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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019   Page 3 of 5
      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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019   Page 4 of 5
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-725 | September 26, 2019   Page 5 of 5
