                                                                                 FILED
                                                                             Apr 25 2019, 5:23 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                      Curtis T. Hill, Jr.
Office of the Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                            George P. Sherman
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Pelissier,                                         April 25, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-710
        v.                                                  Appeal from the Lake Superior
                                                            Court
State of Indiana,                                           The Honorable Salvador Vasquez,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            45G01-1702-MR-3



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019                                    Page 1 of 16
[1]   Nicholas Pelissier appeals his convictions of and sentences for murder 1 and

      Level 1 felony attempted murder. 2 He raises three issues, which we restate as:


                 1. Whether the trial court abused its discretion when it admitted
                 into evidence videotaped recordings of witness Kendall Vaughn’s
                 prior statements to police;


                 2. Whether the trial court abused its discretion when it admitted
                 into evidence the photo array from which Detective Jeffrey
                 Minchuck testified Vaughn identified Pelissier as one of the
                 shooters; and


                 3. Whether Pelissier’s aggregate sentence of eighty-five years is
                 inappropriate based on the nature of the offense and Pelissier’s
                 character.


      We affirm.



                               Facts and Procedural History                                3




[2]   On November 12, 2016, Timothy Fryerson and his friend, Jondell Golinda,

      walked to a gas station near Golinda’s house and purchased cigarettes and

      snacks. As they left the gas station and were walking across the parking lot, a

      red Dodge Durango SUV was at one of the gas pumps. Someone in the SUV




      1
          Ind. Code § 35-42-1-1 (2014).
      2
          Ind. Code § 35-42-1-1 (2014) (murder); Ind. Code § 35-41-5-1 (2014) (attempt).
      3
        We held oral argument in this case on March 7, 2019, at Valparaiso High School. We thank administration
      for their hospitality and counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019                            Page 2 of 16
      said something to Fryerson and Golinda, to which they did not respond. The

      rear door of the SUV opened, and William Galloway exited the SUV and

      displayed a gun. Golinda and Fryerson continued walking.


[3]   Fryerson called his father and told him to “be looking out for [him,] at least

      they’ll know if anything happen[ed] to [him].” (Tr. Vol. II at 157.) As

      Fryerson and Golinda turned the corner to walk down another street, they

      noticed the SUV was following them. The SUV stopped, and the two back

      doors opened. Fryerson and Golinda ran away from the SUV, towards

      Fryerson’s house. As he was running, Fryerson was shot once in the back,

      “had a stroke and . . . blacked out.” (Id. at 163.)


[4]   Fryerson’s mother, who was at the family home, heard gunshots and ran

      outside. She ran down the street and found Fryerson in the gutter. Fryerson’s

      brother called the police. An ambulance transported Fryerson to a hospital in

      Chicago, where he remained for about a month. Fryerson was placed in a

      medically-induced coma for a period of time and experienced partial paralysis

      as a result of his injuries. The doctor who treated Fryerson testified that

      without medical intervention “it’s very likely he would have died.” (Tr. Vol. III

      at 178.)


[5]   Officers found Golinda further down the street from where Fryerson fell.

      Golinda had been shot ten times and died as a result of his wounds. Police

      found eight 10-millimeter cartridge cases at the scene of the shooting, all of

      which had been fired from the same gun. The police also found three 45-caliber


      Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019         Page 3 of 16
      cartridge cases that also had been fired from a single gun. Police also located a

      mutilated spent bullet from a 40-caliber firearm that did not match the firearm

      associated with the other shell casings found at the scene.


[6]   Gary Police Officer Marcus Harris viewed the surveillance footage from the gas

      station and watched the interaction between the SUV and the victims. After

      viewing the video, Officer Harris drove around the neighborhood looking for

      the SUV. He located the SUV in front of a residence about five to six blocks

      away from the gas station. Another officer arrived on the scene with his K-9

      partner, and the dog led the officers to the front door of a nearby house. After

      speaking with the owner of the SUV and obtaining consent, police towed the

      SUV to the crime lab for investigation. In the SUV, officers found Pelissier’s

      fingerprint on one of the rear passenger doors.


[7]   During the investigation, police interviewed Tammarshea Jones after

      connecting her to the SUV. Jones told police she was in the SUV at the time of

      the shooting. She said the other occupants of the SUV were her boyfriend,

      Kendall Vaughn, William Galloway, and a “light-skinned dude.” (State’s Ex.

      8.) Jones told police Galloway and the “light-skinned dude” were the shooters.

      (Id.) Jones knew the “light-skinned guy” as “Freaky” and she reported Freaky

      returned to the SUV after the shooting and said, “I got his ass.” (Id.) At trial,

      Jones identified Pelissier as the “light-skinned dude” she referred to during her

      interview with police. (Tr. Vol. V at 96.)




      Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019         Page 4 of 16
[8]    Police interviewed Jones’ boyfriend, Vaughn, on November 13, 2016, and

       January 27, 2017. During those interviews, Vaughn identified Pelissier and

       Galloway as the shooters. During the second interview, Vaughn looked at a

       photo array and identified a person he knew as “Freaky” as one of the shooters.

       He wrote on the photo array, next to Pelissier’s picture, “kill[ed] the boy.”

       (State’s Ex. 107.) During trial, Vaughn identified Pelissier as the person he

       knew as “Freaky.” (Id. at 198.)


[9]    On February 1, 2017, the State charged Pelissier with murder and Level 1

       felony attempted murder. The trial court held a jury trial from January 8 to

       January 16, 2018. At trial, Vaughn claimed he did not remember what he was

       doing on the day of the shooting, he did not remember what he said when he

       gave statements to the police in November 2016 and January 2017, and he did

       not remember anything related to the shooting. Over Pelissier’s objection, the

       trial court admitted the video recordings of his statements to police in

       November 2016 and January 2017. At trial, when asked if Pelissier was in the

       SUV on the date of the shooting, Vaughn answered, “Not sure. No.” (Tr. Vol.

       V at 203.) During Vaughn’s testimony, Pelissier moved for a mistrial, moved to

       exclude evidence, and asked to be able to depose Vaughn. The trial court

       denied all three requests.


[10]   The trial court also admitted, over Pelissier’s objection, the photo array with

       Pelissier in it, and Detective Jeffrey Minchuk was permitted to testify that

       Vaughn wrote on the photo array next to Pelissier’s picture, “kill[ed] the boy.”



       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019          Page 5 of 16
       (Tr. Vol. VI at 20.) Detective Minchuk also identified Pelissier as an

       “individual near the vehicle” on the gas station surveillance tape. (Id. at 24.)


[11]   The jury returned guilty verdicts for Pelissier on both counts. On February 15,

       2018, the trial court sentenced Pelissier to fifty-five years for murder, to be

       served consecutive to a sentence of thirty years for Level 1 felony attempted

       murder, for an aggregate sentence of eighty-five years incarcerated.



                                   Discussion and Decision
                                         Admission of Evidence
[12]   We review evidentiary rulings for an abuse of discretion. Pavlovich v. State, 6

       N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion

       occurs if the trial court misinterpreted the law or if its decision was clearly

       against the logic and effect of the facts and circumstances before it. Id.


                                              Recordings of Vaughn

[13]   At trial, Vaughn testified he could not remember the events of the night of the

       shooting or any details of the subsequent statements he made to police in

       November 2016 and January 2017. Thus, the State sought to admit those

       statements via Indiana Evidence Rule 803(5), which provides for various

       exceptions to the rule against hearsay. The Rule states, in relevant part:


               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:



       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019            Page 6 of 16
                                                       *****


                (5) Recorded Recollection. A record that:


                        (A) is on a matter the witness once knew about but now
                        cannot recall well enough to testify fully and accurately;


                        (B) was made or adopted by the witness when the matter
                        was fresh in the witness’s memory; and


                        (C) accurately reflects the witness’s knowledge.


                If admitted, the record may be read into evidence but may be
                received as an exhibit only if offered by an adverse party.


       Indiana Evidence Rule 803(5). The parties appear to agree that the first two

       requirements for admission under Indiana Evidence Rule 803(5) were satisfied,

       but they disagree about the third requirement, that the recorded recollection

       accurately reflects the witness’s knowledge.


[14]   “[B]efore a statement can be admitted under the recorded recollection hearsay

       exception, certain foundational requirements must be met, including some

       acknowledgment that the statement was accurate when it was made.” Williams

       v. State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998), reh’g denied, trans. denied.

       “A trial court should not admit a witness’s statement into evidence when the

       witness cannot vouch for the accuracy of the statement nor remember having

       made the statement.” Ballard v. State, 877 N.E.2d 860, 862 (Ind. Ct. App.

       2007).

       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019             Page 7 of 16
[15]   Pelissier argues our holding in Ballard controls. In that case, the trial court

       convicted Ballard of Class C felony battery based in part on the testimony of the

       victim, Alisa Hatchett. During Ballard’s bench trial, the State called Hatchett

       to testify. Hatchett “claimed to have no memory of the night in question.” Id.

       at 861. Over Ballard’s objection, the trial court permitted the State to read,

       pursuant to Indiana Evidence Rule 803(5), the recorded recollection hearsay

       exception, excerpts of an earlier interview Hatchett had given shortly after the

       incident to Detective Douglas Wright. Id.


[16]   On appeal, Ballard argued, like Pelissier does here, that “the State failed to lay a

       proper foundation for the introduction of the prior recorded statement pursuant

       to Evid. R. 803(5).” Id. at 863. Our court determined the State did not lay a

       sufficient foundation for the admission of the evidence, because Hatchett

       repeatedly testified she did not remember the incident and she did not

       remember what she said to Detective Wright. Id. As she did not “vouch for the

       accuracy of the statement to Detective Wright - a statement that she did not

       remember making . . . the excerpts from the transcribed statement should not

       have been admitted under Evid. R. 803(5).” Id.


[17]   The facts in Ballard are distinguishable. First, the inadmissible statement in

       Ballard was written and here the statement was recorded on video.

       Additionally, in Ballard, Hatchett “denied knowing whether she had spoken to

       a detective” about the night in question, and asserted “that she probably said a

       lot of things . . . that were not true.” Ballard, 877 N.E.2d at 863. Here, Vaughn

       never indicated what he said was not true, and “repeatedly stated that he had

       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019          Page 8 of 16
       already answered the questions and referred the questioner to the video[.]” (Br.

       of Appellee at 12.) Finally, Hatchett testified “that her daily habit of drinking

       gin caused her memory to lapse” and she might have given “an inaccurate

       account of the evening in question.” Id. However, as part of his statement on

       November 2016, Vaughn indicated he was telling the truth. (State’s Ex. 111.)


[18]   An error in admitting evidence does not require reversal unless it affects the

       substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001).

       “The improper admission of evidence is harmless error when the conviction is

       supported by such substantial independent evidence of guilt as to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the conviction.” Barker v. State, 695 N.E.2d 925, 931

       (Ind. 1998), reh’g denied. The erroneous admission of evidence may also be

       harmless if that evidence is cumulative of other evidence admitted. Donaldson v.

       Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).


[19]   In her video-recorded interview with police, the admission of which Pelissier

       does not challenge, Jones stated one of the shooters was a “light skinned dude.”

       (State’s Ex. 108.) At trial, Jones identified Pelissier as the “light skinned dude.”

       (Tr. Vol. V at 96.) Additionally, Pelissier’s fingerprint was found on one of the

       rear doors of the SUV, and one of the victims testified that the shooters both

       came out the rear doors of the SUV. Based thereon, we conclude that any error

       in the admission of Vaughn’s videotaped statements was harmless because the

       evidence in question was cumulative of other properly-admitted evidence. See



       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019         Page 9 of 16
       Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000) (“Evidence that is merely

       cumulative is not grounds for reversal.”).


                                                    Photo Array

[20]   Relatedly, Pelissier argues the trial court abused its discretion when it admitted

       the photo array with “kill[ed] the boy” written next to Pelissier’s picture and

       Detective Minchuk’s testimony that Vaughn wrote that on the photo array.

       When the photo array was admitted, Pelissier objected, stating:


               [Pelissier]: On State’s Number 107 [the photo array], I would
               object in that we’ve had [Vaughn] testify as to he circled a picture
               and he acknowledged signing it. I don’t recall [Vaughn]
               testifying that he, in fact, wrote these words on here, number 4 is
               the man how kill the boy [sic].


               [State]:      Your Honor, Mr. Vaughn testified that he
               recognized that document as the photographic lineup that he
               reviewed during that second interview. Further, Detective
               Minchuk was present during this interview. He was the one who
               prepared it and showed it to Mr. Vaughn. And, therefore, I
               believe sufficient foundation has been laid for the admission of
               State’s Exhibit 107.


               [Pelissier]: I think identifying the person as number 4 is
               different than adding the subsequent statement that is very
               prejudicial to the defendant without authentication by Mr.
               Vaughn of that statement.


               [Court]:    It’s true that Vaughn never identified that extra
               language. Foundation has been met to allow 107 to be admitted.



       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019         Page 10 of 16
        [State]:    Your Honor, once more I would note that we
        watched today an interview where it’s -- you can clearly see
        Kendall Vaughn making those notes on that document.


        [Pelissier]: We don’t know what Kendall Vaughn is stating --
        writing on the document. We hear him say write your name and
        date it. We don’t know what words are being written. The
        camera is not on his handwriting at that time. And to admit this
        additional language is more prejudicial than probative. He
        acknowledges that he circled the -- the picture. He acknowledged
        that he said that was Freaky. He acknowledged that he dated
        and signed. But that exact language, we don’t have that -- that
        verification.


        [State]:     This fails to mention that the detective also
        instructed Kendall Vaughn to write on that piece of paper how he
        knows or recognizes the individual.


        [Court]:      That did come out during that tape. Okay. Your
        objection is noted and it’s overruled.


(Tr. Vol. VI at 14-6.)


Regarding the markings on the photo array, Detective Minchuk testified:


        [State]:     And to the best of your knowledge did [Vaughn]
        also make the markings on the upper right-hand portion of
        State’s Exhibit 107 [the photo array]?


        [Minchuk]: Yes, sir.


        [State]:          Did he make those in your presence?



Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019      Page 11 of 16
               [Minchuk]: Yes, sir.


               [State]:          And what does that indicate?


               [Minchuk]: “Number 4 is the man --” it appears, “how killed the
               boy,” or now killed the boy.


       (Id. at 20.) Detective Minchuk then testified that “Number 4” was Pelissier.

       (Id.)


[21]   Pelissier contends on appeal, as he did before the trial court, that the State did

       not provide sufficient foundation to prove that Vaughn wrote “Number 4 is the

       man how kill[ed] the boy[,]” (State’s Ex. 107) (errors in original), because

       Vaughn never testified that he wrote those words on the photo array. Pelissier

       reiterates his argument regarding the inadmissibility of Vaughn’s videotaped

       statements. Additionally, Pelissier directs us to inconsistencies in Vaughn’s

       testimony such as Vaughn saying that Pelissier was never in the SUV, (see Tr.

       Vol. V at 203), that Vaughn testified he did not know Freaky, and that when

       Vaughn identified Pelissier in the photo array he did so because “[s]omebody

       that I asked somebody else who was Freaky and they said that -- they showed

       me a picture of that face right there. . . . They showed me a picture of this man

       right here, so I circled the picture.” (Id. at 170) (errors in original).


[22]   However, as was the case with the admission of Vaughn’s videotaped

       statements, any error in the admission of the writing on the photo array is

       harmless because it is cumulative of evidence properly admitted including

       Jones’ testimony and fingerprint evidence indicating Pelissier was present in the
       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019           Page 12 of 16
       rear of the vehicle involved in the shooting. See Leonard v. State, 86 N.E.3d 406,

       413 (Ind. Ct. App. 2017) (error in the admission of evidence is harmless if

       cumulative of other properly admitted evidence), trans. denied.


                                         Inappropriate Sentence
[23]   Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due

       consideration of the trial court’s decision, we find the sentence inappropriate in

       light of the nature of the offense and the character of the offender. Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind.

       2007). We consider not only the aggravators and mitigators found by the trial

       court, but also any other factors appearing in the record. Johnson v. State, 986

       N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision,

       and our goal is to determine whether the defendant’s sentence is inappropriate,

       not whether some other sentence would be more appropriate. Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Pelissier, as the appellant, bears

       the burden of demonstrating his sentence is inappropriate. See Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006) (appellant bears burden of demonstrating

       sentence is inappropriate).


[24]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

       at 494. The advisory sentence for Level 1 felony attempted murder is thirty

       years, with a sentencing range of twenty to forty years. Ind. Code § 35-50-2-

       4(b) (2014). The advisory sentence for murder is fifty-five years, with a


       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019        Page 13 of 16
       sentencing range of forty-five to sixty-five years. Ind. Code § 35-50-2-3(a)

       (2015). The trial court sentenced Pelissier to the advisory sentence for each

       crime, thirty and fifty-five years respectively, to be served consecutively for an

       aggregate sentence of eighty-five years. Pelissier argues his sentence is

       inappropriate based on the nature of the offense and his character.


[25]   Regarding the nature of the offense, Pelissier argues the evidence was not clear

       regarding what level of culpability was attributable to Pelissier because shell

       casings from multiple firearms were found at the scene and no one saw who

       shot the victims. However, the State presented evidence that Pelissier and

       Galloway opened fire on Fryerson and Golinda, who were unarmed; the attack

       was unprovoked; and the multitude of shots increased the possibility others

       besides the intended victims could have been harmed. Based on the nature of

       the offenses, the trial court “would have been within its discretion to impose

       terms above the advisory sentence.” (Br. of Appellee at 18.) We cannot hold

       Pelissier’s sentence inappropriate based on the nature of the offense. See

       Birdsong v. State, 685 N.E.2d 42, 48 (Ind. 1997) (advisory sentence appropriate

       for unprovoked murder).


[26]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. Pelissier also asserts he has no

       criminal record; however, at the sentencing hearing, the parties discussed

       Pelissier’s pre-sentence investigation report, which indicated Pelissier had

       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019           Page 14 of 16
       “juvenile adjudications” and was “on bond for two cases[.]” (Tr. Vol. VI at

       226.)


[27]   Pelissier also emphasizes the fact that he was twenty years old when sentenced,

       and an eighty-five year sentence would mean he would be incarcerated for the

       majority of his life. However, there are a multitude of cases in which our

       appellate courts have affirmed similar sentences for offenders younger than

       Pelissier. See Monegan v. State, 756 N.E.2d 499, 504-5 (Ind. 2001) (refusing to

       consider Monegan’s age of seventeen years and eleven months as a mitigator in

       sixty-year sentence for murder); also see Spears v. State, 735 N.E.2d 1161, 1167

       (Ind. 2000) (holding an eighteen year old defendant was “beyond the age at

       which the law commands special treatment by virtue of youth”), reh’g denied;

       and see Bryant v. State, 802 N.E.2d 486, 502 (Ind. Ct. App. 2004) (noting

       “youthful age does not ‘automatically’ qualify as a significant mitigator” in

       sentence for eighteen-year-old convicted of murder), trans. denied.


[28]   Pelissier also requests that we consider that he was raised without a father, was

       adjudicated a child in need of services, and had to quit school at sixteen years

       old to work to support his family. We have consistently held that “evidence of

       a difficult childhood warrants little, if any, mitigating weight. Coleman v. State,

       741 N.E.2d 697, 703 (Ind. 2000). Finally, Pelissier notes he had been regularly

       employed and financially supported his three children; however employment is

       not necessarily mitigating. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct.

       App. 2003) (“Many people are gainfully employment such that this would not

       require the trial court to note it as a mitigating factor or afford it the same

       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019          Page 15 of 16
       weight as Newsome proposes”), trans. denied. Additionally, two of Pelissier’s

       children were living with their respective mothers and there were no child

       support orders in place for those children, and thus no mitigating weight should

       be afforded to Pelissier’s claim that he provided financial support to his three

       children. See Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011)

       (defendant’s support of children not considered a mitigating circumstance when

       the defendant “had no court-ordered child support obligation for his children”),

       trans. denied. Based thereon, we cannot say Pelissier’s sentence is inappropriate

       based on his character. See Connor v. State, 58 N.E.3d 215, 221 (Ind. Ct. App.

       2016) (sentence not inappropriate despite arguments regarding Connor’s young

       age and difficult childhood).



                                                 Conclusion
[29]   If the trial court erred in the admission of Vaughn’s videotaped statement and

       his notation on the photo array, any error was harmless because those pieces of

       evidence were cumulative of other properly-admitted evidence. Additionally,

       Pelissier’s sentence was not inappropriate based on the nature of the crime or

       his character. Accordingly, we affirm.


[30]   Affirmed.


       Robb, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019        Page 16 of 16
