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.




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