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Ferree v. State

Court of Appeals of Indiana

May 16, 2019

Steve Ferree, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal 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 Indianapolis, Indiana

          MAY, JUDGE

         [¶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 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

         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).
(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 ...

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