Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                            FILED
before any court except for the                           Nov 16 2012, 9:25 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                        CLERK
                                                               of the supreme court,
law of the case.                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID PARDO                                      GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ALBERT LINDSEY,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 49A02-1204-CR-333
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable James Osborn, Judge
                           Cause No. 49F15-1108-FD-057094




                                     November 16, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                               Case Summary and Issue

      Albert Lindsey appeals his conviction for trespassing, a Class D felony. Lindsey

raises two issues, which we consolidate and restate as whether sufficient evidence was

presented to sustain his conviction for trespass and to enhance his conviction from a

Class A misdemeanor to a Class D felony. Concluding that sufficient evidence was

presented to support his conviction and enhancement, we affirm.

                             Facts and Procedural History

      Sally Brown has been the general manager of a White Castle restaurant in

Indianapolis for four years (the “16th Street White Castle”). As general manager, she is

responsible for the location’s daily operations including hiring, firing, ordering, and

customer service. Over the course of her four years as general manager, she has had

several encounters with Lindsey. With some regularity, Lindsey would visit the 16th

Street White Castle to dry his laundry on their fence, dig through the trash, shout at

customers, and ask people for money. Fearing he would drive away customers, Brown

told Lindsey he could no longer be on White Castle’s property.

      Brown informed all of her managers and employees that Lindsey had been told not

to return. She also told Indianapolis Metropolitan Police Department (“IMPD”) officers,

Michael Tharp and Michael Beatty, that Lindsey was not allowed on the property and

asked that they remove him if he was found on the premises. Officers Tharp and Beatty

spoke with Lindsey several times, reminding him that he was not allowed on the

property. On February 6, 2010, and again on May 12, 2010, Officer Tharp arrested

Lindsey for trespassing on White Castle’s property. On both occasions the State charged

Lindsey with trespass, a Class A misdemeanor.
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      On August 11, 2012, Officers Tharp and Beatty responded to a dispatch call and

found Lindsey with a group of people at one of the 16th Street White Castle’s outdoor

tables. The officers arrested Lindsey and the State charged him with trespass, a Class A

misdemeanor, as well as a Class D felony enhancement for previously trespassing on the

same property.

      The trial court convicted Lindsey of trespass as well as the Class D felony

enhancement and sentenced him to 910 days in the Indiana Department of Correction,

with credit for 144 actual days served.         Lindsey now appeals his conviction and

enhancement. Additional facts will be supplied as appropriate.

                                Discussion and Decision

                                  I. Standard of Review

      Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or

judge the credibility of the witnesses. Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct.

App. 2009). We will consider only the evidence most favorable to the verdict and the

reasonable inferences drawn therefrom and will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the verdict. Id. A

conviction may be based upon circumstantial evidence alone. Id. Reversal is appropriate

only when reasonable persons would not be able to form inferences as to each material

element of the offense. Id.

                               II. Conviction for Trespass

      To convict Lindsey of trespassing, the State was required to prove that, not having

a contractual interest in the property, Lindsey entered White Castle’s premises after
                                            3
having been denied entry by White Castle or its agent. Ind. Code § 35-43-2-2(a)(1).

Lindsey does not dispute that he lacked a contractual interest in the property, that the

property belonged to White Castle, or that Brown denied him entry to the property.

Lindsey argues that sufficient evidence has not been offered to prove that Brown is an

agent of White Castle and therefore authorized to bar him from the premises.

       Agency is a relationship resulting from the manifestation of consent by one
       party to another that the latter will act as an agent for the former. To
       establish an actual agency relationship, three elements must be shown: (1)
       manifestation of consent by the principal, (2) acceptance of authority by the
       agent, and (3) control exerted by the principal over the agent. These
       elements may be proven by circumstantial evidence, and there is no
       requirement that the agent’s authority to act be in writing. Whether an
       agency relationship exists is generally a question of fact, but if the evidence
       is undisputed, summary judgment may be appropriate.

Glispie v. State, 955 N.E.2d 819, 822 (Ind. Ct. App. 2011) (quoting Demming v.

Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011), trans. denied).

       Lindsey relies on this court’s prior conclusion that agency cannot be established

solely by an individual’s claim that he or she is the agent of another. Id. In this case

however, Brown testified to a number of facts that meet the three requirements for

finding an agency relationship between her and White Castle. Brown has been the

general manager of the 16th Street White Castle for four years and is responsible for the

restaurant’s daily operations. The company manifested its consent to Brown acting as its

agent by hiring her as the general manager of the 16th Street White Castle and continued

allowing her to run the restaurant during this time. Brown testified to giving direction to

White Castle’s managers and employees, a clear acceptance of authority to act as White

Castle’s agent. White Castle, as Brown’s employer, exerted control over Brown by virtue

of their employer-employee relationship.         Additionally, Officers Tharp and Beatty
                                             4
testified that Brown was the restaurant’s manager. Sufficient evidence was offered such

that a reasonable person could conclude that Brown had authority to act on behalf of

White Castle and Lindsey was thus barred from entering the property by an agent of

White Castle.

                                  III. Class D Felony Enhancement

        To enhance his conviction to a Class D felony, the State had to prove Lindsey had

previously been convicted for trespassing on the same property on an unrelated occasion.

Ind. Code § 35-43-2-2(a). Lindsey argues that sufficient evidence was not offered to

prove that his prior convictions were for trespassing on this specific property.

            At trial, the State offered Officer Tharp’s arrest reports from the prior two

incidents. The arrest reports list the street address for the 16th Street White Castle as the

location of the arrest. The JUSTIS numbers1 on the arrest reports correspond with the

court documents showing Lindsey was twice convicted of trespassing on an unspecified

White Castle property. Lindsey correctly states that arrest reports and probable cause

affidavits are not the means by which a defendant is accused of a crime. Gilliam v. State,

270 Ind. 71, 80, 383 N.E.2d 297, 303 (1978). This does not, however, bear on their

admissibility as evidence relevant to past convictions. In addition to the arrest reports

tied to Lindsey’s trespass convictions by the JUSTIS numbers, Officer Tharp testified as

to the validity of the reports and recounted arresting Lindsey twice previously for

trespassing at the 16th Street White Castle. Sufficient evidence was offered such that a




        1
          A unique JUSTIS number is assigned to every arrest report and remains on the document, identifying the
case throughout its disposition in the Marion County courts.
                                                       5
reasonable person could conclude that Lindsey had in fact been convicted for trespassing

on this specific property before.

                                       Conclusion

       Sufficient evidence was offered to prove that Brown was an agent of White Castle,

and that Lindsey had been convicted of trespass at the 16th Street White Castle

previously. Therefore, the trial court was correct in entering a judgment of conviction

against Lindsey for trespass as a Class D felony.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.




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