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 

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
2

Case Summary

Stephen T. Perosky was convicted after a jury trial of Disarming a Law Enforcement 

Officer as a Class C felony,1two counts of Battery as Class D felonies,2and two counts of 

Resisting Law Enforcement as Class D felonies,3and 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.
3

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 
4

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.
5

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
6

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 
7

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 
8

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
9

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 twostep 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 
10

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 
11

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 
12

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 
13

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.