Ross E. Embry v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 29 2017, 9:03 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ross E. Embry, December 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1706-CR-1374
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton A.
Appellee-Plaintiff Graham, Judge
The Honorable Anne
Flannelly, Magistrate
Trial Court Cause No.
49G07-1612-CM-49262, 49G07-
1701-CM-517
Altice, Judge.
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Case Summary
[1] Ross Embry appeals following his convictions for two counts of Class A
misdemeanor criminal trespass and argues that the State presented insufficient
evidence to support his convictions.
[2] We affirm.
Facts & Procedural History
[3] On December 29, 2016, Marshal Michael Kiefer of the Rocky Ripple Police
Department was called to the IndyGo Transit Center to assist with a patron
who was causing a disturbance. Upon Marshal Kiefer’s arrival, IndyGo
employees directed his attention to Embry, who was in the lobby. The
employees informed Marshal Kiefer that Embry had been smoking in the lobby,
which was a nonsmoking area, and refused to put his cigarette out when asked.
Marshal Kiefer approached Embry, who denied that he had been smoking and
became argumentative. Marshal Kiefer eventually asked Embry to leave, but
Embry refused and continued to argue. Marshal Kiefer informed Embry that if
he did not leave, he would be banned from entering IndyGo property for a year.
Embry still did not leave, so Marshal Kiefer issued him a written criminal
trespass warning, which provided that “Your signature indicates that you
understand that you are banned from the above named property and that if you violate
this notice, you may be arrested.” Exhibit Volume, State’s Ex. 1 (emphasis in
original). Embry signed just below this warning, and Marshal Kiefer repeatedly
explained to Embry that he was not to come back onto the property unless he
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received a notice in the mail informing him that he could return. Thereafter,
Embry continued to argue and told Marshal Kiefer that he had no right to ban
him from the property. After more arguing, Embry finally left.
[4] The next day, Marshal Kiefer and Chief Deputy David Howe of the Southport
Police Department were called to respond to a patron causing a disturbance on
a bus at the IndyGo Transit Center. When they arrived, they encountered
Embry, who was refusing to pay his fare or get off the bus. Embry again began
arguing with Marshal Kiefer, stating that he had no right to make him get off
the bus or to ban him from IndyGo property. Marshal Kiefer placed Embry
under arrest for criminal trespass, and in the process of doing so, found the
trespass warning issued the previous day in Embry’s pocket.
[5] Embry returned to IndyGo property many times after this incident. Instead of
arresting Embry, Marshal Kiefer would usually just order him to leave. Embry
would sometimes argue, but he always eventually complied. On January 4,
2017, Deputy Howe was notified that Embry had once again returned to the
IndyGo Transit Center. After determining that Embry’s trespass warning was
still active, Deputy Howe arrested Embry for criminal trespass.
[6] The State charged Embry with two counts of criminal trespass, one for the
December 30 incident and one for the January 4 incident. A bench trial was
held on June 7, 2017, at the conclusion of which the trial court found Embry
guilty as charged. Embry was sentenced to concurrent terms of 365 days with
363 days suspended. Embry now appeals.
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Discussion & Decision
[7] Embry argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences flowing
therefrom. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, the judgment will not be
disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
[8] To convict Embry of criminal trespass as a Class A misdemeanor, the State was
required to prove that Embry, not having a contractual interest in the property,
knowingly or intentionally entered the IndyGo property after having been
denied entry by IndyGo or its agent. See Ind. Code § 35-43-2-2. On appeal,
Embry concedes that he had no contractual interest in the property and that he
had been issued a trespass warning by an authorized agent of IndyGo. He
argues, however, that the evidence was insufficient to prove that he knowingly
or intentionally entered the property in violation of the trespass warning. In
support, he directs our attention to his own testimony that he suffers from
periodic memory loss due to a chronic illness and could not recall that he had
been banned from the IndyGo Transit Center at the time of either arrest.
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[9] Embry’s arguments are nothing more than requests to reweigh the evidence and
judge the credibility of witnesses, which we will not do on appeal. The trial
court was not obligated to credit Embry’s testimony regarding his alleged
memory loss, and it expressly declined to do so. The State presented evidence
that on December 29, 2016, Embry signed a written trespass warning and
Marshal Kiefer repeatedly told Embry that he was not to return to the property.
Marshal Kiefer testified that Embry appeared to understand. Nevertheless,
with the trespass warning still in his pocket, Embry came back to the property
the next day. When confronted by Marshal Kiefer, Embry asserted that
Marshal Kiefer had no right to ban him from the property. Thereafter, Embry
repeatedly returned to the property and was told to leave multiple times.
Embry continued to ignore the trespass notice and was arrested a second time
on January 4, 2017. This evidence was more than sufficient to support Embry’s
convictions.
[10] Judgment affirmed.
[11] May, J., and Vaidik, C.J., concur.
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