## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : THOMAS W. VANES GREGORY F. ZOELLER Office of the Public Defender Attorney General of Indiana Crown Point , Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana


## IN T HE COURT OF APPEALS OF INDIANA

JAMAL AHMAD GORE , ) ) Appellant

- Defendant, ) ) vs. ) No. 45A 03

- 1305

- CR

- 163 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell , Judge Cause No. 45G03

- 1005

- M R

- 8
April 29, 2014 OPINION
- FOR PUBLICATION MAY, Judge2

Jamal Ahmad Gore appeals the jury’s finding that Gore was guilty of murder 1 and C lass C felony battery , 2 but mentally ill at the time of the crime . Gore asserts the jury clearly erred in finding Gore guilty but mentally ill , instead of not guilty by reason of insanity. We affirm. FACTS AND PROCEDURAL HISTORY Gore was diagnosed as schizophrenic around age thirteen. He attended various schools without much success an d was in and out of the family home due to his confrontational behavior . Gore’s parents had him hospitalized for mental health reasons at least five times between 2002 and 2009. In mid

- May of 2010, Gore’s parents again request ed an emergency detention or der for their son because Gore was dressing heavily in a hot room, he was accus ing a nephew of taking his property, he drove his car on its wheel rim to the body shop and claim ed the tire had been shot, and he was not taking his medication. That order was never executed , and Gore was never picked up. On May 24, 2010, Gore called an old friend from school, John Davis, Jr., numerous times until Davis finally answered. Gore sounded upset on the phone , so Davis and his girlfriend, Melissa Maida, went to pick up Gore at his home. Go re came out of his home overdressed for the warm day, wearing all black attire, including a hoodie sweat shirt, black pants, and a hat. Gore did not appear agitated. The three drove to a gas station, where Davis bought cigarettes , and then , at Gore’s request, they drove around attempting to buy

1 Ind

. Code § 35

- 42

- 1

- 1. 2 Ind

. Code § 35

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- 2

- 1.3

marijuana. As Maida was driving the three down the road a fter a failed attempt to buy marijuana, Maida heard gunshots. Gore had shot Davis five times in the head, neck , and back, and had shot Maida in the leg. Gore kicked open the back door and ran away. When police arrived they found Davis dead in the car

. They found Gore four blocks east of wh ere the shooting occurred

. H omicide Detective William Fazekas described Gore as calm and
str aightforward, not agitated or aggressive, and answer ing questions like a “ normal person ” would. (Tr. at 202

. ) Within 24 hours of Gore’s arrest, m edical and mental health personnel at the jail noted Gore was agitated, withdrawn, depressed and paranoid. The State charged Gore with Murder and C lass C felony b attery. The trial court held a competency hearing on September 30, 2010 , and found Gore not competent to stand trial. Following a report from the Division of Mental Health dated January 4, 2011, the court found Gore competent to stand trial. The trial court appointed Dr. Jill Miller, Dr. R. Bhawami Prasad, and Dr. Douglas Caruana to evaluate Gore , and Gore retained an expert, Dr. Stephanie Calloway. The j ury trial commenced on October 30, 2012 , and all four experts testified

. The jury concluded that Gore was guilty but mentally ill with respect to both offenses. The court sentenced Gore to fifty years for murder and two years for battery. DISCUSSION AND DECISION A person is not responsible for en gaging in prohibited conduct if he is “unable to appreciate the wrongfulness of the conduct at the time of the offense” because of a mental
disease or defect. Ind. Code § 35

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- 3

- 6(a). Mental illness alone is insufficient, the qualifying mental disease o r defect must be a “severely abnormal mental condition that4

grossly and demonstrably impairs a person’s perception.” Ind. Code § 35

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- 3

- 6(b). If the mental illness does not reach the level required by statute, the jury may find the defendant “guilty but mentally ill” at the time of the crime. Ind. Code § 35

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- 3(4). 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. Galloway v. State , 938 N.E.2d 699, 709 (Ind. 2010), reh’g denied

. A n appellant who complains he or she ought to have been found not guilty by reason of insanity faces a heavy burden on appeal. Id

. Because it is the trier of fact’s province to weigh evidence and assess witness credibility, a finding tha t a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. Id. Thus, w e
may not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact. Id. We may se t aside set aside a conviction only “when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Id. at 710 ( quoting Thompson v. State , 804 N .E.2d 1146, 1149 (Ind. 2004)). Gore ass erts there was no conflict among experts and, therefore, no sufficient probative evidence from which a conflicting inference of sanity reasonably could be drawn.
E xpert testimony may be offered to assist the trier of fact in determining the defendant’s

me ntal status , Ind. Code § 35

- 36

- 2

- 2, but such testimony is merely advisory , as even unanimous expert testimony is not conclusive on the issue of sanity. Galloway , 938 N.E.2d at 709. If all expert s testi fy that a defendant was insane, a jury still may find a defendant was5

sane if there is other sufficient probative evidence from which a conflicting inference of sanity reasonably could be drawn. Id. at 710. The strongest showing of an evidentiary conflict occurs where the experts disagree as to whether the defendant was insane at the time of the offense , i d. , and here, such conflict existed. Dr. Callaway testified that she looked for an “impaired” ability to appreciate wrongfulness, not a total inability to appreciate wrongfulness as is required by the st atute

. (Tr. at 531

. ) She conceded that she used the “ impaired ability” and “total inability” standard interchangeably

. ( Id. at 554

. ) Her incorrect application of the “impaired ability” standard would permit the jury to giv e Dr. Calloway’s testimony lit tle or no weight. Dr. Miller applied the correct standard, but her testimony did nothing to help Gore’s insanity defense. Dr. Miller originally filed a report stating that Gore could appreciate the wrongfulness of his conduct, but she amended this repor t and testified at trial that she thought Gore’s mental state “might” have interfered with his ability to appreciate the wrongfulness of
his actions

. ( Id. at 677

. ) Her position on the issue was so equivocal that Gor e moved to strike her testimony altoget her for not being an opinion

. Gore argues Dr. Caruana also did not state an opinion. Dr. Caruana testified Gore was not insane at the time of the murder. He said Gore’s behavior leading up to the shooting wa s consistent with mental illness, but Dr. Car uana still could not say Gore was insane at the time of the murder because his behavior did not reflect the “ grossly and demonstrably impaired functioning of thinking ” required by the statute. Ind. Code § 35

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- 6(b).6

The final expert, Dr. Prasad, test ified he believed Gore was insane at the time of the offense based on his interviews with Gore’s mother and cousin . Dr. Prasad interviewed Gore, but his conclu sion Gore was insane was based not on his interview with Gore, but “based on what his mother and his cousin said

. ” (Tr. at 791

. ) In summary, the testimony did not , as Gore asserts, reflect that three experts found Gore insane and one expert provid ed no opinion . On the contrary, it showed Dr. Calloway appl ied a n incorrect standard , Dr. Miller testi f ied Gore’s ability to appreciate wrongfulness “might” have been affected by his mental illness, ( id . at 677), Dr. Caruana testif ied Gore was not insane, and Dr. Prasad testif ied Gore was insane based on his interviews with Gore’s
mother and cousin. The d isagreement among the experts as to whether Gore was insane at the time of his offense amounts to an evidentiary conflict

. See Galloway , 938 N.E.2d at 710. This is not a case of consistent testimony lead ing only to the conclusion Gore was insane

. Theref ore, Gore is essentially asking that we reweigh the evidence, which we cannot do. Id. at 709. CONCLUSION Gore has not shown that the evidence is without conflict and leads only to the conclusion that he was insane when the crime was committed. Accordi ngly, we affirm. Affirmed. VAIDIK, C.J., and RILEY, J., concur.