Coty A. Faler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 30, 2017
• Docket: 37A03-1703-CR-548
• 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 Aug 30 2017, 6:19 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 Samantha M. Joslyn Curtis T. Hill, Jr. Law Office of Samantha M. Joslyn Attorney General of Indiana Rensselaer, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Coty A. Faler, August 30, 2017 Appellant-Defendant, Court of Appeals Case No. 37A03-1703-CR-548 v. Appeal from the Jasper Superior Court State of Indiana, The Honorable James R. Ahler, Appellee-Plaintiff Judge Trial Court Cause No. 37D01-1512-F5-923

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 1 of 10 Case Summary [1] Following a jury trial, Coty A. Faler appeals his convictions and three-year

aggregate sentence for level 5 felony battery against a public safety official, level

6 felony resisting law enforcement, class A misdemeanor criminal trespass, and

class B misdemeanor disorderly conduct. Faler claims that the State failed to

presented sufficient evidence to support his convictions. He also contends, and

the State agrees, that his convictions for battery and resisting law enforcement

violate double jeopardy principles. Finally, he argues that his sentence is

inappropriate in light of the nature of the offenses and his character. We

conclude that the evidence is sufficient to support his convictions but that the

resisting law enforcement conviction must be vacated on double jeopardy

grounds. We also conclude that Faler has failed to carry his burden to show

that his sentence is inappropriate. Therefore, we affirm his convictions and

sentence for battery, criminal trespass, and disorderly conduct, and we remand

with instructions to vacate his resisting law enforcement conviction.

Facts and Procedural History [2] The facts most favorable to the jury’s guilty verdicts follow. On December 13,

2015, Michael Garcia had a barbeque at his Rensselaer home, which was

located approximately one block from the home of Faler’s mother, Rita

Koebcke. Koebcke was engaged to Garcia and spent nights at his home.

Twenty-five-year-old Faler lived at Koebcke’s home. Koebcke and her

daughter attended the barbeque, while Faler came and went and consumed

alcohol throughout the day. That evening, Garcia and Koebcke went to bed

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 2 of 10 early at Garcia’s home because he had to work early the next morning. Faler

repeatedly went to Garcia’s home and “bang[ed]” on the front door, which

prevented Garcia from sleeping. Tr. Vol. 2 at 98. Garcia told Faler that he was

not welcome at the home “because of the display of the behavior.” Id. at 101.

Faler kept coming back and “banging on the door[,]” however, and eventually

Garcia “had enough” and called 911. Id. at 98, 88.

[3] Sergeant Matthew Anderson of the Rensselaer Police Department spoke with

Garcia, who complained that Faler was “banging on the door” and asked the

sergeant to “make contact with [Faler] to relay the message to him not to

return.” Id. at 108. Sergeant Anderson told Garcia to call if Faler returned.

The sergeant then went to Koebcke’s home and “asked [Faler] to stay away”

from Garcia’s home. Id. at 109. Faler told the sergeant that he could “go over

there whenever he wanted [to]” and slammed the door in his face. Id. Sergeant

Anderson was dispatched to a medical emergency and was informed that

Garcia had called 911 about Faler “knocking on the door again.” Id. at 108.

[4] The sergeant went by Koebcke’s home and saw Faler, who was “very worked

up[,]” yelling inside the home. Id. at 110. Officer Michael Vanderhere joined

Sergeant Anderson, and the two waited to see if Faler would return to Garcia’s

home, which he did. Faler knocked on Garcia’s front door. Sergeant Anderson

confronted him on the porch, while Officer Vanderhere waited at the bottom of

the steps. The sergeant asked Faler why he had returned “after he was asked

not to […] come back.” Id. at 111. Faler began “cussing and yelling.” Id.

Sergeant Anderson told Faler that he was under arrest. Faler reached for the

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 3 of 10 door handle. The sergeant grabbed Faler’s wrist “to prevent him from fleeing

inside the house[,]” and Faler “turned to face [him] and tried to wrestle,

struggle with [him.]” Id. at 112. Faler threatened to kill the officers, grabbed

the sergeant’s throat, and attempted to gouge his eye. Officer Vanderhere had

to tase Faler twice before he and Sergeant Anderson were able to subdue him.

The sergeant sustained scratches and redness on his cheek and throat and

experienced pain as a result of Faler’s attack.

[5] The State charged Faler with level 5 felony battery against a public safety

official, level 6 felony resisting law enforcement, class A misdemeanor criminal

trespass, and class B misdemeanor disorderly conduct. A jury found Faler

guilty as charged. The trial court entered judgment of conviction on all counts

and sentenced Faler to concurrent terms of three years for battery, with one

year suspended to probation, one year for criminal trespass, and 180 days for

disorderly conduct. The court did not sentence Faler for resisting law

enforcement and merged that conviction with the battery conviction. Based on

Faler’s “admission to having significant drug dependency problems[,]” the

court recommended that he “be placed in the Indiana Department of

Correction Therapeutic Community, where [he] shall avail himself to serve and

to participate, at a level to be determined by the Indiana Department of

Correction.” Appealed Orders at 6. Faler now appeals his convictions and

sentence.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 4 of 10 Discussion and Decision

Section 1 – The State presented sufficient evidence to support Faler’s convictions. [6] Faler contends that the State failed to present sufficient evidence to support his

convictions. In reviewing a sufficiency claim, we neither reweigh evidence nor

assess witness credibility. Bell v. State, 31 N.E.3d 495, 500 (Ind. 2015). “[W]e

consider only the evidence and reasonable inferences most favorable to the

verdict.” Wood v. State, 999 N.E.2d 1054, 1063 (Ind. Ct. App. 2013), trans.

denied (2014), cert. denied. “We must affirm if the probative evidence and

reasonable inferences drawn from the evidence could have allowed a reasonable

trier of fact to find the defendant guilty beyond a reasonable doubt.” Id. at

1063-64.

Battery against a public safety official

[7] To prove that Faller committed level 5 felony battery against a public safety

official, the State was required to show that he knowingly or intentionally

touched Sergeant Anderson, a public safety official, while engaged in his

official duties, in a rude, insolent, or angry manner that resulted in bodily

injury, i.e., scratches to the sergeant’s face and throat “and complaint of a sore

neck[.]” Ind. Code § 35-42-2-1(b)(1), -(f)(5)(A); Appellant’s App. Vol. 2 at 16

(charging information). “A person engages in conduct ‘intentionally’ if, when

he engages in the conduct, it is his conscious objective to do so.” Ind. Code §

35-41-2-2(a). “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 §

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 5 of 10 35-41-2-2(b). “‘Bodily injury’ means any impairment of physical condition,

including physical pain.” Ind. Code § 35-31.5-2-29. To qualify as bodily injury,

physical pain need not be of any particular severity or “endure for any

particular length of time. It must simply be physical pain.” Toney v. State, 961

N.E.2d 57, 59 (Ind. Ct. App. 2012).

[8] Faler claims that he did not knowingly or intentionally touch Sergeant

Anderson and that the sergeant’s injuries “were relatively insignificant[.]”

Appellant’s Br. at 12. This is merely an invitation to reweigh evidence and

assess witness credibility, which we may not do. Sergeant Anderson testified

that Faler grabbed his throat and attempted to gouge his eye, which caused

scratches, redness, and pain. Tr. Vol. 2 at 118-19. This evidence is sufficient to

support Faler’s battery conviction, and therefore we affirm it.

Resisting law enforcement

[9] To prove that Faler committed level 6 felony resisting law enforcement, the

State was required to show that he knowingly or intentionally forcibly resisted,

obstructed, or interfered with Sergeant Anderson while the sergeant was

lawfully engaged in the execution of his duties, and that Faler inflicted bodily

injury on the sergeant while committing the offense. Ind. Code § 35-44.1-3-

1(a)(1), -(b)(1)(B). Faler claims that he did not knowingly or intentionally

forcibly resist Sergeant Anderson, which is contrary to the sergeant’s testimony

at trial. That testimony is sufficient to support Faler’s conviction, but we must

vacate it on double jeopardy grounds as explained below.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 6 of 10 Criminal trespass

[10] To prove that Faler committed class A misdemeanor criminal trespass, the

State was required to show that he knowingly or intentionally entered Garcia’s

real property, while not having a contractual interest in that property, and after

having been denied entry by Garcia or Garcia’s agent. Ind. Code. 35-43-2-2(b).

Faler does not dispute that Garcia owned the property where the incident

occurred, that he had no contractual interest in Garcia’s property, that Garcia

told him to leave the property, or that he knowingly or intentionally entered the

property after Garcia told him to leave. He does, however, note that both he

and his mother testified that she texted him moments before his arrest and

asked him to come to Garcia’s home so that she could take him to his former

stepfather’s home; he claims that she thus extended him a valid invitation as

Garcia’s agent. Garcia testified that he had no knowledge of the invitation, and

Faler cites no authority for the proposition that his mother could be considered

Garcia’s agent for purposes of the criminal trespass statute. More to the point,

Faler’s argument is merely another invitation to reweigh evidence and assess

witness credibility, which we may not do. Therefore, we affirm this conviction.

Disorderly conduct

[11] To prove that Faler committed class B misdemeanor disorderly conduct, the

State was required to show that he knowingly or intentionally made an

unreasonable noise, i.e., knocking repeatedly on Garcia’s door, and that he

continued to do so after being asked to stop. Ind. Code 35-45-1-3(a)(2);

Appellant’s App. Vol. 2 at 19 (charging information). Faler does not dispute

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 7 of 10 that he knocked repeatedly on Garcia’s door, that the noise was unreasonable,

or that he continued knocking after being asked to stop. Faler’s argument, such

as it is, again invites us to reweigh evidence and assess witness credibility,

which we may not do. Accordingly, we affirm this conviction.

Section 2 – Faler’s resisting law enforcement conviction must be vacated on double jeopardy grounds. [12] Faler argues that his convictions for battery against a public safety official and

resisting law enforcement violate Indiana double jeopardy principles because

there is a reasonable possibility that the jury used the same evidence to find him

guilty of both offenses. See Appellant’s Br. at 14 (citing actual evidence test of

Richardson v. State, 717 N.E.2d 32 (Ind. 1999)). Faler also raised this argument

at the sentencing hearing, and the prosecutor agreed but suggested that merging

the convictions would cure the double jeopardy violation. On appeal, the State

properly concedes the violation and that only vacating the resisting law

enforcement conviction will cure it. See Gregory v. State, 885 N.E.2d 697, 703

(Ind. Ct. App. 2008) (“A double jeopardy violation occurs when judgments of

conviction are entered and cannot be remedied by the practical effect of

concurrent sentences or by merger after conviction has been entered.”) (citation

and quotation marks omitted), trans. denied (2009). Therefore, we remand with

instructions to vacate that conviction.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 8 of 10 Section 3 – Faler has failed to carry his burden to establish that his sentence is inappropriate in light of the nature of the offenses and his character. [13] Faler asks us to reduce his three-year aggregate sentence pursuant to Indiana

Appellate Rule 7(B), which provides that we may revise a sentence authorized

by statute if, after due consideration of the trial court’s decision, we find “that

the sentence is inappropriate in light of the nature of the offense and character

of the offender.” “Our supreme court has explained that the principal role of

appellate review should be to attempt to leaven the outliers, ‘not to achieve a

perceived “correct” result in each case.’” Perry v. State, 78 N.E.3d 1, 12 (Ind.

Ct. App. 2017) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).

“In conducting our review, we do not look to see whether the defendant’s

sentence is appropriate or if another sentence might be more appropriate; rather,

the test is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d

306, 315 (Ind. Ct. App. 2013), trans. denied (2014). We may take into account

whether a portion of the sentence is suspended or is otherwise crafted using any

of the sentencing tools available to trial courts. Perry, 78 N.E.3d at 13. Faler

bears the burden of persuading us that his sentence is inappropriate. Id.

[14] Faler received the advisory sentence for a level 5 felony, which is three years,

one year of which was suspended to probation. Ind. Code § 35-50-2-6(b).1

1 The sentencing range for a level 5 felony is one to six years. Ind. Code § 35-50-2-6(b). Because the concurrent sentences for Faler’s other convictions do not exceed the potential minimum sentence for his battery conviction, we need not address them here.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 9 of 10 Because the advisory sentence is the starting point that our legislature has

selected as an appropriate sentence for the crime committed, “the defendant

bears a particularly heavy burden in persuading us that his sentence is

inappropriate when the trial court imposes the advisory sentence.” Fernbach v.

State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Faler has failed

to carry that burden here. His minimal argument regarding the nature of the

offenses casts blame on his voluntary alcohol consumption and Sergeant

Anderson, and his argument regarding his character acknowledges his juvenile

history (including adjudications for burglary and theft, plus a probation

revocation) and adult criminal history (including convictions for criminal

mischief and class C felony possession of a controlled substance, plus pending

charges for leaving the scene of an accident). Faler argues that the trial court

“had other alternatives for sentencing which would have been more

appropriate[,]” Appellant’s Br. at 16, but the proper question is whether the

sentence that he received is inappropriate. Barker, 994 N.E.2d at 315. Faler has

failed to persuade us that it is, and therefore we affirm it.

[15] Affirmed in part and remanded in part.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 37A03-1703-CR-548 | August 30, 2017 Page 10 of 10