilder testified that, prior to the incident, he was not sleeping and did not feel well.

Id. at 201. In preparation for a medical appointment, he wrote down “eighty-six feelings”

he was having that he could not understand. Id. at 201. During that same time Wilder

requested that a clinic perform a blood test because he thought he was being drugged. Id.

at 202. Around noon on the day in question, Wilder said he gave his Dad lunch and then

was dealing with “manna,” which he described as a gift from God. Id. at 205. Wilder

explained that it was while he was in this state of mind that he encountered T.S. and E.J.

Thinking that T.S. was the daughter of Wilder’s friend, Wilder asked what they were doing

there. When the girls did not respond, Wilder lifted T.S. up and started toward his car with

the plan to take the girl back home. When Wilder realized that T.S. was not his friend’s

daughter, he put her down and returned to his car. Wilder then saw Devine, and concerned

that he was “coming after me,” Wilder took off at a reckless speed and, ultimately, crashed

into a car and then a tree stump. Id. at 211-12.

       In his testimony, Wilder did not deny that he engaged in a high-speed chase with

                                              9
Devine and that he crashed into another car. Id. at 212. He did, however, claim that his

interaction with T.S. arose because he was off his medications, wasn’t “thinking right that

day,” and mistook T.S. for his friend’s daughter. Id. at 216. While it was clear that Wilder

had serious mental health issues, those issues did not affect his competency to stand trial.

Wilder appeared competent at his initial hearing, he was examined by Drs. Krause and

Buckles who concluded that he was competent to stand trial, and Wilder’s testimony at

trial was coherent and his defense was reasonable. Accordingly, the trial court did not

abuse its discretion when it failed to conduct a hearing or make a finding regarding

Wilder’s competency to stand trial.

       Affirmed.

BAILEY, J., and MAY, J., concur.




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