Marcus Russell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 31 2016, 7:27 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Justin F. Roebel Indianapolis, Indiana Deputy Attorney General Barbara J. Simmons Indianapolis, Indiana Oldenburg, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marcus Russell, May 31, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1509-CR-1473 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Jose D. Salinas, Judge Trial Court Cause No. 49G14-1412-CM-55024

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016 Page 1 of 6 [1] Marcus Russell (“Russell”) was convicted after a bench trial of criminal

trespass1 as a Class A misdemeanor and was sentenced to sixty days in the

Marion County Jail. He now appeals and raises the following restated issue for

our review: whether the State presented sufficient evidence to support Russell’s

conviction for criminal trespass. [2] We affirm.

Facts and Procedural History [3] Sean McCurdy (“McCurdy”), the Assistant Public Safety Director for U.S.

Security Associates, was working at the Keystone Fashion Mall in Indianapolis,

Indiana (“the Fashion Mall”). McCurdy’s responsibilities included patrolling

the property, keeping it safe, customer service, and trespassing individuals from

the property. On November 28, 2014, McCurdy observed Russell in the

parking lot and issued a Trespass Notice to him for possible suspicious activity.

McCurdy verbally informed Russell that he had been trespassed from the

Fashion Mall property.2 The next day, on November 29, 2014, Bob Gorman

(“Gorman”), the general manager of the property, informed Russell by phone

that he was trespassed from the property.

1 See Ind. Code § 35-43-2-2(b)(1) 2 To trespass an individual is the equivalent of banning one from the property. See Tr. 21-22. Both parties used “trespass” in their briefs.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016 Page 2 of 6 [4] On December 14, 2014, Russell was spotted in the parking lot of the Fashion

Mall by security officer, Donna Burk (“Burk”). Burk notified Indianapolis

Metropolitan Police Department Officer Matthew McFadden (“McFadden”),

who patrolled the Fashion Mall on a part-time basis, that there was a possible

trespasser on the property. McCurdy was contacted, and he verified that

Russell was “trespassed from the property.” Officer McFadden arrested Russell

and transported him to jail. [5] On, December 15, 2014, the State charged Russell with criminal trespass as a

Class A misdemeanor. A bench trial was held. Russell testified that he is self-

employed and in the business of buying and selling Apple iPhones. His online

cell phone business required him to visit the Apple store in the Fashion Mall on

an almost daily basis, often using Apple gift cards. Russell also has a credit

account with Saks Fifth Avenue located in the Fashion Mall for personal use.

Russell testified that there is only one other Apple store, and no other Saks Fifth

Avenue stores in the state of Indiana. [6] At the conclusion of the trial, Russell was found guilty of criminal trespass. At

sentencing, the trial court imposed a sentence of sixty days with fifty-six days

suspended and no probation. Russell now appeals.

Discussion and Decision [7] When we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witness. Cunningham v.

State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). We consider only the

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016 Page 3 of 6

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We will not disturb the factfinder’s verdict if there is

substantial evidence of probative value to support it. Id. We will affirm unless

no reasonable factfinder could find the elements of the crime proven beyond a

reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009).

trans. denied. As the reviewing court, we respect “the [fact finder’s] exclusive

province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124,126

(Ind. 2005). [8] In order to convict Russell of criminal trespass, the State was required to prove

beyond a reasonable doubt that Russell, not having a contractual interest in the

property, knowingly or intentionally entered the real property of another person

after having been denied entry by the other person or that person’s agent. Ind.

Code § 35-43-2-2(b)(1). [9] Russell argues that his conviction for criminal trespass was not supported by

sufficient evidence. Specifically, Russell contends that the State did not present

sufficient evidence to prove that he had no contractual interest in the Fashion

Mall property or to prove that the mall or its agents had denied him from entry

to the Fashion Mall. [10] To prove that Russell did not have a contractual interest in the mall property,

“the State does not have to disprove every conceivable contractual interest the

defendant might have had in the property.” Fleck v. State, 508 N.E.2d 539, 541

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016 Page 4 of 6

(Ind. 1987). Here, McCurdy testified that Russell was not employed at the

mall, and he did not have an interest in the property, and there was no evidence

that the Apple Store or Saks Fifth Avenue had the authority to grant a

contractual interest in the mall. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind.

Ct. App. 1996) (Defendant’s claim that he had a good faith belief that he was

permitted to be in hotel lobby because of his status as a paid hotel guest was

rejected). [11] Russell next contends that he did not commit criminal trespass because he did

not acknowledge being previously denied entry to the Fashion Mall by an agent

of the shopping complex. Here, the evidence established that Russell was orally

notified that he was denied entry to the Fashion Mall property by McCurdy.

McCurdy managed security for the Fashion Mall and his signature on the

Trespass Notice sufficiently established that he possessed the authority to deny

entry to the Fashion Mall. McCurdy also testified that he gave Russell a

written “Ban from Private Property Notice.” Additionally, Gorman, the general

manager for the property, informed Russell by phone that he was trespassed

from the property. Under Indiana Code section 35-43-2-2(c), “[a] person has

been denied entry under subdivision (b)(1) of this section when the person has

been denied entry by means of personal communication, oral or written . . .”

Sufficient evidence was presented to establish that Russell knowingly or

intentionally committed criminal trespass as a Class A misdemeanor. [12] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016 Page 5 of 6 [13] Riley, J., and Pyle, J., concur.

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