Marcus Russell v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 31 2016, 7:27 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Justin F. Roebel
Indianapolis, Indiana Deputy Attorney General
Barbara J. Simmons Indianapolis, Indiana
Oldenburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus Russell, May 31, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1473
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jose D. Salinas, Judge
Trial Court Cause No.
49G14-1412-CM-55024
Kirsch, Judge.
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[1] Marcus Russell (“Russell”) was convicted after a bench trial of criminal
trespass1 as a Class A misdemeanor and was sentenced to sixty days in the
Marion County Jail. He now appeals and raises the following restated issue for
our review: whether the State presented sufficient evidence to support Russell’s
conviction for criminal trespass.
[2] We affirm.
Facts and Procedural History
[3] Sean McCurdy (“McCurdy”), the Assistant Public Safety Director for U.S.
Security Associates, was working at the Keystone Fashion Mall in Indianapolis,
Indiana (“the Fashion Mall”). McCurdy’s responsibilities included patrolling
the property, keeping it safe, customer service, and trespassing individuals from
the property. On November 28, 2014, McCurdy observed Russell in the
parking lot and issued a Trespass Notice to him for possible suspicious activity.
McCurdy verbally informed Russell that he had been trespassed from the
Fashion Mall property.2 The next day, on November 29, 2014, Bob Gorman
(“Gorman”), the general manager of the property, informed Russell by phone
that he was trespassed from the property.
1
See Ind. Code § 35-43-2-2(b)(1)
2
To trespass an individual is the equivalent of banning one from the property. See Tr. 21-22. Both parties
used “trespass” in their briefs.
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[4] On December 14, 2014, Russell was spotted in the parking lot of the Fashion
Mall by security officer, Donna Burk (“Burk”). Burk notified Indianapolis
Metropolitan Police Department Officer Matthew McFadden (“McFadden”),
who patrolled the Fashion Mall on a part-time basis, that there was a possible
trespasser on the property. McCurdy was contacted, and he verified that
Russell was “trespassed from the property.” Officer McFadden arrested Russell
and transported him to jail.
[5] On, December 15, 2014, the State charged Russell with criminal trespass as a
Class A misdemeanor. A bench trial was held. Russell testified that he is self-
employed and in the business of buying and selling Apple iPhones. His online
cell phone business required him to visit the Apple store in the Fashion Mall on
an almost daily basis, often using Apple gift cards. Russell also has a credit
account with Saks Fifth Avenue located in the Fashion Mall for personal use.
Russell testified that there is only one other Apple store, and no other Saks Fifth
Avenue stores in the state of Indiana.
[6] At the conclusion of the trial, Russell was found guilty of criminal trespass. At
sentencing, the trial court imposed a sentence of sixty days with fifty-six days
suspended and no probation. Russell now appeals.
Discussion and Decision
[7] When we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witness. Cunningham v.
State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). We consider only the
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evidence most favorable to the verdict and the reasonable inferences that can be
drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We will not disturb the factfinder’s verdict if there is
substantial evidence of probative value to support it. Id. We will affirm unless
no reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009).
trans. denied. As the reviewing court, we respect “the [fact finder’s] exclusive
province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124,126
(Ind. 2005).
[8] In order to convict Russell of criminal trespass, the State was required to prove
beyond a reasonable doubt that Russell, not having a contractual interest in the
property, knowingly or intentionally entered the real property of another person
after having been denied entry by the other person or that person’s agent. Ind.
Code § 35-43-2-2(b)(1).
[9] Russell argues that his conviction for criminal trespass was not supported by
sufficient evidence. Specifically, Russell contends that the State did not present
sufficient evidence to prove that he had no contractual interest in the Fashion
Mall property or to prove that the mall or its agents had denied him from entry
to the Fashion Mall.
[10] To prove that Russell did not have a contractual interest in the mall property,
“the State does not have to disprove every conceivable contractual interest the
defendant might have had in the property.” Fleck v. State, 508 N.E.2d 539, 541
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(Ind. 1987). Here, McCurdy testified that Russell was not employed at the
mall, and he did not have an interest in the property, and there was no evidence
that the Apple Store or Saks Fifth Avenue had the authority to grant a
contractual interest in the mall. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind.
Ct. App. 1996) (Defendant’s claim that he had a good faith belief that he was
permitted to be in hotel lobby because of his status as a paid hotel guest was
rejected).
[11] Russell next contends that he did not commit criminal trespass because he did
not acknowledge being previously denied entry to the Fashion Mall by an agent
of the shopping complex. Here, the evidence established that Russell was orally
notified that he was denied entry to the Fashion Mall property by McCurdy.
McCurdy managed security for the Fashion Mall and his signature on the
Trespass Notice sufficiently established that he possessed the authority to deny
entry to the Fashion Mall. McCurdy also testified that he gave Russell a
written “Ban from Private Property Notice.” Additionally, Gorman, the general
manager for the property, informed Russell by phone that he was trespassed
from the property. Under Indiana Code section 35-43-2-2(c), “[a] person has
been denied entry under subdivision (b)(1) of this section when the person has
been denied entry by means of personal communication, oral or written . . .”
Sufficient evidence was presented to establish that Russell knowingly or
intentionally committed criminal trespass as a Class A misdemeanor.
[12] Affirmed.
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[13] Riley, J., and Pyle, J., concur.
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