Law Cases

Read the file with the cases and answer the questions in the other file using the cases. 

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.

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.