Stephen T. Perosky v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Feb 11 2014, 10:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEPHEN T. PEROSKY, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1307-CR-255
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-1107-FC-86
February 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Stephen T. Perosky was convicted after a jury trial of Disarming a Law Enforcement
Officer as a Class C felony,1 two counts of Battery as Class D felonies,2 and two counts of
Resisting Law Enforcement as Class D felonies,3 and was sentenced to an aggregate term of
imprisonment of nine years.
We affirm.
Issues
Perosky raises four issues for our review, which we consolidate and restate as:
I. Whether the trial court erred in admitting evidence;
II. Whether the prosecutor engaged in misconduct during closing argument; and
III. Whether the trial court failed to identify significant mitigating factors.
Facts and Procedural History
In the early morning hours of July 18, 2011, Perosky woke up his girlfriend, Candace
Kruse, pulled her out of bed by her hair, dragged her around the house, and accused her of
being unfaithful. Kruse grabbed the telephone, dialed 911, and then hung up. Merrillville
Police Department Corporal James Bogner and Officer Joshua Vandy Bogurt were
dispatched to the scene due to the 911 hang-up call. Kruse and Perosky both came out the
front door, and Kruse was shaking. Perosky told the officers that Kruse would tell them what
had happened and invited the officers into the house. Based on Kruse’s demeanor, Corporal
1
Ind. Code § 35-44-3-3.5.
2
I.C. § 35-42-2-1.
3
I.C. § 35-44-3-3.
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Bogner wanted to keep Perosky and Kruse out of the house to be sure they were not a threat
to each other or the officers. Therefore, when Perosky turned to go inside the house,
Corporal Bogner gently touched Perosky’s arm and asked him to stay outside.
Perosky responded by shoving Corporal Bogner, and Officer Vandy Bogurt reached in
to restrain Perosky. Because traditional restraint methods did not work on Perosky, the
corporal and the officer used their body weights to put Perosky on the ground. Although
both officers, who collectively weighed between 400 and 500 pounds, were sitting on
Perosky, he was able to stand up with the officers on his back. Perosky was screaming, “I’m
shitting my pants. . . . You’re killing me. . . . I’m going to die.” Tr. p. 65. Based upon
Perosky’s screaming and super-human strength, Corporal Bogner believed that Perosky was
under the influence of “something.” Tr. p. 66.
Corporal Bogner and Officer Vandy Bogurt fell to the ground, and Officer Vandy
Bogurt removed his Taser and deployed it on Perosky. A Taser is intended to incapacitate a
person, but Perosky spun around and ran towards the officers. According to Corporal
Bogner, in his sixteen years in law enforcement, he had never encountered an individual with
such strength. Officer Vandy Bogurt used the Taser on Perosky again, but was still unable to
subdue him. Perosky grabbed Officer Vandy Bogurt and began punching him in the face.
When Officer Vandy Bogurt dropped the Taser, Perosky picked it up and used it on Corporal
Bogner. As Corporal Bogner was falling backwards from the effects of the Taser, Perosky
reached for the corporal’s gun. Officer Vandy Bogurt punched Perosky causing him to drop
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the Taser, and Corporal Bogner sprayed pepper spray in Perosky’s eyes. As the officers
continued to struggle with Perosky, he bit Corporal Bogner’s hand.
When three additional officers arrived at the scene, Perosky charged one of them, who
also Tasered Perosky. Perosky continued to fight with all five officers, and during the
struggle Perosky bit Corporal Bogner’s forearm, breaking the skin. The five officers were
eventually able to restrain Perosky, who continued to struggle and shout obscenities. When
paramedics arrived on the scene, paramedic Jason Beida observed that Perosky appeared to
be under the influence of a controlled substance. Beida gave Perosky a sedative and
restrained him on a gurney. Perosky continued to be combative on the ride to the hospital.
As soon as Perosky left for the hospital, Corporal Bogner went into the home and took
a statement from a crying Kruse, who had a bump on her head and red marks on her face.
She seemed relieved that Perosky has been taken into custody. Kruse told Corporal Bogner
that Perosky had accused her of being unfaithful. According to Kruse, Perosky pulled her out
of bed by her hair and dragged her around the house, banging her head into objects around
the house. Kruse also told Corporal Bogner that Perosky was smoking “Space Cadet” and
using “Bath Salts.”4
The State charged Perosky with disarming a law enforcement officer as a Class C
felony, two counts of battery as Class D felonies, using a stun gun on a law enforcement
officer as a class D felony, strangulation as a class D felony, and two counts of resisting law
enforcement as class D felonies. At trial, the trial court allowed Corporal Bogner to testify
4
“Space Cadet” is a hallucinogenic herbal drug. “Bath Salts” is a synthetic drug, which is described as a cross
between methamphetamine and acid.
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over objection that immediately after Perosky attacked the officers and was taken to the
hospital in the ambulance, Kruse told him that Perosky used “Space Cadet” and “Bath Salts.”
The trial court admitted the Corporal’s testimony pursuant to the excited utterance exception
to the hearsay rule. The trial court also found that paramedic Beida was a skilled witness
qualified to testify regarding the effect of “Bath Salts.”
During closing argument rebuttal, Perosky argued that the police officers beat him, put
him in the hospital, and then fabricated a story about everything that happened. Specifically,
Perosky argued that the police created a “comic book tally.” (Tr. p. 530). In the State’s
rebuttal argument, the State read a passage regarding the duties, risks faced, and sacrifices
made by police officers. Perosky did not object.
The jury convicted Perosky of disarming a police officer, two counts of battery, and
two counts of resisting law enforcement. At the sentencing hearing, the trial court found one
mitigating factor and seven aggravating factors, and sentenced Perosky to five years for
disarming a police officer, two years each for the two counts of battery, and two years each
for the two counts of resisting law enforcement. The trial court ordered the five years for
disarming a police officer and the two years each for the two counts of battery to run
consecutively to each other, and the two years each for the two counts of battery to run
concurrently with each other and the other sentences, for a total executed sentence of nine
years.
Perosky appeals his convictions and sentence.
Admission of Evidence
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The decision to admit or exclude evidence lies within the trial court’s sound
discretion. Filice v. State, 886 N.E.2d 24 (Ind. Ct. App. 2008), trans. denied. An abuse of
discretion occurs when the trial court’s decision is against the logic and effect of the facts
and circumstances before it. Dixon v. State, 967 N.E.2d 1090 (Ind. Ct. App. 2012). We will
not reverse absent a showing of manifest abuse of discretion resulting in the denial of a fair
trial. Johnson v. State, 831 N.E.2d 163 (Ind. Ct. App. 2005), trans. denied.
Perosky first argues that the trial court erred in allowing Corporal Bogner to testify
over objection that immediately after Perosky attacked the officers and was taken to the
hospital in the ambulance, Kruse told him that Perosky used “Space Cadet” and “Bath Salts.”
Specifically, Perosky contends that Kruse’s statement to Corporal Bogner does not qualify as
an excited utterance because although she was crying at the time she made the statement, she
seemed relieved that Perosky had been taken into custody.
An excited utterance is a “statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or condition.”
Ind. R. Evid. 803(2). To meet the excited utterance exception, three elements must be
present: 1) a startling event or condition has occurred; 2) the declarant made the statement
while under the stress or excitement caused by the event or condition; and 3) the statement
was related to the event or condition. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App.
2012).
This test is not mechanical, and admissibility turns on whether the statement is
inherently reliable because the witness is under the stress of the event and unlikely to make
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deliberate falsifications. Id. The lapse of time is not dispositive, but if a statement is made
long after a startling event, it is less likely to be an excited utterance. Id. The heart of the
inquiry is whether the declarant was incapable of thoughtful reflection. Id.Here, our review of the evidence reveals that a startling event occurred when Perosky
became involved in a physical altercation with police officers. Krause, the declarant, made
the statement regarding Perosky’s use of “Space Cadet” and “Bath Salts” immediately after
he was transported to the hospital and while she was still crying. She was therefore still
under the stress caused by the event. Lastly, the statement related to Perosky’s condition,
including his superhuman strength and altered level of consciousness. Clearly, Krause, who
had just seen a violent confrontation between her boyfriend and five police officers, and who
was so upset that she was still crying, was not capable of thoughtful reflection when she
made the statement. The trial court did not err in admitting this evidence as an excited
utterance.
We further note that even if the trial court had erred in admitting this evidence, we
will not reverse the conviction if the error was harmless. Turner v. State, 953 N.E.2d 1039,
1059 (Ind. 2011). The error is harmless if there is substantial independent evidence of guilty
satisfying the reviewing court that there is no substantial likelihood the challenged evidence
contributed to the conviction. Id. We agree with the State that “while the usage of bath salts
helped explain [Perosky’s] character, it was not a necessary element to any of his
convictions, and if it had been excluded the State would still have presented sufficient
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evidence to sustain each of his convictions.” Appellee’s Brief, p. 18. Any error in the
admission of this evidence was therefore harmless.
Perosky further argues that the trial court erred in allowing paramedic Beida to testify
as a skilled witness concerning the effects of “Bath Salts.” Indiana Evidence Rule 701
provides that lay witnesses may provide testimony in the form of opinions or inferences, so
long as the testimony is a) rationally based on the perception of the witness and b) helpful to
a clear understanding of the witness’s testimony or the determination of a fact in issue. This
rule encompasses persons whom the courts have labeled “skilled witnesses.” Kubsch v.
State, 784 N.E.2d 905, 922 (Ind. 2003). A skilled witness is a person who possesses a
specialized knowledge short of that necessary to be declared an expert under Indiana
Evidence Rule 702 but beyond that possessed by an ordinary juror. Id. A police officer’s
experience and training may provide the requisite foundation under Rule 701. See
Stephenson v. State, 742 N.E.2d 463, 480 (Ind. 2001).
Here, our review of the evidence reveals that Beida, a licensed paramedic, received
training on “Bath Salts” and its effects. Specifically, Beida’s training department compiled
magazine articles on the effects of “Bath Salts” and distributed them to paramedics as part of
the paramedics’ training. This training provided Beida with knowledge beyond that
possessed by an ordinary juror. The trial court did not abuse its discretion in allowing Beida
to testify as a skilled witness.
Prosecutorial Misconduct
8
Perosky also argues that the prosecutor engaged in misconduct during rebuttal closing
argument when he read a passage regarding the duties, risks faced, and sacrifices made by
police officers. In reviewing a claim of prosecutorial misconduct, this court employs a two-
step analysis, the first of which determines whether the prosecutor engaged in misconduct.
Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). If the court finds misconduct, it must then
consider all the circumstances of the case and decide if the misconduct placed the defendant
in grave peril to which he should not have been subjected. Cooper v. State, 854 N.E.2d 831,
835 (Ind. 2006). The gravity of the 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. Id.Where, as here, the defendant did not object at trial to the alleged misconduct, a
defendant must not only demonstrate prosecutorial misconduct, but also must establish that
the misconduct rises to the level of fundamental error. Id. Fundamental error is an extremely
narrow exception that allows a defendant to avoid waiver of an issue and makes a fair trial
impossible or constitutes clearly blatant violations of basic due process and presents a
substantial potential for harm. Id.The statement the prosecutor made during closing argument of which Perosky now
complains is:
While you sleep there, when you are sitting down at Thanksgiving dinner or
celebrating Christmas, we’re out there. When it’s your children’s birthday,
we’re out there. When it’s our children’s birthday, we’re still out there. You
put on a suit and dress to go to work, we strap on a ballistic vest and a gun. An
error by you means a demotion. An error by us means a funeral. When you
tell your family, “See you tonight” as you leave for work, you mean it. When
we tell our family that, we pray that we will. In your job one bad person is the
talk of the office. In our job, one bad officer makes the news and suddenly
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we’re all bad. In these headlines it’s not what good we’ve done but how much
better it could have been. While you are asleep with your spouse, ours sleep
alone. So the next time you are out with your family or friend and you see a
patrol car go by, remember inside the car is a person who sacrifices his or her
life affectly (sic) and personally every day.
Tr. p. 541.
Based upon this portion of the State’s argument, Perosky appears to argue that the
prosecutor relied upon considerations that were not relevant to the issues of guilt or
innocence. However, our review of the evidence reveals that in closing argument, Perosky
argued that the police officers beat him and then fabricated a story about everything that had
happened. In rebuttal closing argument, the prosecutor responded with this passage about the
duties, risks faced, and sacrifices made by police officers. A prosecutor is entitled to respond
to allegations and inferences raised by the defense even if the prosecutor’s response would
otherwise be objectionable. Lopez v. State, 527 N.E.2d 1119, 1126 (Ind. 1988).
Further, Perosky has failed to specify how this passage made a fair trial impossible.
Our review of the evidence reveals that the jury was presented with ample evidence of
Perosky’s guilt, and the fact that Perosky was acquitted by the jury of two of the Counts
against him further indicates that the contested statements did not render a fair trial
impossible. Accordingly, we cannot conclude that the State’s use of this passage on rebuttal
amounted to fundamental error.
Sentence
At the sentencing hearing, the trial court found as a mitigating factor that Perosky
“ha[d] no prior acts or history of violence.” Appellant’s App. p. 123. The trial court also
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found the following aggravating factors: 1) Perosky’s criminal history, including convictions
for Possession of Cocaine as a Class C felony and Possession of Marijuana as a Class D
felony; 2) prior leniency by criminal courts had no deterrent effect on Perosky; 3) Perosky
committed multiple offenses against separate victims; 4) Perosky’s character was violent
while under the influence of drugs; 5) while on bond in this case, Perosky was charged with
additional offenses, including theft; 6) Perosky had been using “Bath Salts”; and 7) Corporal
Bogner suffered a permanent injury as a result of Perosky’s actions. Thereafter, the trial
court sentenced Perosky to five years for disarming a police officer, two years each for the
two counts of battery, and two years each for the two counts of resisting law enforcement.
The trial court ordered the five years for disarming a police officer and the two years each for
the two counts of battery to run consecutively to each other, and the two years each for the
two counts of battery to run concurrently with each other and the other sentences, for a total
executed sentence of nine years.
Perosky argues that the trial court erred in sentencing him. Specifically, he contends
that the trial court failed to identify significant mitigating factors. The determination of a
defendant’s sentence is within the trial court’s discretion. Newman v. State, 719 N.E.2d 832,
838 (Ind. Ct. App. 1999), trans. denied. An abuse of discretion occurs if the decision is
clearly against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom. Guzman v. State, 985
N.E.2d 1125, 1132 (Ind. Ct. App. 2013). One way in which a court may abuse its discretion
is failing to enter a sentencing statement at all. Id. Other examples include finding
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aggravating or mitigating factors unsupported by the record, omitting mitigating factors
clearly supported by the record and advanced for consideration, or giving reasons that are
improper as a matter of law. Brock v. State, 983 N.E.2d 636, 640 (Ind. Ct. App. 2013).
Although a sentencing court must consider all evidence of mitigating factors offered
by a defendant, the finding of mitigating factors rests within the court’s discretion.
Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A court does not err in failing to find
mitigation when a mitigation claim is highly disputable in nature, weight, or significance. Id.The trial court is not obligated to explain why it did not find a factor to be significantly
mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). Furthermore, while Indiana
law mandates that the trial court not ignore facts in the record that would mitigate an offense,
and a failure to find mitigating factors that are clearly supported by the record may imply that
the trial court failed to properly consider them, an allegation that the trial court failed to find
a mitigating factor requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 838 (Ind.
1999).
Perosky first contends that the trial court erred in failing to find his non-violent nature
as a mitigating factor. However, our review of the trial court’s sentencing order reveals that
the trial court considered as a mitigating factor that Perosky “ha[d] no prior acts or history of
violence.” Appellant’s App. p 123. We find no error. Perosky also contends that the trail
court failed to consider his relationships as a mitigating factor. Specifically, Perosky
contends that he cares for and supports his girlfriend with her addiction problems. He also
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states that he assisted her during her recent surgery. He claims that he assists his
handicapped niece and nephew, and that he has a strong loving relationship with his
daughters. The gravamen of his argument appears to be that his incarceration would result in
undue hardship on his family and girlfriend. A trial court is not obligated to find a
circumstance to be mitigating merely because the defendant advances it. Benefield v. State,
904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied. In particular, a trial court is not
required to find that a defendant’s incarceration would result in undue hardship on his
dependents. Id. Many persons convicted of crimes have others who depend on them.
Absent special circumstances showing that the hardship to them is “undue,” a trial court does
not abuse its discretion by not finding this to be a mitigating factor. Id. Here, Perosky has
failed to show special circumstances, and we find no abuse of discretion in the trial court’s
failure to find undue hardship to Perosky’s dependents as a mitigating factor.
Conclusion
The trial court did not abuse its discretion in admitting evidence, the prosecutor did
not engage in misconduct during closing argument, and the trial court did not fail to identify
significant mitigating factors.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
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