Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 1 of 16

ATTORNEY FOR APPELLANT

P. Jeffrey Schlesinger

Office of the Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Nicholas Pelissier,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 25, 2019

Court of Appeals Case No.

18A-CR-710

Appeal from the Lake Superior 

Court

The Honorable Salvador Vasquez, 

Judge

Trial Court Cause No.

45G01-1702-MR-3

May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 2 of 16

[1] Nicholas Pelissier appeals his convictions of and sentences for murder1 and 

Level 1 felony attempted murder.2

 He raises three issues, which we restate as:

1. Whether the trial court abused its discretion when it admitted 

into evidence videotaped recordings of witness Kendall Vaughn’s 

prior statements to police;

2. Whether the trial court abused its discretion when it admitted 

into evidence the photo array from which Detective Jeffrey 

Minchuck testified Vaughn identified Pelissier as one of the 

shooters; and

3. Whether Pelissier’s aggregate sentence of eighty-five years is 

inappropriate based on the nature of the offense and Pelissier’s 

character.

We affirm.

Facts and Procedural History3

[2] On November 12, 2016, Timothy Fryerson and his friend, Jondell Golinda, 

walked to a gas station near Golinda’s house and purchased cigarettes and 

snacks. As they left the gas station and were walking across the parking lot, a 

red Dodge Durango SUV was at one of the gas pumps. Someone in the SUV 

 

1 Ind. Code § 35-42-1-1 (2014).

2 Ind. Code § 35-42-1-1 (2014) (murder); Ind. Code § 35-41-5-1 (2014) (attempt).

3 We held oral argument in this case on March 7, 2019, at Valparaiso High School. We thank administration 

for their hospitality and counsel for their able presentations.
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 3 of 16

said something to Fryerson and Golinda, to which they did not respond. The 

rear door of the SUV opened, and William Galloway exited the SUV and 

displayed a gun. Golinda and Fryerson continued walking.

[3] Fryerson called his father and told him to “be looking out for [him,] at least 

they’ll know if anything happen[ed] to [him].” (Tr. Vol. II at 157.) As 

Fryerson and Golinda turned the corner to walk down another street, they 

noticed the SUV was following them. The SUV stopped, and the two back 

doors opened. Fryerson and Golinda ran away from the SUV, towards 

Fryerson’s house. As he was running, Fryerson was shot once in the back, 

“had a stroke and . . . blacked out.” (Id. at 163.) 

[4] Fryerson’s mother, who was at the family home, heard gunshots and ran 

outside. She ran down the street and found Fryerson in the gutter. Fryerson’s 

brother called the police. An ambulance transported Fryerson to a hospital in 

Chicago, where he remained for about a month. Fryerson was placed in a 

medically-induced coma for a period of time and experienced partial paralysis 

as a result of his injuries. The doctor who treated Fryerson testified that 

without medical intervention “it’s very likely he would have died.” (Tr. Vol. III 

at 178.)

[5] Officers found Golinda further down the street from where Fryerson fell. 

Golinda had been shot ten times and died as a result of his wounds. Police 

found eight 10-millimeter cartridge cases at the scene of the shooting, all of 

which had been fired from the same gun. The police also found three 45-caliber 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 4 of 16

cartridge cases that also had been fired from a single gun. Police also located a 

mutilated spent bullet from a 40-caliber firearm that did not match the firearm 

associated with the other shell casings found at the scene.

[6] Gary Police Officer Marcus Harris viewed the surveillance footage from the gas 

station and watched the interaction between the SUV and the victims. After 

viewing the video, Officer Harris drove around the neighborhood looking for 

the SUV. He located the SUV in front of a residence about five to six blocks 

away from the gas station. Another officer arrived on the scene with his K-9 

partner, and the dog led the officers to the front door of a nearby house. After 

speaking with the owner of the SUV and obtaining consent, police towed the 

SUV to the crime lab for investigation. In the SUV, officers found Pelissier’s 

fingerprint on one of the rear passenger doors.

[7] During the investigation, police interviewed Tammarshea Jones after 

connecting her to the SUV. Jones told police she was in the SUV at the time of 

the shooting. She said the other occupants of the SUV were her boyfriend, 

Kendall Vaughn, William Galloway, and a “light-skinned dude.” (State’s Ex. 

8.) Jones told police Galloway and the “light-skinned dude” were the shooters. 

(Id.) Jones knew the “light-skinned guy” as “Freaky” and she reported Freaky 

returned to the SUV after the shooting and said, “I got his ass.” (Id.) At trial, 

Jones identified Pelissier as the “light-skinned dude” she referred to during her 

interview with police. (Tr. Vol. V at 96.)
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 5 of 16

[8] Police interviewed Jones’ boyfriend, Vaughn, on November 13, 2016, and 

January 27, 2017. During those interviews, Vaughn identified Pelissier and 

Galloway as the shooters. During the second interview, Vaughn looked at a 

photo array and identified a person he knew as “Freaky” as one of the shooters. 

He wrote on the photo array, next to Pelissier’s picture, “kill[ed] the boy.” 

(State’s Ex. 107.) During trial, Vaughn identified Pelissier as the person he 

knew as “Freaky.” (Id. at 198.) 

[9] On February 1, 2017, the State charged Pelissier with murder and Level 1 

felony attempted murder. The trial court held a jury trial from January 8 to 

January 16, 2018. At trial, Vaughn claimed he did not remember what he was 

doing on the day of the shooting, he did not remember what he said when he 

gave statements to the police in November 2016 and January 2017, and he did 

not remember anything related to the shooting. Over Pelissier’s objection, the 

trial court admitted the video recordings of his statements to police in 

November 2016 and January 2017. At trial, when asked if Pelissier was in the 

SUV on the date of the shooting, Vaughn answered, “Not sure. No.” (Tr. Vol. 

V at 203.) During Vaughn’s testimony, Pelissier moved for a mistrial, moved to 

exclude evidence, and asked to be able to depose Vaughn. The trial court 

denied all three requests.

[10] The trial court also admitted, over Pelissier’s objection, the photo array with 

Pelissier in it, and Detective Jeffrey Minchuk was permitted to testify that 

Vaughn wrote on the photo array next to Pelissier’s picture, “kill[ed] the boy.” 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 6 of 16

(Tr. Vol. VI at 20.) Detective Minchuk also identified Pelissier as an 

“individual near the vehicle” on the gas station surveillance tape. (Id. at 24.)

[11] The jury returned guilty verdicts for Pelissier on both counts. On February 15, 

2018, the trial court sentenced Pelissier to fifty-five years for murder, to be 

served consecutive to a sentence of thirty years for Level 1 felony attempted 

murder, for an aggregate sentence of eighty-five years incarcerated.

Discussion and Decision

Admission of Evidence

[12] We review evidentiary rulings for an abuse of discretion. Pavlovich v. State, 6 

N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion 

occurs if the trial court misinterpreted the law or if its decision was clearly 

against the logic and effect of the facts and circumstances before it. Id.

Recordings of Vaughn

[13] At trial, Vaughn testified he could not remember the events of the night of the 

shooting or any details of the subsequent statements he made to police in 

November 2016 and January 2017. Thus, the State sought to admit those 

statements via Indiana Evidence Rule 803(5), which provides for various 

exceptions to the rule against hearsay. The Rule states, in relevant part:

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness:
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 7 of 16

* * * * *

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now 

cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter 

was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be 

received as an exhibit only if offered by an adverse party.

Indiana Evidence Rule 803(5). The parties appear to agree that the first two 

requirements for admission under Indiana Evidence Rule 803(5) were satisfied, 

but they disagree about the third requirement, that the recorded recollection 

accurately reflects the witness’s knowledge.

[14] “[B]efore a statement can be admitted under the recorded recollection hearsay 

exception, certain foundational requirements must be met, including some 

acknowledgment that the statement was accurate when it was made.” Williams 

v. State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998), reh’g denied, trans. denied. 

“A trial court should not admit a witness’s statement into evidence when the 

witness cannot vouch for the accuracy of the statement nor remember having 

made the statement.” Ballard v. State, 877 N.E.2d 860, 862 (Ind. Ct. App. 

2007). 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 8 of 16

[15] Pelissier argues our holding in Ballard controls. In that case, the trial court 

convicted Ballard of Class C felony battery based in part on the testimony of the 

victim, Alisa Hatchett. During Ballard’s bench trial, the State called Hatchett 

to testify. Hatchett “claimed to have no memory of the night in question.” Id. 

at 861. Over Ballard’s objection, the trial court permitted the State to read,

pursuant to Indiana Evidence Rule 803(5), the recorded recollection hearsay 

exception, excerpts of an earlier interview Hatchett had given shortly after the 

incident to Detective Douglas Wright. Id. 

[16] On appeal, Ballard argued, like Pelissier does here, that “the State failed to lay a 

proper foundation for the introduction of the prior recorded statement pursuant 

to Evid. R. 803(5).” Id. at 863. Our court determined the State did not lay a 

sufficient foundation for the admission of the evidence, because Hatchett 

repeatedly testified she did not remember the incident and she did not 

remember what she said to Detective Wright. Id. As she did not “vouch for the 

accuracy of the statement to Detective Wright - a statement that she did not 

remember making . . . the excerpts from the transcribed statement should not 

have been admitted under Evid. R. 803(5).” Id.

[17] The facts in Ballard are distinguishable. First, the inadmissible statement in 

Ballard was written and here the statement was recorded on video. 

Additionally, in Ballard, Hatchett “denied knowing whether she had spoken to 

a detective” about the night in question, and asserted “that she probably said a 

lot of things . . . that were not true.” Ballard, 877 N.E.2d at 863. Here, Vaughn 

never indicated what he said was not true, and “repeatedly stated that he had 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 9 of 16

already answered the questions and referred the questioner to the video[.]” (Br. 

of Appellee at 12.) Finally, Hatchett testified “that her daily habit of drinking 

gin caused her memory to lapse” and she might have given “an inaccurate 

account of the evening in question.” Id. However, as part of his statement on 

November 2016, Vaughn indicated he was telling the truth. (State’s Ex. 111.)

[18] An error in admitting evidence does not require reversal unless it affects the 

substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001). 

“The improper admission of evidence is harmless error when the conviction is 

supported by such substantial independent evidence of guilt as to satisfy the 

reviewing court that there is no substantial likelihood that the questioned 

evidence contributed to the conviction.” Barker v. State, 695 N.E.2d 925, 931 

(Ind. 1998), reh’g denied. The erroneous admission of evidence may also be 

harmless if that evidence is cumulative of other evidence admitted. Donaldson v.

Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).

[19] In her video-recorded interview with police, the admission of which Pelissier 

does not challenge, Jones stated one of the shooters was a “light skinned dude.” 

(State’s Ex. 108.) At trial, Jones identified Pelissier as the “light skinned dude.” 

(Tr. Vol. V at 96.) Additionally, Pelissier’s fingerprint was found on one of the 

rear doors of the SUV, and one of the victims testified that the shooters both 

came out the rear doors of the SUV. Based thereon, we conclude that any error 

in the admission of Vaughn’s videotaped statements was harmless because the 

evidence in question was cumulative of other properly-admitted evidence. See 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 10 of 16

Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000) (“Evidence that is merely 

cumulative is not grounds for reversal.”).

Photo Array

[20] Relatedly, Pelissier argues the trial court abused its discretion when it admitted 

the photo array with “kill[ed] the boy” written next to Pelissier’s picture and 

Detective Minchuk’s testimony that Vaughn wrote that on the photo array. 

When the photo array was admitted, Pelissier objected, stating: 

[Pelissier]: On State’s Number 107 [the photo array], I would 

object in that we’ve had [Vaughn] testify as to he circled a picture 

and he acknowledged signing it. I don’t recall [Vaughn] 

testifying that he, in fact, wrote these words on here, number 4 is 

the man how kill the boy [sic].

[State]: Your Honor, Mr. Vaughn testified that he 

recognized that document as the photographic lineup that he 

reviewed during that second interview. Further, Detective 

Minchuk was present during this interview. He was the one who 

prepared it and showed it to Mr. Vaughn. And, therefore, I 

believe sufficient foundation has been laid for the admission of 

State’s Exhibit 107.

[Pelissier]: I think identifying the person as number 4 is 

different than adding the subsequent statement that is very 

prejudicial to the defendant without authentication by Mr. 

Vaughn of that statement.

[Court]: It’s true that Vaughn never identified that extra 

language. Foundation has been met to allow 107 to be admitted.
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 11 of 16

[State]: Your Honor, once more I would note that we 

watched today an interview where it’s -- you can clearly see 

Kendall Vaughn making those notes on that document.

[Pelissier]: We don’t know what Kendall Vaughn is stating --

writing on the document. We hear him say write your name and 

date it. We don’t know what words are being written. The 

camera is not on his handwriting at that time. And to admit this 

additional language is more prejudicial than probative. He 

acknowledges that he circled the -- the picture. He acknowledged 

that he said that was Freaky. He acknowledged that he dated 

and signed. But that exact language, we don’t have that -- that 

verification.

[State]: This fails to mention that the detective also 

instructed Kendall Vaughn to write on that piece of paper how he 

knows or recognizes the individual.

[Court]: That did come out during that tape. Okay. Your 

objection is noted and it’s overruled.

(Tr. Vol. VI at 14-6.)

Regarding the markings on the photo array, Detective Minchuk testified:

[State]: And to the best of your knowledge did [Vaughn] 

also make the markings on the upper right-hand portion of 

State’s Exhibit 107 [the photo array]?

[Minchuk]: Yes, sir.

[State]: Did he make those in your presence?
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 12 of 16

[Minchuk]: Yes, sir.

[State]: And what does that indicate?

[Minchuk]: “Number 4 is the man --” it appears, “how killed the 

boy,” or now killed the boy.

(Id. at 20.) Detective Minchuk then testified that “Number 4” was Pelissier. 

(Id.)

[21] Pelissier contends on appeal, as he did before the trial court, that the State did 

not provide sufficient foundation to prove that Vaughn wrote “Number 4 is the 

man how kill[ed] the boy[,]” (State’s Ex. 107) (errors in original), because 

Vaughn never testified that he wrote those words on the photo array. Pelissier 

reiterates his argument regarding the inadmissibility of Vaughn’s videotaped 

statements. Additionally, Pelissier directs us to inconsistencies in Vaughn’s 

testimony such as Vaughn saying that Pelissier was never in the SUV, (see Tr. 

Vol. V at 203), that Vaughn testified he did not know Freaky, and that when 

Vaughn identified Pelissier in the photo array he did so because “[s]omebody 

that I asked somebody else who was Freaky and they said that -- they showed 

me a picture of that face right there. . . . They showed me a picture of this man 

right here, so I circled the picture.” (Id. at 170) (errors in original).

[22] However, as was the case with the admission of Vaughn’s videotaped 

statements, any error in the admission of the writing on the photo array is 

harmless because it is cumulative of evidence properly admitted including 

Jones’ testimony and fingerprint evidence indicating Pelissier was present in the 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 13 of 16

rear of the vehicle involved in the shooting. See Leonard v. State, 86 N.E.3d 406, 

413 (Ind. Ct. App. 2017) (error in the admission of evidence is harmless if 

cumulative of other properly admitted evidence), trans. denied.

Inappropriate Sentence

[23] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due 

consideration of the trial court’s decision, we find the sentence inappropriate in 

light of the nature of the offense and the character of the offender. Anglemyer v. 

State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 

2007). We consider not only the aggravators and mitigators found by the trial 

court, but also any other factors appearing in the record. Johnson v. State, 986 

N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, 

and our goal is to determine whether the defendant’s sentence is inappropriate, 

not whether some other sentence would be more appropriate. Conley v. State, 

972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Pelissier, as the appellant, bears 

the burden of demonstrating his sentence is inappropriate. See Childress v. State, 

848 N.E.2d 1073, 1080 (Ind. 2006) (appellant bears burden of demonstrating 

sentence is inappropriate).

[24] When considering the nature of the offense, the advisory sentence is the starting 

point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d 

at 494. The advisory sentence for Level 1 felony attempted murder is thirty 

years, with a sentencing range of twenty to forty years. Ind. Code § 35-50-2-

4(b) (2014). The advisory sentence for murder is fifty-five years, with a 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 14 of 16

sentencing range of forty-five to sixty-five years. Ind. Code § 35-50-2-3(a) 

(2015). The trial court sentenced Pelissier to the advisory sentence for each 

crime, thirty and fifty-five years respectively, to be served consecutively for an 

aggregate sentence of eighty-five years. Pelissier argues his sentence is 

inappropriate based on the nature of the offense and his character.

[25] Regarding the nature of the offense, Pelissier argues the evidence was not clear 

regarding what level of culpability was attributable to Pelissier because shell 

casings from multiple firearms were found at the scene and no one saw who 

shot the victims. However, the State presented evidence that Pelissier and 

Galloway opened fire on Fryerson and Golinda, who were unarmed; the attack 

was unprovoked; and the multitude of shots increased the possibility others 

besides the intended victims could have been harmed. Based on the nature of 

the offenses, the trial court “would have been within its discretion to impose 

terms above the advisory sentence.” (Br. of Appellee at 18.) We cannot hold 

Pelissier’s sentence inappropriate based on the nature of the offense. See 

Birdsong v. State, 685 N.E.2d 42, 48 (Ind. 1997) (advisory sentence appropriate 

for unprovoked murder).

[26] When considering the character of the offender, one relevant fact is the 

defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of 

criminal history varies based on the gravity, nature, and number of prior 

offenses in relation to the current offense. Id. Pelissier also asserts he has no 

criminal record; however, at the sentencing hearing, the parties discussed 

Pelissier’s pre-sentence investigation report, which indicated Pelissier had 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 15 of 16

“juvenile adjudications” and was “on bond for two cases[.]” (Tr. Vol. VI at 

226.) 

[27] Pelissier also emphasizes the fact that he was twenty years old when sentenced, 

and an eighty-five year sentence would mean he would be incarcerated for the 

majority of his life. However, there are a multitude of cases in which our 

appellate courts have affirmed similar sentences for offenders younger than 

Pelissier. See Monegan v. State, 756 N.E.2d 499, 504-5 (Ind. 2001) (refusing to 

consider Monegan’s age of seventeen years and eleven months as a mitigator in 

sixty-year sentence for murder); also see Spears v. State, 735 N.E.2d 1161, 1167 

(Ind. 2000) (holding an eighteen year old defendant was “beyond the age at 

which the law commands special treatment by virtue of youth”), reh’g denied; 

and see Bryant v. State, 802 N.E.2d 486, 502 (Ind. Ct. App. 2004) (noting 

“youthful age does not ‘automatically’ qualify as a significant mitigator” in 

sentence for eighteen-year-old convicted of murder), trans. denied.

[28] Pelissier also requests that we consider that he was raised without a father, was 

adjudicated a child in need of services, and had to quit school at sixteen years 

old to work to support his family. We have consistently held that “evidence of 

a difficult childhood warrants little, if any, mitigating weight. Coleman v. State, 

741 N.E.2d 697, 703 (Ind. 2000). Finally, Pelissier notes he had been regularly 

employed and financially supported his three children; however employment is 

not necessarily mitigating. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. 

App. 2003) (“Many people are gainfully employment such that this would not 

require the trial court to note it as a mitigating factor or afford it the same 
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 16 of 16

weight as Newsome proposes”), trans. denied. Additionally, two of Pelissier’s 

children were living with their respective mothers and there were no child 

support orders in place for those children, and thus no mitigating weight should 

be afforded to Pelissier’s claim that he provided financial support to his three 

children. See Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011) 

(defendant’s support of children not considered a mitigating circumstance when 

the defendant “had no court-ordered child support obligation for his children”), 

trans. denied. Based thereon, we cannot say Pelissier’s sentence is inappropriate 

based on his character. See Connor v. State, 58 N.E.3d 215, 221 (Ind. Ct. App. 

2016) (sentence not inappropriate despite arguments regarding Connor’s young 

age and difficult childhood).

Conclusion

[29] If the trial court erred in the admission of Vaughn’s videotaped statement and 

his notation on the photo array, any error was harmless because those pieces of 

evidence were cumulative of other properly-admitted evidence. Additionally, 

Pelissier’s sentence was not inappropriate based on the nature of the crime or 

his character. Accordingly, we affirm.

[30] Affirmed.

Robb, J., and Tavitas, J., concur.