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                             Sep 05 2019, 8:44 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                 Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kalen Posley,                                            September 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-838
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1809-CM-31998



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019                   Page 1 of 7
                                          Case Summary
[1]   In August of 2018, Kalen Posley attempted to gain admission into Tiki Bob’s

      Cantina, claiming that he had paid the cover charge earlier that evening. After

      he was denied admission, Posley blocked the entrance of Tiki Bob’s and began

      yelling and cursing at the staff working security. Indianapolis Metropolitan

      Police Officer Timothy Elliott, who was working off-duty security for Tiki

      Bob’s that evening, requested that Posley stop, a request with which Posley did

      not comply. Although Posley eventually left, he returned later and began

      yelling at the Tiki Bob’s staff again, which led to his arrest. In March of 2019,

      Posley was convicted of Class A misdemeanor criminal trespass and Class B

      misdemeanor disorderly conduct. Posley contends that the State produced

      insufficient evidence to sustain his convictions. We affirm.



                            Facts and Procedural History
[2]   On August 31, 2018, Posley went to Tiki Bob’s, an Indianapolis bar, and

      requested admission, claiming that he had already paid the ten-dollar cover

      charge earlier that evening. Tiki Bob’s general manager John Hahn was

      working the front door entrance and requested to see Posley’s stamp, which

      would have been given to him upon payment of the cover charge. Posley did

      not have a stamp and, as a result, he was denied admission. Posley began

      demanding that he receive a ten-dollar refund or be admitted to the bar. Posley

      was blocking the entrance of the bar, preventing other patrons from entering

      and was also “very loud and boisterous and yelling and cursing towards the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 2 of 7
      security staff, the guy that checks the [photo identification] and Mr. Hahn[.]”

      Tr. p. 8. Hahn motioned for Officer Elliott to come to the entrance and help

      defuse the situation. As Officer Elliott approached Posley, he could hear Posley

      “distinctly over everybody else.” Id. Posley was cursing and yelling so loudly

      that it was heard by Officer Elliott over the music coming from inside Tiki

      Bob’s and caused persons walking on the sidewalks to stop and watch. Once

      Officer Elliott arrived at the entrance of Tiki Bob’s, Posley continued to yell and

      curse. Officer Elliott asked Posley several times to stop, but he refused.

      Eventually, Posley left Tiki Bob’s.


[3]   Later that evening, Posley returned to Tiki Bob’s and began leaning on the

      nylon ropes that formed a barrier outside the bar’s entrance. Posley began

      “cursing, yelling and basically being belligerent.” Tr. p. 14. Upon observing

      Posley’s conduct, Officer Elliott and another officer arrested him.


[4]   On September 21, 2018, the State charged Posley with two counts of Class A

      misdemeanor criminal trespass and one count of Class B misdemeanor

      disorderly conduct. On March 18, 2019, a bench trial was held. At the

      conclusion of the State’s presentation of evidence, Posley moved for dismissal

      of all counts pursuant to Indiana Trial Rule 41(b). The trial court dismissed one

      count of criminal trespass and denied Posley’s motion on the remaining counts.

      The trial court found Posley guilty of Class A misdemeanor criminal trespass

      and Class B misdemeanor disorderly conduct and sentenced him to an

      aggregate sentence of 365 days with 357 days suspended.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 3 of 7
                                 Discussion and Decision
[5]   Posley contends that the State presented insufficient evidence to sustain his

      convictions. When reviewing the sufficiency of evidence to support a

      conviction, we consider only probative evidence and reasonable inferences

      supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind.

      Ct. App. 2012), trans. denied. It is the role of the factfinder, not ours, to assess

      witness credibility and weigh the evidence. Id. We will affirm a conviction

      unless “no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt.” Id.


                                       I. Criminal Trespass
[6]   Posley contends that the evidence is insufficient to sustain his criminal-trespass

      conviction, specifically that it does not establish that he had the required mens

      rea. To convict Posley of criminal trespass, the State was required to prove that

      he knowingly or intentionally interfered with the possession or use of Tiki Bob’s

      property without its consent. Ind. Code § 35-43-2-2(b)(4). “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) (internal quotations omitted). “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 § 35-41-2-2(b)

      (internal quotations omitted). “Intent is a mental state, and the trier of fact often

      must infer its existence from surrounding circumstances when determining




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 4 of 7
      whether the requisite intent exists.” Goodner v. State, 685 N.E.2d 1058, 1062

      (Ind. 1997).


[7]   We conclude that there is sufficient evidence to sustain Posley’s criminal-

      trespass conviction. The record indicates that Posley was yelling and cursing at

      the Tiki Bob’s staff members at such a loud volume that it caused persons

      passing by on the sidewalks to stop and watch the confrontation and that it was

      heard by Officer Elliott distinctively over everyone else in the area. It further

      indicates that Posley was blocking the entrance which prohibited any other

      patrons from being admitted to Tiki Bob’s because security was unable to check

      their photo identifications or allow them to enter. Posley testified that Hahn

      had requested that he leave the premises. Given the record, a reasonable

      factfinder could conclude that Posley, at a minimum, was aware of the high

      probability that his conduct was interfering with Tiki Bob’s use of its property

      without consent.


[8]   Posley argues that because he paid the ten-dollar coverage charge, he had a fair

      and reasonable foundation for believing that he had a right to be present at Tiki

      Bob’s. See Curtis v. State, 58 N.E.3d 992, 994 (Ind. Ct. App. 2016) (“[I]f a person

      has a fair and reasonable foundation for believing that he or she has a right to

      be present on the property, there is no criminal trespass.”). Posley’s own

      testimony, however, is the only evidence that indicates that he paid the cover

      charge that evening, which the trial court was not required to believe and

      apparently did not. Posley’s argument is merely an invitation for us to reweigh



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 5 of 7
       the evidence and judge witness credibility, which we will not do. Young, 973

       N.E.2d at 1226.


                                      II. Disorderly Conduct
[9]    Posley contends that the State presented insufficient evidence to sustain his

       disorderly-conduct conviction. To convict Posley of disorderly conduct, the

       State was required to prove that Posley recklessly, knowingly, or intentionally

       made unreasonable noise and continued to do so after being asked to stop. Ind.

       Code § 35-45-1-3(a)(2). Specifically, Posley contends that he never received a

       specific command to stop making unreasonable noise.


[10]   We conclude that there is sufficient evidence to sustain Posley’s disorderly-

       conduct conviction. Officer Elliott testified as follows:


               Q: So, you walked up to the defendant and can you describe how
               he was at that time?
               A: He was very loud and boisterous and yelling and cursing
               towards the security staff, the guy that checks the ideas [sic] and
               Mr. Hahn himself. He was standing at the front door of the
               entrance, which was roped off with barricades, nylon rope and a
               metal guard and they also had a front patio that has metal bars
               on it as well.
               Q: When you say that he was loud, would you say that the was
               unreasonably loud? Was he—
               A: So loud that I could hear him distinctly over everybody else.
               On Thursday night and Friday morning, there’s several hundreds
               and thousands of people downtown with music playing and
               everything else. I was still able to hear his voice.
               Q: Did he draw attention?
               A: He did.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 6 of 7
               Q: About how many people would you say were attracted to the
               situation?
               A: I can’t give you an approximate number. I know the line at
               the time stemmed from the door and went all the way down to
               almost 247 Meridian at Taps and Dolls, plus the patrons that are
               walking on the sidewalk going both north and south bound all
               stopped. The business and people coming into the business all
               stopped and watched Mr. Posley and his interaction.
               Q: So, this halted the normal operation of the bar that night?
               A: Yes, sir.
               Q: Did you ask him to stop?
               A: Yes, sir.
               Q: And at that time, did he stop?
               A: No, sir.

       Tr. pp. 8–9. Officer Elliott testified that Posley was unreasonably loud to the

       point that he could be heard over the hundreds of other persons in the area and

       the loud music playing in Tiki Bob’s. Moreover, Officer Elliott testified that

       Posley’s yelling and cursing drew the attention of patrons waiting in line and

       persons passing by on the sidewalk. Finally, Officer Elliott testified that he

       asked Posley to stop, a request with which Posley did not comply. The trial

       court was entitled to credit this testimony and did. The State produced

       sufficient evidence to sustain Posley’s convictions.


[11]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-838| September 5, 2019   Page 7 of 7
