James Colyer v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 20 2020, 8:44 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Colyer August 20, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-122
v. Appeal from the
Brown Circuit Court
State of Indiana The Honorable
Appellee-Plaintiff. Mary H. Wertz, Judge
Trial Court Cause Nos.
07C01-1907-CM-248
Kirsch, Judge.
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[1] James Colyer (“Colyer”) was convicted of criminal trespass1 as a Class A
misdemeanor following a jury trial and was sentenced to sixty days executed.
Colyer now appeals and raises the following issue for our review: whether the
evidence presented at trial was sufficient to support his conviction for criminal
trespass.
[2] We affirm.
Facts and Procedural History
[3] Joe McGlothlin (“McGlothlin”) was the director of operations at a wood
framing business called The Beamery in Brown County, Indiana. Tr. Vol. 2 at
65, 166. On June 24, 2019, McGlothlin saw a man (whom he identified as
Colyer at trial) and a woman walking around the storage yard where The
Beamery’s trucks and trailers were parked. Id. at 71-72, 84, 90. McGlothlin
knew that they were not employees of The Beamery and noticed that the man
was wearing an ankle monitor. Id. at 88. Being concerned about the two
strangers, McGlothlin watched them and made his presence known by standing
at a door. Id. at 71-72. Colyer and the woman walked off when they saw
McGlothlin. Id. About an hour later, McGlothlin saw Colyer and the woman
lingering on the property again and told them to leave. Id. at 73. As Colyer
was walking away, he approached a storage facility where The Beamery kept its
inventory and pulled on the door. Id. The door did not open. Id. McGlothin
1
See Ind. Code § 35-43-2-2(b).
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approached Colyer and the woman and told them again that they had to leave.
Id. Colyer and the woman walked away while laughing. Id. at 74.
[4] The Beamery shares a building on the property with a wood flooring company
named Quarter-Sawn Flooring (“Quarter-Sawn”), owned by Steve Edwards
(“Edwards”). Id. at 68-71. On June 24, 2019, when Edwards arrived on the
property, he saw Colyer coming from the shared property. Id. at 135. Edwards
inquired as to why Colyer was there, but Colyer expressed to Edwards that he
did not want to talk. Id. at 135-36.
[5] Later in the day, McGlothlin and Edwards told each other about their
interactions with Colyer. Id. at 136-37. McGlothlin called the Sheriff’s
Department, reporting Colyer’s trespassing on the property of The Beamery and
Quarter-Sawn. Id. at 88. Brown County Sheriff’s Deputy Nicholson Briles
(“Deputy Briles”) was dispatched to The Beamery’s address. Id. at 99.
Edwards spoke with Deputy Briles and told him that a person wearing black
shorts, a black tee shirt, and an ankle monitor had trespassed on the property of
the The Beamery and Quarter-Sawn. Id. at 100. Edwards told Deputy Briles
that the person had left the property and walked west on State Road 45. Id. at
101. Deputy Briles then drove in that direction and found a man who matched
Edwards’s description of the trespasser. Id. at 101. Deputy Briles approached
the man and confirmed his identity as Coyler. Id. at 102. Coyler admitted that
he had been on The Beamery and Quart-Sawn’s property. Id. Coyler said that
he was on home detention and was trying to get a signal for his ankle monitor
there. Id. Deputy Briles explained to Coyler that it was not his property and
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that “if he wasn’t welcome there he shouldn’t be on . . . the property.” Id. at
103. After confirming back with Edwards that he wanted to have Colyer
trespassed, Deputy Briles told Coyler that he was “no longer welcome on that
property” and if he returned there, he “could be arrested for trespassing.” Id. at
103, 105.
[6] However, Colyer continued coming to the property of The Beamery and
Quarter-Sawn even after being warned by Deputy Briles about the potential
consequence of an arrest. Id. at 89, 138. At trial, Edwards testified that
between June 24 and July 13, 2019, he saw Colyer on the property between five
to seven times; McGlothlin saw Colyer on the property three or four times in
the same time period. Id. Two Quarter-Sawn employees also observed Colyer
on the property on multiple occasions. Id. at 112, 149. Both Edwards and
McGlothin told Colyer that he was not allowed on the property and not to
come back. Id. at 90, 138. Multiple signs were on the property that prohibited
entry onto the property by non-employees, and Colyer had never asked for
permission to be on the property. Id. at 73, 81, 89, 133, 140-41.
[7] On July 13, 2019, Edwards saw Colyer on the property of The Beamery and
Quarter-Sawn again and asked him what he was doing. Id. at 138. Colyer
claimed that “Mike Horn” said he could be there. Id. Edwards did not know
anyone named Mike Horn and called the Sheriff’s Department. Id. at 139.
Deputy William Pool (“Deputy Pool”) was dispatched to the scene. Id. at 155.
Colyer told Deputy Pool that Deputy Horn, whose first name is Mike, from the
Brown County Sheriff’s Department had given him permission to be on the
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property of The Beamery and Quarter-Sawn. Id. at 157. Deputy Pool made a
phone call while at the scene and confirmed that Deputy Horn had never
spoken with Colyer. Id. Colyer was then arrested. Id. at 139. On July 22,
2019, Colyer was charged with Class A misdemeanor criminal trespass.
Appellant’s App. Vol. 2 at 13.
[8] A jury trial was held on November 6, 2019. Tr. Vol. 2 at 38. At trial, there was
testimony that, during the time period when Colyer was coming to The
Beamery and Quarter-Sawn’s property, he was living with his father John
Colyer (“Father”) in Brown County and was on home detention ordered by
Marion County Community Corrections (“MCCC”). Id. at 192, 232-33.
Colyer testified that he understood that under the MCCC rules he was required
to stay in Father’s house. Id. at 235. He also testified that he had been unable
to get a signal for his ankle monitor at Father’s house since the first night of
moving in. Id. at 239. Colyer said that MCCC called him on the first night
about a signal issue and asked him to step outside. Id. He then walked around
while continuing the phone call and eventually got signal on Quarter-Sawn’s
property. Id. 240, 245. Colyer admitted at trial that he could get the signal at
two other locations, but the signal at those locations was intermittent. Id. at
241.
[9] At the conclusion of the trial, the jury found Colyer guilty of Class A
misdemeanor criminal trespass. Tr. Vol. 3 at 109. The trial court sentenced
Colyer to sixty days executed. Id. at 129. Colyer now appeals.
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Discussion and Decision
[10] Colyer contends the State did not present sufficient evidence to support his
conviction. When we review the sufficiency of evidence to support a
conviction, we do not reweigh the evidence or assess the credibility of the
witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.
denied. We consider only the evidence most favorable to the trial court’s ruling
and the reasonable inferences that can be drawn from that evidence. Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in
the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,
875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is
substantial evidence of probative value such that a reasonable trier of fact could
have concluded the defendant was guilty beyond a reasonable doubt. Wolf v.
State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).
[11] In order to convict Colyer of Class A misdemeanor criminal trespass, the State
was required to prove beyond a reasonable doubt that Colyer, (1) not having a
contractual interest in the property, (2) knowingly or intentionally entered the
real property of another person, (3) after having been denied entry by the other
person or that person’s agents. Ind. Code § 35-43-2-2(b)(1). On appeal, Colyer
does not dispute that he had trespassed on Quarter-Sawn and The Beamery’s
property. Appellant’s Br. at 12. Instead, he argues that he did so because of
necessity and that the State failed to present sufficient evidence to rebut his
defense of necessity. Id. This court has set forth the following requirements to
establish a necessity defense:
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(1) the act charged as criminal must have been done to prevent a
significant evil;
(2) there must have been no adequate alternative to the
commission of the act;
(3) the harm caused by the act must not be disproportionate to
the harm avoided;
(4) the accused must entertain a good faith belief that his act was
necessary to prevent greater harm;
(5) such belief must be objectively reasonable under all the
circumstances; and
(6) the accused must not have substantially contributed to the
creation of the emergency.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013) (citations
omitted), trans. denied. In order to negate a necessity defense, the State must
disprove at least one of the six elements beyond reasonable doubt. Clemons, 996
N.E.2d at 1285. The State may refute a claim of the defense of necessity by
direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-
chief. Id. The decision whether a claim of necessity has been disproved is
entrusted to the fact-finder. Id. Where a defendant is convicted despite his
claim of necessity, this court will reverse the conviction only if no reasonable
person could find that the defense was negated by the State beyond a reasonable
doubt. Id.
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[12] Colyer contends that his trespassing was necessary to prevent his potential
incarceration if he could not get a signal for his ankle monitor. Appellant’s Br. at
14. Colyer argues that the fear of incarceration qualifies as the “significant evil”
set out in the first of the elements and that there was “no adequate alternative”
because The Beamery and Quarter-Sawn’s property was the only place where
he could get stable signal that was within his walking distance. Id.
[13] However, our review of the record shows that, Colyer could in fact get a signal
from at least two other locations. He never sought permission to be on the
property of The Beamery and Quarter-Sawn or talked to MCCC about
accommodating his trouble getting signal at Father’s house. Therefore, a
reasonable jury could have found that his trespassing on The Beamery and
Quarter-Sawn’s property was not “necessary.” See Clemons, 996 N.E.2d at
1285. Furthermore, while on home detention, Colyer knew that he was not
allowed to leave Father’s house. Although Coyler claimed at trial that MCCC
told him to step out of the house to get signal, the jury was not required to
credit his testimony. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). He
had also been warned multiple times by Deputy Briles, Edwards, and
McGlothlin that he was not welcome on the property, and if he continued to
trespass, he could be arrested for criminal trespass. Colyer could not have
believed in good faith that he could avoid incarceration by committing criminal
trespass in addition to violating the home detention order by leaving Father’s
house. See Clemons, 996 N.E.2d at 1285. Moreover, Colyer’s belief was not
“objectively reasonable” even if he had honestly thought so, because the
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aggregate harm of the two trespassing offenses was “disproportionate” to the
harm he was trying to avoid. See id.
[14] Based on this, we determine that a reasonable jury could have concluded
beyond a reasonable doubt that Colyer’s claim of necessity had been disproved.
We, therefore, conclude that the State presented sufficient evidence to support
Colyer’s conviction for criminal trespass.
[15] Affirmed.
Pyle, J., and Tavitas, J., concur.
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