Joy Thornton v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 16 2020, 6:17 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tarek E. Mercho Curtis T. Hill, Jr. Mercho Caughey Attorney General of Indiana Indianapolis, Indiana Myriam Serrano Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joy Thornton, January 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2082 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff David Hooper, Magistrate Trial Court Cause No. 49G08-1901-CM-3489

Vaidik, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2082 | January 16, 2020 Page 1 of 5

Case Summary [1] Joy Thornton appeals his conviction for Class A misdemeanor criminal

trespass, arguing that the evidence is insufficient to support it. We affirm.

Facts and Procedural History [2] In January 2019, Yesenia Ceja was the manager at Peddler’s Mall on West 38th

Street in Indianapolis. Peddler’s Mall is a flea market that rents booth space to

different vendors. As the manager, Ceja had the authority to ask people to

leave Peddler’s Mall. On January 25, Ceja saw Thornton walk into Peddler’s

Mall. Ceja approached Thornton and told him that he was not allowed to be

there as a result of an incident that occurred in September 2018 and asked him

to leave. Thornton ignored Ceja and walked to a cell-phone repair booth

operated by Luis Perez. Ceja went to her office and called the police. [3] Indianapolis Metropolitan Police Department Officer Nicholas Wroblewski

arrived at Peddler’s Mall a few minutes later. Ceja told Officer Wroblewski

that she had asked Thornton to leave but that he didn’t do so. Officer

Wroblewski was the same officer who responded to the September 2018

incident and remembered Thornton. Officer Wroblewski and Ceja then

approached Thornton at Perez’s booth, and Ceja, again, asked him to leave.

Thornton responded that it was a “public place” and that he didn’t have to

leave. Tr. p. 34. Officer Wroblewski told Thornton that he had to leave and

that if he didn’t do so he would be arrested. When Thornton then became

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“rude,” “argumentative,” and “hostile,” Officer Wroblewski arrested him for

criminal trespass. Id. [4] Thereafter, the State charged Thornton with Class A misdemeanor criminal

trespass based on Indiana Code section 35-43-2-2(b)(2).1 Following a bench

trial, he was convicted. [5] Thornton now appeals.

Discussion and Decision [6] Thornton contends that the evidence is insufficient to support his criminal-

trespass conviction. In order to convict Thornton of criminal trespass as

charged here, the State had to prove that he (1) did not have a contractual

interest in Peddler’s Mall and (2) knowingly or intentionally refused to leave

Peddler’s Mall after having been asked to leave by Peddler’s Mall or its

agent. See Ind. Code § 35-43-2-2(b)(2); Appellant’s App. Vol. II p. 8. [7] Thornton first argues that the State failed to prove that he was on the property

of Peddler’s Mall when he was asked to leave. Specifically, he claims that no

evidence was presented that he was “on Peddler’s Mall property versus the

leased property of Perez.” Appellant’s Br. p. 9. Thornton’s argument,

1 The State filed a second criminal-trespass count against Thornton based on Section 35-43-2-2(b)(1), but the trial court granted Thornton’s motion for judgment on the evidence as to this count and dismissed it. Accordingly, we do not address it.

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however, ignores the fact that vendors merely rent booth space from Peddler’s

Mall. As such, a customer who visits a booth is necessarily on Peddler’s Mall

property. Accordingly, the evidence is sufficient to prove that Thornton was on

the property of Peddler’s Mall when he was asked to leave. [8] Thornton next argues that the State failed to prove that he lacked a contractual

interest in Peddler’s Mall, as he was there to do business with Perez. Even

though Peddler’s Mall is open to the public, as the owner of the property,

Peddler’s Mall had the right to determine whom to invite, the scope of the

invitation, and the circumstances under which the invitation could be revoked.

Accordingly, Peddler’s Mall could revoke Thornton’s invitation to be there. See

Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996) (finding that the

evidence was sufficient to prove that the defendant did not have a contractual

interest in a hotel lobby because the hotel had revoked his invitation to be

there); see also Lyles v. State, 970 N.E.2d 140, 143 (Ind. 2012) (finding that the

evidence was sufficient to prove that the defendant lacked a contractual interest

in his bank’s property because he was “neither an owner nor an employee of the

bank” and “the bank manager had authority to ask customers to leave the bank

premises”). Because the evidence shows that Peddler’s Mall revoked

Thornton’s invitation to be there, the evidence is sufficient to prove that

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Thornton did not have a contractual interest in Peddler’s Mall. 2 We therefore

affirm Thornton’s conviction for Class A misdemeanor criminal trespass. [9] Affirmed.

Najam, J., and Tavitas, J., concur.

2 Thornton also argues that the State failed to prove that Ceja was an agent of Peddler’s Mall. Thornton relies heavily on Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App. 2011), reh’g denied. In its brief, the State points out that this Court clarified Glispie in Berry v. State, 4 N.E.3d 204 (Ind. Ct. App. 2014), trans. denied, and argues that Berry—not Glispie—controls this case. Thornton did not acknowledge Berry in his brief or file a reply brief to respond to the State’s argument.

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