Ross E. Embry v. State of Indiana (mem. dec.) ( 2017 )


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  • 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.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017          Page 1 of 5
    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
    Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 2 of 5
    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.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 3 of 5
    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.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 4 of 5
    [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.
    Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 5 of 5
    

Document Info

Docket Number: 49A04-1706-CR-1374

Filed Date: 12/29/2017

Precedential Status: Precedential

Modified Date: 12/29/2017