Michael T. McGill v. State of Indiana

FILED

Dec 10 2020, 8:58 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Nicole Slivensky Curtis T. Hill, Jr.

Lawrence County Public Defender Attorney General of Indiana

Agency

Bedford, Indiana Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael T. McGill, December 10, 2020

Appellant-Defendant, Court of Appeals Case No.

20A-CR-327

v. Appeal from the Lawrence

Superior Court

State of Indiana, The Honorable John Plummer III,

Appellee-Plaintiff 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.

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