                                                                       FILED
                                                                 Dec 04 2019, 9:18 am

                                                                       CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                              ATTORNEYS FOR APPELLEE
Tyler Helmond                                       Frank A. Negangard
Voyles Vaiana Lukemeyer Baldwin &                   Chief Deputy Attorney General
Webb                                                Stephen R. Creason
Indianapolis, Indiana                               Angela Sanchez
                                                    Sarah J. Shores
                                                    Deputy Attorneys General
                                                    Indianapolis, Indiana




                                       IN THE
    COURT OF APPEALS OF INDIANA

David Kifer,                                        December 4, 2019
Appellant-Defendant,                                Court of Appeals Case No.
                                                    19A-CR-1188
       v.                                           Appeal from the Vanderburgh
                                                    Circuit Court
State of Indiana,                                   The Honorable Michael J. Cox,
Appellee-Plaintiff.                                 Magistrate
                                                    Trial Court Cause No. 82C01-
                                                    1903-F6-1559



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                      Page 1 of 10
                              STATEMENT OF THE CASE
[1]   Appellant-Defendant, David A. Kifer (Kifer), appeals his conviction for

      criminal trespass, as a Level 6 felony, Ind. Code § 35-43-2-2(b)(1).


[2]   We reverse.


                                                ISSUE
[3]   Kifer presents this court with two issues on appeal, one of which we find

      dispositive and which we restate as: Whether the State presented sufficient

      evidence beyond a reasonable doubt to support Kifer’s conviction for criminal

      trespass.


                     FACTS AND PROCEDURAL HISTORY
[4]   On March 1, 2005, David Rector (Rector), the general manager for the

      Evansville Vanderburgh County Building Authority (Building Authority),

      mailed a letter to Kifer, alerting him to “[p]lease be advised that you are no

      longer permitted to be in the Civic Center Complex. This action is required in

      order to protect the safety of those who visit and work in the Civic Center

      Complex.” (Transcript Vol. II, p. 63). The Civic Center Complex consists of

      three buildings and houses different government agencies, including the county

      courts, the police department, and the city and county administrative offices.

      On February 14, 2009, Kifer was sentenced in an unrelated case and the trial

      court, referencing the earlier ban, suggested that he contact the sheriff’s office

      several days in advance if he needed to enter the building. The sheriff’s office



      Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 2 of 10
      would then provide him with an escort to the specific office that he needed to

      visit.


[5]   On March 4, 2019, Kifer arrived at the Civic Center Complex wanting to make

      a report at the police station. Kifer believed that he had just come “from a place

      where [his] life was threatened, knives were held on [him], and [he] managed to

      escape.” (Tr. Vol. II, p. 108). Kifer entered the Civic Center Complex through

      the entrance closest to the police department. Two officers staffed the entrance

      and both of them knew Kifer and were aware that he was banned from the

      building. The officers did not ask him to leave, nor did an officer escort Kifer,

      and there is no evidence an escort request had been made. Kifer passed through

      the entrance’s screening mechanisms and proceeded to the police department to

      make his report. After entering the police department and reporting the alleged

      crime, Kifer was placed under arrest.


[6]   On March 6, 2019, the State filed an Information, charging Kifer with criminal

      trespass, a Class A misdemeanor, which was enhanced to a Level 6 felony due

      to a prior trespass conviction. On April 12, 2019, the trial court conducted a

      bifurcated jury trial, at the close of which Kifer was found guilty of criminal

      trespass. He subsequently admitted to the prior conviction under the

      enhancement charge. On May 21, 2019, Kifer was sentenced to a two-year

      executed sentence at the Department of Correction.


[7]   Kifer now appeals. Additional facts will be provided if necessary.




      Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019     Page 3 of 10
                            DISCUSSION AND DECISION
                                     I. Sufficiency of the Evidence


[8]   Kifer contends that the State failed to present sufficient evidence to support his

      criminal trespass conviction beyond a reasonable doubt. 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. Clemons v. State, 987 N.E.2d 92, 95 (Ind.

      Ct. App. 2013). We consider only the evidence most favorable to the judgment

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

      and those inferences constitute substantial evidence of probative value to

      support the judgment. Id. Circumstantial evidence alone is sufficient to

      support a conviction. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016).

      Circumstantial evidence need not overcome every reasonable hypothesis of

      innocence. Clemons, 987 N.E.2d at 95. Reversal is appropriate only when

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

      element of the offense. Id.


[9]   To convict Kifer of criminal trespass as a Class A misdemeanor, the State was

      required to establish that Kifer, not having a contractual interest in the property,

      knowingly or intentionally entered the real property of the Building Authority

      after having been denied entry by the Building Authority’s agent. See I.C. § 35-

      43-2-2. An order to leave or remain away is sufficient if made by means of

      personal communication, oral or written. I.C. § 35-43-2-2(c)(1). Kifer claims



      Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 4 of 10
       that the evidence is insufficient to show that he entered the Civic Center

       Complex after being denied entry by the Building Authority or its agent.


[10]   Because the State presented evidence that Rector acted as the Building

       Authority’s agent, we must consider the law of agency. This court recently

       described the elements necessary to establish an actual agency relationship:


              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.


       Demming v. Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011), reh’g denied,

       trans. denied (citations omitted). One who asserts that there was an agency

       relationship has the burden of proving its existence. Smith v. Brown, 778 N.E.2d

       490, 495 (Ind. Ct. App. 2002).


[11]   In Glispie v. State, 955 N.E.2d 819, 821 (Ind. Ct. App. 2011), reh’g denied,

       defendant was charged with criminal trespass. The officer testified that he had

       previously given the defendant oral and written warnings not to enter the

       business’s property. Id. at 822. The only evidence presented at trial of the

       officer’s status as the business’s agent was his own testimony that he “could act

       as an agent of the property.” Id. We held that “[m]ore is required” because




       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019      Page 5 of 10
       “[i]t is a well-established rule that agency cannot be proven by the declaration

       of the agent alone.” Id.


[12]   In our most recent pronouncement to date, Saylor v. State, -- N.E.3d --- (Ind. Ct.

       App. Nov. 13, 2019), we distinguished Glispie and concluded that the State had

       satisfied its burden of establishing the existence of an agency relationship. In

       Saylor, the apartment complex’s agent testified that the complex had “asked”

       the agent “to take action” and “to ban [Saylor] from the [] property.” Id. The

       agent had verbally informed Saylor that he was banned from the property and

       that if he returned, he would be arrested. Id. Referencing Glispie, we concluded

       that the agent’s explicit testimony of this manifestation of consent by the

       apartment complex was sufficient to establish the agency prong of the criminal

       trespass charge. Id.


[13]   We find the current situation to be more analogous to Glispie. At trial, Rector

       testified that in his capacity of general manager of the Building Authority he

       has “the authority to trespass people.” 1 (Tr. Vol. II, pp. 61-62). As the agent’s

       own statement that he could act as an agent is insufficient, “more is required.”

       See Glispie, 955 N.E.2d at 821. Rector clarified that the Building Authority

       owns the building and leases the offices to the city and county. He banned

       Kifer after being “notified by judicial officers, law enforcement officials, elected




       1
         Rector and the State also refer to I.C. Ch. 36-9-13 as the basis for his authority to ban people. However,
       I.C. Ch. 36-9-13 merely describes the County Building Authority as a separate municipal cooperation but
       lacks any references to a statutory basis to ban individuals from the building separate and distinct from the
       general criminal trespass statute.



       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                               Page 6 of 10
       department heads[.]” (Tr. Vol. II, p. 62). However, as Rector is the general

       manager employed by the Building Authority, he is not the agent of judicial

       officers, law enforcement officials, or elected department heads and therefore

       cannot derive his authority from them, absent a specific court order. See I.C. §

       36-9-13-22 (13) (stating that the board of directors of the Building Authority

       employs [] managers [] necessary for the proper operation of [] the government

       buildings). Accordingly, the State did not carry its burden of proof.


[14]   Furthermore, as an issue of first impression, Kifer contends that an agent

       cannot ban a person forever and permanently from a public building. The

       parties did not cite any authority, nor did our independent research disclose any

       precedential jurisprudence on the issue. As a persuasive precedent, we note

       that the Alaska Court of Appeals addressed this specific question in Turney v.

       State, 922 P.2d 283 (Ak. Ct. App. 1996). Turney was a jury nullification

       protester, and the court administrator hand-delivered a letter to him on May 9,

       1994, indicating that he was welcome to enter the courthouse to peaceably

       conduct court business or to observe court proceedings, but that he was

       prohibited from entering or remaining on court property to engage in protest

       activities. Id. at 285. Approximately two months later, Turney returned to

       protest. Id. The police interfered and asked him to leave, which he did. Id.

       Turney was charged with and convicted of criminal trespass. Id. In reversing

       Turney’s conviction, the Alaska court discussed Johnson, a case originating from

       Lousiana. Id. at 287; State v. Johnson, 381 So.2d 498 (La. 1980). In Johnson,

       Johnson was banned from a public bus terminal. When he returned, he was


       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019    Page 7 of 10
       arrested and convicted. As cited in Turney, the Louisiana court in Johnson

       decided that “it is patently unreasonable [to construe the trespass statute to

       allow] a citizen with peaceful intent [to] be permanently and perpetually barred

       from the premises of a public transportation facility[.]” Turney, 922 P.2d at 287.

       Relying on the Johnson rationale, the Turney court concluded that the Alaska

       trespass statute is “a general statute which provides that a person may not

       remain on property after being lawfully ordered to leave. [] [T]his type of

       statute is generally construed not to grant officials the authority to permanently

       ban people from public facilities. [] [We] hold that this statute did not authorize

       the Area Court Administrator to permanently ban Turney from the courthouse

       property.” Id. at 288.


[15]   Indiana’s trespass statute is likewise a general statute which provides that a

       person cannot knowingly or intentionally enter real property after having been

       denied entry by the property owner’s agent. See I.C. § 35-43-2-2. While

       Rector’s letter, dated March 1, 2005, banned Kifer from the property, it

       purported to operate as a perpetual ban, advising that Kifer was “no longer

       permitted to be in the Civic Center Complex.” (Tr. Vol. II, p. 63).

       Approximately fourteen years later, Kifer entered the Civic Center Complex to

       report a crime in which he was the alleged victim. Kifer was not acting in an

       offensive, abusive, or obstreperous manner. It was only after he was allowed to

       enter without any problems and after he had reported his perceived crime, that

       Kifer was arrested on the alleged authority of a fourteen-year old letter. The

       police station is a facility devoted to serving and protecting the public at large,


       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019       Page 8 of 10
       including Kifer. We find it unreasonable to construe the trespass statute to

       allow a citizen to be permanently and perpetually banned from the premises of

       a public building intended to serve the community and which housed several

       facilities that citizens need to access intermittently in the operation of daily

       life. 2, 3


[16]   In an alternative argument, the State, in a single paragraph, contends that Kifer

       is still guilty of criminal trespass because “the State need not allege or prove

       that a person has been ‘lawfully’ denied entry onto the property of another, as

       the lawfulness of the denial is not an element of the offense.” (Appellee’s Br.,

       p. 11). However, the State’s argument is misplaced. While we agree that the

       State must “not allege or prove that a person has been ‘lawfully’ denied entry

       onto the property of another,” the lawfulness relates to the ‘entry’ element of

       the charge—which was never disputed by Kifer—not to the person authorized

       to institute the ban or the temporal element thereof. See Frink v. State, 52

       N.E.3d 842, 847 (Ind. Ct. App. 2016).




       2
        The State informs this court that Kifer was reminded of the ban during a sentencing hearing for an
       unrelated conviction less than one month prior to his March 4, 2019 arrest. He was advised to call the
       sheriff’s department beforehand if he needed to access one of the facilities within the Civic Center Complex.
       This prior notification requirement appears to be not only a vague elaboration of Rector’s written ban, but the
       State fails to present evidence that this amendment to the general, outright ban was given by an authorized
       agent and has a legitimate basis.
       3
         Our opinion today does not decide that an individual cannot be banned from a public building; rather, we
       conclude that this decision has to be communicated by the proper authorized person and cannot be in place
       permanently without anything more. We decline to address whether a permanent ban can be in place with
       the specification that access to the building is possible upon advance notice or by request for an escort at the
       entrance.



       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019                                Page 9 of 10
[17]   In sum, we conclude that the State did not present sufficient evidence beyond a

       reasonable doubt that Rector was authorized by the Building Authority to

       permanently ban Kifer from the Civic Center Complex, a public building.


                                          CONCLUSION
[18]   Based on the foregoing, we conclude that the State failed to present sufficient

       evidence beyond a reasonable doubt to support Kifer’s conviction for criminal

       trespass.


[19]   Reversed.


[20]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-1188 | December 4, 2019   Page 10 of 10
