Carlester Tapp v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 26, 2019
• Docket: 19A-CR-725
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 26 2019, 9:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Talisha Griffin Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Indianapolis, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carlester Tapp, September 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-725 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose D. Salinas, Appellee-Plaintiff. Judge

Trial Court Cause No. 49G14-1711-F6-45930

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019 Page 1 of 5 Case Summary [1] Carlester Tapp was charged with and convicted of Class A misdemeanor

refusing to leave an emergency incident area after he refused to leave the scene

of an active arson investigation. On appeal, Tapp challenges the sufficiency of

the evidence to sustain his conviction. We affirm.

Facts and Procedural History [2] During the early morning hours of November 29, 2017, the Indianapolis Fire

Department (“IFD”) was dispatched to a residence on North LaSalle Street.

Upon arriving at the residence, firefighters observed that it appeared to have

been divided into two apartments, “there was a stream of light visible in the

haze” coming from one of the apartments, and “it didn’t appear that there was

a raging fire going on.” Tr. p. 94. The firefighters entered the hazy apartment

and discovered that “somebody had tried to set a small fire in a pile of clothing

or a bag of some kind of linen.” Tr. p. 95. The fire had been set “in an area

where a dishwasher might go, but the [apartment] appeared to be vacant.” Tr.

p. 95. The fire “had actually burnt through a waterline and put itself out.” Tr.

p. 95. After determining that the fire appeared to have been intentionally set,

IFD Captain Chris Major initiated an arson investigation and requested an

arson investigator. Tr. p. 95.

[3] Because of the ongoing arson investigation, Captain Major and the other

responding firefighters remained at the scene until the arson investigator arrived

Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019 Page 2 of 5 “for continuity of the evidence.” Tr. p. 96. Captain Major walked to the back

of the residence and observed Tapp standing approximately forty feet behind

the residence. Captain Major asked Tapp if he lived at the residence. Tapp did

not respond. Believing that Tapp might not have heard him due to the distance

between them, Captain Major “flashed” his flashlight “to get [Tapp’s]

attention.” Tr. p. 98. Tapp responded by telling Captain Major to “[g]et that

f[******] light out of my face.” Tr. p. 98. After Tapp repeated this statement

for a second time, Captain Major “knew the conversation wasn’t going

anywhere.” Tr. p. 99. He attempted to de-escalate the situation by turning

around and walking back to the front of the residence. Captain Major then

asked for dispatch “to send a police unit.” Tr. p. 99.

[4] Approximately three to five minutes later, Tapp came around to the front of the

residence, got within “two to three feet” of Captain Major, and, in an agitated

and threatening manner, said “were you the one that shined that light in my

face?” Tr. p. 100. As Tapp confronted Captain Major, Indianapolis

Metropolitan Police Officer Cory Lindley and the arson investigator arrived.

Officer Lindley placed Tapp under arrest after Tapp refused numerous requests

to identify himself and to leave. Officers recovered a small plastic baggie

containing three rocks of heroin during a search incident to Tapp’s arrest.

[5] On November 29, 2017, the State charged Tapp with Count I – Level 6 felony

possession of a narcotic, Count II – Class A misdemeanor obstructing a

firefighter, and Count III – Class A misdemeanor refusing to leave an

emergency incident area. Following a jury trial, he was found guilty of Counts

Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019 Page 3 of 5 I and III and not guilty of Count II. The trial court subsequently sentenced

Tapp to a 730-day sentence for the Level 6 felony conviction and a concurrent

120-day sentence for the Class A misdemeanor conviction.

Discussion and Decision [6] Tapp contends that the evidence is insufficient to sustain his conviction for

Class A misdemeanor refusing to leave an emergency incident area.

We do not reweigh evidence or reassess the credibility of witnesses when reviewing a conviction for the sufficiency of the evidence. We view all evidence and reasonable inferences drawn therefrom in a light most favorable to the conviction, and will affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation

omitted).

[7] “A person who is not a firefighter who knowingly or intentionally refuses to

leave an emergency incident area immediately after being requested to do so by

a firefighter or law enforcement officer commits a Class A misdemeanor.” Ind.

Code § 35-44.1-4-5. An “emergency incident” includes: (1) a structure or

vehicle that is on fire; (2) a motor vehicle accident; (3) an accident involving

hazardous materials; (4) a crime scene; (5) a police investigation; and (6) a

location where an individual is being arrested.” Ind. Code § 35-44.1-4-1.5. In

Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019 Page 4 of 5 challenging the sufficiency of the evidence to sustain his conviction, Tapp

argues that the State failed to prove that he refused to leave an emergency

incident area. We disagree.

[8] The evidence reveals that Tapp refused to leave the scene of an arson

investigation after being instructed to do so by a law enforcement officer.

Pursuant to Indiana Code section 35-43-1-1, arson is a criminal act. Therefore,

the scene of an arson investigation can be reasonably labeled as a crime scene,

i.e., the location where the criminal act was committed. Tapp’s claim that the

scene of the arson investigation was not a crime scene is without merit and

amounts to little more than an invitation to reweigh the evidence, which we

will not do. See Walker, 998 N.E.2d at 726.

[9] The judgment of the trial court is affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019 Page 5 of 5