James Kerner v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
FILED
Feb 07 2013, 9:28 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES KERNER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1205-CR-271
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM MARION SUPERIOR THE COURT
The Honorable Linda E. Brown, Judge
The Honorable Teresa Hall, Master Commissioner
Cause No. 49F10-1110-CM-76824
February 7, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
James Kerner appeals his conviction for Class A misdemeanor trespass. We
affirm.
Issue
Kerner raises one issue, which we restate as whether there is sufficient evidence to
support his conviction.
Facts
On the morning of October 27, 2011, Kerner was peacefully protesting outside of
the Statehouse in Indianapolis. It was raining, and Kerner was carrying a large patio
umbrella. Sergeant Russell Growe of the Indiana State Police asked Kerner to remove
the umbrella. Although Kerner refused, another protester told Sergeant Growe she would
have him remove it.
Approximately an hour later, Kerner was still holding the umbrella, and Growe
consulted his supervisor, Sergeant Jon Watson of the Indiana State Police, and the
Commissioner of the Indiana Department of Administration, Robert Wynkoop. Sergeant
Watson and Wynkoop approached Kerner and asked him to put the umbrella away
several times, but Kerner did not put it away. Sergeant Watson then told Kerner three or
four times that he could either put the umbrella away or leave the property. Kerner was
also informed that, if he refused to comply, he was going to be arrested for criminal
trespass. Kerner did not put the umbrella away or leave the property.
Kerner was arrested and charged with Class A misdemeanor trespass. Following a
jury trial, Kerner was convicted of trespass. He now appeals.
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Analysis
Kerner argues that there is insufficient evidence to support his conviction. The
standard of review for claims of insufficient evidence is well settled. We do not reweigh
the evidence or judge the credibility of the witnesses, and we respect the jury’s exclusive
province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375 (Ind.
2010). We consider only the probative evidence and reasonable inferences supporting
the verdict and affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond
a reasonable doubt. Id.A person who, not having a contractual interest in the property, knowingly or
intentionally refuses to leave the real property of another person after having been asked
to leave by the other person or that person’s agent commits Class A misdemeanor
criminal trespass. Ind. Code § 35-43-2-2(a)(2). “A person engages in conduct
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”
I.C. § 35-41-2-2(a). “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.” I.C. § 35-41-2-2(b).
Kerner argues that he was under the impression he was involved in a discussion
with Wynkoop and the police officers regarding the umbrella and that he did not
understand he would be arrested for trespass if he did not put the umbrella down or leave
the premises. He asserts that he could not have knowingly or intentionally committed
trespass when he had a good faith belief that he was allowed to be at the Statehouse.
Indeed:
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if the act prohibited is committed in good faith, under a claim
of right, no conviction will lie; but the belief in the right to do
the act complained of must have a fair and reasonable
foundation, which is a question for the jury, and it must
appear from the evidence that defendant not only entered
under a bona fide belief in his right to enter, but that he had
reasonable grounds for such belief.
Myers v. State, 190 Ind. 269, 272-73, 130 N.E. 116, 117 (1921).
The evidence most favorable to the conviction does not show that Kerner had a
fair and reasonable foundation for believing that he could remain on the Statehouse
sidewalk while carrying an open patio umbrella. Sergeant Growe initially asked Kerner
to put the umbrella down. An hour later, Kerner was asked by Sergeant Watson and
Wynkoop to remove the umbrella. He was then informed that, if he did not remove the
umbrella, he would have to leave the property. He was also informed that, if he did not
put the umbrella away or leave, he would be arrested for trespass. Despite these requests,
Kerner remained on the property with the umbrella open. This is sufficient evidence of
Kerner’s intent.
Kerner also asserts the State failed to prove that he knowingly or intentionally
refused to leave the property and there is no evidence he was given a reasonable period of
time to leave the property. This is simply a request to reweigh the evidence. Sergeant
Watson testified that he made several requests to Kerner and that the conversation with
Kerner lasted three to five minutes. The jury was also shown a video of part of the
encounter in which Kerner remained steadfastly standing with the umbrella. From this
evidence the jury could infer that Kerner intended to remain on the property and that he
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was given reasonable time to leave the property. The evidence was sufficient to support
Kerner’s conviction.
Conclusion
Kerner has not established that the evidence was insufficient to support his
trespass conviction. We affirm.
Affirmed.
BAKER, J., and VAIDIK, J., concur.
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