FOR PUBLICATION                                          Mar 07 2013, 8:30 am




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                                     GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     KATHERINE MODESITT COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

MARCUS WILLIS,                               )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 49A02-1208-CR-636
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Linda E. Brown, Judge
                      The Honorable Steven J. Rubick, Magistrate
                          Cause No. 49F10-1112-CM-87167


                                    March 7, 2013

                             OPINION - FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Marcus Willis (“Willis”) appeals his conviction for Criminal Trespass, as a Class A

misdemeanor.1 We reverse.

                                                   Issue

          Willis presents two issues for review, one of which is dispositive: whether there is

sufficient evidence to support his conviction.2

                                   Facts and Procedural History

          During the evening of December 12, 2011, Marion County Sheriff’s Deputy Talisha

Harper (“Deputy Harper”) was working off-duty as a security officer for Keystone North

Apartments in Indianapolis. At approximately 8:45 p.m., Deputy Harper encountered Willis

near the leasing office. She asked Willis if he lived on the property and he responded that he

did not.

          Willis produced an identification card and Deputy Harper checked it against a no-

trespassing list compiled by the property owner management and carried by the security

guards. Willis’s name and identifying information were on the no-trespassing list. Deputy

Harper arrested Willis upon suspicion of criminal trespass and public intoxication.

          On December 13, 2011, the State charged Willis with Criminal Trespass, as a Class A

misdemeanor. Willis was tried in a bench trial on July 13, 2012. At the conclusion of the

trial, Willis was found guilty as charged and sentenced to ten days imprisonment. This


1
    Ind. Code § 35-43-2-2.
2
 Because of our disposition of the issue of sufficiency of the evidence, we need not reach Willis’s contention
that the trial court abused its discretion in the admission of evidence.

                                                      2
appeal ensued.

                                  Discussion and Decision

       Willis was charged with violating Indiana Code section 35-43-2-2(a)(1), which

provides:

       A person who:

       (1) not having a contractual interest in the property, knowingly or intentionally
       enters the real property of another person after having been denied entry by the
       other person or that person’s agent.

       Subsection (b) provides in relevant part:

       A person has been denied entry under subdivision (a)(1) of this section when
       the person has been denied entry by means of:
       (1)    personal communication, oral or written;
       (2)    posting or exhibiting a notice at the main entrance in a manner that is
              either prescribed by law or likely to come to the attention of the public;
              or
       (3)    a hearing authority or court order [.]

The criminal trespass statute’s purpose is to punish those who willfully or without a bona fide

claim of right commit acts of trespass on the land of another. Semenick v. State, 977 N.E.2d

7, 9 (Ind. Ct. App. 2012), trans. denied.

       When the sufficiency of the evidence to support a conviction is challenged, we neither

reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is

substantial evidence of probative value supporting each element of the crime from which a

reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).




                                              3
       The State introduced evidence that Deputy Harper personally checked a no-trespassing

list and observed Willis’s name and identifying information thereon. In response to defense

counsel’s questioning on cross-examination, Deputy Harper explained the origin, contents,

and dissemination of the no-trespassing list:

       The Trespass List is a document, it’s a booklet if you will, of everyone that has
       been on the property that has been trespassed either by a security officer, any
       police officer that has decided to trespass anyone for any reason; and in
       addition to management. On this Trespass notification it has the person’s full
       name, their date of birth, their sex, race, their social security number, the
       reason why they were trespassed; and then it’s filed by the property and then
       placed on this list for us to carry.

(Tr. 8.) From this testimony and Deputy Harper’s earlier testimony that she had observed

Willis’s name on the list, the fact-finder could reasonably infer that some event occurred that

caused Willis’s name and identifying information to be placed on a no-trespassing list. This

list was available to security officers. However, there is a complete absence of evidence that

Willis was aware of this list or that he had otherwise been denied entrance to the property in

a manner required by the relevant statute.

       The State must prove every element of the crime charged beyond a reasonable doubt.

In re Winship, 397 U.S. 358, 361 (1970). Here, the State failed to prove a material element

of Criminal Trespass within the meaning of Indiana Code section 35-43-2-2(a)(1),

specifically that Willis had been “denied entry” as defined therein. As such, the State failed

to show that he willfully trespassed on the property of another.

       Reversed.

CRONE, J., and BRADFORD, J., concur.


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