CUNNINGHAM v. STATE (2025)

MEMORANDUM DECISION

[1] Zachary Joseph Cunningham appeals following his convictions of Level 4 felony attempted burglary ¹ and Level 6 felony criminal recklessness.² Cunningham presents one issue for our review: whether the trial court abused its discretion at sentencing by not finding Cunningham's mental illness to be a mitigating factor. We affirm.

Facts and Procedural History

[2] On December 2, 2022, Cunningham went to The Tavern, which is a bar in Crawfordsville, Indiana. After spending time in the bar, Cunningham encountered Samuel Mayberry and Matthew Perkins in the bar's parking lot. Neither Mayberry nor Perkins knew Cunningham. After Mayberry got into Perkins's car, Cunningham followed Perkins as Perkins drove Mayberry back to Mayberry's house.

[3] Cunningham parked behind Perkins's car when Perkins stopped to drop Mayberry off. Cunningham got out of his car “and said I thought you were coming to my house.” (Tr. Vol. 2 at 143.) Perkins and Mayberry explained they were not going to Cunningham's house and told him to go home. At that point, Cunningham “got something out of his trunk,” and Mayberry threatened to call the police. (Id.) Cunningham responded that “the police will never make it in time.” (Id.) Perkins then “put his car into sport mode and was driving eighty miles an hour through Crawfordsville to try and get away from him.” (Id.) Cunningham drove after Perkins and repeatedly rammed into the back of Perkins's car. Perkins eventually made it back to the house that he shared with his mother, Heather Barajas,³ and parked in his neighbor's driveway because Perkins believed that would give him an easier means of escaping Cunningham. Cunningham drove his car into the back of Perkins's car and pushed Perkins's car “all the way, the length of [the] house, into a tree in the backyard.” (Id. at 144.) Perkins escaped his car and was able to get inside his house. He yelled for Barajas to retrieve her firearm.

[4] Barajas retrieved her gun and turned on the light in her dining room. She saw that “Cunningham was at the patio door, with a sword, smashing it repeatedly again, and again, and again, into the door trying to crash it.” (Id.) Barajas yelled at Cunningham to leave and told him that she had a gun. Cunningham then walked away, and Barajas called 911. Cunningham got back into his car and “backed his car up to the road, floored it, and tore across [Barajas's] front yard, up over the porch, and rammed his car into the front of [Barajas's] house.” (Id. at 145.) Cunningham then got out of the car and started breaking the house's front windows. One of Barajas's neighbors confronted Cunningham and held “him at gun point until the police got there.” (Id.)

[5] When the police arrived, Cunningham explained:

The United States has been under siege for quite some time. I located the traitor and I took swift action because not only has he betrayed me, but he has betrayed the kingdom and he has betrayed the United States and betrayed the republic and I took it upon myself to enact justice in the way I saw fit.

(App. Vol. 2 at 133.) Cunningham stated the person he was pursuing was “Ramses” and accused Ramses of taking two women from the bar. (Id.) Cunningham also said, “[o]n a side note, he's a member of the cult Indy Mojo so I located that cult and I tracked it for quite some time.” (Id. at 134.)

[6] On December 6, 2022, the State charged Cunningham with Level 2 felony attempted burglary,⁴ two counts of Level 5 felony attempted battery by means of a deadly weapon,⁵ Level 5 felony intimidation,⁶ two counts of Level 6 felony criminal recklessness, and Class A misdemeanor operating a vehicle while intoxicated endangering a person.⁷ On May 9, 2023, Cunningham filed a notice advising the trial court and the State of his intention to assert the affirmative defense of non-responsibility by reason of insanity. On May 15, 2023, the trial court appointed Dr. Lori Rogers, M.D., and Dr. Stephanie Callaway, Psy.D., to evaluate Cunningham.

[7] Dr. Callaway completed her report on November 17, 2023. Dr. Callaway noted in her report that “Cunningham spoke in a rapid and pressured manner, and he jumped from one topic to the next, and he provided extraneous details throughout this interview.” (Id. at 64.) She indicated Cunningham reported two prior psychiatric hospitalizations including one that occurred “after he smoked marijuana that was laced with methamphetamines unbeknownst to him[.]” (Id. at 63.) Dr. Callaway formed two diagnostic impressions following her evaluation:

Mr. Cunningham meets criteria for Bipolar I Disorder, Severe, With Psychotic Features based on his history of manic and psychotic symptoms. Manic episodes have been manifested by decreased need of sleep, impulsivity, grandiosity, rapid and pressured speech, and flight of ideas. During these episodes, Mr. Cunningham has also exhibited psychotic symptoms to include grandiose and paranoid delusions and disorganized thinking. Consistent with this diagnosis, his symptoms fluctuate over time. There are episodes when he has severe symptoms followed by episodes with mild symptoms. At the time of this interview, Mr. Cunningham[’s] symptoms were causing mild impairments.

A rule out is given for Schizoaffective Disorder, meaning this diagnosis is under consideration but there is insufficient information available [at] present to diagnose this disorder. The main differentiator between Bipolar Disorder and Schizoaffective Disorder is whether the psychotic or manic symptoms are most prominent. In Bipolar Disorder, psychotic symptoms are typically only experienced in the context of manic episodes. In contrast, psychotic symptoms are more prominent in Schizoaffective Disorder and mania tends to be more episodic in nature.

(Id. at 65-66.) She concluded Cunningham met the criteria for having a mental disease and it was her opinion that “he was unable to appreciate the wrongfulness of his conduct during the alleged offense due to symptoms of a mental disease.” (Id. at 78.)

[8] Dr. Rogers submitted her report to the trial court on November 20, 2023. Dr. Rogers relayed that Cunningham had been diagnosed with “Bipolar Disorder type I with a history of manic episodes with psychotic features severe enough to necessitate involuntary admissions to a psychiatric hospital.” (Id. at 59.) Dr. Rogers also noted in her report that Cunningham had avoided mental health treatment. She concluded:

It is therefore this writer's opinion that Mr. Cunningham understood the wrongfulness of his actions at the time of the offenses on 12/2/22. It is also this writer's opinion that Mr. Cunningham has demonstrated episodic mood episodes of depression and mania, as well as periods of psychosis since his early adolescence. It is the writer's opinion that Mr. Cunningham was most likely manic on 12/1/2022 and 12/2/2022. While the mania most likely contributed to his impulsiveness, grandiosity, paranoid ideation, and risk taking behaviors, this writer does not believe that the symptoms of mania and psychosis were to the extent such that they resulted in Mr. Cunningham not understanding the wrongfulness of his actions at the time of his arrest.

(Id.)

[9] At the request of the parties, the trial court appointed Dr. Sean Samuels, Psy.D., to perform a third evaluation. Dr. Samuels completed his report on February 9, 2024. Dr. Samuels reported that Cunningham had “an extensive psychological history dating back to his mid-adolescence.” (Id. at 148.) He noted “evidence of delusional thoughts associated with expansive and depressive moods consistent with a diagnosis of Bipolar I Disorder, Severe with Psychotic Features.” (Id.) Dr. Samuels also explained that “[d]espite multiple hospitalizations and identification of medication regimens to manage psychological symptoms, Mr. Cunningham historically has not consistently adhered to pharmacological interventions while in the community.” (Id.) Dr. Samuels concluded:

[D]ue to the presence of delusional thought processes associated with a diagnosis of Bipolar Disorder, Most Recent Episode Manic, Severe with Psychotic Features, Mr. Cunningham did not appear to appreciate the wrongfulness of his actions associated with the charges of Attempted Burglary (Level 2 Felony), Attempted Battery by Means of a Deadly Weapon (Level 5 Felony), Intimidation (Level 5 Felony), Criminal Recklessness (Level 6 Felony), and Operating a Vehicle While Intoxicated Endangering a Person (Class A Misdemeanor). Taken together, results indicate Mr. Cunningham does meet criteria for the American Law Institute (ALI) insanity standard and the M'Naghten insanity standard.

(Id. at 149-50) (emphasis in original).

[10] On June 12, 2024, Cunningham and the State entered into a plea agreement. The agreement required Cunningham to plead guilty but mentally ill to Level 4 felony attempted burglary and one count of Level 6 felony criminal recklessness. In exchange, the State agreed to dismiss the remaining charges against Cunningham. The agreement also provided that Cunningham would serve his sentences for the two crimes concurrently and that the executed portion of Cunningham's aggregate sentence would not exceed eight years. At a hearing on June 13, 2024, the trial court noted the plea agreement had been filed and ordered preparation of a pre-sentence investigation report.

[11] On September 23, 2024, the trial court held a consolidated change of plea and sentencing hearing. Barajas testified at Cunningham's sentencing hearing that she had encountered Cunningham twice after the December 2, 2022, incident at the fitness facility where she exercised. She explained Cunningham was not “dressed to work out,” and he “just moved from machine to machine” watching Barajas and her friend as they completed their exercise regimen. (Tr. Vol. 2 at 147.) Barajas also stated she had observed Cunningham at a coffee shop across the street from the courthouse where she worked holding what she believed was a knife.

[12] Cunningham testified at the hearing that the night before the December 2, 2022, incident there had been a fire at his house. He explained this was the second house fire his family had experienced, and it made him paranoid. Cunningham characterized his mistaken belief that there were women in Perkins's car as a manifestation of his mental illness. Cunningham apologized to Perkins and Barajas and stated he “was in a bad mental state” at the time of the incident. (Id. at 171.) Cunningham noted he was attending weekly therapy sessions at the time of his sentencing. Cunningham explained he was not receiving mental health treatment at the time of the December 2, 2022, incident, and while he had received mental health treatment in 2015, he quit taking his prescribed medications at that time because he “had a very, very bad experience” with them. (Id. at 176.) He also claimed to have been “berated and bullied by the staff” at the mental health treatment facility. (Id.) Cunningham acknowledged he previously had been convicted of sexual misconduct with a minor, but Cunningham claimed the victim in that case misrepresented her age. He also stated he “used a harp” to break the windows of Barajas's house, and he drove into the house “by accident[.]” (Id. at 179-80.)

[13] The State asked the trial court to impose an eight-year executed sentence, and “[a]ny probation we leave that up to the Court.” (Id. at 189.) With respect to Cunningham's mental health, the State argued:

He is a guy that's had mental health issues for a long time, and he on his own decided not to take his medicines and get of his medicines. And then when something happens again its, its, you know it's the fault that I'm mentally ill. It's his fault, almost like volunteering intoxication to me. If you got a problem and you won't take your medicine and won't get help that's on him․ If he goes to jail maybe he'll figure out that he can't minimize things. That it can't be always the mental health fault, that he's got to follow the rules.

(Id. at 188) (errors in original).

[14] Cunningham asked the trial court to impose a six-year sentence with two years executed on home detention and the remainder suspended to probation. Cunningham asked the trial court to find his mental illness to be a mitigating factor. He explained “mental illness is a significant component of the offense in this case.” (Id. at 190.) Cunningham noted that while two of the three mental health evaluators concluded he met the legal definition of insanity, Cunningham “wanted to take responsibility for his actions, and save Judge Barajas and her son, from any further trauma caused by testifying.” (Id.)

[15] When announcing its sentence, the trial court explained to Cunningham:

I will tell you that when the Court was listening to, your testimony and, your allocution, certainly its meaningful, poignant, but what kept coming into the, my mind, the Court's mind is, yes but. Yes but, the prior, the victim in my prior offense, lied to me as to how old she was. Yes but, there was fire, that triggered, my paranoia. And also it occurs to the Court that, you, by your own, therapist indication, didn't seek additional mental health treatment after the charges were filed in this until the Court ordered you to do that. Um, in January of 2024 you had signed up, but my recollection is, you were on a waiting list, or you were having some trouble. It's not the job of this Court to walk you, to that treatment center, and say I need help. It's not the job of your parent, to do that for you. You are responsible for your actions. You chose to go into that bar that night, you chose to follow Mr. Perkins, home. Reading through the, um, information that you gave to the evaluators, there's some, some variances, in your recollection, of what happened that night. Yes but, is not an excuse.

(Id. at 196-97) (errors in original). The trial court sentenced Cunningham to a term of ten years for his Level 4 felony attempted burglary conviction. The trial court ordered Cunningham to serve the first eight years of that sentence in the Indiana Department of Correction, and the trial court suspended the final two years of the sentence to probation. The trial court also sentenced Cunningham to a one-year term of incarceration for his Level 6 felony criminal recklessness conviction and ordered Cunningham to serve the sentences concurrently.

Discussion and Decision

[16] Cunningham asserts the trial court abused its discretion at sentencing by not finding his history of mental illness to be a mitigating factor. We review a trial court's sentencing decision using a well-settled standard of review:

Sentencing decisions rest within the sound discretion of the trial court. So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. A trial court may abuse its discretion in a number of ways, including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.

Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019) (internal citations omitted).

[17] Cunningham asks us to remand his case for resentencing because the trial court did not give his history of mental illness the “due consideration” he believes it deserved. (Appellant's Br. at 20.) However, “[t]he trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does the defendant.” Lee v. State, 246 N.E.3d 1265, 1270 (Ind. Ct. App. 2024). The trial court addressed Cunningham's history of mental illness in its sentencing statement. The trial court noted Cunningham's attempt to use his paranoia following a house fire to excuse his criminal activity. In addition, the trial court observed that Cunningham did not attend therapy following his arrest until January 2024, when the trial court placed him under pretrial release supervision as an additional condition of his bond. Moreover, as the State observed, Cunningham had received mental health services in the past, but he voluntarily chose to cease that treatment before he committed the instant offenses. While Cunningham has bipolar disorder, his refusal to treat that illness cuts against its mitigatory nature. Therefore, we cannot say the trial court abused its discretion when it refused to find Cunningham's history of mental illness to be a mitigating factor at his sentencing. See, e.g., Webb v. State, 941 N.E.2d 1082, 1089 (Ind. Ct. App. 2011) (holding trial court did not abuse its discretion at sentencing when it considered evidence regarding the defendant's mental health but concluded the defendant's mental health issues did not merit any mitigating weight because defendant stopped taking his prescribed medications and chose to self-medicate with illicit drugs), trans. denied.

Conclusion

[18] The trial court did not abuse its discretion by not finding Cunningham's mental illness to be a mitigating factor because Cunningham voluntarily stopped treatment for that illness before committing the instant crimes. Accordingly, we affirm the trial court.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-2-1(1) (2014) & Ind. Code § 35-41-5-1 (2014).

2.   Ind. Code § 35-42-2-2(b)(1) (2019).

3.   Heather Barajas is a Montgomery Superior Court Judge and a former employee of the Montgomery County Prosecutor's Office. Consequently, a special judge and a special prosecutor were appointed to handle the State's proceedings against Cunningham.

4.   Ind. Code § 35-43-2-1(3) (2014) & Ind. Code § 35-41-5-1 (2014).

5.   Ind. Code § 35-42-2-1(g) (2020) & Ind. Code § 35-41-5-1 (2014).

6.   Ind. Code § 35-45-2-1(b)(2) (2022).

7.   Ind. Code § 9-30-5-2(b) (2001).

May, Judge.

Weissmann, J., and Scheele, J., concur.