MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Nov 30 2016, 6:52 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Appellate Division
                                                        Paula J. Beller
Indianapolis, Indiana                                   Deputy Attorney General
Timothy J. Burns                                        Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Corey Brown,                                            November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1604-CR-738
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Ronnie Huerta, Commissioner
                                                        Trial Court Cause No.
                                                        49G19-1512-CM-43045



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016     Page 1 of 9
[1]   Corey Brown (“Brown”) appeals his convictions following a bench trial for

      criminal trespass1 as a Class A misdemeanor and battery2 as a Class B

      misdemeanor. On appeal, Brown challenges the sufficiency of the evidence to

      support his convictions.


[2]   We affirm.


                                     Facts and Procedural History
[3]   In December 2015, Luke Wahlberg (“Wahlberg”) was employed at a Rickers

      Gas Station located in Marion County. As general manager, Wahlberg “had

      authority to trespass people from the store.” Appellant’s Br. at 5. On December

      4, around 10:00 a.m., Wahlberg was working at Rickers when he discovered

      that Brown, who by that time had been on the premises for about three hours,

      had just lit a Cigarillo inside the store. Wahlberg asked Brown to take the lit

      Cigarillo outside. After Brown ignored Wahlberg’s request, Wahlberg repeated

      the command and told Brown to leave the store at least seven or eight times.

      Tr. at 14.


[4]   When Wahlberg suggested that Brown “was bumming around,” Brown became

      aggravated and approached Wahlberg in an aggressive manner saying that he

      worked “hard for what he does” and was just resting in the store. Id. at 12, 13.

      Brown continued to “get more aggressive,” and “got in” Wahlberg’s face,



      1
          See Ind. Code § 35-43-2-2 (2015).
      2
          See Ind. Code § 35-42-2-1 (2015).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016   Page 2 of 9
      telling Wahlberg that he did not want to have any problems with Brown. Id.

      Specifically, Brown said, “[Y]ou don’t want any drama.” Id. at 19.


[5]   Wahlberg, who was concerned about the safety of other patrons and store

      associates, pushed Brown several feet toward the front door, while another

      employee of Rickers called the police. Id. at 14, 20. Brown, in turn, grabbed

      Wahlberg’s coat and pushed him around the store, causing Wahlberg to strike

      several store displays. Id. at 14. When Brown eventually lost his grip on

      Wahlberg, Wahlberg grabbed Brown and was able to shove him out the front

      door. Id. Brown, however, reentered the store and attempted to choke

      Wahlberg. Wahlberg again pushed Brown outside the store, and there, two

      customers tackled the men and held Brown to the ground, allowing Wahlberg

      to get free. Id. at 16. The police arrived and took Brown into custody. Id. at

      25. At that time, Wahlberg told a responding officer that he felt discomfort

      around his neck. Id. at 26.


[6]   The State charged Brown with Count I, criminal trespass as a Class A

      misdemeanor, and Count II, battery as a Class B misdemeanor. A bench trial

      was held on March 17, 2016. At the close of the State’s case, Brown filed a

      Trial Rule 41(B) motion for involuntary dismissal, which the trial court denied.

      Id. at 31-36. The defense presented no witnesses. Brown rested his case and

      renewed his motion for involuntary dismissal. Id. at 37. The trial court found

      Brown guilty on both counts and sentenced him to 270 days executed for the




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016   Page 3 of 9
      criminal trespass and 180 days executed for the battery, to be served

      concurrently. Brown now appeals.3 Id. at 40.


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

      reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

      928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

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

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

      2014), trans. denied. 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. The decision comes before us with a presumption of

      legitimacy, and we will not substitute our judgment for that of the fact-finder.

      Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007). We will affirm unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012).




      3
        Brown is not appealing the denial of his Trial Rule 41(B) motion for involuntary dismissal of the charges
      against him. Instead, he claims that the evidence was insufficient to support his convictions. We note, “In a
      criminal action such as this, a defendant’s motion to dismiss pursuant to Trial Rule 41(B) is essentially a test
      of the sufficiency of the State’s evidence.” Helms v. State, 926 N.E.2d 511, 515 (Ind. Ct. App. 2010) (quoting
      another source). Here, applying either standard, we arrive at the same result. Accordingly, we follow the
      parties’ lead and evaluate the issues before us as a question of sufficiency of the evidence.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016              Page 4 of 9
                                        I. Criminal Trespass
[8]   Brown first argues that the State failed to present sufficient evidence to support

      his conviction for criminal trespass as a Class A misdemeanor. The criminal

      trespass statute criminalizes several categories of conduct relating to one

      person’s interference with another’s property. Lyles v. State, 970 N.E.2d 140,

      142-43 (Ind. 2012) (citing Ind. Code § 35-43-2-2). Here, Brown was charged

      under Indiana Code section 35-43-2-2(b)(2); as such, the State had to prove that

      Brown “(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 contractual interest in the

      real property.” Id. (citing I.C. § 35-43-2-2(a)(2)). Neither party disputes that

      Brown lacked a contractual interest in the Rickers store. Moreover, Brown

      concedes that: (1) the Rickers store is real property of another; (2) Wahlberg, as

      general manager, had authority to ask Brown to leave the store; and (3)

      Wahlberg did ask Brown to leave the store. Appellant’s Br. at 8. Instead, Brown

      maintains that he was not given sufficient time to leave the premises and that he

      was physically prevented from leaving the premises because he was being held

      either by Wahlberg or customers outside the store. We disagree.


[9]   Here, Wahlberg testified that Brown remained on the premises for about three

      hours without incident. Tr. at 11. It was only after Brown lit a Cigarillo inside

      the store that Wahlberg told him he would have to “take it outside.” Id. Brown

      ignored Wahlberg, so Wahlberg repeated his request in a louder voice and told

      Brown that he “needed to leave the property.” Id. Wahlberg testified that he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016   Page 5 of 9
asked Brown to leave the store at least seven or eight times prior to the physical

altercation. Id. at 14. Brown became aggravated, approached Wahlberg, and

said that he works hard for what he does and that he was just resting at the

store. Id. at 13. Wahlberg testified that Brown “got in his face,” “[j]ust pretty

much trying to become the aggressor.” Id. at 12, 13. Brown was screaming at

Wahlberg and got close enough to hit his chest against Wahlberg’s chest. Id. at

19-20. Wahlberg became concerned that he needed to get Brown out of the

store for the safety of customers and store associates, so the matter “could be

taken care of by police.” Id. at 20. As Wahlberg pushed Brown toward the

front door, Brown did not relent, but instead grabbed Wahlberg’s coat and

hiked it up over Wahlberg’s arms so that Wahlberg could not move his arms.

Id. at 14. This enabled Brown to push Wahlberg around the store, causing

Wahlberg to run into several displays. Id. When Brown eventually lost his

grip, Wahlberg grabbed Brown and was able to shove him through the store’s

front door. Id. However, Brown did not stay outside; instead, he charged back

into the store and started to again attack Wahlberg, attempting to choke him.

Id. at 16. The probative evidence and reasonable inferences from that evidence

allowed a reasonable trier of fact to find that these were not the actions of a

man who either needed more time to leave the premises or was prevented from




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016   Page 6 of 9
       leaving the premises by other customers. Sufficient evidence supports Brown’s

       conviction for criminal trespass as a Class A misdemeanor. 4


                                                    II. Battery
[10]   Brown next argues that the State failed to present sufficient evidence to support

       his conviction for battery as a Class B misdemeanor. At the time Brown

       committed the battery, Indiana Code section 35-42-2-l(b), in pertinent part,

       provided,5 “[A] person who knowingly or intentionally: (1) touches another

       person in a rude, insolent, or angry manner . . . commits battery, a Class B

       misdemeanor.” Count II alleged that “Brown did knowingly or intentionally

       touch Luke Wahlberg in a rude, insolent, or angry manner, to-wit: he grabbed

       his neck.” Appellant’s App. at 15.


[11]   Brown maintains that the record contains no “specific information that at any

       point of physical encounter with Mr. Wahlberg, [Brown] grabbed Mr.

       Wahlber[g]’s neck.” Appellant’s Br. at 10. We disagree. Here, Wahlberg




       4
         In support of his claim that the evidence was insufficient, Brown relies on Powell v. State, 45 N.E.3d 480,
       482 (Ind. Ct. App. 2015). Appellant’s Br. at 9. We find Powell distinguishable. There, the issue was not
       whether the defendant refused to leave land owned by a bar after being asked to leave; instead, the issue was
       whether defendant was standing on land that was actually owned by the bar. Finding that there was
       insufficient evidence regarding where defendant was standing when the bar asked him to leave, our court
       determined that there was insufficient evidence that the bar had authority to demand that defendant leave the
       land. Powell, 45 N.E.3d at 481-82. Unlike Powell, here, it is clear that Brown was on property owned by
       Rickers when Wahlberg repeatedly asked Brown to leave and that Wahlberg had the authority to ask Brown
       to leave the Rickers store.
       5
        Brown’s battery count was charged under Indiana Code section 35-42-2-l(b). In 2016, the General
       Assembly added a new subsection (b) to Indiana Code section 35-42-2-1; therefore, the same definition of
       battery that was previously is subsection (b) can now be found in Indiana Code section 35-42-2-1(c). Ind.
       Pub.L. 65-2016, Sec. 33.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016           Page 7 of 9
       testified that once Wahlberg had succeeded in pushing Brown out of the

       Rickers store, Brown charged back inside and “attempted to choke” Wahlberg.

       Tr. at 16. Wahlberg was able to prevent Brown from choking him by dropping

       his chin to keep Brown from obtaining a hold on his neck. Id. Wahlberg

       reported to police that he had discomfort in his neck. Id. at 26.


[12]   The task for us, as an appellate tribunal reviewing the sufficiency of the

       evidence, “is to consider only the probative evidence and reasonable inferences

       supporting the verdict.” Anthony v. State, 56 N.E.3d 670, 673 (Ind. Ct. App.

       2016), trans. denied (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

       “It is the fact-finder’s role, not that of appellate courts, to assess witness

       credibility and weigh the evidence to determine whether it is sufficient to

       support a conviction.” Id. (quoting Drane, 867 N.E.2d at 146). “To preserve

       this structure, when appellate courts are confronted with conflicting evidence,

       they must consider it most favorably to the trial court’s ruling. . . . [a]nd affirm

       the conviction unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Id. (quoting Drane, 867 N.E.2d at

       146). We cannot say that it was unreasonable for the trier of fact to believe the

       testimony presented by the State and conclude that Brown had grabbed

       Wahlberg’s neck. Sufficient evidence supports Brown’s conviction for battery

       as a Class B misdemeanor.6




       6
         In his brief, Brown suggests that any contact he had with Wahlberg constituted self-defense. In support of
       this argument, Brown cites to no authority and makes just two conclusory statements. Because Brown makes

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016          Page 8 of 9
[13]   Affirmed.


       May, J., and Crone, J., concur.




       no cogent argument to support this suggestion, he has waived the argument. See Ind. Appellate Rule
       46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016        Page 9 of 9
