Tavitas, J.
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.
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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 both the charging [i]nformation and the probable cause affidavit to determine whether the alleged facts constitute an offense.” Id.
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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.
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 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.
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.
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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.
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 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.
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.
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 abused its discretion by denying Trooper Basso’s motion to dismiss. Accordingly, we reverse.
The trial court abused its discretion by denying Trooper Basso’s motion to dismiss. Accordingly, we reverse.
Reversed.
Crone, J., and Bradford, J., concur.