MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Jun 29 2016, 8:29 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Gregory F. Zoeller
Marion County Public                                     Attorney General of Indiana
Defender Agency
                                                         Angela N. Sanchez
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Edward Brookins,                                         June 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1512-CR-2295
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1502-F6-5208



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016         Page 1 of 12
[1]   Edward Brookins appeals his convictions for Possession of Cocaine, a Level 6

      Felony1; Criminal Trespass, a Class A Misdemeanor 2; and Resisting Law

      Enforcement, a Class A Misdemeanor.3 He argues that he was arrested without

      probable cause and that the subsequent search incident to that arrest violated

      his constitutional rights. He also argues that there was insufficient evidence to

      support his convictions for criminal trespass and resisting law enforcement.

      Finding no error, we affirm.


                                                     Facts
[2]   Brookins and Sierra Payton were in a relationship from 2012 to 2014. Their

      son was born in July 2014, and their relationship was on and off thereafter.


[3]   In February 2015, Payton lived with her two sons. Around 3:00 a.m. on

      February 12, 2015, someone began ringing her doorbell and knocking on the

      door. She first ignored it, but after thirty minutes she went to the door, where

      she found Brookins. She told him to leave more than five times. When he

      refused, she called the police.


[4]   When Officer Kelly Chappell arrived, she spoke with Brookins and Payton, and

      noticed that Brookins was unsteady on his feet. After a discussion, Officer

      Chappell asked Payton whether Brookins could enter the house to retrieve some




      1
          Ind. Code § 35-48-4-6.
      2
          Ind. Code § 35-43-2-2(b).
      3
          Ind. Code § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 2 of 12
      of his belongings. Payton consented. Brookins gathered some of his things and

      agreed to leave, and Officer Chappell saw him walk away.


[5]   Three or four minutes later, Officer Chappell was still parked in front of the

      house when Payton’s mother, who lived nearby, approached her. The mother

      was on the phone with Payton. Payton had informed her mother that Brookins

      was back. He was at the rear of the house, banging on the back window.

      Payton’s mother relayed this information to the officer, and the officer went to

      investigate.


[6]   As Officer Chappell walked to the back of the house, she could hear a male and

      a female yelling and screaming. She approached Brookins and tried to take him

      by the arm, but he pulled away and continued yelling. She could smell alcohol

      on his breath. She decided to arrest him.


[7]   A subsequent search incident to his arrest revealed cocaine in Brookins’s front

      pocket. As officers were attempting to place him in the police van, Brookins

      squirmed free and tried to take off. Officers were able to get ahold of him and

      prevent him from escaping.


[8]   The following morning, the State charged Brookins with possession of cocaine,

      a Level 6 felony; criminal trespass, a class A misdemeanor; resisting law

      enforcement, a class A misdemeanor; and disorderly conduct, a class B

      misdemeanor. He waived his right to a trial by jury. After a November 24,

      2015, bench trial, the trial court found Brookins guilty of possession of cocaine,

      criminal trespass, and resisting law enforcement, but not guilty of disorderly

      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 3 of 12
       conduct. Following a December 8, 2015, sentencing hearing, the trial court

       sentenced him to 180 days executed on each of the three convictions, each to be

       served concurrently. The trial court also awarded credit for 90 days served and

       90 days good credit. Brookins now appeals.


                                    Discussion and Decision
[9]    Brookins has three arguments on appeal. First, he argues that the trial court

       erred by admitting the cocaine into evidence, contending that the search

       incident to his arrest violated his constitutional rights. Second, he argues that

       the State did not present sufficient evidence to sustain his criminal trespass

       conviction. Third, he argues that the State did not present sufficient evidence to

       sustain his resisting law enforcement conviction.


                                    I. Admission of Evidence
[10]   We reverse a trial court’s decision regarding the admission of evidence when

       the decision is clearly against the logic and effect of the facts before the

       court. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). We consider

       any uncontested evidence favorable to the defendant, but we will not reweigh

       the evidence and will resolve any conflicts in the evidence in favor of the trial

       court’s ruling. Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).

       We conduct a de novo review of a trial court’s ruling on the constitutionality of

       a search or seizure. Belvedere v. State, 889 N.E.2d 286, 287 (Ind. 2008).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 4 of 12
                               A. United States Constitution
[11]   Brookins claims that the officers did not have probable cause to arrest him, and

       that therefore the subsequent search violated his Fourth Amendment rights.

       The Fourth Amendment to the United States Constitution protects “[t]he right

       of the people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures....” Typically, any search conducted

       without a warrant is unreasonable unless it falls within a “few specifically

       established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,

       357 (1967). One recognized exception is the search incident to arrest, Edwards

       v. State, 759 N.E.2d 626, 629 (Ind. 2001); but for a search incident to arrest to be

       valid, the initial arrest must be lawful. Jones v. State, 467 N.E.2d 1236, 1239

       (Ind. Ct. App. 1984). An arrest is lawful if it is supported by probable

       cause. K.K. v. State, 40 N.E.3d 488, 491 (Ind. Ct. App. 2015). An officer has

       probable cause to make an arrest when, at the time of the arrest, the officer has

       knowledge of facts and circumstances that would warrant a reasonable person

       to believe that the suspect has committed the criminal act in question. Clark v.

       State, 808 N.E.2d 1183, 1192 (Ind. 2004).


[12]   Brookins and the State provide arguments and counterarguments as to whether

       the officer had probable cause to believe that Brookins had committed one of

       three crimes: public intoxication, criminal trespass, or disorderly conduct. We

       find that the officer had probable cause to believe that Brookins had committed

       criminal trespass, and since this is dispositive, we limit our discussion to that

       crime.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 5 of 12
[13]   A person commits criminal trespass when, “not having a contractual interest in

       the property, [he] knowingly or intentionally refuses to leave the real property

       of another person after having been asked to leave by the other person or that

       person’s agent.” Ind. Code § 35-43-2-2(b). Brookins argues that the officer did

       not see Payton ask him to leave the second time he came onto the property and

       knocked on the back window. Further, Payton later testified that when she was

       on the phone with her mother, “my momma was like, ‘You want me to tell the

       police?’ and I was like, ‘No.’” Tr. p. 15. She also said she did not talk to the

       officers after the second time “because after the second time, the police officers

       were fed up and they were just gonna take him, and I was like, ‘No.’” Id. at 16.

       Finally, Brookins argues that only Payton could order him off the property, and

       so the officer’s request that he leave could not create probable cause regarding

       criminal trespass.


[14]   Brookins’s argument is wrong for two reasons. First, courts are to inquire into

       what the officer knew at the time of the arrest. The amount of evidence

       necessary to meet the probable cause requirement is determined on a case-by-

       case basis. Ortiz v. State, 716 N.E.2d 345, 348 (Ind. 1999). It is grounded in

       notions of common sense, not mathematical precision. Illinois v. Gates, 462

       U.S. 213, 235 (1983).


[15]   Here, the officer found Brookins at the back of a house. The officer knew that

       he had already been asked to leave, that he walked away, but that he returned

       shortly thereafter. She knew that he smelled of alcohol, and she could hear a

       male and a female voice yelling. She knew that it was 3:00 a.m. and that there

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 6 of 12
       were children sleeping in the house. Brookins’s argument suggests that the

       officer should have left him at the back of the house, gone around to the front of

       the house, rang the doorbell, and asked Payton whether Payton had renewed

       her request to Brookins to leave the property. Only then could the officer come

       back to the rear of the house and arrest Brookins.


[16]   We cannot agree. The officer could hear a male and a female voice yelling back

       and forth. A reasonable person in this officer’s position would be warranted in

       thinking that Payton was yelling at Brookins another request to leave as he

       yelled back at her through the window. Although it is true that Payton later

       testified that she did not seek police assistance during this second encounter,

       that information is irrelevant to what the officer knew at the moment of arrest.

       At the moment of arrest, the officer could reasonably have assumed that Payton

       was asking Brookins to leave, and that he was refusing that request.


[17]   But Brookins’s argument is wrong for a second, more fundamental reason. He

       argues that the officer did not know whether Payton asked him to leave the

       second time he showed up. But the officer did know that Payton had asked him

       to leave just three or four minutes earlier. Thus, when Brookins returned, the

       officer had probable cause to believe that he was refusing to leave the property,

       despite being asked to. A person cannot defeat the criminal trespass law by

       hearing a request to leave, taking one step off the property, and immediately

       returning. For purposes of the criminal trespass statute, this is equivalent to

       refusing to leave.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 7 of 12
[18]   Because the officer had probable cause to believe that Brookins had committed

       criminal trespass, the arrest was proper. Thus, the search incident to arrest was

       constitutional, and the trial court did not err by admitting the results of that

       search into evidence.


                                     B. Indiana Constitution
[19]   Brookins also claims that the search of his person violated his rights under

       Article 1, Section 11 of the Indiana Constitution. Although this provision

       directly tracks the Fourth Amendment to the United States Constitution, the

       analysis under Article 1, Section 11 “turns on an evaluation of the

       reasonableness of the officers’ conduct under the totality of the circumstances.”

       Tate v. State, 835 N.E.2d 499, 507 (Ind. Ct. App. 2005). The reasonableness of

       an officer’s conduct depends on a “balance of: 1) the degree of concern,

       suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion

       the method of the search or seizure imposes on the citizen’s ordinary activities,

       and 3) the extent of law enforcement needs.” Lichtfield v. State, 824 N.E.2d 356,

       361 (Ind. 2005).


[20]   Brookins essentially repeats his argument that the police had no probable cause

       to arrest him, which would negate the first element in our balancing test. As

       discussed above, however, the police did have probable cause to arrest him.

       The police do not violate the Indiana Constitution by arresting someone they

       have probable cause to believe is presently committing a crime. Brookins’s

       argument fails.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 8 of 12
                               II. Sufficiency of the Evidence
[21]   When reviewing the sufficiency of the evidence to support a conviction, we do

       not reweigh the evidence or judge the credibility of the witnesses. Gorman v.

       State, 968 N.E.2d. 845, 847 (Ind. Ct. App. 2012). We consider only the

       probative evidence and the reasonable inferences therefrom that support the

       conviction. Id. We will affirm if the probative evidence and reasonable

       inferences from that evidence could have allowed a reasonable trier of fact to

       find the defendant guilty beyond a reasonable doubt. Id.


                                       A. Criminal Trespass
[22]   Brookins argues that there is insufficient evidence to support his criminal

       trespass conviction. He argues that Payton did not renew her request for him to

       leave the second time he came on the property. He argues that the trespass

       conviction cannot be related to his first entrance on the property because

       “Payton rescinded her request for Brookins to leave by admitting him into her

       home voluntarily.” Appellant’s Reply Br. p. 7. He also argues that the State

       never proved that Payton owned the house in question.


[23]   It is well established that criminal trespass applies whether the lawful possessor

       of the land is the title owner or a leaseholder. See Johnson v. State, 38 N.E.2d

       686, 689 (Ind. Ct. App. 2015) (“we summarily reject [defendant’s] contention

       that the trespass statute applies only for unwelcomed incursions onto real

       property versus unwelcomed incursions onto leaseholds”). Thus, whether

       Payton was the owner or the renter of the house is irrelevant; the trial court

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 9 of 12
       heard evidence that Payton was the lawful possessor, which is sufficient to

       satisfy that element of the trespass statute.


[24]   As to whether there was sufficient evidence that Payton requested Brookins to

       leave, we find that Brookins has produced a possible interpretation of the facts,

       but one that the trial court was not compelled to believe. The trial court could

       have agreed with Brookins’s argument that Payton rescinded her request for

       him to leave. But the trial court could also reasonably believe the much more

       plausible interpretation of the evidence that Payton admitted Brookins into the

       house for the sole purpose of retrieving his things, but that she still wanted him

       to leave immediately thereafter. Brookins’s alternative interpretation—that

       Payton changed her mind and approved of him yelling and screaming through

       her back window at 3:00 a.m.—is theoretically possible, but not compelled by

       the evidence.


[25]   The statements made by Payton, which seem to suggest that she did not want

       the police to arrest Brookins, do not necessarily equate to her rescinding her

       request for Brookins to leave. Payton would be perfectly consistent in

       requesting Brookins to leave the property but not wanting him arrested or

       convicted. Unfortunately for Brookins, a victim’s desire to see an arrest is not

       an element of the trespass statute.


[26]   Our standard of review makes clear that we consider the reasonable inferences

       from the evidence that support the judgment. The trial court could reasonably

       infer that Payton had not rescinded her request to Brookins to leave. When he


       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 10 of 12
       returned to the property and banged on the back window, he committed

       criminal trespass, and the evidence is sufficient to support his conviction for

       that offense.


                              B. Resisting Law Enforcement
[27]   Brookins also argues that there is insufficient evidence to support his conviction

       for resisting law enforcement by flight. Specifically, he argues that there is no

       evidence that a law enforcement officer ordered him to stop, as required by the

       statute. Ind. Code § 35-44.1-3-1(a)(3).


[28]   The statute makes clear that the order to stop may be “by visible or audible

       means.” Id. “Evidence of a proper visual order to stop is based on the

       circumstances surrounding the incident and whether a reasonable person would

       have known that he or she had been ordered to stop.” Fowler v. State, 878

       N.E.2d 889, 894-95 (Ind. Ct. App. 2008).


[29]   At the time that Brookins fled, he had already been arrested. The transport van

       had arrived. The police removed his handcuffs so that they could search his

       entire person and place different handcuffs on him. At that moment, Brookins

       took off running.


[30]   A reasonable person in Brookins’s situation would know that he had been

       ordered to stop. Placing someone in handcuffs and preparing them for

       transport are equivalent to ordering that person to stop. When Brookins ran

       away, he committed resisting law enforcement by flight, and the evidence is

       sufficient to support his conviction for that offense.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 11 of 12
[31]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2295 | June 29, 2016   Page 12 of 12
