Court of Appeals of Indiana | Opinion 20A-CR-327 | December 10, 2020 Page 1 of 16

ATTORNEY FOR APPELLANT

Nicole Slivensky

Lawrence County Public Defender 

Agency

Bedford, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael T. McGill,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 10, 2020

Court of Appeals Case No.

20A-CR-327

Appeal from the Lawrence 

Superior Court

The Honorable John Plummer III, 

Judge

Trial Court Cause No.

47D01-1807-F6-1201

May, Judge.

[1] Michael T. McGill appeals following his conviction of Class A misdemeanor

residential entry.

1

 McGill raises two issues on appeal, which we revise, reorder, 

1 Ind. Code § 35-43-2-1.5; Ind. Code § 35-50-2-7.
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and restate as: (1) whether the trial court abused its discretion when it excluded

the results of an intelligence test from evidence; and (2) whether the State 

presented sufficient evidence to rebut McGill’s mistake-of-fact defense. We 

affirm. 

Facts and Procedural History

[2] Around noon on July 27, 2018, Kenneth Ivey and his wife decided to leave 

their house in Bedford and visit the local Dollar General store. They shut both 

their front and back doors before leaving the house. They locked their front 

door and left their back door unlocked. They did not plan to be gone from the 

house for long, and they routinely left the back door unlocked when running 

short errands. Ivey and his wife started to drive toward the Dollar General 

store in their truck.

[3] A short distance from home, Ivey saw McGill and Janna McIntire walking 

side-by-side along the road. Ivey did not know McGill or McIntire, but he 

smiled and waved as he passed them. Neither McGill nor McIntire returned 

Ivey’s greeting. In his rear-view mirror, Ivey saw McGill and McIntire start to 

walk up his driveway. Ivey turned around in a neighbor’s driveway and drove 

back to his house. 

[4] He pulled into the driveway and noticed the back door to his house was open. 

Ivey directed his wife to call 911, and he walked toward the house. Ivey then 

saw McGill and McIntire standing in his living room. Ivey started “yelling at 
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them. [He] asked them what they were doing in [his] home.” (Tr. Vol. II at 

170.) McIntire said, “We’re not doing anything wrong.” (Id.) McGill did not 

say anything during the encounter, and Ivey testified that McGill looked 

“scared.” (Id. at 178.) Ivey continued to ask them to leave his house, and 

McIntire and McGill exited through the back door. Ivey watched McIntire and 

McGill walk down the street and into another house, which turned out to be 

McIntire’s parents’ house. A Lawrence County deputy sheriff spoke with Ivey 

and then arrested McIntire and McGill at McIntire’s parents’ house. 

[5] The State charged McGill with Level 6 felony residential entry.2 Prior to trial, 

the State filed a motion in limine seeking to exclude from evidence McGill’s

2019 psychological assessment purporting to show that McGill’s intelligence 

quotient (“IQ”) was significantly below average. At a hearing on the State’s 

motion, the State argued that the psychological assessment was irrelevant. The 

State also contended that the psychological assessment was not trustworthy 

because it was prepared near the time of trial and the assessment did not list the 

school psychologist’s credentials or “how she works, what type of qualifications 

she has[.]” (Tr. Vol. II at 43.) McGill argued the psychological assessment was 

a self-authenticating record of a regularly conducted activity, and he maintained

the assessment was relevant to whether McGill reasonably, although 

2 The State also charged McIntire with Level 6 felony residential entry under the same cause number. She 

pled guilty pursuant to a plea agreement, and the court imposed a one-year sentence, which it suspended to 

probation.
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erroneously, believed he and McIntire had permission to enter Ivey’s house. As 

he explained,

we’re not arguing that Mr. McGill has a mental disease or defect 

that would undermine his ability to appreciate the wrongfulness 

of his conduct. We are instead arguing that he made a mistake 

and that mistake is reasonable based on his circumstances. 

We’re not comparing him to a person with an IQ of 100 to make 

that mistake. We’re comparing him to a person with the similar 

IQ, IQ of 67 who could make that mistake.

(Id. at 42-3.) McGill tendered the psychological assessment and an affidavit

purporting to authenticate the psychological assessment as a business record as 

an exhibit at the hearing. The affidavit consisted of five numerical paragraphs:

I, Sheila Switzer, on behalf of same, certify that:

1. I am the duly authorized custodian of the records for 

_______________, and in such capacity, I have authority to 

certify the attached records.

2. The attached records are true and accurate copies of all 

original records maintained by Sheila Switzer regarding Michael 

McGill (Date of Birth: 12/11/1966) that were requested in 

connection with the above-captioned matter.

3. The statements in the records were made by Sheila Switzer for 

the purpose of recording an event, condition, or opinion. 

Namely, the statements describe an event in which Mr. McGill 

took psychological assessments to determine the range of a 

person’s cognitive abilities. The statements describe Mr. 

McGill’s conditions—namely, the extent of his cognitive 

abilities. And the statements describe Sheila Switzer’s opinions 
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about the assessments that occurred and the results thereof. 

Sheila Switzer is a person with personal knowledge of the events, 

conditions, and opinions described in the records. The records 

were made at, or near, the time that the psychological 

assessments of Mr. McGill were conducted or at, or near, the 

time of Sheila Switzer’s opinions.

4. The attached records were made and kept in the course of 

Sheila Switzer’s regularly conducted business activity, and it was 

a regular practice of that business activity to make and retain 

records such as these.

5. This certification is given in lieu of my personal appearance at 

trial. I affirm, under the penalties for perjury, that the foregoing 

representations are true.

(McGill’s Exhibit B) (blank space in original). 

[6] The trial court took the matter under advisement and later granted the State’s 

motion in limine. In its order granting the State’s motion, the trial court stated:

In the case-at-bar, the Defendant did not assert the affirmative 

defense of Mental Disease or Defect. As such, the Court grants 

the State’s Motion in Limine Paragraph 4 regarding the 

psychological assessment(s) or evaluation taken of the Defendant 

in November of 2019, purportedly showing the Defendant has an 

IQ of 67 according to the Wechsler Adult Intelligence Scale (See 

Exhibit B). If the defense wanted to argue that the Defendant 

lacked the capacity to form the requisite mens rea due to a 

mental defect, the defense would have been legally required to 

properly file notice of its intention to interpose the defense of 

Mental Disease or Defect under I.C. 35-41-3-6 and I.C. 35-36-2-

1. The court cites IRE 401, 402, and 403 in support of its ruling.
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(App. Vol. II at 78.)

[7] The trial court held a one-day jury trial on December 10, 2019, and in a hearing 

outside the presence of the jury, McGill made an offer of proof regarding the 

psychological assessment. He argued that he intended to introduce the 

assessment “to show that [McGill] has a lower IQ, and so a reasonable person 

with his IQ might interpret facts differently than someone with a normal IQ.” 

(Tr. Vol. II at 190.) The following exchange occurred between McGill and the 

trial court regarding admissibility of the psychological assessment:

[McGill’s Counsel:] So the records show that Ms. Sheila Switzer 

(phonetic) performed an IQ test on Mr. McGill on November 

20th. The results show that he has an IQ of 67.

[Court:] Okay. And again, who was the person that conducted 

the test and what would be the foundation for the expertise of 

that particular individual?

[McGill’s Counsel:] We’re just making an offer of proof what—

[Court:] I understand. But the Court needs to understand the 

offer of proof.

[McGill’s Counsel:] It’s that Ms. Switzer is a licensed school 

psychologist and she has performed those tests on school children 

before.

[Court:] Okay. And your client is how old?

[McGill’s Counsel:] He’s 52.
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[Court:] Thank you. Go ahead.

[McGill’s Counsel:] It’s a business record which has been 

certified by Ms. Switzer.

[Court:] And she’s not been listed as a witness, Ms. Switzer, to 

come in and testify subject to cross-examination; is that correct?

[McGill’s Counsel:] That’s correct. She certified the records 

according to 902(11), Indiana Rule of Evidence, and this 

evidence of Mr. McGill’s IQ is relevant for the mistake of fact 

defense. So it’s relevant because under the affirmative defense 

standard of the reasonable person, it’s about what the reasonable 

person would have believed at the time of the events.

[Court:] How would the State challenge the evidence if you’re 

not going to call a witness?

[McGill’s Counsel:] So the evidence is of a standardized test. So 

the –

[Court:] But what established the fact other than your statement 

to the Court?

[McGill’s Counsel:] That IQ is something that has been 

recognized for a really long time as an accurate—

[Court:] What establishes the fact that the IQ testing was 

performed the proper way by the school psychologist?

[McGill’s Counsel:] The business records exception establishes 

that, that—
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[Court:] Doesn’t that just authenticate the records, showing that 

they’re true and accurate instead of indicating that this particular 

school psychologist was duly qualified to perform such an IQ test 

on the Defendant without being subject to cross-examination and 

the supportive law in this jury trial?

[McGill’s Counsel:] So the exception—well, she authenticated 

the records with the certification, and her license, which she 

provided on the evaluation portion, shows that she’s qualified to 

perform this kind of evaluation that she’s done.

[Court:] On school children?

[McGill’s Counsel:] Yes, on school children, but also on adults. 

It’s –the tests—

[Court:] Where does it say that at? In the proposed exhibit, 

where does it say that?

[McGill’s Counsel:] It shows what her license number is.

(Id. at 186-88.) The trial court upheld its previous ruling excluding the 

psychological assessment from evidence, and the trial continued. The jury 

returned a guilty verdict. At McGill’s sentencing hearing, the trial court entered 

judgment of conviction as a Class A misdemeanor pursuant to Indiana Code 

section 35-50-2-7 and imposed a sixty-four-day sentence, which was the time 

McGill served in pre-trial confinement. 

Discussion and Decision
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I. Admissibility of Intelligence Test

[8] McGill argues the trial court erred by excluding the results of his psychological 

assessment from evidence. Generally, the admission of evidence is left to the 

sound discretion of the trial court, and we review such rulings for an abuse of 

discretion. Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019). “A trial 

court abuses its discretion if its decision is clearly against the logic and effect of 

the facts and circumstances before the court, or if the court has misinterpreted 

the law.” Id. 

[9] The trial court initially excluded the psychological assessment because McGill 

did not assert mental disease or defect as an affirmative defense. In Indiana, an 

individual “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.” Ind. Code § 35-41-3-6. However, 

“[l]ow mental capacity is not a defense to a criminal charge.” Hester v. State, 

512 N.E.2d 1110, 1112 (Ind. 1987). Indiana courts have long recognized that 

low intellectual ability is different from insanity. See Wartena v. State, 5 N.E. 20, 

23 (Ind. 1886) (“[M]ere mental weakness, the subject of being of sound mind, is 

not insanity, and does not constitute a defense to crime. . . . Immunity from 

crime can not be predicated upon a merely weak or low order of intellect, 

coupled with a sound mind.”) An intellectually disabled defendant cannot be 

sentenced to death, but the defendant is still criminally responsible for his 

actions. Allen v. Wilson, No. 1:01-CV-1658, 2012 WL 2577492, at *15 (S.D. 

Ind. July 3, 2012) (granting petition for a writ of habeas corpus and directing 
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state court to vacate defendant’s death sentence and re-sentence him to an 

available sentence under Indiana law, excluding death). Therefore, the trial 

court’s ruling on the motion in limine erroneously conflated low intellectual 

capacity with insanity. 

[10] Nevertheless, a trial court’s ruling on a motion in limine is not a final order. “A 

motion in limine is used as a protective order against prejudicial questions and 

statements being asked during trial. The ruling does not determine the ultimate 

admissibility of the evidence; that determination is made by the trial court in the 

context of the trial itself.” Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993)

(internal citation omitted), reh’g denied. During McGill’s offer of proof, the trial 

court expressed doubt regarding the psychological assessment’s admissibility

without Switzer as a sponsoring witness. 

[11] Hearsay is “a statement that: (1) is not made by the declarant while testifying at 

the trial or hearing; and (2) is offered in evidence to prove the truth of the 

matter asserted.” Ind. Evid. R. 801. Hearsay evidence is generally

inadmissible. Ind. Evid. R. 802. However, there are numerous exceptions to 

the rule against hearsay. Indiana Evidence Rule 803(6) excepts from the rule 

against hearsay records of a regularly conducted activity:

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or information 

transmitted by—someone with knowledge;
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(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, 

whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification that 

complies with Rule 902(9) or (10) or with a statute permitting 

certification; and 

(E) neither the source of information nor the method or 

circumstances of preparation indicate a lack of trustworthiness.

The record of a regularly conducted business activity may be self-authenticated 

pursuant to Indiana Evidence Rule 902(11), which states:

Unless the source of information or the circumstances of 

preparation indicate a lack of trustworthiness, the original or a 

copy of a domestic record that meets the requirements of Rule 

803(6)(A)-(C), as shown by a certification under oath of the 

custodian or another qualified person. Before the trial or 

hearing, the proponent must give an adverse party reasonable 

written notice of the intent to offer the record—and must make 

the record and certification available for inspection—so that the 

party has a fair opportunity to challenge them. 

As we have previously explained,

“Business records are an exception to the hearsay rule because 

they are imbued with independent indicia of trustworthiness.” 

Williams v. Hittle, 629 N.E.2d 944, 947 (Ind. Ct. App. 1994), 

trans. denied. “These indicia are that the business establishes a 

routine of record-making, that the record is made by one with a 
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duty to report accurately, and that the business relies upon that 

record in carrying out its activities.” Id. 

Embrey v. State, 989 N.E.2d 1260, 1264 (Ind. Ct. App. 2013). 

[12] Here, such indicia of trustworthiness is absent. The authentication affidavit 

does not identify a business entity or detail what routine business activity

required Switzer to perform psychological assessments. The affidavit also does 

not explain how the maintenance of psychological records is necessary for a 

business purpose. The Rules of Evidence require expert opinion testimony to 

be rendered by a qualified individual relying on established scientific principles. 

Ind. Evid. R. 702. This requirement ensures that only relevant and reliable 

expert testimony is presented to the jury. Beal v. Blinn, 9 N.E.3d 694, 699 (Ind. 

Ct. App. 2014), reh’g denied, trans. denied. McGill attempts to sidestep these

safeguards by introducing the psychological assessment into evidence without 

allowing the State to examine Switzer regarding her qualifications and 

methodology. McGill therefore failed to adequately authenticate the 

psychological assessment as a record of a regularly conducted business activity, 

and the trial court did not abuse its discretion in excluding the assessment from 

evidence. See Walters v. State, 120 N.E.3d 1145, 1156 (Ind. Ct. App. 2019)

(holding phone records were not properly authenticated and therefore were

inadmissible). 
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II. Mistake-of-Fact Defense

[13] Even when the defendant asserts that he acted on a mistake of fact, the State 

must still meet its “ultimate burden of proving beyond a reasonable doubt every 

element of the charged crime, including culpability or intent, which would in 

turn entail proof that there was no reasonably held mistaken belief of fact.” 

Chavers v. State, 991 N.E.2d 148, 151-52 (Ind. Ct. App. 2013), trans. denied. The 

State may disprove an asserted mistake of fact by presenting evidence after the 

defendant’s case-in-chief directly rebutting the defendant’s claim or 

affirmatively showing the defendant did not make a mistake of fact. Id. at 152. 

The State may also rely on the evidence produced during its case-in-chief to 

counter the defense. Id. Whether the defendant made a mistake of fact is a 

question for the trier of fact, which we review like other challenges to the 

sufficiency of the evidence. Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. 

App. 2006), trans. denied. We do not reweigh the evidence or judge the 

credibility of the witnesses, and we make all reasonable inferences in the light 

most favorable to the verdict. Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct. 

App. 2017), aff’d on reh’g. We will reverse “only when a reasonable trier of fact 

would not be able to form inferences as to each material element of the 

offense.” Id. 

[14] McGill argues he mistakenly assumed he and McIntire were allowed to enter 

Ivey’s house. He contends the State failed to put forth sufficient evidence to 

rebut his mistake-of-fact defense and to demonstrate beyond a reasonable doubt 
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that he acted with the requisite intent to commit residential entry.3

 We 

disagree. McGill never met Ivey before entering his house, and therefore, he 

did not have express permission from Ivey to enter the house. McGill and 

McIntire saw Ivey’s vehicle pull out of the driveway and drive past them before 

they entered Ivey’s house. As a result, the jury could draw a reasonable 

inference that McIntire and McGill surmised the house was empty but decided 

to enter it anyway. 

[15] McGill’s own testimony also undercuts his mistake-of-fact defense. He

testified:

[McGill’s Counsel:] When you followed Janna into that house, 

did you believe you had permission to go in that house?

[McGill:] Not at that present second, no.

(Tr. Vol. II at 203.) McGill further explained: 

[State:] And you said that the first time you realized you weren’t 

supposed to be in that house was when you noticed that no one 

was there; is that right?

[McGill:] Yes.

3 Indiana Code section 35-43-2-1.5 states: “A person who knowingly or intentionally breaks and enters the 

dwelling of another person commits residential entry, a Level 6 felony.” McGill does not dispute that he and 

McIntire opened the back door and entered Ivey’s house. See McKinney v. State, 653 N.E.2d 115, 117 (Ind. 

Ct. App. 1995) (“The use of the slightest force in pushing aside a door in order to enter constitutes a breaking 

through the doorway.”).
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[State:] Did you leave right away?

[McGill:] We walked around a little bit and we decided to leave.

[State:] And in fact, you didn’t leave until [Ivey] walked in the 

house and started yelling at you, telling you to leave; is that 

correct?

[McGill:] Yes. 

(Id. at 205.) McGill left only after the homeowner directed him to do so, and 

McGill did not offer any explanation to Ivey when Ivey confronted him. 

McGill’s argument that he entered the house only because he thought McIntire 

had permission to enter Ivey’s house is thus an invitation for us to reweigh the 

evidence, which we will not do. See Woodson v. State, 966 N.E.2d 135, 142 (Ind. 

Ct. App. 2012) (holding defendant’s argument “is little more than a request to 

reweigh the evidence, which we will not do”), trans. denied. Therefore, we hold

the State presented sufficient evidence for a reasonable jury to conclude McGill 

acted with the requisite culpability when he entered Ivey’s house. See Potter v. 

State, 684 N.E.2d 1127, 1135 (Ind. 1997) (holding rape defendant’s argument 

that he mistakenly believed victim consented was not reasonable).

Conclusion

[16] The trial court did not abuse its discretion when it excluded the Switzer’s 

psychological assessment from evidence. McGill failed to properly authenticate 

the psychological assessment as a record of a regularly conducted activity. The 
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State also presented sufficient evidence to rebut McGill’s mistake of fact 

defense. McGill testified that he did not believe he had permission to enter 

Ivey’s house when he did so and that he remained in Ivey’s house after realizing 

no one was home. Therefore, we affirm the trial court’s judgment.

[17] Affirmed. 

Riley, J., and Altice, J., concur.