Carlester Tapp 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 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
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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
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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.
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