David Kifer v. State of Indiana ( 2019 )


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  •                                                                        FILED
    Dec 04 2019, 9:18 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                              ATTORNEYS FOR APPELLEE
    Tyler Helmond                                       Frank A. Negangard
    Voyles Vaiana Lukemeyer Baldwin &                   Chief Deputy Attorney General
    Webb                                                Stephen R. Creason
    Indianapolis, Indiana                               Angela Sanchez
    Sarah J. Shores
    Deputy Attorneys General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    David Kifer,                                        December 4, 2019
    Appellant-Defendant,                                Court of Appeals Case No.
    19A-CR-1188
    v.                                           Appeal from the Vanderburgh
    Circuit Court
    State of Indiana,                                   The Honorable Michael J. Cox,
    Appellee-Plaintiff.                                 Magistrate
    Trial Court Cause No. 82C01-
    1903-F6-1559
    Riley, Judge.
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                      Page 1 of 10
    STATEMENT OF THE CASE
    [1]   Appellant-Defendant, David A. Kifer (Kifer), appeals his conviction for
    criminal trespass, as a Level 6 felony, Ind. Code § 35-43-2-2(b)(1).
    [2]   We reverse.
    ISSUE
    [3]   Kifer presents this court with two issues on appeal, one of which we find
    dispositive and which we restate as: Whether the State presented sufficient
    evidence beyond a reasonable doubt to support Kifer’s conviction for criminal
    trespass.
    FACTS AND PROCEDURAL HISTORY
    [4]   On March 1, 2005, David Rector (Rector), the general manager for the
    Evansville Vanderburgh County Building Authority (Building Authority),
    mailed a letter to Kifer, alerting him to “[p]lease be advised that you are no
    longer permitted to be in the Civic Center Complex. This action is required in
    order to protect the safety of those who visit and work in the Civic Center
    Complex.” (Transcript Vol. II, p. 63). The Civic Center Complex consists of
    three buildings and houses different government agencies, including the county
    courts, the police department, and the city and county administrative offices.
    On February 14, 2009, Kifer was sentenced in an unrelated case and the trial
    court, referencing the earlier ban, suggested that he contact the sheriff’s office
    several days in advance if he needed to enter the building. The sheriff’s office
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 2 of 10
    would then provide him with an escort to the specific office that he needed to
    visit.
    [5]   On March 4, 2019, Kifer arrived at the Civic Center Complex wanting to make
    a report at the police station. Kifer believed that he had just come “from a place
    where [his] life was threatened, knives were held on [him], and [he] managed to
    escape.” (Tr. Vol. II, p. 108). Kifer entered the Civic Center Complex through
    the entrance closest to the police department. Two officers staffed the entrance
    and both of them knew Kifer and were aware that he was banned from the
    building. The officers did not ask him to leave, nor did an officer escort Kifer,
    and there is no evidence an escort request had been made. Kifer passed through
    the entrance’s screening mechanisms and proceeded to the police department to
    make his report. After entering the police department and reporting the alleged
    crime, Kifer was placed under arrest.
    [6]   On March 6, 2019, the State filed an Information, charging Kifer with criminal
    trespass, a Class A misdemeanor, which was enhanced to a Level 6 felony due
    to a prior trespass conviction. On April 12, 2019, the trial court conducted a
    bifurcated jury trial, at the close of which Kifer was found guilty of criminal
    trespass. He subsequently admitted to the prior conviction under the
    enhancement charge. On May 21, 2019, Kifer was sentenced to a two-year
    executed sentence at the Department of Correction.
    [7]   Kifer now appeals. Additional facts will be provided if necessary.
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019     Page 3 of 10
    DISCUSSION AND DECISION
    I. Sufficiency of the Evidence
    [8]   Kifer contends that the State failed to present sufficient evidence to support his
    criminal trespass conviction beyond a reasonable doubt. Our standard of
    review with regard to sufficiency claims is well-settled. In reviewing a
    sufficiency of the evidence claim, this court does not reweigh the evidence or
    judge the credibility of the witnesses. Clemons v. State, 
    987 N.E.2d 92
    , 95 (Ind.
    Ct. App. 2013). We consider only the evidence most favorable to the judgment
    and the reasonable inferences drawn therefrom and will affirm if the evidence
    and those inferences constitute substantial evidence of probative value to
    support the judgment. 
    Id. Circumstantial evidence
    alone is sufficient to
    support a conviction. Sallee v. State, 
    51 N.E.3d 130
    , 133 (Ind. 2016).
    Circumstantial evidence need not overcome every reasonable hypothesis of
    innocence. 
    Clemons, 987 N.E.2d at 95
    . Reversal is appropriate only when
    reasonable persons would not be able to form inferences as to each material
    element of the offense. 
    Id. [9] To
    convict Kifer of criminal trespass as a Class A misdemeanor, the State was
    required to establish that Kifer, not having a contractual interest in the property,
    knowingly or intentionally entered the real property of the Building Authority
    after having been denied entry by the Building Authority’s agent. See I.C. § 35-
    43-2-2. An order to leave or remain away is sufficient if made by means of
    personal communication, oral or written. I.C. § 35-43-2-2(c)(1). Kifer claims
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 4 of 10
    that the evidence is insufficient to show that he entered the Civic Center
    Complex after being denied entry by the Building Authority or its agent.
    [10]   Because the State presented evidence that Rector acted as the Building
    Authority’s agent, we must consider the law of agency. This court recently
    described the elements necessary to establish an actual agency relationship:
    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
    may be proven by circumstantial evidence, and there is no
    requirement that the agent’s authority to act be in writing.
    Demming v. Underwood, 
    943 N.E.2d 878
    , 883 (Ind. Ct. App. 2011), reh’g denied,
    trans. denied (citations omitted). One who asserts that there was an agency
    relationship has the burden of proving its existence. Smith v. Brown, 
    778 N.E.2d 490
    , 495 (Ind. Ct. App. 2002).
    [11]   In Glispie v. State, 
    955 N.E.2d 819
    , 821 (Ind. Ct. App. 2011), reh’g denied,
    defendant was charged with criminal trespass. The officer testified that he had
    previously given the defendant oral and written warnings not to enter the
    business’s property. 
    Id. at 822.
    The only evidence presented at trial of the
    officer’s status as the business’s agent was his own testimony that he “could act
    as an agent of the property.” 
    Id. We held
    that “[m]ore is required” because
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019      Page 5 of 10
    “[i]t is a well-established rule that agency cannot be proven by the declaration
    of the agent alone.” 
    Id. [12] In
    our most recent pronouncement to date, Saylor v. State, -- N.E.3d --- (Ind. Ct.
    App. Nov. 13, 2019), we distinguished Glispie and concluded that the State had
    satisfied its burden of establishing the existence of an agency relationship. In
    Saylor, the apartment complex’s agent testified that the complex had “asked”
    the agent “to take action” and “to ban [Saylor] from the [] property.” 
    Id. The agent
    had verbally informed Saylor that he was banned from the property and
    that if he returned, he would be arrested. 
    Id. Referencing Glispie,
    we concluded
    that the agent’s explicit testimony of this manifestation of consent by the
    apartment complex was sufficient to establish the agency prong of the criminal
    trespass charge. 
    Id. [13] We
    find the current situation to be more analogous to Glispie. At trial, Rector
    testified that in his capacity of general manager of the Building Authority he
    has “the authority to trespass people.” 1 (Tr. Vol. II, pp. 61-62). As the agent’s
    own statement that he could act as an agent is insufficient, “more is required.”
    See 
    Glispie, 955 N.E.2d at 821
    . Rector clarified that the Building Authority
    owns the building and leases the offices to the city and county. He banned
    Kifer after being “notified by judicial officers, law enforcement officials, elected
    1
    Rector and the State also refer to I.C. Ch. 36-9-13 as the basis for his authority to ban people. However,
    I.C. Ch. 36-9-13 merely describes the County Building Authority as a separate municipal cooperation but
    lacks any references to a statutory basis to ban individuals from the building separate and distinct from the
    general criminal trespass statute.
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                               Page 6 of 10
    department heads[.]” (Tr. Vol. II, p. 62). However, as Rector is the general
    manager employed by the Building Authority, he is not the agent of judicial
    officers, law enforcement officials, or elected department heads and therefore
    cannot derive his authority from them, absent a specific court order. See I.C. §
    36-9-13-22 (13) (stating that the board of directors of the Building Authority
    employs [] managers [] necessary for the proper operation of [] the government
    buildings). Accordingly, the State did not carry its burden of proof.
    [14]   Furthermore, as an issue of first impression, Kifer contends that an agent
    cannot ban a person forever and permanently from a public building. The
    parties did not cite any authority, nor did our independent research disclose any
    precedential jurisprudence on the issue. As a persuasive precedent, we note
    that the Alaska Court of Appeals addressed this specific question in Turney v.
    State, 
    922 P.2d 283
    (Ak. Ct. App. 1996). Turney was a jury nullification
    protester, and the court administrator hand-delivered a letter to him on May 9,
    1994, indicating that he was welcome to enter the courthouse to peaceably
    conduct court business or to observe court proceedings, but that he was
    prohibited from entering or remaining on court property to engage in protest
    activities. 
    Id. at 285.
    Approximately two months later, Turney returned to
    protest. 
    Id. The police
    interfered and asked him to leave, which he did. 
    Id. Turney was
    charged with and convicted of criminal trespass. 
    Id. In reversing
    Turney’s conviction, the Alaska court discussed Johnson, a case originating from
    Lousiana. 
    Id. at 287;
    State v. Johnson, 
    381 So. 2d 498
    (La. 1980). In Johnson,
    Johnson was banned from a public bus terminal. When he returned, he was
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019    Page 7 of 10
    arrested and convicted. As cited in Turney, the Louisiana court in Johnson
    decided that “it is patently unreasonable [to construe the trespass statute to
    allow] a citizen with peaceful intent [to] be permanently and perpetually barred
    from the premises of a public transportation facility[.]” 
    Turney, 922 P.2d at 287
    .
    Relying on the Johnson rationale, the Turney court concluded that the Alaska
    trespass statute is “a general statute which provides that a person may not
    remain on property after being lawfully ordered to leave. [] [T]his type of
    statute is generally construed not to grant officials the authority to permanently
    ban people from public facilities. [] [We] hold that this statute did not authorize
    the Area Court Administrator to permanently ban Turney from the courthouse
    property.” 
    Id. at 288.
    [15]   Indiana’s trespass statute is likewise a general statute which provides that a
    person cannot knowingly or intentionally enter real property after having been
    denied entry by the property owner’s agent. See I.C. § 35-43-2-2. While
    Rector’s letter, dated March 1, 2005, banned Kifer from the property, it
    purported to operate as a perpetual ban, advising that Kifer was “no longer
    permitted to be in the Civic Center Complex.” (Tr. Vol. II, p. 63).
    Approximately fourteen years later, Kifer entered the Civic Center Complex to
    report a crime in which he was the alleged victim. Kifer was not acting in an
    offensive, abusive, or obstreperous manner. It was only after he was allowed to
    enter without any problems and after he had reported his perceived crime, that
    Kifer was arrested on the alleged authority of a fourteen-year old letter. The
    police station is a facility devoted to serving and protecting the public at large,
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 8 of 10
    including Kifer. We find it unreasonable to construe the trespass statute to
    allow a citizen to be permanently and perpetually banned from the premises of
    a public building intended to serve the community and which housed several
    facilities that citizens need to access intermittently in the operation of daily
    life. 2, 3
    [16]   In an alternative argument, the State, in a single paragraph, contends that Kifer
    is still guilty of criminal trespass because “the State need not allege or prove
    that a person has been ‘lawfully’ denied entry onto the property of another, as
    the lawfulness of the denial is not an element of the offense.” (Appellee’s Br.,
    p. 11). However, the State’s argument is misplaced. While we agree that the
    State must “not allege or prove that a person has been ‘lawfully’ denied entry
    onto the property of another,” the lawfulness relates to the ‘entry’ element of
    the charge—which was never disputed by Kifer—not to the person authorized
    to institute the ban or the temporal element thereof. See Frink v. State, 
    52 N.E.3d 842
    , 847 (Ind. Ct. App. 2016).
    2
    The State informs this court that Kifer was reminded of the ban during a sentencing hearing for an
    unrelated conviction less than one month prior to his March 4, 2019 arrest. He was advised to call the
    sheriff’s department beforehand if he needed to access one of the facilities within the Civic Center Complex.
    This prior notification requirement appears to be not only a vague elaboration of Rector’s written ban, but the
    State fails to present evidence that this amendment to the general, outright ban was given by an authorized
    agent and has a legitimate basis.
    3
    Our opinion today does not decide that an individual cannot be banned from a public building; rather, we
    conclude that this decision has to be communicated by the proper authorized person and cannot be in place
    permanently without anything more. We decline to address whether a permanent ban can be in place with
    the specification that access to the building is possible upon advance notice or by request for an escort at the
    entrance.
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                                Page 9 of 10
    [17]   In sum, we conclude that the State did not present sufficient evidence beyond a
    reasonable doubt that Rector was authorized by the Building Authority to
    permanently ban Kifer from the Civic Center Complex, a public building.
    CONCLUSION
    [18]   Based on the foregoing, we conclude that the State failed to present sufficient
    evidence beyond a reasonable doubt to support Kifer’s conviction for criminal
    trespass.
    [19]   Reversed.
    [20]   Baker, J. and Brown, J. concur
    Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019   Page 10 of 10
    

Document Info

Docket Number: 19A-CR-1188

Filed Date: 12/4/2019

Precedential Status: Precedential

Modified Date: 12/4/2019