Kalen Posley v. State of Indiana (mem. dec.) ( 2019 )

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
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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.
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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
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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
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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.
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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.
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