                                                                         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).



      Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019          Page 4 of 15
              (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


      Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019             Page 5 of 15
      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?



      Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019               Page 6 of 15
        [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




Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019             Page 7 of 15
       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
       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019          Page 8 of 15
               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

       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019           Page 9 of 15
       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.


       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019             Page 10 of 15
               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

       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019            Page 11 of 15
       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.)

       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019           Page 12 of 15
[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.




       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019                Page 13 of 15
               (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.

       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019           Page 14 of 15
       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.




       Court of Appeals of Indiana | Opinion 18A-CR-2327 | May 16, 2019           Page 15 of 15
