author: FRIEDLANDER, Judge.

text:
    Halston THOMAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1109-CR-830.
    Court of Appeals of Indiana.
    May 9, 2012.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Halston Thomas appeals his conviction of Murder, a felony, and Carrying a Handgun Without a License, a class A misdemeanor. Thomas presents the following restated issue for review: Did the trial court err in admitting deposition testimony of a witness who refused to testify at trial and whom Thomas had an opportunity to examine at the deposition?

We affirm.

The facts favorable to the conviction are that late in the morning of November 9, 2009, Andre Drake was visiting a friend, Temia Crossley, who lived in a second-floor apartment in an apartment building located at 6387 Terrance Drive in Indianapolis. Drake’s vehicle, with stickers on the trunk prominently displaying the identifying words “dre day”, was parked in front of the building. Transcript at 27. As the two started to leave, Drake ran into another Mend, Channing Gordon, at the top of the stairs and the two exchanged phone numbers. While Drake and Gordon spoke, three men, including Thomas and Lamar Hall, entered the apartment building’s first-floor main entrance. Thomas and Drake had been in an altercation several months before. Gordon knew Thomas as “Noodles.” Crossley, who was standing near the door when the men entered, saw that Thomas was carrying a handgun. She immediately ran upstairs to her apartment and went inside.

Gordon saw Thomas climb the stairs, pointing a handgun at Drake. Gordon knocked on the door of Apartment C, which was also located on the second floor, and went inside. He heard the barrel of Thomas’s gun spinning just before he went inside Apartment C, the one beside Cross-ley’s. Seconds later, once inside their respective apartments, Crossley and Gordon heard essentiahy the same thing concerning the ensuing encounter between Drake and Thomas. Crossley heard Drake say, “Man take everything you want.” Transcript at 55. Gordon heard Drake “yell”, “you can have it all.” Id. at 107. Both heard the sound of a struggle and then both heard multiple gunshots. Crossley thought she heard ten or eleven shots, while Gordon thought he heard three or four. Seconds later, Drake knocked on Crossley’s door and she let him inside. He told her he had been shot in the chest and asked her to coll 911. Drake entered the apartment and collapsed on the living room floor. He gave Crossley a .40-cali-ber handgun he had been carrying and asked her to hide it, which she did by putting it in her closet.

Drake was shot four times — twice in the arm and twice in the back. One of the shots in the back lacerated his kidney, severed his aorta, and passed through his liver and diaphragm. This shot proved to be fatal to Drake. Ultimately, police recovered three bullets from Drake’s body and two from the apartment hallway. All five bullets were .32 caliber. Police interviewed Crossley, who told them she had seen one of the men before, several days earlier at the Speedway store where she worked. Police viewed a store surveillance videotape with Crossley and she identified a man as the one she thought had accompanied the man who held the handgun on the day Drake was shot. That man turned out to be Hall. Detective Mark Prater interviewed Hall, who eventually told him that the man who shot Drake in the apartment building was called “Noodles.” He then informed the detective that Noodles’s name was Halston Thomas.

Detective Prater subsequently interviewed Thomas. Thomas admitted shooting Drake, but claimed he did so in self-defense and then blacked out. On April 12, 2011, Thomas was charged with murder and carrying a handgun without a license. In June 2011, Jade Stone was incarcerated in Marion County on a charge of conspiracy to commit robbery, a class A felony. At that time, she approached Detective Prater and told him she had information concerning the Drake shooting. According to Stone, she knew Thomas as “Beefy.” In March 2011, she had been involved in a conversation with Thomas, Tiana Cathy, and Briscoe Jones. She heard Thomas tell Jones “[t]hat he had killed somebody and that he was looking for the witness on the case that testified against him to kill him.” Id. at 168. According to Stone, Thomas identified the witness in question by what he drove — an older model, “tealish-blue Camaro, two door.” Id. That car was later connected to Hall.

Thomas was tried on the above charges before a jury. Gordon was called to testify, but refused to do so despite a court order and despite being found in contempt of court for failing to testify. Thomas testified on his own behalf. His description of the incident differed significantly from the trial testimony of Crossley and the deposition testimony of Gordon. According to Thomas, he was unarmed when he entered the apartment building and encountered Drake. Drake, on the other hand, was armed with two revolvers, one bigger than the other. According to Thomas, Drake pulled out the smaller gun and pointed it at Thomas, which precipitated a struggle, during which Thomas wrested control of the gun from Drake. As Drake reached for the bigger revolver and ran up the stairs, Thomas fired the gun he was holding, striking Drake as set out previously. Thomas claimed that, at the time he fired the shots at Drake, Drake was standing at the top of the stairs and Thomas was standing at the bottom. The jury found Thomas guilty as charged. Further facts will be provided where relevant.

When Gordon refused to testify at trial, the trial court granted the State’s request to read Gordon’s deposition testimony into evidence. Thomas contends that, in so doing, the trial court deprived him of his constitutional right to confront the witnesses against him because he did not have an adequate opportunity to confront and cross-examine Gordon. “The decision whether to allow admission of prior recorded testimony is within the sound discretion of the trial court.” Kendrick v. State, 947 N.E.2d 509, 515 (Ind.Ct.App. 2011), trans. denied, cert. denied — U.S. -, 132 S.Ct. 1752, 182 L.Ed.2d 541 (2012) (citing Gamer v. State, 777 N.E.2d 721 (Ind.2002)).

Thomas’s argument rests chiefly upon our Supreme Court’s decision in Howard v. State, 853 N.E.2d 461 (Ind.2006). In Howard the defendant was tried on child molesting charges. The alleged victim, who was twelve years old at the time of trial, became upset after answering a few preliminary questions and then refused to answer any more questions, including any questions of substance concerning the alleged molestations. The court tried several times, without success, to determine how it could alleviate the witness’s reluctance to testify further. Failing that, the trial court declared the witness unavailable and, over defense objection, granted the State’s request to admit the child’s pretrial deposition testimony into evidence. The defendant appealed to this court, which affirmed his conviction. Our Supreme Court granted transfer. Although the Supreme Court ultimately determined that the trial court erred in admitting the deposition, its discussion leads us to the opposite conclusion with respect to Gordon’s deposition.

In addressing the admissibility of the alleged victim’s deposition in Howard the Court noted the requirement set out by the United States Supreme Court that “if testimonial evidence is at issue, then ‘the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.’ ” Id. at 465 (quoting Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

Thomas characterizes the deposition of Gordon as a discovery deposition, not a testimonial deposition, and therefore impliedly argues that Crawford does not apply. According to Thomas, a discovery deposition, unlike a testimonial deposition, “does not give the defendant an adequate

opportunity for cross-examination of the witness because the case is in the discovery stage and defense counsel may not yet have all the available information to conduct an effective cross-examination.” Appellant’s Brief at 5. Our Supreme Court addressed a similar argument in Howard. We first note the Court’s observation that “witness statements made during depositions are generally understood and widely recognized as testimonial.” Howard v. State, 853 N.E.2d at 465. Nevertheless, noting that “Crawford provides no guidance concerning what ‘opportunity’ is sufficient to satisfy the demands of the Sixth Amendment,” the Court acknowledged that litigators often divide depositions into two categories: discovery and testimonial. Howard v. State, 853 N.E.2d at 469. It also acknowledged that the motivation for taking a deposition for discovery purposes might differ from that of a testimonial deposition. The Court, however, seemed disinclined to resolve the question by undertaking an analysis that resulted in placing the deposition in one category or the other. Instead, the Court made two observations that guided its inquiry into whether the deposition in question was admitted consistent with the Crawford standard.

First, the Court described the deposition in Howard as “a vigorous and lengthy examination” that “lasted approximately two hours and resulted in ninety-two typewritten pages[.]” Id. at 469. The Supreme Court cited these facts to support its rejection of Howard’s claim that he had been denied his right of confrontation. Thomas would have us interpret the Supreme Court’s language in doing so as reflecting its view that depositions that are not similarly long and involved will not satisfy the requirement that the deposition be testimonial. We reject this interpretation for reasons that will be explained below. Thomas next contrasts the lengthy deposition conducted in Howard with the one conducted in the present case, where his “counsel specifically limited the deposition to discovery matters and did not conduct an extensive cross-examination to “ ‘cast doubt on the credibility’ of Gordon. Read into the transcript, the deposition is only 25 pages long and the questions asked by defense counsel were directed at what Gordon knew about the case.” Appellant’s Brief at 5. Therefore, the argument goes, because the deposition of Gordon was not as vigorous and lengthy as the one in Howard, the Crawford requirements were not met.

At this point, Thomas segues into a discussion of the most facially important of the Crawford elements, i.e., the opportunity to confront the witness during the deposition. Thomas contends he did not have an opportunity to confront Gordon at Gordon’s deposition because the scope of defense counsel’s questioning of Gordon was strictly limited — by Gordon’s counsel. Thomas contends, “Thomas’ counsel specifically limited the deposition to discovery matters and did not conduct an extensive cross-examination to ‘cast doubt on the credibility’ of Gordon.” Id. In fact, at the very outset of the deposition, counsel explained his intentions in that regard:

Mr. Gordon, we’re here for a discovery deposition today. What that means is this isn’t intended to replace you coming to trial, if there is a trial on this matter and testifying in front of a jury. Does that make sense?
⅝ ⅜ ⅜ ⅜ ⅜ ⅜
[A]ll right because this is a discovery deposition there are specifically some subject areas that I’m not going to cover. Also, the style and manner of the questioning would be different if this was intended to replace you testifying in Court. Does that make sense?
[M]y client, Halston Thomas is not here today and he’s not waiving his right to have — to confront cross-examine witnesses or to have a face-to-face meeting with the witnesses against him, okay.

Transcript at 100-101. Clearly, counsel did not intend to question Gordon vigorously or in depth. This is not to say, however, that counsel did not have the opportunity to do so. The restrictions placed upon the scope, tenor, and purpose of the deposition were self-imposed and not dictated by law. Our reading of Howard leads us to conclude that the critical inquiry centers upon whether the opportunity was presented, not whether it was seized.

We return here to the conclusion left unexplained above, i.e., the mere fact that a deposition was not as vigorous and lengthy as the one before the Court in Howard does not foreclose the possibility that it will be classified as testimonial in nature and, as such, admissible if it meets the criteria set out in Crawford. After observing that the deposition in Howard was, in fact, vigorous and lengthy, and did not support a claim that the defendant did not have an opportunity to confront the witness in that setting, the Court stated:

Second, and perhaps more importantly, Crawford speaks only in terms of the “opportunity” for adequate cross-examination. The right of confrontation under the Sixth Amendment is honored where “the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Maryland v. Craig, 497 U.S. 836, 847, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (quoting Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). Whether, how, and to what extent the opportunity for cross-examination is used is within the control of the defendant. ... Only where a defendant has never had the opportunity to confront and cross-examine a witness does the admission of prior testimony at a subsequent proceeding violate the constitutional right of confrontation.

Howard v. State, 853 N.E.2d at 470 (emphasis supplied). This language reflects that opportunity is the critical inquiry. Thomas’s counsel had the opportunity to conduct a thorough and vigorous questioning of Gordon, but for unexplained reasons chose to limit its scope to something less than that. Notwithstanding those self-imposed strictures, the opportunity was there and thus Crawford was satisfied. We therefore conclude that the State established that Gordon was unavailable to testify at trial, and that Thomas had an opportunity to cross-examine Gordon at the deposition, which was testimonial in nature. See Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354.

Finally, we observe that even assuming that Crawford’s requirements were not met, any error in admitting the deposition was harmless. “[A] denial of the right of confrontation is harmless error where the evidence supporting the conviction is so convincing that a jury could not have found otherwise.” Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000). There is no question about Thomas’s identity as the shooter, because he admitted shooting Drake. The ease turned upon whether the jury would believe Thomas’s claim that he acted in self-defense. The jury would have to believe Thomas’s account of the occurrence in several key respects, including: (1) Thomas’s claim that he arrived at the scene unarmed, (2) Drake initiated the confrontation by pulling a gun and pointing it at Thomfs’s face, (3) Thomas wrested control of that gun from Drake, and (4) Thomas shot Drake while Thomas was at or near the bottom of the stairs and Drake was at the top of the stairs and attempting to pull another gun from his pocket.

Crossley testified that when Thomas entered the building she was at the bottom of the stairs leading up to the second floor and saw a gun in Thomas’s pocket. At the moment Thomas and his companions entered the building, Gordon and Drake were talking to each other near the top of the aforementioned staircase. When she saw the gun, Crossley ran up the stairs past Drake and Gordon and into her apartment. Once inside her apartment, Cross-ley heard the sounds of a scuffle and heard Drake say “Man, take everything you want” at about the same time multiple gunshots rang out. Transcript at 55.

The key points of difference between her account and Thomas’s include her testimony that Thomas was already armed when he showed up at the scene, that the incident started with Drake upstairs and Thomas downstairs, and that Drake’s statement just before the shooting started was consistent with his desire to placate Thomas and to forestall Thomas’s aggression. Gordon’s testimony was consistent with Crossley’s, adding only that he saw Thomas pull the gun out of his pocket and point it at Drake’s chest or abdomen. At that point Gordon ran into a nearby apartment. Thus, Gordon’s deposition testimony merely duplicated Crossley’s in nearly all respects. Moreover, the forensic evidence showed that the bullets that entered Drake’s back reflected either a downward trajectory or a slightly upward trajectory. This was entirely inconsistent with Thomas’s account that he was eight to ten feet below Drake when he fired the fatal shots. Rather, it is consistent with the view that the shooting occurred at or near the top of the stairs and that Thomas would have had to climb the stairs to reach Drake’s location in order to get there in the few seconds after Crossley left the scene.

In view of the strength of the evidence of guilt and in view of the fact that Gordon’s deposition testimony was, largely, merely cumulative of Crossley’s, even assuming for the sake of argument that the trial court erred in admitting Gordon’s deposition, the error was harmless.

Judgment affirmed.

MAY, J., and BARNES, J., concur.

      . Ind.Code Ann. § 35-42-1-1 (West, Westlaw through end of 2011 1st Regular Sess.).

      . Ind.Code Ann. § 35-47-2-1 (West, Westlaw through end of 2011 1st Regular Sess.).

      . At trial, Hall recanted all of the information he had provided to Detective Prater during the interview, claiming he was lying to the detective for his own best interests.

      . We also observe that it is not relevant that counsel classified the deposition of Gordon as a discovery deposition.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    Latisha A. LAWSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 02A03-1107-CR-350.
    Court of Appeals of Indiana.
    May 10, 2012.

      John C. Bohdan, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

Latisha Lawson appeals her convictions for murder, Class C felony neglect of a dependent, Class D felony neglect of a dependent, and Class D felony battery. We affirm.

Issue

The sole issue before us is whether there is sufficient evidence to support the jury’s rejection of Lawson’s insanity defense.

Facts

Lawson was the mother of two children: K.K., born in 2000, and J.K., born in 2007. Lawson lived with the father of the children, Lawrence King, until October 2009, when the two split up. King had known Lawson for fifteen years and had never noticed any signs that she had a “profound mental illness.” Tr. p. 622. Additionally, Lawson had never previously received any mental health treatment.

After splitting up with King, Lawson and her children moved in with Natasha Hawkins and her three children. Lawson, who had always been steadily employed, quit her job after moving in with Hawkins. She also began homeschooling K.K. Lawson later explained that she believed God or “the Lord” had told her to quit her job and move in with Hawkins. Id. at 748. While she was living with Hawkins, other persons who came into contact with Lawson did not notice any signs of mental illness or unusual behavior. One person trusted Lawson enough to allow her to babysit her own children at times.

Behind closed doors, however, Lawson was frequently battering K.K. with a belt and extension cords, sometimes with enough force to leave permanent scars. Lawson began telling K.K. that J.K. was possessed by a demon, whom Lawson believed was named Marzon. Lawson believed that J.K’s physical appearance and bone structure was changing as a result of his possession; Lawson also managed to convince K.K. that these changes were occurring. At some point, Lawson claims that God revealed a plan to exorcise the demon from J.K. The plan required forcing J.K., along with K.K. and Hawkins’s children, to ingest a combination of “blessed” oil (i.e., olive oil over which Lawson prayed) and vinegar. Id. at 754. Hawkins agreed to this plan, and Lawson asserts that God told her the specific day on which to carry it out.

On that day, which appears to have been in November 2009, all of the children were given the oil and vinegar mixture, which caused them to vomit. J.K. fought against drinking the mixture, shaking his head no, crying, and attempting to spit it out. Hawkins helped hold J.K. down while he was given the mixture. Lawson and Hawkins, who apparently showed no signs of anger during the process, prayed out loud over J.K. The other children could not understand what the adults were saying for the most part, and Lawson claimed that she was speaking in tongues at that time. In order to force J.K. to ingest the oil and vinegar mixture, Lawson held her hand over his mouth for as long as five to ten minutes. Eventually, Lawson noticed that J.K. stopped breathing, and she told K.K. to say “bye” to him. Id. at 318. J.K. died at that time from suffocation. Lawson later claimed to have been shocked that J.K. had died and that she expected him to come back to life at some point.

After J.K. died, his body was placed on Hawkins’s bed, where it remained for approximately one month while Lawson and Hawkins continued sleeping in the bed next to it. Lawson told one of Hawkins’s children that she was “doing things for God” that would lead to J.K. coming back to life, which the child considered “crazy.” Id. at 548. Lawson also purchased some clothes for J.K. after he died. Later, J.K’s body was moved into a closet, and K.K. noticed a bad smell coming from the closet. Lawson and Hawkins eventually stuffed J.K.’s body into a plastic bin. Lawson forbade K.K. from discussing J.K.’s death, saying that she (Lawson) would go to jail if anyone found out about it. Lawson also sometimes forced the children in the house either to look at or touch J.K.’s body as a form of punishment.

Lawson essentially broke off all contact with her mother after moving in with Hawkins, even though she previously had had frequent contact with her. Lawson’s mother eventually contacted the Department of Child Services (“DCS”) and the Ft. Wayne Police Department with her concerns over Lawson and the children’s situation. In September 2010, a Ft. Wayne police officer went to Lawson and Hawkins’s apartment to perform a welfare check. The officer spoke to Lawson and did not notice any signs that she was suffering from a mental health issue. Lawson also told the officer that J.K. was staying with an aunt at the time. After walking through the apartment and finding nothing unusual, the officer left and filed a report 'vith DCS, which evidently did not follow up on the report. Lawson also told other persons, after J.K.’s death, that he was staying with other family members.

Lawson moved out of Hawkins’s apartment at the end of November 2010. She brought the plastic bin containing J.K.’s body with her when she moved into the home of an acquaintance, Yvonne Hill. Lawson told Hill first that J.K. was “somewhere safe,” and later said that he had been adopted. Id. at 266. Hill described her conversations with Lawson as “normal.” Id. at 263. After a short time living with Hill, Lawson moved into a home provided by a local pastor. Again, she brought the plastic bin with her, keeping it by her bedside.

On December 20, 2010, Ft. Wayne police officers performed a welfare check on Hawkins and her children at her apartment. Hawkins revealed to the officers that a baby had been killed in her apartment approximately one year before and placed into a bin. Police then were able to locate Lawson. At first, Lawson told police that her son had been adopted, but she declined to say by whom. Eventually, Lawson gave police a statement describing her belief that J.K. had been possessed, the exorcism attempt, and his death. Lawson consented to a search of the residence where she had been staying, and police found the plastic tub with J.K.’s partially mummified body inside.

On December 28, 2010, the State charged Lawson with Class A felony battery, Class A felony neglect of a dependent, Class C felony neglect of a dependent, Class D felony neglect of a dependent, and Class D felony battery. The first two charges were with respect to J.K’s death, and the last three charges were with respect to Lawson’s treatment of K.K., including physically and mentally abusing her and forcing her to drink the oil and vinegar. On January 28, 2011, the State added a charge of murder for J.K’s death.

Lawson filed notice that she intended to rely upon a defense of insanity. She accordingly was examined by two court-appointed experts: Dr. Kevin Wieland, a clinical psychologist, and Dr. Herbert Trier, a psychiatrist. Dr. Wieland’s examination consisted of interviews and tests totaling seven to eight hours, while Dr. Trier’s examination consisted of a forty-five minute interview and review of the background investigation of the case. At Lawson’s jury trial held on May 24-27, 2011, Dr. Wieland was asked whether he had an opinion on whether Lawson was “sane or insane at the time of the offense,” and he responded, “My opinion [sic] that Ms. Lawson was able to determine right from wrong regardless of a delusional process she may have.” Id. at 443-44. Dr. Wie-land further explained that his opinion was “to a medical degree of certainty” for the following reasons:

Based on all of the psychological measures and the clinical interview my opinion comes from a belief that she did [sic] in order to help her child. And that was her main goal of even doing the behavior at all. And so because of that her belief at that particular time was that her actions would help her child not harm. So she has a belief that helping is better than harming. She also has a deep belief in God and spirituality and cited on numerous occasions throughout the interview that God tries to influence for good rather than evil. And she talked a lot about good verses [sic] evil in the interview. And from that we can take that she has a strong belief between right, wrong, good, evil and that’s where that opinion comes from.

Id. at 446-47.

Dr. Wieland also testified that based upon Lawson’s description of events to him, “she definitely demonstrated the ability to make choices and to make choices in a right or wrong manner at that time.” Id. at 451. He also believed there was “no evidence that she was unable to appreciate the wrongfulness of her conduct at the time of the offense.” Id. at 473. After questioning by the court and the parties, the jury submitted a question asking Dr. Wieland whether “an insane person [can] in any way tell the difference between right and wrong.” Id. at 478. Dr. Wie-land responded, “Yes. Just because somebody is considered insane doesn’t mean that they lose the ability [sic] ascertain right and wrong although many times they do.” Id.

Dr. Trier testified that he “felt that she was not sane at the time of the offense.” Id. at 483. He also stated that a person with a delusional mental illness “might know right from wrong in a number of circumstances but not in the area where the delusions concerned.” Id. at 488-89. He also noted that “a person can be acting normal and have a delusional disorder ... that happens all the time.” Id. at 491-92. Dr. Trier believed that Lawson may have had either psychotic depression with delusions or schizophrenic disorder with delusions. Neither Dr. Wieland nor Dr. Trier gave any indication that they suspected Lawson of malingering.

The jury was instructed that it had the option of finding Lawson not guilty, not responsible by reason of insanity, guilty, or guilty but mentally ill. It returned a verdict of guilty for all six counts. The trial court entered judgments of conviction on four of the six counts: murder, Class C felony neglect of a dependent, Class D felony neglect of a dependent, and Class D felony battery. After being sentenced to an aggregate term of sixty-one years, Lawson now appeals.

Analysis

Lawson’s sole argument on appeal is that the jury erred in rejecting her insanity defense. Even when the State proves every element of a charged offense beyond a reasonable doubt, a defendant can avoid criminal responsibility for that offense by raising and proving an insanity defense. Galloway v. State, 938 N.E.2d 699, 708 (Ind.2010). Indiana Code Section 35-41-3-6 states:

(a) A person 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.
(b) As used in this section, “mental disease or defect” means a severely abnormal mental condition that grossly and demonstrably impairs a person’s perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.

The defendant must prove an insanity defense by a preponderance of the evidence. Ind.Code § 35-41-4-l(b).

Because Lawson bore the burden of establishing her insanity defense, she is now appealing from a negative judgment. See Galloway, 938 N.E.2d at 709. When reviewing a negative judgment, this court will not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact, even if more reasonable inferences arguably could have been made. Id. A defendant appealing a rejection of his or her insanity defense must establish to this court that the evidence is without conflict and leads only to the conclusion that he or she was insane when the crime was committed. Id. “Although this standard of review is deferential, it is not impossible.... An impossible standard of review under which appellate courts merely ‘rubber stamp’ the fact finder’s determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory.” Id.

"When mental health experts who have examined a defendant offer conflicting opinions on whether a defendant was insane at the time of the offense, i.e. where one or more experts testify that the defendant was insane while others testify that he or she was sane, such conflicting testimony generally “is sufficiently probative of sanity.” Id. at 710. Even when the experts unanimously agree that a defendant was insane when a crime was committed, a jury may still reject an insanity defense if there is “other evidence of probative value from which a conflicting inference of sanity can be drawn.” Id. at 712. Such evidence may include “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.” Id. An expert witness who testifies that he or she has no opinion as to a defendant’s sanity does not provide probative evidence on that question. Id. at 711. “[A]s a matter of law, a person is either sane or insane at the time of the crime; there is no intermediate ground.” Id. Where one or more experts offer an opinion that a defendant was insane when a crime was committed, while another expert fails to offer any opinion, this is treated as if there is unconflicting expert testimony that the defendant was insane for purposes of appellate review. See id. at 711-12.

Lawson first argues that Dr. Wie-land did not provide probative evidence on the question of Lawson’s sanity, thus leaving only Dr. Trier’s opinion of insanity. Although Dr. Wieland offered a blanket statement that Lawson was sane at the time of J.K’s death, Lawson claims that his explanations for that finding and subsequent testimony render that opinion lacking in probative value, as if he had failed to offer any opinion on her sanity. We disagree with Lawson’s assertion on this point.

As a court’s witness, the trial court asked Dr. Wieland whether he had an opinion on whether Lawson was “sane or insane at the time of the offense,” and he responded, “My opinion [sic] that Ms. Lawson was able to determine right from wrong regardless of a delusional process she may have.” Tr. pp. 443-44. Dr. Wie-land also testified that he believed there was “no evidence that she was unable to appreciate the wrongfulness of her conduct at the time of the offense.” Id. at 473.

Despite this testimony, Lawson essentially argues that we should disregard it. She draws a comparison to Galloway, where an expert who originally testified that he believed the defendant was sane later opined after extensive cross-examination that he was unable to offer a definite opinion on sanity, and a majority of our supreme court concluded that such testimony equated to the expert’s failure to offer an opinion on the defendant’s sanity. See Galloway, 938 N.E.2d at 711. Dr. Wieland did testify, in explaining his finding of sanity, that Lawson had a “belief at that particular time ... that her actions would help her child not harm. So she has a belief that helping is better than harming.” Tr. pp. 446-47. Arguably, this explanation of his findings is inconsistent with his testimony that Lawson was sane, which necessarily implies that she knew that what she was doing was wrong when she killed J.K. Likewise, the jury submitted a question to Dr. Wieland asking whether “an insane person [can] in any way tell the difference between right and wrong.” Id. at 478. Dr. Wieland responded, “Yes. Just because somebody is considered insane doesn’t mean that they lose the ability [sic] ascertain right and wrong although many times they do.” Id. Lawson contends it is incompatible with the legal definition of insanity to state that an insane person can tell right from wrong.

Regardless of any perceived weaknesses in Dr. Wieland’s testimony, we conclude it was within the province of the jury to assess the weight to be given to that testimony. We observe that the majority in Galloway did not reweigh the testimony of the expert or reassess his credibility. Rather, it relied upon the expert’s ultimate conclusion, after being presented on cross-examination with facts of which he had previously been unaware, that he could not offer an opinion on the defendant’s sanity. Galloway, 938 N.E.2d at 711. Here, by contrast, Dr. Wieland never wavered from his original opinion that Lawson was able to appreciate the wrongfulness of her conduct and, therefore, was legally sane at the time of these crimes. We decline to expand Galloway to cover the present situation.

Rather, we believe this case is covered by the well-established rule that an appellate court will not reassess the credibility of a witness unless such testimony was “incredibly dubious.” “[A] court will impinge upon the jury’s responsibility to judge the ci'edibility of witnesses only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible du-biosity.” Murray v. State, 761 N.E.2d 406, 408 (Ind.2002) (emphasis added). Lawson does not make an “incredible du-biosity” argument. Moreover, as a general rule any discrepancies in expert witness testimony, or lack of facts and reasoning to support expert opinion, go to the weight to be given that testimony and not to its admissibility. See Krumm v. State, 793 N.E.2d 1170, 1180-81 (Ind.Ct.App.2003), abrogated on other grounds by Hoglund v. State, 962 N.E.2d 1230 (Ind.2012). That being the case, any inconsistencies or lack of clarity in Dr. Wieland’s testimony was for the jury to consider in weighing his testimony. We decline to second-guess its apparent assessment of that testimony.

We conclude that Dr. Wieland’s testimony is probative evidence that Lawson was sane when she committed these crimes, and that alone “is sufficiently probative of sanity,” despite its conflict with Dr. Trier’s testimony that Lawson was insane. See Galloway, 938 N.E.2d at 710. The jury certamly was free to credit Dr. Wieland’s opinion over Dr. Trier’s, especially given the much longer time Dr. Wie-land spent examining and testing Lawson as opposed to Dr. Trier. See Fernbach v. State, 954 N.E.2d 1080, 1086 (Ind.Ct.App.2011) (noting that jury was entitled “to give little or no weight” to insanity opinions of expert -witnesses, based on their descriptions of how thoroughly they had examined the defendant), trans. denied.

Additionally, there was independent lay witness testimony tending to corroborate Dr. Wieland’s opinion that Lawson was sane. First, Lawson told K.K. after J.K.’s death not to tell anyone about it because she could go to jail if anyone found out, which is evidence of awareness of the wrongfulness of her conduct. Second, Lawson told persons who came investigating J.K’s whereabouts either that he had been adopted or was visiting other family members, which is consistent with an attempt to “cover up” her wrongdoing. Third, several persons who interacted with Lawson while she was living with Hawkins noticed nothing unusual about her behavior; one of these persons went so far as to permit Lawson to babysit her children.

The Galloway majority carefully scrutinized the so-called “demeanor” lay evidence of the defendant’s sanity in that case, finding there to be limits to the probative value of such evidence. Galloway, 938 N.E.2d at 713. It held such evidence to be “of more limited value when the defendant has a long history of mental illness with psychosis.” Id. The Galloway majority quoted extensively from this court:

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....

Moler v. State, 782 N.E.2d 454, 458-59 (Ind.Ct.App.2003), trans. denied. The Galloway majority also noted that “insanity is- not limited to the stereotypical view of a ‘raging lunatic’ — a person experiencing a psychotic delusion may appear normal to passersby.” Galloway, 938 N.E.2d at 713-14.

The Galloway majority observed that the concept of using lay witness demeanor evidence had more probative value to negate an insanity defense when it was based on whether the defendant had the capacity to conform his or her conduct to the law’s requirements, but that basis for an insanity defense was removed from the statute in 1984. Id. at 714. Finally, the Galloway majority noted that “demeanor evidence before and after a crime is of more limited value than the defendant’s demeanor during the crime.” Id. Indiana recognizes claims of “temporary insanity,” and so there is the possibility that a defendant may be legally insane when a crime is committed but apparently sane immediately before and after the crime. Id. In sum, “demeanor evidence must be considered as a whole, in relation to all the other evidence.” Id.

We believe the observations of the Galloway majority have limited application in this ease, where there is in fact expert testimony that Lawson was sane at the time of these crimes. That is, the “demeanor” evidence in this case is not being used as the sole basis for a finding of sanity, but merely as corroboration of Dr. Wieland’s testimony. Moreover, unlike the defendant in Galloway, Lawson does not have a long-standing, well-documented history of severe mental illness. In fact, Dr. Trier’s diagnosis is the only one on record suggesting she has a mental illness at all, and she has never received treatment for any such illness. We acknowledge that a mental illness must begin sometime, and the lack of a long-standing history of mental illness should not automatically preclude a finding of insanity. Still, the lack of such history is a circumstance that a fact-finder may consider in evaluating an insanity defense. Here, considered in relation to all of the evidence in the case, including Dr. Wieland’s testimony, the “demeanor” evidence in this case had probative value tending to support the jury’s rejection of Lawson’s insanity defense.

Lawson’s behavior in this case admittedly was highly bizarre; her actions concerning the “exorcism” and retention of J.K.’s body thereafter were confirmed by three independent eyewitnesses. Still, as we recently noted, our supreme court has affirmed the rejection of an insanity defense even “where the crimes appear to have been completely irrational.” Fernbach, 954 N.E.2d at 1087. One such case was Gambill v. State, 675 N.E.2d 668, 672-73 (Ind.1996), where a defendant had drowned her five-year-old son for the stated purpose of preventing friends whom she believed were “devils” from sacrificing him and four expert witnesses testified that the defendant was insane at the time of the crime, but there was lay testimony opining that the defendant in fact knew the wrongfulness of her actions. Another case was Barany v. State, 658 N.E.2d 60 (Ind. 1995), where a defendant bit off his girlfriend’s finger, shot her eight times, then hit her in the head and chest with a splitting maul, saying that “all women [were] evil” and that the finger had contained an “evil worm.” Although three expert witnesses testified that the defendant was insane at the time of the crime, our supreme court affirmed the rejection of the insanity defense based on the defendant complaining tó a police officer about the victim’s “nagging,” a friend’s opinion that the defendant had seemed “O.K.,” and the defendant having told his sister that he believed the victim was phoning the police when he shot her. Barany, 658 N.E.2d at 64. In a third ease cited to us by the State, whose facts are quite similar to those here, our supreme court affirmed rejection of an insanity defense where a woman killed a child after giving him an overdose of salt, but claimed to have done so because she was Jesus and she had given the child salt in order to “cleanse” his body and four expert witnesses unanimously testified that the defendant was legally insane at the time of the crime. Mayes v. State, 440 N.E.2d 678, 682 (Ind. 1982). Compared to these cases, we cannot say Lawson’s behavior was so much more bizarre that reversal of her convictions is warranted on the basis that the jury improperly rejected her insanity defense.

Conclusion

It may be, as suggested by defense counsel at oral argument, that Galloway requires closer appellate scrutiny of insanity defense claims than had been the case before. Still, even after applying such scrutiny in this case, we hold there is sufficient evidence to support the jury’s rejection of Lawson’s insanity defense. We affirm.

Affirmed.

NAJAM, J., and MATHIAS, J., concur.

      . We held oral argument in this case on April 2, 2012, at the University of Notre Dame Law School. We thank the Law School for its hospitality, and counsel for both parties for their able presentations and participation in this “traveling” oral argument.

      . Apparently, Lawson believed that the other four children were possessed by demons as well, though not to the same extent as J.K.

      . There was evidence that J.K. had a broken bone in his neck, and a pathologist believed that the break must have occurred during his life, indicating that pressure had been applied to his neck and he had been strangled to death. Lawson denies that any strangulation of the neck occurred and the bone break must have occurred after death, but she does admit lo having suffocated J.K. by placing her hand over his mouth for at least five to ten minutes. None of the other testifying eyewitnesses to J.K.'s death — K.K. and Hawkins's three children — described Lawson as putting her hand around his neck, as opposed to over his mouth. In any event, Lawson makes no argument, aside from her insanity claim, that there is insufficient evidence of knowingly or intentionally killing J.K.

      . Any written reports prepared by Dr. Wie-land or Dr. Trier based on their examinations of Lawson were not introduced into evidence.

      . Lawson’s argument on this point focuses primarily upon J.K.'s death.

      . As indicated by Dr. Wieland's reference to "a delusional process she may have,” he did not give a definitive opinion on whether Lawson was in fact suffering from a mental illness and delusions, nor was he directly asked that question. On the other hand, Dr. Wieland did not give any testimony that Lawson was malingering or faking her claims of delusions, which were corroborated by the testimony of K.K. and Hawkins’s children regarding her belief that J.K. was possessed by a demon. As noted, the jury found Lawson guilty of these offenses, not guilty but mentally ill, meaning it concluded Lawson suffered from no mental illness at all when she committed them.

      . Justices Shepard and Dickson strongly disagreed with the majority’s assessment of the expert's testimony, believing it was within the province of the jury to believe the expert’s written report and direct testimony finding the defendant to be sane and to find his answers on cross-examination to be "less compelling.” Galloway, 938 N.E.2d at 718 (Shepard, C.J., dissenting).

      . The State notes that Dr. Wieland was not specifically asked in this jury question about the legal definition of insanity, as opposed to insanity in a colloquial sense. In that regard, Dr. Wieland's comment about an "insane” person being able to tell right from wrong might only have meant that a person with even a severe mental illness may still possess the ability to appreciate the wrongfulness of his or her conduct, which is insufficient to meet the legal definition of insanity. See Galloway, 938 N.E.2d at 708.

      . In Moler, this court criticized Barany as making it “very difficult even for defendants with well-documented mental illnesses to successfully raise the insanity defense” and stated, "In the interests of justice, we hope that our supreme court will revisit this rule.” Moler, 782 N.E.2d at 458-59. Although the Galloway majority quoted at length from Moler, it stopped short of expressly criticizing or disapproving of Barany, and it also did not disapprove of Gambill.


author: BRADFORD, Judge.

text:
    Dana L. LEWIS, Jr., Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
    No. 40A01-1106-CR-276.
    Court of Appeals of Indiana.
    May 14, 2012.

      Mark J. Dove, Dove & Dillon, P.C., Greenwood, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Aaron Spo-larieh, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

INTRODUCTION

Appellant-Defendant Dana L. Lewis, Jr. appeals from the trial court’s denial of his motion to suppress statements he made to Jennings County Sheriffs Sergeant Karen McCoy during a police interview regarding an alleged sex crime. Lewis argues that the statements were obtained in violation of his Fifth Amendment right to counsel, which he claims he unequivocally and unambiguously invoked by asking, “Can I get a lawyer?”. Lewis contends that this question was sufficient, both standing alone and in light of the totality of the circumstances, to invoke his Fifth Amendment right. The State argues that Lewis was not entitled the right to counsel because his interview with Sergeant McCoy did not constitute a custodial interrogation. We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On April 25, 2010, Lewis, then age twenty-two, was invited by Sergeant McCoy to the Jennings County Sheriffs Department to be interviewed regarding an alleged sex crime involving a thirteen-year-old female victim. When Lewis arrived, Sergeant McCoy informed Lewis that he was not under arrest and that he was free to leave at any time. The interview took place in a locked room, and Sergeant McCoy also informed Lewis of his Miranda rights, which Lewis acknowledged understanding. Sergeant McCoy then began questioning Lewis about the alleged crime, and the following exchange occurred after approximately ten minutes:

[McCoy]: The thing is, is we can, I’ve got certain tilings that I know that.[ ] I know she had sex and there’s been, by law I had to do DNA swabbing when this happened. I had to do that.
[Lewis]: Yeah.
[McCoy]: So. what’s going to happen is and I don’t see, well, she knows that the DNA swabbing, okay she, since you’ve already been here, we already have your,
[Lewis]: You’ve already got my DNA. [McCoy]: Right, and she knew when I took that from her, that she knew who’s [sic] DNA [that’s] going to show, so there’s no reason to lie to me.
[Lewis]: She knows who it is, you know what I mean.
[McCoy]: Right. Okay, so, let me put it to you this way, the testing came back with DNA with your DNA,[] okay, just hear me out. That’s why I’m saying, let’s not prolong this and make this a, let me finish, let me finish. Let’s not make this into a huge ordeal.
[Lewis]: Okay.
[McCoy]: The thing that I need to know is whether or not it was consensual or not, whether you forced it. If it was consensual, you know, we just make a day of it.[] Okay?
[McCoy]: Yeah.
[McCoy]: That’s why I just want you to be honest with me. That way we’re not here and trying, let’s just make it a done deal and be done with it, everybody just, [our day’s] over. Okay? So, if you had consensual sex because, then this is going to go into a long drawn out thing, okay because, [] Lewis: Can I[get] a lawyer?
McCoy: Sure, you can get a lawyer sure absolutely.
Lewis: All right.
McCoy: But if it’s consensual Dana, you know like I said teenagers make these accusations of force all the time.
Lewis: Yeah.
McCoy: OK but if you didn’t force her, and she consented to this that’s a whole different ballgame that I can work with. Lewis: I understand.
McCoy: That’s ...
Lewis: Okay I understand.
McCoy: ... so if you want to get this cleared up today that’s up to you, I don’t want to drag this out.
Lewis: I’m not under arrest or nothing? McCoy: You’re not under arrest at this time.
Lewis: It was consensual.
McCoy: It was consensual.
Lewis: I’m not going to lie to you Karen.

Tr. pp. 16-17; Appellant’s App. pp. 16-17.

Lewis continued to disclose details about the alleged crime for approximately five minutes; then, Sergeant McCoy and Lewis conversed as follows:

McCoy: And you’re okay talking about this without a lawyer? That’s right, correct?
Lewis: As long as I’m not going to get in trouble or anything?
McCoy: Well you’re not under arrest right now, we’re talking about it. You [k]now what I mean.
Lewis: Well am I going to be under arrest.
McCoy: That’s not up to me but if it’s consensual I have to make a call but many times I have to deal with this consensual stuff ... and

Appellant’s App. p. 17.

Lewis was arrested two days later and charged with Class A Felony Child Molesting. On August 5, 2010, Lewis filed a motion to suppress his interview statements to Sergeant McCoy, arguing that they were obtained in violation of his Fifth Amendment right to counsel. A suppression hearing was held on the issue, where both parties stipulated that “Lewis reasonably believed that he was in a custodial interrogation and was not free to leave.” Appellant’s App. p. 33. Sergeant McCoy testified that the inflection in Lewis’s voice when he asked, “Can I get a lawyer?” made his question “seem[ ] like he was trying to clarify if he was allowed to have an attorney.” Appellant’s App. p. 36.

The trial court reviewed the videotaped interview and found that Sergeant McCoy “answered [Lewis’s question] honestly, but before addressing it any further ... she proceeded to hurriedly extract a confession[.]” Appellant’s App. p. 18. The trial court also accepted the parties’ stipulation that Lewis “reasonably believed he was in custody at the time he was at the Jennings County Sheriffs Department ... as he was in a locked secure room ... and not free to leave.” Appellant’s App. p. 16. Ultimately, the trial court denied Lewis’s motion: “Taken as a whole, this Court cannot say that Defendant’s question, ‘Can I have a lawyer?’ was an unambiguous or unequivocal request or demand for an attorney.” Appellant’s App. p. 18. The trial court’s denial is now before this court on Lewis’s interlocutory appeal.

DISCUSSION AND DECISION

Whether the Trial Court Erred in Denying Lewis’s Motion to Suppress the Statement He Made to Sergeant McCoy

We review the denial of a motion to suppress “in a manner similar to other sufficiency matters. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we will consider not only the evidence favorable to the ruling but also the uncontested evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind.Ct.App.2011).

“The right to have counsel present during [custodial] interrogation ‘is indispensi-ble’ to the protection of the Fifth Amendment privilege against self-incrimination.” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (quoting Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “When a suspect asserts his right to counsel during custodial questioning, the police must stop until counsel is present or the suspect reinitiates communication with the police and waives his right to counsel.” Id. at 492 (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). Importantly, “the prosecution may not use statements stemming from that interrogation unless it demonstrates the use of procedural safeguards effective to secure [the suspect’s] privilege[.]” Davies v. State, 730 N.E.2d 726, 733 (Ind.Ct.App.2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602), trans. denied.

A. Whether Lewis was in Custody

As an issue preliminary to Lewis’s appellate claims, the State asserts an alternative basis for the trial court’s denial of Lewis’s motion to suppress. “The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court.” Scott v. State, 883 N.E.2d 147, 152 (Ind.Ct.App.2008). The State argues that Lewis was not entitled to counsel because he was not “in custody” when he made his statements to Sergeant McCoy. Therefore, Lewis’s question, “Can I get a lawyer?” even if unambiguous and unequivocal, did not require that Sergeant McCoy cease her questioning.

“Miranda and its progeny have ruled that the [Fifth Amendment] right to counsel ... accrues upon ‘custodial interrogation.’” Zook v. State, 513 N.E.2d 1217, 1220 (Ind.1987) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). This is because the right is “meant to overcome [that] inherently coercive and police dominated atmosphere[.]” Davies, 730 N.E.2d at 733 (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “ ‘Custodial interrogation’ ” has been explained to mean “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Zook, 513 N.E.2d at 1220 (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “A defendant is in custody if he is formally arrested or is subjected to restraints on his freedom such that a reasonable person in defendant’s position would believe he is not free to leave.” Davies, 730 N.E.2d at 733. “[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

The State argues that its stipulation that “Lewis reasonably believed that he was in a custodial interrogation” does not address the objective standard of what a reasonable man in the suspect’s position would have understood. Appellant’s App. p. 16; see Miller v. State, 846 N.E.2d 1077, 1081 (Ind.Ct.App.2006) (“Whether an individual is determined to be ‘in custody* requires application of an objective test that asks whether a reasonable person under the same circumstances would believe that he was under arrest or not free to resist the police.”), trans. denied. Therefore, the State argues, the stipulation as to Lewis’s subjective belief has no bearing on this issue. We cannot agree.

We conclude that the stipulation below now binds the State on the question of whether Lewis was in custody. First, we note that the stipulation was not that Lewis subjectively believed himself to be in custody, but that he reasonably believed himself to be in custody. In our view, given that the standard is one of reasonable belief, the use of the word “reasonably” sufficiently invokes the proper objective standard. Moreover, it seems abundantly clear that the State intended to stipulate that Lewis was in custody, regardless of the wording of the stipulation. Finally, it is entirely possible that Lewis (or indeed, the State) could have come forward with additional evidence touching on the issue of custody, but did not do so due to the stipulation. It could potentially be extremely unfair to one party or the other to now address the issue on the merits. We conclude that the stipulation that Lewis reasonably believed himself to be in custody forecloses evaluation of the custody issue on appeal.

B. Invocation of Right to Counsel

Lewis argues that his question, “Can I get a lawyer?” was an invocation of his Fifth Amendment right to counsel and required Sergeant McCoy to cease her questioning. “Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). “[W]hile the suspect need not invoke any magic words,” Jolley, 684 N.E.2d at 492 (citing Davis, 512 U.S. at 459, 114 S.Ct. 2350), “[t]he cessation of police questioning is not required ‘if a suspect makes a reference to an attorney that is ambiguous or equivocal[.]’ ” Carr v. State, 934 N.E.2d 1096, 1102 (Ind.2010) (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350). A statement is considered ambiguous or equivocal when “ ‘a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.’ ” Id. (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350).

Lewis contends that his question, “Can I get a lawyer?” constituted an unequivocal invocation of his Fifth Amendment right to counsel. We agree. Lewis relies primarily on United States v. Lee, in which the United States Court of Appeals for the Seventh Circuit determined a suspect’s question, “Can I have a lawyer?” to be “similar to [other] statements recognized by th[e] court as proper invocations of the right to an attorney.” 413 F.3d 622, 626 (7th Cir.2005). The Lee court concluded, “unless the police obtained further clarification from [the suspect] that this was actually an unequivocal request for an attorney, they should have halted the interrogation.” Id. We see no reason to depart from the Lee court’s holding in this case, which involves an essentially identical question posed by the defendant. Much as the question, “Can I get the car tonight?” would be universally understood as a request to borrow the car tonight, and not as a theoretical question regarding one’s ability to borrow the car tonight, we have little trouble concluding that Lewis’s question would be understood by any reasonable police officer as an unequivocal request for counsel.

The State relies on Powell v. State, 898 N.E.2d 328 (Ind.Ct.App.2008), trans. denied, in arguing that Lewis’s question, “Can I get a lawyer?” was ambiguous. In Powell, a man arrested for drug possession asked, “Could I see about getting a lawyer or something man?” during custodial interrogation. Id. at 332. This court concluded that the wording of this question was “ambiguous and not sufficiently clear as to constitute a request for an attorney.” Id. at 337. Powell, however, is distinguishable. First, a great deal of the ambiguity of the suspect’s question in Powell stems from the use of the verb “could.” 898 N.E.2d at 332. “Can means ‘to be able to’ and expresses certainty.... Could is better for a sense of uncertainty or a conditional statement.” The Chicago Manual of Style sec. 5.220, at 270 (16th ed. 2010) (emphases added). The use of “could” by the suspect in Powell, therefore, may be interpreted as an expression of doubt regarding the suspect’s intent to request an attorney, whereas Lewis’s use of “can” in asking, “Can 1 get a lawyer?” is more reasonably interpreted as an intentional request for such. See Taylor v. State, 689 N.E.2d 699, 703 (Ind.1997) (finding the statement, “I guess I really want a lawyer, but, I mean, I’ve never done this before so I don’t know,” to be an expression of doubt, not a request); see also Davis, 512 U.S. at 462, 114 S.Ct. 2350 (finding the statement, “Maybe I should talk to a lawyer” to be an ambiguous request for counsel). Furthermore, the uncertainty of the suspect’s question in Powell seems to be emphasized by the question’s closing phrase, “or something.” 898 N.E.2d at 332. This additional factor is not present in Lewis’s question. The State’s reliance on Powell is unavailing.

CONCLUSION

Pursuant to the stipulation entered into by the parties below that Lewis reasonably believed that he was in custody, we will not revisit the issue on appeal. Moreover, the trial court erred in denying Lewis’s motion to suppress the statements he made to Sergeant McCoy because Lewis unambiguously and unequivocally invoked his Fifth Amendment right to counsel by asking, “Can I get a lawyer?” We therefore remand with instructions to grant Lewis’s motion to suppress statements made during the interview with Sergeant McCoy and for further proceedings.

The judgment of the trial court is reversed and remanded with instructions.

ROBB, C.J., and FRIEDLANDER, J., concur.

      . We held oral argument in this case on April 30, 2012, at Shortridge High School in Indianapolis. We wish to thank counsel for the quality of their advocacy and the students, faculty, and staff of Shortridge for their assistance and hospitality.

      . Sergeant McCoy acknowledged at the suppression hearing that the State had not, in fact, recovered Lewis’s DNA from the victim.

      . Several times during the interview, Sergeant McCoy made statements that we see as strongly implyng that Lewis would not be prosecuted if the alleged sexual contact with the alleged victim had been consensual. For Class A felony child molesting, the consent of the victim is, of course, irrelevant. In our view, Sergeant McCoy’s statements came close to being promises of leniency, which may not be used to extract or induce a confession. "A confession is inadmissible when obtained by a promise of immunity or mitigation of punishmen’. The relevant inquiry is whether the challenged police conduct induced a confes don which was not freely self-determined.” Fowler v. State, 483 N.E.2d 739, 744 (Ind. 1985) (citation omitted).

      .The first part of this passage is drawn from the transcript of the suppression hearing as State's Exhibit 1, a video recording of the interview, was published. The portion following footnote 4 in the text is drawn from the trial court’s order, which varies slightly from the same passage as it appears in the transcript. In particular, the transcript of the hearing does not have Lewis saying "all right” when told that he could have a lawyer. Based upon our review of the video recording of the interview, we conclude that the partial transcription in the trial court’s order, which the trial court presumably generated following its own review, appears generally to be the more complete and accurate. That said, our review of the video recording also confirms that Lewis very clearly asked if he could "get” a lawyer, not if he could "have” a lawyer, as indicated in the trial court's order.

      . For the same reasons mentioned in footnote 3, this passage is drawn from the partial transcription contained in the trial court’s order.

      . Ind.Code § 35-42-4-3 (2009).

      . The comparative statements in Lee were first recognized in Lord v. Duckworth, 29 F.3d 1216 (7th Cir.1994). There, they were cited from Eleventh and Ninth Circuit cases and included the following: "I think I should call my lawyer"; "I have to get me a good lawyer, man. Can I make a phone call?”; "Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” Lee, 413 F.3d at 626 (citing Lord, 29 F.3d at 1221).

      . We need not address Lewis's argument that Sergeant McCoy should have asked Lewis to clarify whether his allegedly ambiguous and equivocal ques! ion was intended as an invocation of his Fifth Amendment right to counsel. Lewis concedes that the law currently does not require clarifying questions. However, he asserts that the Indiana Supreme Court has adopted the U.S. Supreme Court’s position concerning good police practice and the use of clarifying questions, see Jolley, 684 N.E.2d at 492 (citing Davis, 512 U.S. at 461, 114 S.Ct. 2350), and he urges this court to declare the practice mandatory on public policy grounds. Having concluded that Lewis’s question was an unequivocal request for counsel, we need not address this argument but merely observe, as the United States Supreme Court has, that “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney." Davis, 512 U.S. at 461, 114 S.Ct. 2350.


author: BAILEY, Judge.

text:
    SALSBERY PORK PRODUCERS, INC., Richard K. Wilson, Tipton County Commissioners, Tipton County Highway Department, Chad Bergin, State of Indiana, Indiana Department of Transportation, Appellants-Defendants, v. Latina BOOTH, Appellee-Plaintiff.
    No. 49A02-1110-CT-983.
    Court of Appeals of Indiana.
    April 10, 2012.

      Seott P. Sullivan, Sheila M. Sullivan, Flynn & Sullivan, Indianapolis, IN, for Salsbery Pork Producers, Inc. and Richard K. Wilson.
    James S. Stephenson, Ian L. Stewart, Stephenson Morow & Semmler, Indianapolis, IN, for Tipton County Commissioners and Tipton County Highway Department.
    David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Samuel L. Jacobs, Jacobs Law, LLC, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Latina Booth ("Booth"), a resident of Tipton County, was injured in a motor vehicle accident on County Road 1100 in Tipton County. Booth filed suit against Salsbery Pork Producers, Inc. ("Sals-bery"), Richard K. Wilson ("Wilson"), the Tipton County Commissioners and the Tipton County Highway Department (collectively, "the County"), Chad Bergin ("Bergin"), and the State of Indiana and the Indiana Department of Transportation ("the State"). Salsbery, Wilson, and the County (collectively, "the Tipton County defendants") moved for transfer of venue from Marion County to Tipton County. The trial court denied the motion, and this interlocutory appeal followed.

We reverse and remand.

Facts and Procedural History

We take our statement of facts from Booth's complaint.

Booth was a resident of Tipton County. Bergin was a resident of Howard County. On September 20, 2010, Bergin was driving on County Road 1100 in Tipton County with Booth as his passenger. Wilson, a resident of Tipton County, was driving a tractor within the seope of his employment with Salsbery, which was headquartered in Tipton County, and pulled onto County Road 1100. Wilson's tractor struck Ber-gin's car. Booth was seriously injured.

On August 3, 2011, Booth filed suit in Marion County and alleged a negligence claim against Bergin, Wilson, and Sals-bery. Booth also alleged that the State and County were negligent in the design, maintenance, and signage of County Road 1100.

On August 17, 2011, the County moved to dismiss Booth's case. On September 6, 2011, new counsel for the County moved to withdraw the motion. The trial court denied the motion on September 7, 2011. On the next day, in typewritten text, the court granted the County's motion to withdraw the prior motion, but in a handwritten comment indicated that it had denied the motion but would "entertain a renewed motion" on other grounds. (App. 30.)

On August 26, 2011, Bergin answered the complaint and asserted eross-claims against the other defendants, but did not challenge the Marion County venue.

On September 28, 2011, the State answered the complaint, asserted numerous affirmative defenses, and denied Booth's allegations as to the design, maintenance, and signage of County Road 1100. The State did not move to dismiss the case or challenge the Marion County venue.

On September 28, 2011, the County again moved to dismiss the case for improper venue, claiming that the State was "joined solely for the purpose of establishing venue in Marion County" and requesting transfer of the case to Tipton County. (App. 38-41.) Among the documents submitted in support of the motion was an affidavit averring that County Road 1100 was controlled solely by Tipton County on the date of the collision. On October 5, 2011, Salsbery and Wilson joined the County's motion. The trial court denied the County's motion on October 14, 2011, and denied Salsbery's and Wilson's motion on October 19, 2011.

This interlocutory appeal followed pursuant to Appellate Rule 14, which provides for interlocutory appeal of right where a trial court's decision grants or denies transfer of a case under Trial Rule 75. Ind. Appellate Rule 14(A)(9).

Discussion and Decision

Warwver

Booth contends that the Tipton County defendants waived their venue challenge. Our review of the record does not reveal that Booth claimed or argued this point to the trial court. Failure to raise an issue before the trial court waives that issue on appeal, Orta v. State 940 N.E.2d 370, 376 (Ind.Ct.App.2011), trans. denied.

Waiver notwithstanding, Booth argues that the failure of one defendant to object to preferred venue constitutes waiver of the issue by all defendants. In support of this proposition, Booth cites State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 366 S.E.2d 738 (1988). We believe the greater weight of authority in federal and state courts tilts to the contrary; and, Booth directs us to no Indiana case law that supports her contention. See, e.g., Ware v. United Rentals (N. Am.), Inc., 2010 WL 1374583, *2 (E.D.Tex.2010) (concluding that a defendant that objected to venue had not waived that challenge where a codefendant failed to file a motion or answer objecting to venue); Schultz v. MMI Products, Inc., 30 A.3d 1224, 1229 (Pa.Super.Ct.2011) (holding that the failure of three defendants to object to venue did not waive a fourth defendant's objection and therefore affirming the trial court's decision to transfer venue).

We decline Booth's invitation to con-elude that the Tipton County defendants' venue challenge was waived. We therefore turn to the merits of the appeal.

Standard of Review

The Tipton County defendants contend that venue in Marion County is improper because the State was improperly joined in the action.

We review factual findings on an appeal from a ruling on a motion for transfer of venue for clear error, with conclusions of law reviewed de novo; where a paper record is used to draw factual conclusions, those conclusions are also reviewed de novo. Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 973 (Ind.2006). We review decisions on misjoinder under our standard of review for an abuse of discretion. Mercantile Nat. Bank of Hammond v. Underwood, 906 N.E.2d 881, 886 (Ind.Ct.App.2009), trans. denied. An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireumstances before it, or if the trial court has erred on a matter of law. Am. Family, 857 N.E.2d at 973.

Misjoimnder

We turn first to the question of misjoinder under Trial Rule 21. The Rule provides that misjoinder of a party "is not ground for dismissal of an action." TR. 21(A). "Subject to its sound discretion," whether sua sponte or upon a party's timely motion, the trial court "may order parties dropped or added at any stage of the action and on such terms as are just and will avoid delay." Id.; Mitchell v. Stevenson, 677 N.E.2d 551, 557 (Ind.Ct.App.1997), trans. denied. Where venue is dependent upon a particular claim or a claim against a particular party, and that claim "appears from the pleadings, or proves to be a sham or made in bad faith," the trial court "may transfer the proceedings to the proper court." TR. 21(B).

The Tipton County defendants contend that Booth misjoined the State as a sham for the purpose of obtaining a Marion County venue. The Tipton County defendants rely upon our decision in Mishler v. State, 730 N.E.2d 229 (Ind.Ct.App.2000), for the proposition that the State has no duty of care because it does not control County Road 1100 and that, as a result, the State was misjoined. In Misk-ler, the State moved for summary judgment and designated the relinquishment agreement between it and the City of Eilk-hart as evidence that it had no duty of care for the design, maintenance, and conditions of a roadway. Id. at 230.

Here, the County produced an affidavit indicating that it, and not the State, had control over County Road 1100, and argued that the State was misjoined and should therefore be dropped from the case. In response, Booth characterized the Tip-ton County defendants' motion as one pursuing summary judgment on behalf of another party, and argued that subsequent proceedings might lead to the discovery of evidence that would establish liability of the State for the conditions, design, or maintenance of the roadway. But Booth did not introduce any evidence contrary to the Tipton County defendants' affidavit averring that the County, and not the State, had control over County Road 1100. Booth did not argue that the averments were false. Nor did Booth request a continuance to obtain discovery on the question of the State's possession or control of County Road 1100. Booth instead rested on the pleadings and argument alone.

Given the affidavit-which amounted to the only facts and cireumstances before the trial court aside from the pleadings-and procedural posture of the case, we conclude that the trial court abused its discretion when it did not order the State dropped from the case. Absent more, however, we cannot agree with the characterization by the Tipton County defendants that joining the State was a sham or in bad faith and solely for the purpose of obtaining a Marion County venue. The Tipton County defendants have not established that Booth joined the State with knowledge that the State did not control County Road 1100, because the evidence that established the County's control came only after the Tipton County defendants moved for transfer of venue. Thus, the trial court did not abuse its discretion when it failed to conclude that Booth's joinder of the State was a sham or motivated by bad faith.

Venue

Turning now to the question of venue, Trial Rule 75 provides that "[alny case maybe venued, commenced and decided in any court in any county" unless a party files a pleading or motion to dismiss under Trial Rule 12(B)(8) because the case is not in a preferred venue. TR. 75(A). The rule goes on to provide numerous preferred venues, including "the county where the greater percentage of individual defendants ... resides," T.R. 75(A)(1), the county in which a motor vehicle accident occurred, TR. 75(A)(GB), the county where a defendant organization has its principal office, T.R. 75(A)(4), the county where a government unit has its principal office or where a claim against such an agency arose, TR. 75(A)(5), any county in which all parties stipulate as a preferred venue, TR. 75(A)(6), or the county in which the plaintiff resides if no other preferred venue exists. TR. 75(A)(10).

"It is the general spirit and policy of the rules governing venue to give the defendant the right to have the action tried in the county of his or her residence." State ex rel. Ind. State Bd. of Tax Comm'rs v. Ind. Chamber of Commerce, Inc., 712 N.E.2d 992, 996 (Ind.Ct.App.1999). However, there is no "priority among the subsections establishing preferred venue." Coffman v. Olson & Co., P.C., 872 N.E.2d 145, 147 (Ind.Ct.App.2007). Thus, there may be multiple preferred venues in a given case, and a motion to transfer venue under Trial Rule 12(b)(8) cannot be granted when an action has been filed in a preferred venue. Meridian Mut. Ins. Co. v. Harter, 671 N.E.2d 861, 862-63 (Ind.1996).

As pleaded, there are two preferred venues in this case. The greatest percentage of the defendants reside in or have their headquarters in Tipton County, as does the plaintiff. CJ TR. 75(A)(1) & T5(A)(4). The collision occurred in Tipton County. Cf TR. 75(A)(8). The State is headquartered in Marion County. Cf. TR. T5(A)(5). Although the greatest number of defendants is in Tipton County, Booth filed suit in Marion County.

Yet under these cireumstances, where the County has submitted evidence and argument taking upon itself the duty of care at issue, and where-before the pleadings were closed-the State should have been dropped from the case as a party, we cannot conclude that a Marion County venue is appropriate. Moreover, a Marion County venue for the case is discordant with the general purpose of the venue rules, which is to allow trial in the county where the events giving rise to a dispute or where the greatest amount of evidence with respect to the dispute will likely be found. See, e.g., R & D Transport, Inc. v. A.H., 859 N.E.2d 332, 335 (Ind.2006) (observing that Indiana has "long had special venue rules for motor vehicle accidents" when concluding that a case was properly venued in the county of an accident rather than where chattels damaged in the accident were customarily kept); Harter, 671 N.E.2d at 863 (concluding that a rule that provides for venue in the county of an accident prevents "a lawsuit over an accident in a remote county based solely on the location of an insurer's home office").

Thus, because the State should have been dropped as a party, Marion County is not a preferred venue. The collision that injured Booth occurred in Tipton County; Booth, the majority of the defendants, and the County all reside in or are headquartered in Tipton County. We therefore reverse the trial court and remand with instructions to transfer this action to Tipton County.

Conclusion

The trial court abused its discretion when it did not drop the State from the case in light of uncontested evidence that the County, and not the State, had possession and control over County Road 1100. Because the State was not properly joined, and because the Tipton County defendants moved for transfer of venue under Trial Rule 12(B)(8), Marion County is not a preferred venue for the case, and we remand this case to the trial court for transfer to Tipton County.

Reversed and remanded.

BAKER, J., and DARDEN, J., concur.

      . Booth's contention that the Tipton County defendants failed to establish that Salsbery's place of business is in Tipton County was not raised before the trial court, and thus is waived.

      . Bergin resides in Clinton County, but is the only defendant who does so.