Gerald Rachell v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 24 2016, 10:11 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald Rachell, August 24, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1601-CR-107
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G25-1509-F6-33708
Bailey, Judge.
Case Summary
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[1] After a bench trial, Gerald Rachell (“Rachell”) was convicted of Criminal
Trespass, as a Class A misdemeanor.1 He now appeals.
[2] We affirm.
Issue
[3] Rachell raises two issues for our review, which we restate as the single issue of
whether there was sufficient evidence to sustain his conviction.
Facts and Procedural History
[4] On September 15, 2015, Rachell was at the 16 Park Apartments (“16 Park”)
housing complex in Indianapolis. Central Indiana Protection Agency
(“CIPA”) had been retained by 16 Park to provide security at the complex.
Someone at the complex reported a disturbance. Two of CIPA’s security
guards, Edward Rodriguez (“Rodriguez”) and Devon Williams (“Williams”),
responded. Upon investigation, they encountered Rachell. Rodriguez and
Williams asked Rachell whether he had leased an apartment at 16 Park.
Rachell answered that he had not, but that he lived in an apartment there. 16
Park’s policies generally disallowed subleasing of apartments.
1
Ind. Code § 35-43-2-2(b)(1). This statute was revised, effective July 1, 2016. We refer throughout to the
statute in effect at the time of Rachell’s offense.
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[5] Rodriguez told Rachell that since he was not a resident, he did not have
permission to be at the complex, and gave Rachell a trespass notice. The
trespass notice recorded Rachell’s address from his driver’s license as located
somewhere other than 16 Park, indicated that the incident warranting notice of
trespass was “doesn’t live on property and is intoxicated,” and informed
Rachell that he was “BARRED from physically entering” the complex. (Ex. 1)
Rodriguez signed the notice as the issuing officer, and Williams signed the
notice as a witness. Rachell refused to sign an acknowledgment of having
received a trespass notice.
[6] On September 16, 2015, Williams again encountered Rachell at 16 Park.
Williams asked Rachell why he had returned, to which Rachell replied that he
had come back because he was getting some of his belongings from an
apartment in the complex. Police were called to the scene, and Indianapolis-
Marion County Police Officer Michael Rodriguez (“Officer M. Rodriguez”)
encountered Williams and another security guard, who were with Rachell.
[7] Officer M. Rodriguez asked Rachell whether he had “any invested interest into
the apartment,” and Rachell said he did not. (Tr. at 37.) Rachell again stated
that he had clothing inside one of the residences, but did not tell Officer M.
Rodriguez that he was subletting an apartment. At the end of the police
officers’ inquiries, Rachell was arrested.
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[8] On September 21, 2015, Rachell was charged with Residential Entry, as a Level
6 felony,2 and Criminal Trespass. On December 22, 2015, the Residential
Entry charge was dismissed, and the Criminal Trespass charge proceeded to a
bench trial. At the conclusion of the trial, the court found Rachell guilty of
Criminal Trespass, as charged, and entered judgment against him.
[9] A sentencing hearing was conducted on December 29, 2015, at the conclusion
of which the court sentenced Rachell to 210 days imprisonment with 105 days
of credit for time served.
[10] This appeal ensued.
Discussion and Decision
[11] Rachell challenges the sufficiency of the evidence for his conviction, after a
bench trial, for Criminal Trespass, as a Class A misdemeanor. Our standard of
review in such cases is well-settled:
This court will not reweigh the evidence or assess the credibility
of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App.
2002). Only the evidence most favorable to the judgment,
together with all reasonable inferences that can be drawn
therefrom will be considered. Id. If a reasonable trier of fact
could have found the defendant guilty based on the probative
2
I.C. § 35-43-2-1.5.
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evidence and reasonable inferences drawn therefrom, then a
conviction will be affirmed. Id. at 1028–29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
[12] Rachell was charged with Criminal Trespass under Indiana Code section 35-43-
2-2(b)(1). To obtain a conviction, the State was required to prove beyond a
reasonable doubt that Rachell, not having a contractual interest in the property
at 16 Park, knowingly or intentionally entered the property after having been
denied entry by 16 Park or its agents. See I.C. § 35-43-2-2(b)(1); App’x at 17.
The offense has seven elements: “the defendant (1) knowingly or intentionally
(2) refused to leave (3) the real property (4) of another person (5) after having
been asked to leave (6) by the person or the person’s agent (7) when such
defendant lacked a contractual interest in the real property.” Lyles v. State, 970
N.E.2d 140, 142-43 (Ind. 2012). Rachell challenges his conviction on two of
the elements of the statute: whether there was sufficient evidence that he lacked
contractual interest in the property, and whether there was sufficient evidence
that the security guards were agents of 16 Park.
[13] We first address the contractual interest element of Criminal Trespass. The
General Assembly and the Indiana Supreme Court have not directly defined
what constitutes a contractual interest in real property for purposes of the
statute. Id. at 143 n.2. This Court has defined a contractual interest as “the
right to be present on another’s property, arising out of an agreement of at least
two parties that creates an obligation to do or not do a particular thing.” Taylor
v. State, 836 N.E.2d 1024, 1026 (Ind. Ct. App. 2005), trans. denied. Moreover, to
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obtain a conviction, “the State need not disprove every conceivable contractual
interest that a defendant might have obtained in the real property at issue.”
Lyles, 970 N.E.2d at 143 (citations and quotations omitted).
Thus…some contractual interests need not be disproven because
they do not create any reasonable doubt that a defendant lacks a
contractual interest in the property. For this reason, the State
satisfies its burden when it disproves those contractual interests
that are reasonably apparent from the context and circumstances
under which the trespass is alleged to have occurred.
Id.
[14] At trial, Rodriguez testified that when he first encountered Rachell at 16 Park
on September 15, 2015, he asked Rachell whether he lived at the complex;
Rachell, Rodriguez testified, said he did not live there. (Tr. at 14.) Rodriguez
asked Rachell whether he was on a lease at the complex, and Rachell denied
having a lease. Rodriguez further testified that when he asked Rachell to leave,
he refused to do so, and as a result Rodriguez and Williams issued Rachell a
written notice of trespass and told him not to return to 16 Park. Williams also
testified at trial, and while his testimony differed from Rodriguez’s concerning
whether Rachell stated that he lived at 16 Park, Williams also testified that
Rachell denied having a lease. Williams further testified that, after he and
Rodriguez gave Rachell the trespass notice, Rachell acknowledged that he
knew he was not permitted to return to the complex. (Tr. at 27-28.) In
addition, the notice of trespass reflects an address for Rachell at a location other
than a unit at 16 Park. (Ex. 1.) On the following day, Rachell acknowledged to
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Officer M. Rodriguez that he did not have “any invested interest” in an
apartment (Tr. at 37), and did not assert that he had a sublease for an
apartment.
[15] Despite this evidence, Rachell argues that “[t]he record clearly supports [his]
claim of a contractual interest in the 16 Park Apartments.” (Appellant’s Br. at
10.) He points to testimony from his mother that she had subleased space
under an oral agreement from a relative, Ebony Dixon (“Dixon”), and that
under that oral agreement Rachell occupied a specific room in Dixon’s unit.
However, the State adduced testimony from Rodriguez that 16 Park had a
general policy prohibiting tenants from subleasing their apartments to others.
Moreover, Rachell’s mother testified that Dixon received Section 8 public
housing assistance, raising the possibility that any sublease was impermissible
in that context, as well.3 Thus, to the extent Rachell presents contentions about
an oral sublease, though one without any evidence of a waiver of the general
policy of 16 Park precluding subleases, Rachell invites this Court to second-
guess the trial court’s weighing of the evidence and credibility determinations.
We cannot do so, Sargent, 875 N.E.2d at 767, and conclude that there was
sufficient evidence adduced at trial that Rachell lacked a contractual interest in
the property.
3
We note that the trial court was circumspect in sua sponte advising Rachell’s mother that she might be
incriminating herself with respect to a charge of welfare fraud, and informing her that she was entitled to
counsel before testifying. Rachell’s mother declined the offer of counsel and said she was “fine with [her]
testimony.” (Tr. at 48.)
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[16] We turn now to the question of whether there was sufficient evidence with
respect to the agency element of the Criminal Trespass statute. Rachell
contends there was insufficient evidence that Rodriguez and Williams were
agents of 16 Park with authority to request that Rachell leave the property.
This Court has previously addressed the question of agency in the context of the
Criminal Trespass statute in Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App.
2011). The Glispie Court identified the elements of agency as: “(1)
manifestation of consent by the principal, (2) acceptance of authority by the
agent, and (3) control exerted by the principal over the agent.” Id. (quoting
Demming v. Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011)). Agency
may be proved by circumstantial evidence, and there is no requirement that the
agency be proved by a writing. Id. (citing Demming, 943 N.E.2d at 883).
[17] In Glispie, this Court reversed Glispie’s conviction for Criminal Trespass
because the sole item of evidence of agency was the arresting officer’s
“testimony that he ‘could act as an agent of the property.’” Id. at 822 (citing
trial transcript). This was held to be insufficient evidence of agency. Rachell
argues that the holding in Glispie compels the same result here.
[18] We disagree. The evidence at trial included testimony from both Rodriguez
and Williams that, serving in their capacity as paid employees of CIPA, they
had been given authority to notify individuals that they had trespassed at 16
Park. While taken alone, this might be insufficient evidence under the holding
in Glispie, this is not the only evidence in the record of Rodriguez’s and
Williams’s authority. Rodriguez and Williams testified that they had been
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dispatched to 16 Park to investigate a resident’s report of a disturbance of some
sort on both September 15 and 16, 2015. Moreover, in response to questions
from Rachell upon Rachell’s hearsay objection concerning Rodriguez’s
statement that he had authority to issue notices of trespass, Rodriguez testified
that “They [16 Park] pay CIPA. They [CIPA] pay us,” and Rachell’s objection
to the question of authority was overruled.4 (Tr. at 10.) That is, Rodriguez
acknowledged that he was not employed by 16 Park, but testified that 16 Park
had contracted with CIPA for security services, and CIPA in turn employed
him and Williams.
[19] Unlike in Glispie, then, there is more evidence than simply a lone officer’s
assertion that he was authorized to arrest a trespasser. We accordingly
conclude there was sufficient evidence of agency.
Conclusion
[20] There was sufficient evidence presented at trial on the contractual interest and
agency elements to sustain Rachell’s conviction for Criminal Trespass.
[21] Affirmed.
Riley, J., and Barnes, J., concur.
4
Rachell does not challenge that evidentiary ruling on appeal.
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