from the Vigo Superior Court The Honorable Sarah K. Mullican,
Judge Trial Court Cause No. 84D03-1703-F6-845
Attorney for Appellant Cara Schaefer Wieneke Wieneke Law
Office, LLC Brooklyn, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Matthew B. MacKenzie Deputy Attorney General
Steve Ferree appeals his conviction of Level 6 felony
impersonation of a public servant. 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.
and Procedural History
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 jacket was not available for public
purchase. 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.)
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.
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.
of the Evidence
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.
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).
(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.
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 ...