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

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.
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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
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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
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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.
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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 §
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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.
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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
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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.
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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.
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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.
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