Anthony Bozzo v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be May 11 2016, 8:18 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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Bozzo, May 11, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1486
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G08-1412-CM-56413
Altice, Judge.
Case Summary
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[1] Following a bench trial, Anthony Bozzo was convicted of Trespass as a Class A
misdemeanor. On appeal, Bozzo challenges the sufficiency of the evidence
supporting his conviction.
[2] We affirm.
Facts & Procedural History
[3] Bozzo is a graduate student of Indiana University (IU) at the Indiana
University-Purdue University Indianapolis (IUPUI) campus. In order to carry
out research related to his coursework, his graduate program issued him a key
to Room 121 in Cavanaugh Hall (CA 121), which is located on the IUPUI
campus. Bozzo was not issued a key to any outside doors of Cavanaugh Hall.
[4] In 2013, Bozzo breached security at Cavanaugh Hall by propping open an
outside door and leaving the building unsecured after hours. On December 6,
2013, Sherry Queener, Director of the Graduate Office for IU, sent a letter to
Bozzo about the breach. She advised Bozzo that “IUPUI Police will not grant
you access to Cavanaugh Hall after hours in the future and that you should
arrange your schedule such that you can be out of the building by the time
IUPUI Police officers lock the building down for the evening or weekends.”
State’s Exhibits at 4. Cavanaugh Hall closes at 10:00 p.m. Monday through
Friday and at 7:30 p.m. on Saturday and Sunday.
[5] Shortly after midnight on February 9, 2014, Officer Scott Dunning, a police
officer for the IUPUI campus, found Bozzo in CA 121. Bozzo admitted that he
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had attempted to hide from Officer Dunning. After learning Bozzo had been
notified by letter that he was not permitted to be in Cavanaugh Hall after hours,
Officer Dunning confiscated Bozzo’s key to CA 121 and issued him a trespass
warning. The warning informed Bozzo that he was “banned from reentering”
Cavanaugh Hall after building hours from February 9, 2014, until February 9,
2016, and that he would be prosecuted for criminal trespass for a violation. Id.
at 2.
[6] At approximately 1:30 a.m. on December 22, 2014, Simone Evans,1 an IU
police officer working the IUPUI campus, found Bozzo and a woman in a
second-floor classroom in Cavanaugh Hall. Bozzo claimed he was working on
finals. After learning of the previous trespass warning, Officer Evans arrested
Bozzo for criminal trespass. On December 31, 2014, the State charged Bozzo
accordingly.
[7] A bench trial was held on June 10, 2015, at the conclusion of which the trial
court found Bozzo guilty of criminal trespass as a Class A misdemeanor. A
sentencing hearing immediately followed. The trial court sentenced Bozzo to
one year, with 361 days suspended to probation. As a condition of his
probation, the trial court ordered that Bozzo “stay away from IUPUI Campus .
. . through December 31st, 2015 or longer should the university want it to be
1
Officer Evans was accompanied by a second officer, Kevin Kinghorn.
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longer.” Transcript at 29. After the restriction is lifted, Bozzo would then be
permitted in the buildings on the IUPUI campus when open to the public.
Discussion & Decision
[8] Bozzo argues that the evidence was insufficient to support his conviction.
Specifically, he contends the State failed to prove (1) that he did not have a
contractual interest in IUPUI’s property and (2) that the officers were agents of
the university. Our standard of reviewing challenges to the sufficiency of the
evidence supporting a criminal conviction is well settled.
When reviewing a challenge to the sufficiency of the evidence
underlying a criminal conviction, we neither reweigh the
evidence nor assess the credibility of witnesses. The evidence—
even if conflicting—and all reasonable inferences drawn from it
are viewed in a light most favorable to the conviction. “[W]e
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.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
2004).
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[9] To prove trespass as a Class A misdemeanor, the State was required to show
that Bozzo, “not having a contractual interest in the property, knowingly or
intentionally enter[ed] the real property of [IU] after having been denied entry
by [IU] or [IU]’s agent.” Ind. Code § 35-43-2-2(b)(1). A person may be denied
entry through a personal communication, oral or written. I.C. § 35-43-2-2(c)(1).
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[10] Bozzo first argues that he had a contractual interest in the property by virtue of
his enrollment as a student and his employment on campus, and as such, he
could not have been convicted of criminal trespass.
[11] The phrase “contractual interest in the property” is not defined by the criminal
trespass statute or elsewhere in the Indiana Code. Our Supreme Court,
however, has determined that “a contractual interest in the property” should be
very narrowly defined as “a right, title, or legal share of real property arising out
of a binding agreement between two or more parties.” Lyles v. State, 970 N.E.2d
140, 143 n. 2 (Ind. 2012).2 The lack of a contractual interest in the real property
at issue is a material element of the offense that the State must prove beyond a
reasonable doubt. Id. at 143 n.3. In order to prove the offense of criminal
trespass beyond a reasonable doubt, “the State need not ‘disprove every
conceivable contractual interest’ that a defendant might have obtained in the
real property at issue.” Id. (citation omitted). Rather, the State “satisfies its
burden when it disproves those contractual interests that are reasonably
apparent from the context and circumstances under which the trespass is
alleged to have occurred.” Id.
2
As Justice Rucker noted in dissent, prior to this pronouncement by our Supreme Court, the Court of
Appeals had declared that the term “‘contractual interest,’ as it is used in the criminal trespass statute, refers
to the right to be present on another’s property, arising out of an agreement between at least two parties that
creates an obligation to do or not to do a particular thing. Taylor v. State, 836 N.E.2d 1024, 1026 (Ind. Ct.
App. 2005) (citing A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001)), trans. denied.” Lyles, 970 N.E.2d
at 144 (Rucker, J. dissenting).
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[12] By virtue of his status as a student and/or employee of IU, Bozzo had a
contractual interest in the university’s property. This contractual interest,
however, was not without limitation. The record clearly reflects that Bozzo’s
access to Cavanaugh Hall was limited to the building’s regular hours. Although
Bozzo had a key to CA 121, he was not provided with a key to access the outer
doors of that building after hours. Officer Evans testified that students are not
permitted in Cavanaugh Hall after hours, and she was not aware of any special
privileges granted to Bozzo. Further, after a security breach incident
occasioned by Bozzo in 2013, he received a written communication from the
Director of the Graduate Office expressly informing him that he did not have
after-hours access to Cavanaugh Hall and that he should arrange his schedule
accordingly. Two months after receiving this letter, Bozzo was found in
Cavanaugh Hall after hours and issued a trespass warning, which explicitly
provided that Bozzo was “banned from reentering” Cavanaugh Hall after
building hours for a two-year period and further warned him that he would be
prosecuted for criminal trespass for a violation. State’s Exhibits at 2.
[13] We have before held that when a contractual interest ends, the criminal trespass
statute is triggered. In Taylor, the defendant was a student who was scheduled
to attend class from 8:15 a.m. to 10:15 a.m., but was still on school property
around noon. After the student refused to leave, he was arrested for criminal
trespass. On appeal, Taylor argued that he had a contractual interest to stay on
the school’s property. This court affirmed the defendant’s conviction because
his interest in the school’s property was “limited temporally to when taking
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classes or engaged in other school activities and limited spatially to areas
necessary to the attendance function.” Taylor, 836 N.E.2d at 1028 (citing Olsen
v. State, 663 N.E.2d 1194 (Ind. Ct. App. 1996)).
[14] Like the defendant in Taylor, Bozzo’s contractual interest in IUPUI’s property
was limited temporally and spatially. He was permitted to access Cavanaugh
Hall during regular hours without breaking the law. After the building closed,
his interest ceased. The State’s evidence sufficiently disproved the contractual
interests that are reasonably apparent from the context and circumstances under
which the trespass is alleged to have occurred. See Frink v. State, 2016 WL
1158614 *3 (Ind. Ct. App. Mar. 24, 2016) (concluding the lack of contractual
interest was “reasonably apparent” under the circumstances where defendant
had been informed numerous times that she was not to be on school property
and reminded of the trespass warning).
[15] Bozzo also argues that the State failed to prove that Officer Dunning, who
issued the written trespass warning, and Officer Evans, who arrested him for
trespass, were agents of IU. We disagree.
[16] We have described the elements of an agency relationship as follows:
“Agency is a relationship resulting from the manifestation of
consent by one party to another that the latter will act as an agent
for the former.” To establish an actual agency relationship, three
elements must be shown: (1) manifestation of consent by the
principal, (2) acceptance of authority by the agent, and (3)
control exerted by the principal over the agent. These elements
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may be proven by circumstantial evidence, and there is no
requirement that the agent’s authority to act be in writing.
Glispie v. State, 955 N.E.2d 819, 822 (Ind. Ct. App. 2011) (quoting Demming v.
Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011)) (citations omitted).
[17] Here, Officer Dunning testified that he has been “employed with Indiana
University since 1995” and that he transferred from the Bloomington campus to
IUPUI in 2011. Transcript at 17. He further testified that one of his duties is “to
trespass someone who is not supposed to be on school property.” Id. at 18.
Likewise, Officer Evans testified that she was employed by IU and she had an
employment contract with IU. She also corroborated Officer Dunning’s
testimony that as an officer for IUPUI, she “can trespass people.” Id. at 7.
Officer Evans further described that her duties were to “ensure the safety and
security of the campus.” Id. at 6.
[18] Additional evidence demonstrating that Officer Dunning and Officer Evans
were agents of IU is found in the letters to Bozzo from the Director of the
Graduate Office. In the December 6, 2013 letter, Queener noted that Bozzo left
a door to Cavanaugh Hall open “when the building had been locked down by
police officers in the course of their routine actions.” State’s Exhibits at 4. She
further advised Bozzo that “IUPUI Police will not grant you access to
Cavanaugh Hall after hours.” Id. Queener’s February 10 and March 3, 2014
letters show that Officer Dunning reported to IU administration: “I have
received a copy of the police action from Sergeant Scott Dunning (Indiana
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University PD – Indianapolis)” and “I was called upon to act based upon the
report of police action from [Dunning].” State’s Exhibits at 6, 9.
[19] The State also submitted into evidence an exchange of emails between Brian
Tomlinson, Assistant Dean of Students for IUPUI, and Bozzo that show IU
administration and IU police work together. In one exchange, Tomlinson notes
that the building coordinator “had not provided [Bozzo] additional access or
permissions to the building beyond what Dr. Queener or IUPD had originally
instructed.” Id. at 14. In a response to an email from Bozzo, Tomlinson noted,
“I know that you are concerned about complying with the directives of IUPD.
I believe Capt. Figg has communicated to you the current status of the no
trespass order.” Id. at 13. Finally, Bozzo himself acknowledged that IU police
officers are agents of IU, writing: “I’m forbidden by the police department,
acting as an agent of the university . . . .” Id. at 12.
[20] Here, the State’s evidence consisted of more than bald assertions by the IU
police officers that they were acting as agents of IU. Communications by
university administration clearly indicate that IU consented to the officers
acting on behalf of IU and that the officers reported to university
administration. The testimony of the officers demonstrates that they accepted
the authority granted them by the university. The State presented ample
evidence to establish an agency relationship between the IU police officers and
the university.
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[21] Having concluded that the State’s evidence is sufficient to support the court’s
determination that Bozzo did not have a contractual interest and that the
officers were agents of the university, we affirm Bozzo’s conviction for criminal
trespass as a Class A misdemeanor.
[22] Judgment affirmed.
[23] Bailey, J. and Bradford, J., concur.
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