Jeremy R Basso v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 24, 2024
• Docket: 24A-CR-00500
• Status: Published

Opinion

FILED Sep 24 2024, 8:56 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Jeremy R. Basso, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

September 24, 2024 Court of Appeals Case No. 24A-CR-500 Appeal from the Shelby Superior Court The Honorable Dan E. Marshall, Special Judge Trial Court Cause No. 73D01-2307-F6-288

Opinion by Judge Tavitas

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 1 of 12 Judges Crone and Bradford concur.

Tavitas, Judge.

Case Summary [1] The State charged Indiana State Police Trooper Jeremy Basso with perjury and

official misconduct based on statements Trooper Basso made during a

sentencing hearing in a case in which Trooper Basso was the victim. The trial

court denied Trooper Basso’s motion to dismiss the charges. In this

interlocutory appeal, Trooper Basso argues that the trial court abused its

discretion by denying the motion. Because the undisputed facts of this case do

not constitute perjury or official misconduct as a matter of law, we agree with

Trooper Basso that the trial court abused its discretion by denying the motion to

dismiss. Accordingly, we reverse.

Issue [2] Trooper Basso raises one issue, which we restate as whether the trial court

abused its discretion by denying Basso’s motion to dismiss.

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 2 of 12 Facts 1 [3] In June 2021, Trooper Basso was struck by a vehicle driven by Mason Durrett.

The State charged Durrett, in part, with operating a vehicle while intoxicated

causing serious bodily injury, a Level 5 felony. On October 25, 2021, in a

deposition held as a part of Durrett’s criminal case, Trooper Basso testified that

he believed Durrett “deserve[d] jail time.” Appellant’s App. Vol. II p. 15. A

few months later, on January 24, 2022, Trooper Basso filed a civil case against

businesses that served Durrett alcohol on the night of the car accident.

[4] Durrett pleaded guilty to the offense as charged, and the trial court held a

sentencing hearing in March 2023, at which Trooper Basso was called as a

witness by the State. Regarding Durrett’s sentence, Trooper Basso testified that

he did not desire for Durrett to serve jail time but rather that he desired for

Durrett to serve his sentence on “home detention.” Id. at 16. On cross-

examination by Durrett’s counsel, Trooper Basso acknowledged that, when he

was deposed, he testified that Durrett should serve jail time. Trooper Basso,

however, explained that his opinion had changed since the deposition.

Durrett’s counsel then asked Trooper Basso if his “opinion wouldn’t change if

there was a positive or a negative resolution in [the] civil matter,” and

1 In accordance with our standard of review, we include the facts alleged in the charging information and the probable cause affidavit.

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 3 of 12 Trooper Basso responded, “No, it wouldn’t[,] to be honest.” Id. (emphasis

added).

[5] Following the sentencing hearing, the Indiana State Police interviewed three

troopers with whom Trooper Basso spoke after the sentencing hearing.

According to the probable cause affidavit:

On or about March 16, 2023, Sergeant Haugh spoke directly to M/Trp. Basso at the courthouse. M/Trp. Basso stated, “he didn’t want Mason (Mr. Durrett) to go to jail . . . it would be better on his pending civil trial”.

On or about March 16, 2023, Lieutenant Watson phoned M/Trp. Basso to discuss his testimony. During the call M/Trp. Basso stated, “the reason he didn’t want Mason (Mr. Durrett) to go to jail was because his attorneys said it would benefit his civil suit if Mason (Mr. Durrett) didn’t go to jail”.

On or about March 17, 2023, Sergeant Jacob Wildauer stated Basso told him directly, “ . . . by Mason Durrett not going to jail, it would benefit his civil suit that he had pending . . .”.

Id. at 16.

[6] On July 26, 2023, the State charged Trooper Basso with Count I, perjury, a

Level 6 felony, on the grounds that Trooper Basso “did make a false, material

statement under oath or affirmation, in the criminal sentencing proceeding . . . ,

knowing the statement to be false or not believing it to be true.” Id. at 12. The

State also charged Trooper Basso with Count II, official misconduct, a Level 6

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 4 of 12 felony, for committing perjury “in the performance of his official duties.” Id. at

13.

[7] On October 6, 2023, Trooper Basso filed a motion to dismiss the charges.

Trooper Basso “assume[d]” that the basis for the perjury charge was Trooper

Basso’s “change in opinion” regarding whether Durrett deserved jail time. Id.

at 46. Trooper Basso argued that the perjury charge should be dismissed

because the facts “do not constitute an offense” and that the official misconduct

charge should be dismissed because it relied upon the perjury charge. Id. at 42.

[8] In response, the State argued that the perjury charges were not based upon

Trooper Basso’s change in opinion regarding whether Durrett should serve jail

time. Rather, the perjury charges were based on the fact that, according to the

State, Trooper Basso denied under oath that his change in opinion “had

anything to do with the potential outcome” of Trooper Basso’s civil case. Id. at

55. The State argued, “The reason[] for the change is a completely different

inquiry than the change itself.” Id. at 59.

[9] The trial court held a hearing on Trooper Basso’s motion to dismiss on

December 7, 2023, and on January 2, 2024, the trial court issued an order

denying the motion. The trial court certified the matter for interlocutory

appeal, and this Court accepted interlocutory jurisdiction on March 22, 2024.

Discussion and Decision [10] Trooper Basso argues that the trial court erred by denying his motion to

dismiss. We agree. Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 5 of 12 I. Standard of Review

[11] We review a trial court’s ruling on a motion to dismiss criminal charges for an

abuse of discretion. State v. S.T., 82 N.E.3d 257, 259 (Ind. 2017). An abuse of

discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances or when the trial court misinterprets the

law. Armes v. State, 191 N.E.3d 942, 946 (Ind. Ct. App. 2022), trans. denied. We

review questions of law de novo. Id.

[12] Indiana Code Section 35-34-1-4(a) governs motions to dismiss in criminal cases

and provides, in relevant part:

The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds:

*****

(5) The facts stated do not constitute an offense.

(11) Any other ground that is a basis for dismissal as a matter of law.

[13] In determining whether the facts constitute an offense, we ask “‘whether the

charging information adequately alleges that a crime has been committed.’”

State v. Sturman, 56 N.E.3d 1187, 1198 (Ind. Ct. App. 2016) (quoting Delagrange

v. State, 951 N.E.2d 593, 595 (Ind. Ct. App. 2011), trans. denied). We “consider

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 6 of 12 both the charging [i]nformation and the probable cause affidavit to determine

whether the alleged facts constitute an offense.” Id.

II. The trial court abused its discretion by denying the motion to dismiss.

[14] Here, the facts are undisputed, and we are faced with a question of law as to

whether the facts as alleged in the charging documents constitute an offense.

We conclude that they do not and that the trial court, therefore, abused its

discretion by denying Trooper Basso’s motion to dismiss.

[15] Perjury is governed by Indiana Code Section 35-44.1-2-1, which provides, in

relevant part, that a person who, “makes a false, material statement under oath

or affirmation, knowing the statement to be false or not believing it to be true . .

. commits perjury, a Level 6 felony.” Ind. Code § 35-44.1-2-1(a)(1). To

constitute perjury, the statement must be “a statement of fact and not a

conclusion, opinion, or deduction from given facts.” Barker v. State, 681 N.E.2d

727, 729 (Ind. Ct. App. 1997) (quoting Blackburn v. State, 495 N.E.2d 806, 808

(Ind. Ct. App. 1986), trans. denied). Moreover, the statement must be “clear and

direct, and not implied or suggested.” Id. (citing Griepenstroh v. State, 629

N.E.2d 887, 890 (Ind. Ct. App. 1994), trans. denied). “It is well-settled that

confusion or inconsistency alone is not enough to prove perjury.” Daniels v.

State, 658 N.E.2d 121, 123 (Ind. Ct. App. 1995) (citing Dunnuck v. State, 644

N.E.2d 1275, 1280 (Ind. Ct. App. 1994), trans. denied; see also Fadell v. State, 450

N.E.2d 109, 114 (Ind. Ct. App. 1983)).

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 7 of 12 [16] As for the statute’s mens rea requirement, the defendant must knowingly give the

false statement. See Grand Jury Law and Practice § 11:6 (2d ed.) (“The most

basic element of modern perjury statutes is the requirement that the statement

at issue be false and that the witness know that it is false at the time it is

made.”). As defined by our legislature, “[a] person engages in conduct

‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2.

A. A crime victim does not commit perjury merely by changing his or her opinion regarding the proper punishment for the defendant at the defendant’s sentencing hearing.

[17] Here, Trooper Basso frames the issue as whether the State can charge a crime

victim with perjury merely because the crime victim has changed his or her

opinion regarding the proper punishment for his or her perpetrator. We agree

that this is not a proper basis for a perjury charge. Indiana courts have

historically held that, “[o]rdinarily perjury cannot be predicated on the

statement of an opinion.” Mannos v. Bishop-Babcock-Becker Co., 104 N.E. 579,

581 (Ind. 1914). A statement of opinion, such as one regarding the proper

sentence for a defendant, is not a statement of fact that can be proven false in a

perjury prosecution.

[18] Moreover, crime victims play an important role in criminal prosecutions. Our

Indiana Constitution recognizes that “[v]ictims of crime, as defined by law,

shall have the right to be treated with fairness, dignity, and respect throughout

the criminal justice process; and, as defined by law, to be informed of and

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 8 of 12 present during public hearings and to confer with the prosecution, to the extent

that exercising these rights does not infringe upon the constitutional rights of

the accused.” Ind. Const. Art. 1, § 13(b); see also Dunn v. State, 33 N.E.3d 1074,

1077 (Ind. Ct. App. 2015) (Barnes, J., dissenting) (noting that, although

“victims do not control the prosecution or plea bargaining processes, they do

have the right to have their opinion considered by the prosecuting attorney”).

As time passes, heated feelings cool, and old wounds heal, it is not unusual for

crime victims to see in a new light the perpetrator of a crime against them. A

crime victim does not commit perjury merely by changing his or her opinion

regarding the proper punishment for the defendant at the defendant’s

sentencing hearing.

B. The facts as alleged in the charging documents do not constitute perjury.

[19] The State, however, argues that Trooper Basso’s change in opinion is not the

basis for the perjury charge here. According to the State, Trooper Basso

committed perjury by misrepresenting, under oath, that his changed opinion

was not based on his civil case.

[20] We reject the State’s argument for several reasons. First, the question to

Trooper Basso at the sentencing hearing was confusingly worded. Durrett’s

counsel asked Trooper Basso if his opinion regarding jail time “wouldn’t

change if there was a positive or a negative resolution in [the] civil matter.”

Appellant’s App. Vol. II p. 16. The question calls for Trooper Basso to

speculate regarding whether his opinion regarding Durrett’s sentence would

change based on the future outcome of the civil case. Despite the State’s desire Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 9 of 12 to contort this question, Trooper Basso simply was not asked whether his

present opinion regarding Durrett’s sentence was based on the civil case as it

stood then.

[21] According to the State, after the sentencing hearing, Trooper Basso told other

troopers that it would benefit his civil suit if Durrett did not serve jail time.

Trooper Basso’s statements to the other troopers, however, are not inconsistent

with the question he was asked on the stand.

[22] We find Barker v. State, 681 N.E.2d 727 (Ind. Ct. App. 1997), persuasive here.

In that case, Barker “pled guilty to possessing, with intent to sell, an

automobile engine with an obliterated vehicle identification number” in

violation of federal law. Id. at 728 (emphasis added). Years later, Barker

submitted a business license renewal application in which he denied that he had

any criminal convictions “for any violation of state or federal laws concerning

the sale, distribution, financing, or insuring of motor vehicles.” Id. (emphasis

added). The State charged Barker with perjury, and he was convicted at trial.

[23] On appeal, we held that the evidence was insufficient to support the perjury

conviction. We held that an automobile engine did not meet the statutory

definition for a motor vehicle. We also rejected the State’s argument that

Barker need not have committed a crime that concerned a motor vehicle so

long as the “violated law itself in some way concerned the sale, distribution,

financing, or insuring of automobiles.” Id. at 729. We held that it was not

Barker’s duty, in submitting the license application, “to elucidate to the Bureau

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 10 of 12 of Motor Vehicles that his federal conviction was under a law which, in other

particulars not relevant to his own case, did concern the sale of motor vehicles.”

Id.

[24] Like in Barker, there is simply a mismatch between the question Trooper Basso

was actually asked and the one the State contends he was asked. See also United

States v. Brown, 843 F.3d 738, 743 (7th Cir. 2016) (noting that, under federal

perjury statute, “when a line of questioning ‘is so vague as to be fundamentally

ambiguous, the answers associated with the questions posed may be insufficient

as a matter of law to support the perjury conviction’”) (quoting United States v.

Lighte, 782 F.2d 367, 375 (2d Cir. 1986)). Trooper Basso could not have

misrepresented that his change in opinion since the deposition was due to the

civil case because he was not asked that question to begin with. We, thus,

decline the State’s invitation to shoehorn Trooper Basso’s testimony into a

question that was not asked. The undisputed facts of this case do not constitute

perjury as a matter of law.

[25] The State also charged Trooper Basso with official misconduct on the grounds

that Trooper Basso committed perjury while in the performance of his official

duties. See Ind. Code § 35-44.1-1(1) (providing that “[a] public servant who

knowingly or intentionally . . . commits an offense in the performance of the

public servant’s official duties . . . commits official misconduct, a Level 6

felony). Because we conclude that the facts of this case do not constitute

perjury, the facts necessarily do not constitute official misconduct. The trial

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 11 of 12 court abused its discretion by denying Trooper Basso’s motion to dismiss.

Accordingly, we reverse.

Conclusion [26] The trial court abused its discretion by denying Trooper Basso’s motion to

[27] Reversed.

Crone, J., and Bradford, J., concur.

ATTORNEYS FOR APPELLANT James H. Voyles, Jr. Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-500 | September 24, 2024 Page 12 of 12