Myers III v. stateDonald W. Myers III (Defendant) was convicted .docx

Myers III v. state
Donald W. Myers III (Defendant) was convicted and found
guilty but mentally ill, following a jury trial in the Circuit
Court, Steuben County, Allen N. Wheat, J., of four counts of
attempted murder on the basis that he was guilty, but mentally
ill. Myers appealed. The Indiana Supreme Court, David, J., held
that (1) the verdict was supported by the evidence; ... (3) the
sentence of 30 years consecutive on each count was not
inappropriate, and Affirmed. Donald W. Myers, III, has a
history of mental illness, and has been diagnosed with paranoid
schizophrenia. Unprovoked, Myers fired a shotgun several times
at multiple vehicles, including a police cruiser. Myers was
ultimately convicted on four counts of attempted murder. The
jury found Myers guilty but mentally ill. Myers claims that no
reasonable jury could have reached this conclusion and that he
should have been found not guilty by reason of insanity .. .. We
seek to emphasize the great adherence our judicial system
affords to the right of a trial by jury and the verdicts reached by
those juries. The U.S. Supreme Court has declared that "the
basic purpose of a trial is the determination of truth ... and it is
the jury to whom we have entrusted the responsibility .... "
Brown v. Louisiana, 447 U.S. 323, 334 (1980) This Court has
also acknowledged that the jury trial is a "fundamental right in
our democratic judicial system that must be scrupulously
guarded against encroachment." Having completed our review,
we affirm the jury's verdict finding Myers guilty but mentally
ill.
In 2000, Donald W. Myers, III, was diagnosed with paranoid
schizophrenia. Starting in young adulthood, Myers was treated
at hospitals in Indiana and Alabama for his mental health issues
and was prescribed various anti-psychotic medications. In 2004,
Myers was living with his mother at the Silver Lake Trailer
Court off of U.S. 20. Towards the end of April 2004, Myers's
mother, Judy Wininger, noticed that Myers was no longer taking

his anti-psychotic medications, and she contacted Northeastern
Center, a counseling center where Myers had previously been
treated. The hospital prepared a bed for Myers to be admitted
upon Wininger's request on April 28, 2004. However, Myers
refused to go.
On the evening of April 29, 2004, David Brown was driving in
the Silver Lake Trailer Court with his wife, Vicki Brown, and
young grandson in the car. Brown heard a loud boom, and when
he looked into the rearview mirror, there was a man running
towards the vehicle pointing a long gun in the direction of their
vehicle. Then, another gunshot was fired in the direction of
Brown's vehicle. Brown drove the vehicle out of Silver Lake
onto U.S. 20, and saw the man who fired the weapon running
alongside the road. Brown called 911 and gave a description of
the man. The man firing the weapon was later identified as
Myers.
Shortly thereafter, Desmond Augenstein was driving westbound
on U.S. 20 when he saw Myers walking down the middle of the
road heading eastbound. Augenstein saw a vehicle coming the
opposite direction and turned around to check on Myers's well-
being. Augenstein then saw that Myers was holding a gun, and
he quickly turned the vehicle back around. Myers raised the gun
and shot twice in Augenstein's direction. Augenstein was
driving with the windows down and heard bullets flying by the
window. He also called 911 to notify police.
Several police officers were dispatched to the area to
investigate. Indiana State Police Trooper Lionel Smith located
Myers standing partially submerged in a ditch along U.S. 20 on
the opposite side of the road from where Trooper Smith was
driving. As Trooper Smith got closer, he saw Myers approach
the white fog line of the road and begin tracking his vehicle
with a gun. Once Myers was parallel to the police cruiser, he
fired the gun directly at the driver's side window. Trooper
Smith turned his vehicle around, and once he stopped his police
cruiser behind Myers, he got out of the vehicle and ordered
Myers to stop. However, Myers ignored this order and kept

walking at a normal pace. During this time, Steuben County
Deputy Sheriff Phillip Knott joined Trooper Smith, and the two
together continued to follow behind Myers, ordering him to
stop.
Indiana State Police Trooper Kerry Ghent was approaching the
area from the opposite direction, and after hearing over dispatch
that shots had been fired at Trooper Smith, he pulled his vehicle
across the westbound lanes of U.S. 20 to block traffic. He got
out of his vehicle and saw Myers with a long gun walking
towards him. Trooper Ghent yelled for Myers to stop, but Myers
appeared to merely look through him and continue walking.
After Myers refused to stop and drop his weapon, Trooper
Ghent fired at Myers and knew that Myers was hit near his
shoulder when he saw Myers react and turn away. Trooper
Smith and Deputy Knott heard the gunshots and did not know
whether Myers or Trooper Ghent had fired. Both officers fired
upon Myers when he turned and started approaching them, at
which time Myers retreated into a wooded area along the
roadside.
The officers immediately established a perimeter around
Myers's location to prevent him from exiting out the opposite
side. The police vehicles were repositioned to shine spotlights
in the direction where Myers was hiding to get better visibility.
As other law enforcement officials arrived, a visual was kept on
Myers while a negotiator attempted to convince him to
surrender. Gas was eventually fired into Myers's location in an
attempt to force him out into an open space, but Myers remained
in the brush. An armored vehicle was finally utilized to
approach Myers, and two members of the tactical team
apprehended him. Myers was immediately taken to the hospital
due to gunshot wounds to his left shoulder and groin area.
At the hospital, a police officer was stationed outside Myers's
hospital room. Myers did not want to talk to police, and made
some statements to his mother indicating that he wanted an
attorney. Specifically, Myers told his mother that he wanted to
sue the police for shooting at him.

The next day, Myers was charged with multiple counts of
attempted murder and criminal recklessness. Shortly thereafter,
defense counsel filed a notice of defense of mental disease or
defect. After psychological evaluations were conducted, Myers
was determined to lack the capacity to understand the nature of
his criminal charges or to assist in his defense. Myers was
placed in the custody of the Division of Mental Health &
Addiction Services and was assigned to be institutionalized at
the Logansport State Hospital to receive further treatment and
evaluation.
In July 2009, the Logansport State Hospital indicated that
Myers had regained competency enough to stand trial. However,
after two designated medical experts conducted another
competency evaluation of Myers, he was again found to be
incompetent to stand trial. It was not until April 16, 2013, that
Myers's jury trial finally commenced. The jury returned verdicts
of guilty but mentally ill on the four counts of Class A felony
attempted murder.
Myers was sentenced to thirty (30) years on each count to be
served consecutively, for an aggregate sentence of one hundred
and twenty (120) years. Myers appealed his convictions and
sentence.
INSANITY DEFENSE To be convicted of a criminal offense,
the State must prove each element of the offense beyond a
reasonable doubt. Criminal responsibility can be avoided if the
defendant can successfully raise and establish the insanity
defense. To successfully assert this defense, an individual must
prove by a preponderance of the evidence: "(l) that he or she
suffers from a mental illness and (2) that the mental illness
rendered him or her unable to appreciate the wrongfulness of
his or her conduct at the time of the offense." Thus, proof of
mental illness alone is insufficient.
In the case before us, Myers asserted an insanity defense, and
the jury found him guilty but mentally ill. It is not disputed that
Myers suffered from a mental illness. Since 2000, Myers has

been diagnosed with schizophrenia. Therefore, the only
remaining question for the purposes of Myers's insanity defense
is whether his mental illness prevented him from understanding
the wrongfulness of his conduct at the time of the offense.
It is for the trier of fact to determine whether the defendant
appreciated the wrongfulness of his conduct at the time of the
offense. The defendant is in the position of having to appeal a
negative judgment. A reviewing court will reverse only when
the evidence is without conflict and leads only to the conclusion
that the defendant was insane when the crime was committed.
The reviewing court will not reweigh the evidence or assess the
credibility of witnesses but will consider only the evidence most
favorable to the judgment and the reasonable and logical
inferences to be drawn therefrom.
At trial, the experts who conducted psychological evaluations of
Myers unanimously agreed that Myers's mental illness made him
incapable of understanding the wrongfulness of his conduct at
the time of the offense.
Wininger, Myers's mother, did not see Myers on the day of the
offense, but she testified that the day before the shooting took
place he was not in his right mind.
Thus, only the experts gave an opinion on Myers's mental state
at the time of the offense ....
Indiana precedent has clearly established that unanimous expert
testimony alone is not determinative where there is conflicting
lay opinion testimony or demeanor evidence also presented at
trial. This Court has addressed several cases where insanity
defenses were unsuccessful, even in light of nonconflicting
expert testimony that the defendants were insane at the time of
the offense ....

In each instance, there has been other sufficient probative
evidence from which a conflicting inference of sanity
reasonably could be drawn. For example, demeanor evidence,
when considered in light of the other evidence can permit a jury
to draw a reasonable inference of sanity. This is true because
testimony regarding behavior before, during, and after a crime
may be more indicative of actual mental health at the time of
the crime than mental exams conducted weeks or months later.
Although Myers had a history of mental illness, he had
seemingly been coping better with his mental illness over the
past several years. He had been stable on his medications and
had not been hospitalized for three years. Furthermore,
Wininger denied that Myers suffered from delusions. Myers had
never met the individuals who he shot at, and nothing in the
record indicates that he had ever attacked any other individuals
due to delusions regarding his believed involvement in the
military or CIA. Most significantly, Myers did nothing during
the incident itself that explicitly demonstrated he was suffering
from a delusion at that time. Consideration of the specific
evidence presented at this trial is necessary to determine
whether a conflicting inference of sanity could have been made.
The State presented testimony from victims and multiple
eyewitnesses describing how the incident unfolded. Both of the
Browns testified to Myers running after their vehicle, pointing a
long gun directly at them and firing. Augenstein also testified
that Myers pointed a gun directly at his vehicle and fired.
Trooper Smith explained in even greater detail that Myers
walked up to the fog line and tracked his police cruiser with a
gun as he drove closer to Myers. Then, Myers held the gun at
waist level, which was directly in line with Trooper Smith's
head, and fired when the police cruiser was directly parallel to
him. Trooper Smith heard the pellets from the gun hitting the
driver-side window of the police cruiser.

Multiple law enforcement officers also testified to Myers's
refusal to obey orders instructing him to stop and put his
weapon down. When Myers was eventually fired upon by police
due to his refusal to put his weapon down, he fled into a brushy
wooded area near the road. Myers remained hidden for over two
hours while a police negotiator tried to convince him to
surrender. Even after gas was fired into the area where Myers
was hiding, he remained. A tactical team finally approached
Myers in an armored vehicle. Additionally, when law
enforcement instructed Myers to put his hands up, Myers
responded in a rational manner by explaining that he could only
raise one arm because he had been shot in the shoulder. Myers
was eventually apprehended and taken to the hospital where he
was treated for his gunshot injuries. While at the hospital,
Myers did not want to talk to police and alluded to his mother
that he wanted an attorney in order to sue the police for
shooting at him. Upon further investigation, shotgun shells were
found in Myers's vest pocket. The State argued that Myers had
consciously picked up the casings after they were fired in order
to conceal evidence linking his weapon to the shooting.
Based upon the circumstantial evidence provided above, it
would be possible for a reasonable jury to conclude that Myers
was able to appreciate the wrongfulness of his conduct at the
time of the offense.
Some of Myers's behaviors have even been recognized by this
Court as demonstrating consciousness of wrongdoing. First,
evidence of flight may be considered as circumstantial evidence
of consciousness of guilt. Additionally, evidence of an attempt
to avoid arrest also tends to show guilt. Furthermore, Myers's
rational communication with police immediately before his
apprehension could serve to corroborate a reasonable inference
by the jury that Myers was aware of the wrongfulness of his
conduct.

The defense relied upon expert testimony, which was based
upon evaluations of Myers that were conducted months after the
incident occurred. Dr. Herbert Trier evaluated Myers on one
occasion, six years after the incident occurred. Dr. David
Lombard conducted two evaluations of Myers, one which was
approximately two months after the incident and another
approximately six years after the incident. Dr. Lombard
explained that because Myers claimed that he never had a gun
or fired a weapon that night, he could not say how the
defendant's delusions were affecting his thoughts at the time he
shot the gun. Furthermore, Dr. Lombard did not interview any
police or eyewitnesses, and Dr. Trier also testified that he did
not review police reports or any written statements regarding
the incident. It was within the province of the jury to give less
weight to expert testimony that relied upon evaluations of
Myers months and years after the incident than to the testimony
of individuals actually present at the time of the offense.
Wininger did provide some lay opinion testimony that Myers
was not in his right mind the day before, that he had stopped
taking his medication, and that she had called his doctor to
arrange a bed for him at the hospital. However, her testimony at
trial indicated inconsistencies. Wininger testified that she had
noticed that Myers was responding slowly, but did not think that
he was having delusions. Moreover, in her testimony regarding
a prior deposition, she stated that she had noticed nothing
different about Myers leading up to the incident.
Despite the evidence presented by the State, reasonable minds
could interpret a conflict in the evidence regarding Myers's
sanity at the time of the offense. Myers's actions could be
interpreted as calculated and deliberate when he aimed a gun
and fired directly at multiple victims. Additionally, Myers's
fleeing from police and attempts to avoid arrest could also
indicate a level of consciousness that he had done something
punishable. Furthermore, Myers's only verbal communication

with law enforcement prior to his apprehension was seemingly
rational and cognizant of what was being requested of him.
Myers sensibly explained that he was unable to comply with the
police request to raise both arms because he had been shot.
Finally, Myers's demeanor after the incident at the hospital
could also lead an individual to believe Myers was cognizant of
the wrongfulness of his conduct. Even though Myers made
statements that he wanted an attorney so he could sue the police
for shooting at him, a jury could still determine that this
demonstrated some understanding that shooting at people is
wrong.
Though there was evidence that could also support the
conclusion that Myers was insane at the time of the crime, it is
not necessary that the court find the circumstantial evidence
excludes every reasonable hypothesis of innocence. It need only
be demonstrated that inferences may reasonably be drawn which
support the finding of guilt. It is not within the purview of this
Court to reverse the jury's verdict simply because a more
reasonable inference could be made. Rather, the fact that a
conflicting inference can be made is controlling. For example,
while fleeing and hiding from the police could be consistent
with the fact that Myers was suffering from a delusion at the
time of the offense, a jury could also infer that this is evidence
demonstrating Myers's understanding of the wrongfulness of his
conduct.
It is not the role of this Court to reweigh the evidence presented
at trial and make a determination on which of those inferences
the jury should have made, or to determine what reasonable
inferences could have been drawn by the jury. Based on the
evidence presented at trial, it is possible for a jury to have made
a reasonable inference that Myers was mentally ill but still able
to understand the wrongfulness of his conduct at the time of the
offense. Therefore, Myers's convictions on four counts of

attempted murder are affirmed.
Ill. APPROPRIATENESS OF SENTENCE Under Indiana
Appellate Rule 7(B), a reviewing court may revise a sentence
upon determining that the sentence is "inappropriate in light of
the nature of the offense and the character of the offender." This
determination "turns on our sense of the culpability of the
defendant, the severity of the crime, the damage done to others,
and myriad other factors that come to light in a given case." We
recognize that "the principal role of appellate review should be
to attempt to leaven the outliers but not to achieve a perceived
'correct' result in each case."
In the present case, Myers was convicted of four counts of Class
A felony attempted murder. The possible sentence that can be
assigned for a Class A felony ranges from twenty to fifty years,
with thirty years being the advisory sentence. See Ind.Code §
35-50-2-4. Myers was sentenced to thirty years for each count
of attempted murder to be served consecutively, making his
aggregate sentence one hundred and twenty years.
After reviewing the aggravating factors pronounced by the trial
court, and in consideration of the fact that the advisory sentence
was imposed, it is our collective judgment that the sentence
imposed by the trial court was not inappropriate.
Furthermore, with a few exceptions, it is within the trial court's
discretion whether to order sentences be served concurrently or
consecutively. Whether the counts involve one or multiple
victims is highly relevant to the decision to impose consecutive
sentences .... Here, multiple victims were fired upon, one of
which was a young child and another a police officer. We
cannot conclude that the trial court abused its discretion in
deciding that Myers's sentences should be served consecutively.
CONCLUSION There was sufficient evidence for a jury to draw

a reasonable inference that the defendant was able to appreciate
the wrongfulness of his conduct at the time of the offense. The
admission of testimony regarding Myers's convoluted request
for counsel and refusal to speak to police did not constitute a
due process violation. In addition, Myers's sentence is not
inappropriate given the nature of the offense and his character,
nor was it inappropriate for the trial court to order his sentences
to be served consecutively. Therefore, we affirm Myers's
convictions of guilty but mentally ill, and affirm his sentence of
one hundred and twenty years for four counts of Class A felony
attempted murder.
Where there is no conflict among the expert opinions that the
defendant was insane at the time of the offense, there must be
other evidence of probative value from which a conflicting
inference of sanity can be drawn. Such probative evidence is
usually in the form of lay opinion testimony that conflicts with
the experts or demeanor evidence that, when considered in light
of the other evidence, permits a reasonable inference of sanity
to be drawn.
The majority acknowledges, "the experts who conducted
psychological evaluations of Myers unanimously agreed that
Myers's mental illness made him incapable of understanding the
wrongfulness of his conduct at the time of the offense." And
except for Myers's mother who said the day before the shootings
Myers was "not in his right mind," there was no other lay or
expert testimony that gave an opinion as to Myers's mental state
at the time of the offense. As such there must then exist other
evidence of probative value from which a conflicting inference
of sanity can be drawn.
And the only other evidence left in this case is that of
demeanor. Even where there is no conflict among the experts
and the lay witnesses, a finding that a defendant was sane at the
time of the crime still may be sustained by probative demeanor
evidence from which a conflicting inference of sanity may be

drawn. Demeanor is useful because a defendant's behavior
before, during, and after a crime may be more indicative of
actual mental health at the time of the crime than mental exams
conducted weeks or months later.
While not saying so in express terms the majority appears to
rely on such evidence pointing out for example the testimony of
multiple witnesses describing how the incident unfolded.
However, although demeanor evidence often is useful, there are
limits to its probative value. First, demeanor evidence is of
more limited value when the defendant has a long history of
mental illness with psychosis ....
The proposition that a jury may infer that a person's actions
before and after a crime are indicative of his actual mental
health at the time of the crime is logical when dealing with a
defendant who is not prone to delusional or hallucinogenic
episodes. However, when a defendant has a serious and well-
documented mental disorder, such as schizophrenia, one that
causes him to see, hear, and believe realities that do not exist,
such logic collapses.
Myers has a long mental illness history of paranoid
schizophrenia. As one of the experts summed up in his report:
Based on Mr. Myers documented history of schizophrenic
symptoms, his history of thought disorder, hallucinations and
delusions, and his symptom pattern on the day of the incidents
in question, it is this evaluator's clinical opinion that Mr. Myers
was suffering from a mental health condition at the time of his
offenses and that mental health condition (schizophrenia)
incapacitated his understanding of right and wrong and his
ability to control his actions.
All other experts presented similar evaluations. I agree with my
colleagues on the Court of Appeals that "the jury clearly erred
in rejecting Myers's insanity defense." Accordingly I would

reverse Myers's four Class A felony attempted murder
convictions.
Oliver v. State and DePasquale v. State
Ernest Oliver was convicted of larceny from the person in the
Eighth Judicial District Court and sentenced to ten years in
prison. He appealed. The Supreme Court reversed.
FACTS On the night of Oliver's arrest, three policemen
undertook to conduct a "decoy operation" near the intersection
of Main and Ogden in Las Vegas. That corner is in a downtown
area frequented by substantial numbers of persons commonly
characterized as "street people," "vagrants," and "derelicts." It
appears Oliver, a black man, is one of these. Disguised as a
vagrant in an old Marine Corps jacket, the decoy officer
slumped against a palm tree, pretending to be intoxicated and
asleep. His associates concealed themselves nearby. The decoy
prominently displayed a ten-dollar bill, positioning it to
protrude from the left breast pocket of his jacket. This was
done, the decoy later testified, "to provide an opportunity for a
dishonest person to prove himself." Oliver, who had the
misfortune to come walking down the street, saw the decoy and
evidently felt moved to assist him. Shaking and nudging the
decoy with his foot, Oliver attempted to warn the decoy that the
police would arrest him if he did not move on. The decoy did
not respond, and Oliver stepped away. Up to this point, Oliver
had shown no predisposition whatever to commit any criminal
act.
Then, Oliver saw the ten-dollar bill protruding from the decoy's
pocket. He reached down and took it. "Thanks, Home Boy," he
said. Thereupon, he was arrested by the decoy and the two other
officers. Following the trial, a jury convicted Oliver of larceny
from the person, and he has been sentenced to ten years'

imprisonment. OPINION Oliver's counsel contends he was
entrapped into committing the offense in question. We agree.
Government agents or officers may not employ extraordinary
temptations or inducements. They may not manufacture crime.
We have repeatedly endorsed the following concept: Entrapment
is the seduction or improper inducement to commit a crime for
the purpose of instituting a criminal prosecution, but if a person
in good faith and for the purpose of detecting or discovering a
crime or offense furnishes the opportunity for the commission
thereof by one who has the requisite criminal intent, it is not
entrapment.
Thus, because we discern several facts which we believe
combined to create an extraordinary temptation, which was
inappropriate to apprehending merely those bent on criminal
activity, we feel constrained to reverse Oliver's conviction. We
note, first of all, that the decoy portrayed himself as completely
susceptible and vulnerable. He did not respond when Oliver
attempted to wake him, urging him to avoid arrest by moving to
another location. Moreover, the decoy displayed his ten dollar
bill in a manner calculated to tempt any needy person in the
area, whether immediately disposed to crime or not.
In the case of Oliver, the police succeeded in tempting a man
who apparently did not approach the decoy with larceny in
mind, but rather to help him. Even after being lured into petty
theft by the decoy's open display of currency and apparent
helplessness, Oliver did not go on to search the decoy's pockets
or to remove his wallet.
He appealed and the Nevada Supreme Court reversed.
DePasquale v. State
In DePasquale, four officers on the LVMPD's S.C.A.T. Unit
(Street Crime Attack Team) were performing a decoy operation
near the intersection of Fremont Street and Casino Center Blvd.
in Las Vegas on April 30, 1983, at 11:45 P.M. Officer Debbie
Gautwier was the decoy, and Officers Shalhoob, Young, and
Harkness were assigned to "backup." Officer Gautwier was

dressed in plain clothes and was carrying a tan shoulder bag
draped over her left shoulder.
Within one of the side, zippered pockets of the bag, she had
placed a $5 bill and $1 bill wrapped with a simulated $100 bill.
The money, including the numbers of the simulated $100 bill,
were exposed so as to be visible to persons near by; however,
the zipper was pulled tight against the money so as to require a
concentrated effort to remove it.
Officer Young, also in plain clothes, was standing
approximately six to seven feet away from Officer Gautwier
(the decoy), near the entrance of the Horseshoe Club, when
Randall DeBelloy approached Officer Gautwier from behind and
asked if he could borrow a pen. Officer Gautwier stated that she
did not have a pen, and DeBelloy retreated eight to ten feet.
Within a few seconds he approached a second time, asking for a
piece of paper. Again the response was "no." During these
approaches Officer Young observed DeBelloy reach around
Officer Gautwier toward the exposed cash.
DeBelloy again retreated eight to ten feet from Officer
Gautwier. He then motioned with his hand to two men who were
another eight to ten feet away, and the trio huddled together for
15 to 30 seconds. As DeBelloy talked with the two men, he
looked up and over in the direction of Officer Gautwier.
Vincent DePasquale was one of the two men who joined
DeBelloy in this huddle.
While this trio was conversing, Officer Gautwier had been
waiting for the walk signal at the intersection. When the light
changed, she crossed Fremont Street and proceeded southbound
on the west sidewalk of Casino Center Blvd. DePasquale and
DeBelloy followed her, 15 to 20 feet behind. After crossing the
street, Officer Gautwier looked back briefly and saw DeBelloy
following her. DePasquale was four to seven feet behind
DeBelloy and to his right.
As they walked in this formation, DePasquale yelled out, "Wait
lady, can I talk to you for a minute."
As Officer Gautwier turned to her right in responseseeing

DePasquale whom she identified in courtDeBelloy took a few
quick steps to her left side, took the money with his right hand,
and ran. DeBelloy was arrested, with the marked money in his
possession, by Officers Harkness and Shalhoob. DePasquale
was arrested by Officers Gautwier and Young. Both were
charged with larceny from the person and convicted by a jury.
OPINION
DePasquale argues that he was entrapped, that the district court
erred in its instruction to the jury on the law of entrapment, that
the evidence fails to support the verdict, and that the sentence
of ten years is disproportionate and, therefore, cruel and
unusual. Upon these facts, the decoy simply provided the
opportunity to commit a crime to anyone who succumbed to the
lure of the bait. Entrapment encompasses two elements: 1. an
opportunity to commit a crime is presented by the state 2. to a
person not predisposed to commit the act. Thus, this subjective
approach focuses upon the defendant's predisposition to commit
the crime. In the present case, the cash, although exposed, was
zipped tightly to the edge of a zippered pocket, not hanging
temptingly from the pocket of an unconscious derelict.
Admittedly, the money was exposed; however, that attraction
alone fails to cast a pall over the defendant's predisposition.
The exposed valuables (money) were presented in a realistic
situation, an alert and well-dressed woman walking on the open
sidewalks in the casino area.
The fact that the money was exposed simply presented a
generally identified social predator with a logical target. These
facts suggest that DePasquale was predisposed to commit this
crime. Furthermore, the fact that DePasquale had no contact
with the decoy but rather succumbed to the apparent temptation
of his co-defendant to systematically stalk their target evidences
his predisposition.
Lastly, DePasquale complains that his sentence was
disproportionate to the crime and, therefore, cruel and unusual
punishment. A sentence is unconstitutional if it is so

disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of
human dignity. While the punishment authorized in Nevada is
strict, it is not cruel and unusual.
Accordingly, we AFFIRM the judgment of conviction.
State v. Belew
Jeffrey Belew was convicted and sentenced to 2 7 years in
prison. The Ohio Court of Appeals affirmed his conviction. A
majority of the Ohio Supreme Court let the conviction and
sentence stand without opinion. But, one justice dissented, and
wrote the following opinion.
I respectfully dissent from the court's decision to dismiss this
case as having been improvidently accepted. Amici curiae in
support of appellant, Jeffery Belew, filed two memoranda in
support of jurisdiction asserting that this case involves a matter
of great general interest and public importance and filed two
supporting merit briefs. 1 And although the state does not
disagree with Belew's proposition that "when credibly
diagnosed, a trial court must consider combat-related post-
traumatic stress disorder and other service-related disabilities as
mitigation when imposing sentence on a military veteran," it
argues that the trial court here did properly consider those
factors when sentencing him.
I believe that we should render an opinion on how post-
traumatic stress disorder ("PTSD") must be considered by a
court when it sentences a military veteran. And just as
important, we should clarify the standard that an appellate court
must use in reviewing a sentence of this type. It is my position
that only a full opinion by this court will clarify both the
appellate court's standard of review and the trial court's need to
support the record for a felony sentence.
On April 10, 2011 Belew fired at least four shots at police

officers who were responding to a domestic-disturbance call in
Oregon, Ohio. Belew's shots struck an arriving police car twice,
and he did not respond to commands to cease fire until he was
wounded by shots fired by the officers. He was arrested and
received hospital care.
Belew was indicted on April 20, 2011, for two counts of
attempted aggravated murder of a lawenforcement officer and
two counts of felonious assault, which were first-degree
felonies under R.C. 2903.ll(D) (1) because the shots were fired
at peace officers. Each count contained specifications that he
both displayed, brandished, indicated possession of, or used a
firearm (R.C. 2941.145) and discharged his firearm at peace
officers (R.C. 2941.1412). He entered pleas of not guilty and
not guilty by reason of insanity ("NGRI") to all charges and
specifications.
As a result of his NGRI plea, Belew was evaluated by two
psychologists, who provided reports to the court concluding that
he did not qualify for the insanity defense. One of the
psychologists diagnosed him with alcohol dependence,
persistent major depression, and PTSD as a result of his military
service in Iraq. That psychologist believed that Belew was
hoping to be killed by police on the day of the shooting. The
other psychologist found evidence of possible malingering or a
personality disorder.
After plea negotiations, Belew changed his plea to guilty and
the state dismissed certain counts and specifications. He was
sentenced to 27 years in prison: two consecutive ten-year terms
for each count of felonious assault to be served consecutively to
two concurrent seven-year terms for the firearm specifications.
He appealed his sentence to the Sixth District Court of Appeals,
which affirmed the trial court's order, holding that the trial
court appropriately weighed statutory factors in imposing his
sentence. We then accepted a discretionary appeal.
The trial court in this case received the psychological reports
and the presentence-investigation report into evidence.
Psychologist Dr. Wayne Graves, who testified at the sentencing

hearing, opined specifically about the diagnosis of PTSD, which
resulted from Belew's military service in Iraq, and about the
consequences of PTSD. Defense counsel and the prosecuting
attorney also spoke. Afterwards, the sentencing judge stated: I
have reviewed the presentence report that has been prepared,
I've reread the report prepared by Dr. Charlene Cassel of the
Court Diagnostic and Treatment Center, I've reread Dr. Wayne
Graves's report, I have read two letters from the Defendant's
mother, and I've listened very carefully to the testimony of Dr.
Wayne Graves here today, as well as listened to what Counsel
and Defendant has had to say, and I've balanced all of that
information in sentencing this afternoon. She then addressed the
defendant directly: Mr. Belew, you claim that you suffer from
post-traumatic stress disorder as a result of being in the military
and you provide that as an excuse for your actions. There is no
excuse, Mr. Belew. I have to-I feel that I'm compelled because
of my concerns of why you entered the military, to weigh that.
And your words to Dr. Charlene Cassel were, I joined the
Marines to see how many people I could kill. That's, generally-
if I'm not mistaken, people don't join the military to see how
many people they can kill. You were continually in trouble and
constantly drunk and under the influence of alcohol and drugs,
and you received a bad conduct discharge after being court
martialed for stealing government property. Turning to the
offenses, the judge then stated: These offenses are extremely
serious, Mr. Belew, these officers could have been killed,
because you intended to kill them. They responded to a call of a
fight between you and your brother because you were in
possession of a handgun and were extremely intoxicated. And
you don't remember what happened that night, as you said,
because you were suffering from an alcohol blackout. And
according to Dr. Charlene Cassel, people who are suffering
alcohol blackouts do not do things that are uncharacteristic of
things that they wouldn't normally do. You shot at Officer
Martin when he stopped his vehicle, you shot at him several
times, and when the other two officers came to assist they gave

several commands to you to stop and put down your weapon,
but you continued to walk toward them with your gun pointed at
them. And it was only after you were wounded that you stopped.
You are lucky to be standing here today, Mr. Belew, because
they very well could have killed you.
The judge next stated: "You do have a minimal criminal
history." However, she also stated, "because of your actions I
believe you are a danger to this community." Belew did not
receive a maximum 34-year sentence for the offenses and
specifications for which he was convicted. The sentencing
judge's entry stated that the prison terms were ordered to be
served consecutively because consecutive sentences were
"necessary to fulfill the purposes of R. C. 2929 .11,2 and not
disproportionate to the seriousness of the offender's conduct or
the danger the offender poses" and that the "harm caused was
great or unusual." The record here did not allow the Sixth
District Court of Appeals to clearly and convincingly find that
the record does not support the sentencing court's findings.
Although different judges may have weighed the statutory
factors at issue here differently, the relevant statutes did not
allow the appellate court to substitute its own judgment for that
of the trial judge. All findings of the trial judge have record
support and the required findings were made. I would therefore
affirm the judgment of the court of appeals. I respectfully
dissent from the order that dismisses this case as improvidently
accepted.
The United States Marine Corps took a marginal recruit from an
abusive family and turned him into a fighting machine. They
sent him to Iraq to defend all of us, and in the process they
turned him into a confused alcoholic with a clear diagnosis of
posttraumatic stress disorder ("PTSD") and possibly a traumatic
brain injury.
Once home, and still on active duty, he became a misfit
alcoholic who was, essentially, no longer of any use to the

Marine Corps. He was often drunk, did not obey orders, and
most significantly, received no treatment whatsoever for the
PTSD that he had sustained in the fog of war.
Not too surprisingly, on one drunken day while on active duty,
he and a friend "borrowed" a Humvee and went on a joyride.
They were quickly apprehended by the officer of the day, and
from that point forward, it was clear that the Marines no longer
needed the product they had created.
He was demoted and given a bad-conduct discharge for the
Humvee incident. Significantly, his less-than-honorable
discharge deprived him of the medical assistance from the
federal Department of Veterans Affairs that he so desperately
needed.
As a civilian he simply did not fit in, and, still suffering from
untreated and undiagnosed PTSD, his antisocial behavior
predictably escalated.
We are here today because of the tragic events that led to his
conviction. It is without question, and well supported in the
record, that this troubled throwaway from society wanted to
commit "suicide by cop." There is no other explanation for why
an individual would open fire on two approaching, well-trained,
well-armed police officers. He failed. Rather than dying, Belew
received a nonfatal bullet to the chest-and not one of the
officers was struck. He took responsibility for his actions and
pled guilty to several offenses but received an aggregate
sentence of 27 years in prison that was far harsher than it
should have been.
Incredibly, the trial court and the court of appeals have locked
onto the phrase "no excuse." The trial court stated, "Mr. Belew,
you claim that you suffer from post-traumatic stress disorder as
a result of being in the military and you provide that as an
excuse for your actions. There is no excuse, Mr. Belew."
I would respectfully suggest that one trial court judge, three
appellate court judges, and the majority of this court simply do
not get it. PTSD is not an excuse. It is an explanation.
Mr. Belew's disability was not an "excuse." He was and is

suffering from a well-known and definable disease, which was
diagnosed by Dr. Wayne Graves, whose testimony was admitted
into evidence without objection and presented in the sentencing
hearing.
After the date of the trial court's sentencing of Belew in this
case, the General Assembly enacted the following language:
"The sentencing court shall consider the offender's military
service record and whether the offender has an emotional,
mental, or physical condition that is traceable to the offender's
service in the armed forces of the United States." R.C.
2929.12(F).
This case is clearly the poster child for implementation of the
new statute, and today this court has the rare opportunity to lead
with clarity. The record is before us. There is more at stake here
than garden-variety excuses for criminal culpability. Belew was
a marginal Marine recruit; he developed PTSD while on active
duty; and he was turned out of the service with a bad-conduct
discharge and little or no capacity to function safely in society.
Tragically, he is not the only member of the armed forces to
arrive at this juncture. He has been diagnosed with PTSD as a
result of his time in the Marine Corps-a condition that remains
untreated. It is inexcusable that he cannot access federal
benefits for his PTSD. We can and should do better. I would
reverse the judgment of the court of appeals and remand this
case to the trial court for a new sentencing hearing and decision
that properly takes into consideration Belew's military-service
record and his diagnosis of PTSD. Anything else is
unreasonable.
Kimberly Gonzalez
Professor Rodriguez
02/12/20
Chapter 6
1. Myers III v. State (2015)
a. State the elements of Indiana's version of the right-wrong
test.

b. List all the facts relevant to each element of the test.
c. Summarize the trial court's reasons for ruling that Donald
Myers was not insane at the time of the crime.
d. Summarize the majority's arguments that Myers was "Guilty
but mentally ill."
e. Summarize why the dissenter’s reasons why the trial court
judge's verdict should not be overturned.
f. Which is the best argument? Defend your answer.
2. Oliver v. State (1985) and Depasquales v. State (1988)
a. State the test for entrapment according to Nevada law.
b. What facts led the Court to conclude that Oliver was
entrapped but DePasquale wasn't?
3. State v. Belew (2014)
a. List the facts relevant to deciding whether Jeffrey Belew
suffered from PTSD.
b. Summarize the trial judge's reasons for rejecting Belew's
claim that his PTSD excused his otherwise criminal conduct.
c. Summarize Justice Lanzinger's reasons why he believes that
PTSD deserves more attention.
d. Why does dissenting Justice O 'Neill "suggest that one trial
court judge, three appellate court judges, and the majority of
this court simply do not get it. PTSD is not an excuse. It is an
explanation."? Do you agree? Defend your answer.

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