MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                               Oct 10 2017, 9:20 am
the defense of res judicata, collateral                                         CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael C. Keating                                       Curtis T. Hill, Jr.
Yvette M. LaPlante                                       Attorney General of Indiana
Keating & LaPlante, LLP
                                                         Laura R. Anderson
Evansville, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian J. Oberst,                                         October 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A04-1704-CR-800
        v.                                               Appeal from the Warrick Circuit
                                                         Court
State of Indiana,                                        The Honorable Greg A. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         87C01-1502-F6-69



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017              Page 1 of 8
[1]   Brian Oberst (“Oberst”) appeals his conviction for Class A misdemeanor

      impersonating a public servant, claiming the evidence was insufficient to

      support the verdict.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On January 27, 2015, Indiana State Police (“ISP”) Trooper Ryan Wilson

      (“Trooper Wilson”) was parked on the side of the road when he noticed

      Oberst’s vehicle speeding towards him. Trooper Wilson activated his radar unit,

      determined Oberst was traveling 19 m.p.h. over the speed limit, and then

      initiated a traffic stop. As Trooper Wilson exited his vehicle, he noticed Oberst

      holding a badge out of the driver side window. It was a Vanderburgh County

      Deputy Prosecutor’s badge.


[4]   Once Trooper Wilson reached the vehicle, Oberst told him that, “he was with

      the . . . Vanderburgh County Prosecutor’s Office.” Tr. p. 9. After Oberst told

      Trooper Wilson he was a Deputy Prosecutor, Trooper Wilson released him

      without issuing a citation. Once he was free to go, Oberst called his friend Toby

      Shaw and told him that he had just been pulled over by a state trooper and that

      he “got out of the ticket.” Tr. p. 24.




      Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017   Page 2 of 8
[5]   A couple weeks later, ISP Trooper Paul Stoltz notified Trooper Wilson of a

      similar incident involving Oberst,1 and also, that Oberst had not been employed

      by the Vanderburgh County Prosecutor’s Office for some time. Based on this

      information, Trooper Wilson investigated Oberst’s employment status with

      Vanderburgh County and discovered that Oberst had not worked as a Deputy

      Prosecutor there for over six years.


[6]   On February 24, 2015, the State charged Oberst with Level 6 felony

      impersonation of a law enforcement officer. A bench trial was held on February

      27, 2017, after which the trial court took the matter under advisement. On

      March 10, 2017, the trial court issued an order finding Oberst guilty.


[7]   Oberst then filed a motion to reconsider the verdict. On April 3, 2017, the trial

      court held a hearing on Oberst’s motion and denied it on the merits, but

      reduced the conviction to Class A misdemeanor impersonation of a public

      servant. Oberst was sentenced to one year of non-reporting probation. He now

      appeals his conviction.




      1
       Thirteen days before the instant offense, on January 14, 2015, Oberst was stopped by Gibson County
      Sherriff’s Department Officer John Fischer (“Officer Fischer”) for traveling 11 m.p.h. over the speed limit.
      When Officer Fischer exited his car, he could see Oberst holding a badge out of the window. Officer Fischer
      asked Oberst if it was a law enforcement badge. Oberst told him it was and that it was from Vanderburgh
      County. Officer Fischer let Oberst go without issuing a citation. Afterward, Officer Fischer determined that
      Oberst was no longer employed as a Deputy Prosecutor in Vanderburgh County. Oberst was charged with
      Level 6 felony impersonation of a law enforcement officer. He pleaded guilty to the lesser included offense of
      Class A misdemeanor impersonation of a public servant.

      Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017             Page 3 of 8
                                     Discussion and Decision
[8]   Oberst contends that the evidence is insufficient to support his conviction for

      Class A misdemeanor impersonation of a public servant. When reviewing a

      claim of insufficient evidence to sustain a conviction, we consider only the

      probative evidence and reasonable inferences supporting the judgment. Jackson

      v. State, 50 N.E.3d 767, 770 (Ind. 2016). It is the fact-finder’s role, not ours, to

      assess witness credibility and weigh the evidence to determine whether it is

      sufficient to support a conviction. Id. We will affirm the conviction unless no

      reasonable fact-finder could have found the elements of the crime proven

      beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

      overcome every reasonable hypothesis of innocence; rather, the evidence is

      sufficient if an inference may reasonably be drawn from it to support the

      judgment. Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007).


[9]   At the time of the offense in this case, Indiana Code section 35-44.1-2-6

      provided:


              A person who falsely represents that the person is a public
              servant, with intent to mislead and induce another person to
              submit to false official authority or otherwise to act to the other
              person’s detriment in reliance on the false representation,
              commits impersonation of a public servant, a Class A
              misdemeanor.




      Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017   Page 4 of 8
       Ind. Code § 35-44.1-2-6 (2015).2


[10]   Oberst’s primary argument is that the evidence was insufficient to show that he

       either: (1) acted with intent to mislead and induce Trooper Wilson to submit to

       false official authority, or (2) acted with intent to mislead and induce Trooper

       Wilson to act to Trooper Wilson’s detriment in reliance on the false

       representation. Appellant’s Br. at 11; Reply Br. at 6.


[11]   Both Oberst and the State cite to Poole v. State, 559 N.E.2d 1214 (Ind. Ct. App.

       1990).3 In that case, Poole walked into an Indianapolis hospital seeking

       treatment for injuries suffered due to his alleged employment with the

       Indianapolis Police Department (“IPD”), and he requested a work release form.

       Id. at 1215. Poole told a hospital employee that he was an officer with the IPD

       and supplied her with several forms of identification. Id. The nurse did not

       believe Poole, so she notified a doctor who called the Marion County Sheriff’s




       2
           Effective July 1, 2016, the statute now states:
                  (a) A person who, with intent to:
                            (1) deceive; or
                            (2) induce compliance with the person's instructions, orders, or requests;
                  falsely represents that the person is a public servant, commits impersonation of a public
                  servant, a Class A misdemeanor, except as provided in subsection (b).
                  (b) The offense described in subsection (a) is a Level 6 felony if the person falsely
                  represents that the person is:
                            (1) a law enforcement officer;
       Ind. Code § 35-44.1-2-6.
       3
           Poole is the only reported case in Indiana concerning the issue before us.


       Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017                 Page 5 of 8
       Department, which confirmed that Poole was in fact not an IPD officer. Id.

       Poole was subsequently convicted of impersonating a police officer. Id.


[12]   Poole’s main contention on appeal was that there was insufficient evidence to

       show that he “intended to mislead or induce another person to act to his

       detriment.” Id. In Poole, we explained that “intent may properly be inferred

       from circumstances surrounding the incident,” and that “the evidence certainly

       supports a reasonable inference that Poole intended for the hospital to rely on

       his misrepresentations in the hope of obtaining special medical treatment and a

       work release form.” Id. at 1216. Oberst’s attempts to distinguish Poole from the

       case before us are unpersuasive.


[13]   Here, it is clear from the record that Oberst showed his badge to Trooper

       Wilson in hopes of getting out of a speeding ticket. In fact, he had done the

       same thing just thirteen days prior. After Trooper Wilson pulled away, Oberst

       called his friend to tell him that he “got out of the ticket” because “[Oberst]

       showed [Trooper Wilson] my badge.” Tr. p. 24. In his brief Oberst states, “At

       most, all [Oberst] could hope for is the extension of some type of ‘professional

       courtesy’ at the discretion of the Trooper.” Appellant’s Br. at 10–11. Despite

       Oberst’s claims to the contrary, misrepresentation in effort to receive special

       treatment is analogous to Poole.


[14]   Poole was hoping that by telling the hospital staff he was an IPD officer, he

       might receive special medical treatment. Poole, 559 N.E.2d at 1216. Here, by

       telling Trooper Wilson that he was a Deputy Prosecutor, Oberst hoped he


       Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017   Page 6 of 8
       might receive special treatment by not being issued a citation. The trial court

       noted in its verdict order, “[Oberst] actively strategically displayed [the badge]

       with the hope that a law enforcement officer would notice it and act upon it to

       the benefit of [Oberst].” Appellant’s App. p. 41. This is sufficient for a

       reasonable fact-finder to infer that Oberst intended for Trooper Wilson to

       submit to his false authority. Poole, 559 N.E.2d at 1216.


[15]   Oberst argues he did not intend to induce Trooper Wilson to submit to his false

       authority because “a deputy prosecutor in fact has no authority over an Indiana

       State Trooper regarding the issuance of a traffic citation.” Appellant’s Br. at 9.

       While this statement is factually true, the lack of actual “authority” is not the

       issue. As an alleged IPD officer, Poole had no authority to receive special

       medical treatment or a work release form from hospital staff. Rather, he

       intended that the hospital staff would rely on his misrepresentation to receive

       special medical treatment and a work release form. Here, the evidence supports

       a reasonable inference that Oberst intended to receive special treatment when he

       showed Trooper Wilson a Deputy Prosecutor’s badge. See Poole, 559 N.E.2d at

       1216 (“The crucial question is whether Poole intended for the hospital staff to

       submit to his claimed authority.”) (emphasis in original). Any finding to the

       contrary would be an invitation for us to reweigh evidence, and we will not do

       so on appeal.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017   Page 7 of 8
                                                 Conclusion
[16]   Considering the evidence favorable to the trial court’s verdict, we conclude that

       the State presented sufficient evidence to support Oberst’s conviction for Class

       A misdemeanor impersonation of a public servant.


[17]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A04-1704-CR-800 | October 10, 2017   Page 8 of 8
