Steve Ferree v. State of Indiana , 124 N.E.3d 109 ( 2019 )

FILED
May 16 2019, 5:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steve Ferree, May 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2327
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Sarah K. Mullican,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D03-1703-F6-845
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019 Page 1 of 15
[1] Steve Ferree 1 appeals his conviction of Level 6 felony impersonation of a public
servant. 2 He presents three issues for our review, which we restate as:
1. Whether the State presented sufficient evidence to convict
Ferree of Level 6 felony impersonation of a public servant;
2. Whether fundamental error occurred when the prosecutor
allegedly committed prosecutorial misconduct in addressing the
jury; and
3. Whether fundamental error occurred when the trial court did
not instruct the jury regarding the statutory definition of “law
enforcement officer” for purposes of the impersonating a public
servant statute.
We affirm.
Facts and Procedural History 3
[2] On February 10, 2017, Ferree entered the Hamilton Center, which provides
mental health services, and spoke with the executive director of the Center,
Marybeth Dougherty. Ferree was wearing a jacket with the Vigo County
Sheriff’s Office logo on the front and the word, “Sheriff” on the back. This
1
Ferree’s given name is Steve Wilson. He changed his last name to Ferree sometime in the 1980s.
2
Ind. Code § 35-44.1-2-6(b) (2016).
3
We held oral argument on this matter on April 23, 2019, at Wabash College in Crawfordsville, Indiana.
We thank the school for its hospitality and counsel for their able presentations.
Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019 Page 2 of 15
jacket was not available for public purchase. 4 Ferree was not wearing a
uniform, nor did he have a walkie-talkie, radio, or other “accompaniments on
the belt . . . [such as] the gun on their side . . . handcuffs on the other side and . .
. an extra magazine or a taser on the other side[.]” (Tr. Vol. II at 98.)
[3] Dougherty testified Ferree identified himself as “John Wilson” and “affiliated
himself with the Vigo County Sheriff’s Department.” (Id. at 92.) She testified
he “was requesting assistance for an inmate through Virgil Macke at the Vigo
County Jail.” (Id. at 99.) Dougherty asked Ferree for identification, and Ferree
indicated he had left it in the car. Ferree did not return.
[4] Dougherty called the police to report Ferree’s suspicious behavior, and the State
subsequently charged Ferree with Level 6 felony impersonation of a public
servant. The jury returned a guilty verdict, and the trial court entered a
conviction accordingly. The trial court sentenced him to 1.5 years, with 180
days to be served in community corrections and the remainder of his sentence
suspended.
Discussion and Decision
4
Ferree was not employed by the Sheriff’s department at the time but had been a special deputy in the 1980s.
The record indicates Ferree was a candidate for Vigo County Sheriff at the time of this incident.
Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019 Page 3 of 15
Sufficiency of the Evidence
[5] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the ruling. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the decision. Id. at 147.
[6] Our legislature has set forth the elements Level 6 felony impersonation of a
public servant:
(a) A person who, with intent to:
(1) deceive; or
(2) induce compliance with the person’s instructions,
orders, or requests;
falsely represents that the person is a public servant, commits
impersonation of a public servant, a Class A misdemeanor,
except as provided in subsection (b).
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(b) The offense described in subsection (a) is a Level 6 felony if
the person falsely represents that the person is:
(1) a law enforcement officer; or
(2) an agent or employee of the department of state
revenue, and collects any property from another person.
Ind. Code § 35-44.1-2-6 (2016). Ferree does not dispute he gave Dougherty a
false name and was wearing a Vigo County Sheriff’s Office jacket; instead he
argues Dougherty did not testify Ferree identified himself as a law enforcement
officer as required by the statute.
[7] Ferree directs us to several points in Dougherty’s testimony regarding her
confrontation with Ferree. On direct examination, Dougherty testified:
[State]: Okay. Did he say who he was?
[Dougherty]: He identified himself as John Wilson.
[State]: Okay. And did he say he was affiliated with
anyone?
[Dougherty]: He affiliated himself as a deputy with the Vigo
County Sheriff’s Department.
(Tr. Vol. II at 92.) During cross-examination, Dougherty again stated Ferree
“identified himself as a deputy.” (Id. at 99.) When asked to clarify what Ferree
said, specifically whether Ferree indicated his name was “Deputy John
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Wilson,” Dougherty testified, “He identified himself as John Wilson with the
Vigo County Sheriff’s Department.” (Id. at 101.)
[8] Later during cross examination, Ferree revisited the issue:
[Defense]: And just to clarify, he said he was with the Sheriff’s
Office; he never said he was a deputy with the Sheriff’s Office; is
that right?
[Dougherty]: As I recall, a deputy with the Vigo County Sheriff’s
Department.
[Defense]: Okay. So he actually said he was a deputy. He
didn’t just say, my name’s John Wilson with the Vigo County
Sheriff’s Office? He said, I’m John Wilson, I’m a Deputy with
the Vigo County Sheriff’s Office.
[Dougherty]: Uh - he identified himself with the Vigo County
Sheriff’s Department.
[Defense]: Okay. Well, I’m just trying to understand -
[Dougherty]: Mmm huh.
[Defense]: - because the details here are important and I’m -
[Dougherty]: Mmm huh.
[Defense]: - there’s a difference between saying I’m a Deputy
with the Vigo County Sheriff’s Department, and I’m with the
Vigo County Sheriff’s Department; would you agree with that?
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[Dougherty]: I wouldn’t agree with that.
[Defense]: Okay. So you think that anybody who’s with the
Vigo County Sheriff’s Department is a deputy?
[Dougherty]: In some, in some fashion.
[Defense]: Okay. They don’t have support staff or volunteers
or people that are with the Vigo County Sheriff’s Department
that aren’t actual deputies?
[Dougherty]: Not that would present in that capacity.
[Defense]: Okay. Um, would it be fair to say you don’t
specifically remember if he said he was a deputy or not, just that
he said he was with the Sheriff’s Department?
[Dougherty]: I, I - the, the main thing I remember is that he
identified himself with the Vigo County Sheriff’s Department.
(Id. at 102-3.) On redirect, Dougherty admitted she could not remember
whether Ferree said he was a “deputy with the Sheriff’s Office” or “with the
Sheriff’s Office.” (Id. at 105.) She agreed that her statement from the day of the
incident would be a better recollection of her memory. In that statement,
Dougherty told police Ferree “said he was John Wilson with the Vigo County
Sheriff’s Office.” (App. Vol. II at 17.) Based on Dougherty’s testimony, Ferree
argues the State did not present evidence to prove he presented himself as a
deputy sheriff and not just an employee of the Vigo County Sheriff’s Office, and
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thus the State did not prove he committed Level 6 felony impersonation of a
law enforcement officer. We disagree.
[9] Ferree’s argument is an invitation for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146
(appellate court cannot reweigh evidence or judge the credibility of witnesses).
The only reasonable interpretation of the totality of the evidence - Ferree’s
appearance; his request, which was commonly made by a law enforcement
officer; the fact he gave a false name; and Dougherty’s testimony that he
identified himself as a deputy - is that Ferree impersonated a law enforcement
officer. See Poole v. State, 559 N.E.2d 1214, 1216 (Ind. Ct. App. 1990) (evidence
sufficient to convict Poole with impersonating a police officer based on his
statement that he was an officer with the Indianapolis Police Department and
requesting documentation consistent with that which an officer would seek
upon sustaining an injury).
Prosecutorial Misconduct
[10] Our standard of review regarding alleged prosecutorial misconduct is well-
settled:
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) “whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected” otherwise.
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
duty to present a persuasive final argument and thus placing a
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defendant in grave peril, by itself, is not misconduct. Mahla v.
State, 496 N.E.2d 568, 572 (Ind. 1986).
“Whether a prosecutor’s argument constitutes misconduct is
measured by reference to case law and the Rules of Professional
Conduct. The gravity of peril is measured by the probable
persuasive effect of the misconduct on the jury’s decision rather
than the degree of impropriety of the conduct.” Cooper, 854
N.E.2d at 835 (emphasis added) (citations omitted). To preserve
a claim of prosecutorial misconduct, the defendant must - at the
time the alleged misconduct occurs - request an admonishment to
the jury, and if further relief is desired, move for a mistrial. Id.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied.
[11] Failure to present a trial objection contemporaneous to the alleged misconduct
precludes appellate review of the claim, Booher v. State, 773 N.E.2d 814, 817
(Ind. 2002), and Ferree offered no such objection. Such preclusion may be
avoided if the alleged misconduct amounts to fundamental error. Id. To
prevail on such a claim, the defendant must establish not only the grounds for
prosecutorial misconduct but also the additional grounds for fundamental error.
Id. at 818. To be fundamental error, the misconduct must have made a fair trial
impossible or been a clearly blatant violation of basic and elementary principles
of due process that presents an undeniable and substantial potential for harm.
Id. at 817.
[12] Ferree argues the prosecutor engaged in misconduct by misrepresenting the law
to the jury when he said that “Ferree’s statement to Dougherty that he was
‘with’ the Vigo County Sheriff’s Department was sufficient to prove he falsely
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represented that he was a ‘law enforcement officer.’” (Br. of Appellant at 15.) 5
As Level 6 felony impersonation of a public servant requires that the State
prove Ferree falsely represented himself as a law enforcement officer, Ferree
contends the prosecutor’s statement that Dougherty’s statement that Ferree was
“with” the Vigo County Sheriff’s Department satisfied that element was a
misstatement of the law because
sheriff’s departments employ numerous people other than deputy
sheriffs. They employ 9-1-1 dispatchers, paralegals, volunteers,
administrative assistants, etc. A dispatcher working for the
county sheriff, for example, would be considered a “public
servant” but would not be considered a “a law enforcement
officer.”
(Id.)
[13] However, as the State points out, Ferree takes the prosecutor’s statement out of
context. The entire statement was:
Thank you Judge. When you guys come [sic] to the courthouse
today, you had to go through the metal detector, and empty out
all your pockets. You can’t bring in certain things to the
courthouse. One thing you can bring in though, is your common
sense, and that’s why you guys are here. All you have to do is
use your common sense. You don’t leave it at the door, you
bring it here with you. When someone walks into Hamilton
Center with a sheriff’s jacket zipped up and says, either says, one,
my name is Deputy John Wilson with the sher (sic.), Vigo
County Sheriff’s Office; or two (2), my name is John Wilson, I’m
5
Ferree did not indicate where this statement appears in the record.
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with the Vigo County Sheriff’s Office, that right there says this
guy’s a law enforcement officer.
(Tr. Vol. II at 176-7.) We have held, “[w]hen determining whether an element
of an offense has been proven, the jury may rely on its collective common sense
and knowledge acquired through everyday experiences - indeed, that is
precisely what is expected of the jury.” Clemons v. State, 83 N.E.3d 104, 108
(Ind. Ct. App. 2017), trans. denied. Further, as part of its closing argument, the
State may argue both law and fact, and “propound conclusions based upon his
analysis of the evidence.” Poling v. State, 938 N.E.2d 1212, 1217 (Ind. Ct. App.
2010). Thus, when taken in context, the statement is permissible and is not
misconduct. See id. (“In judging the propriety of a prosecutor’s remarks [for the
purpose of determining whether misconduct occurred], the court considers the
statements in the context of the argument as a whole.”).
Jury Instructions
[14] To preserve a claim of error in giving a jury instruction, trial counsel must
timely object and clearly identify the “claimed objectionable matter and the
grounds for the objection.” Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998).
Failure to timely object waives this issue for review. Harper v. State, 963 N.E.2d
653, 660 (Ind. Ct. App. 2012), clarified on reh’g on other grounds, 968 N.E.2d 843
(Ind. Ct. App. 2012), trans. denied. Ferree did not object at trial but argues the
trial court committed fundamental error. The trial court commits fundamental
error when it commits an error so prejudicial the defendant is precluded from
receiving a fair trial. Id. Such error occurs only when a defendant’s substantial
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rights are affected; otherwise, it is harmless. Lee v. State, 964 N.E.2d 859, 863
(Ind. Ct. App. 2012), trans. denied.
[15] Impersonation of a public servant is elevated to a Level 6 felony when the
person impersonates a law enforcement officer. Ind. Code § 35-44.1-2-6(b). At
trial, Final Instruction No. 5 stated:
The crime of Impersonation of a Law Enforcement Officer, a
Level 6 felony, is defined by law in pertinent part as follows:
A person who, with intent to deceive and/or induce compliance
with the person’s instructions, orders or requests, falsely
represents that the person is a law enforcement officer, commits
impersonation of a Law Enforcement officer, a Level 6 Felony.
Before you may convict the Defendant, the State must have
proved each of the following beyond a reasonable doubt:
1. The Defendant Steve Ferree;
2. with intent to deceive and/or induce compliance with
Defendant’s instructions, orders or requests;
3. falsely represented to employees at the Hamilton
Center, Inc.;
4. that Defendant was;
5. a law enforcement officer.
(App. Vol. II at 89.)
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[16] Ferree notes the jury instruction is nearly identical to the Indiana Pattern
Criminal Jury Instruction 5.2320 (2016). However, Ferree directs us to the
“Comments” section of that instruction, which indicates the term “law
enforcement officer” is defined by Indiana Pattern Criminal Jury Instruction
14.2440, which states:
[(a.)] “Law enforcement officer” means:
(1) a police officer (including a correctional police officer),
sheriff, constable, marshal, prosecuting attorney, special
prosecuting attorney, special deputy prosecuting attorney,
the securities commissioner, or the inspector general;
(2) a deputy of any of those persons;
(3) an investigator for a prosecuting attorney or for the
inspector general;
(4) a conservation officer;
(5) an enforcement officer of the alcohol and tobacco
commission;
(6) an enforcement officer of the securities division of the
office of the secretary of state; or
(7) a gaming agent employed under IC 4-33-4.5 or a
gaming control officer employed by the gaming control
division under IC 4-33-20.
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(b) “Law enforcement officer”, for purposes of IC 35-42-2-1,
includes an alcoholic beverage enforcement officer, as set forth in
IC 35-42-2-1(b)(1).
(c) “Law enforcement officer”, for purposes of IC 35-45-15,
includes a federal enforcement officer, as set forth in IC 35-45-15-
3.
(d) “Law enforcement officer”, for purposes of IC 35-44.1-3-1
and IC 35-44.1-3-2, includes a school resource officer (as defined
in IC 20-26-18.2-1) and a school corporation police officer
appointed under IC 20-26-16.
The trial court did not give, nor did Ferree request, a jury instruction defining
law enforcement officer. Ferree contends failure to give this instruction to the
jury “left them free to believe the prosecutor’s claim that anyone affiliated with
the Vigo County Sheriff’s Department was a law enforcement officer for
purposes of the impersonating statute.” (Br. of Appellant at 18.) Thus, Ferree
asserts, the exclusion of the instruction constituted fundamental error. We
disagree.
[17] As an initial matter, we note Ferree has waived this issue because he did not
tender the instruction he now asserts should have been included. See Ortiz v.
State, 766 N.E.2d 370, 375 (Ind. 2002) (“failure to tender an instruction results
in waiver of the issue for review”). Waiver notwithstanding, we cannot find
fundamental error in the trial court’s failure to issue, sua sponte, an instruction
outlining those individuals considered law enforcement because there was no
substantial harm to Ferree. See Spears v. State, 811 NE.2d 485, 489 (Ind. Ct.
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Ohio App. 2004) (fundamental error “must constitute a blantant violation of basic
principles, the harm, or potential harm must be substantial, and the resulting
error must deny the defendant fundamental due process”). As noted supra, the
only reasonable inference the jury could make considering the totality of the
evidence was that Ferree impersonated a law enforcement officer, and thus he
did not suffer substantial harm. See Dimmitt v. State, 25 NE.3d 203, 207 (Ind.
Ct. App. 2015) (when State presents sufficient evidence to prove defendant
committed crime, the trial court’s failure to sua sponte instruct the jury is not
fundamental error), trans. denied.
Conclusion
[18] We conclude the State presented sufficient evidence to prove Ferree committed
Level 6 felony impersonation of a public servant, the prosecutor did not commit
misconduct rising to the level of fundamental error, and the trial court did not
commit fundamental error when it failed to sua sponte include a jury instruction
regarding the statutory definition of law enforcement officer. We accordingly
affirm.
[19] Affirmed
Riley, J., and Robb, J., concur.
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