MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Sep 05 2018, 8:36 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
John J. Kennelly                                         Curtis T. Hill, Jr.
Fishers, Indiana                                         Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John J. Kennelly,                                        September 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-412
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Gail Z. Bardach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         29D06-1709-CM-7081



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018                  Page 1 of 8
[1]   John Kennelly appeals his conviction for Class A Misdemeanor Criminal

      Trespass,1 arguing that there is insufficient evidence to support the conviction.

      Finding the evidence sufficient, we affirm.


                                                    Facts

[2]   On September 27, 2017, Deborah Majeski, a second-grade teacher at Lantern

      Road Elementary School, which is part of the Hamilton Southeastern School

      Corporation, was approached by one of her students during recess. The student

      said a stranger, later identified as Kennelly, was watching them just outside the

      school’s playground and taking pictures.


[3]   Majeski contacted Principal Danielle Thompson for help. Principal Thompson

      then contacted Lieutenant Mike Johnson of the Fishers Police Department for

      assistance with the matter. Lieutenant Johnson is a Student Resource Officer

      (SRO). SROs are hired by local schools for increased security. Lieutenant

      Johnson also supervises the district’s six SROs, whose duties include security

      detail for student safety. SROs must complete forty hours of training and are

      given keys to the buildings in which they work. The city of Fishers pays half of

      the SROs’ salaries, and the school district pays the other half.


[4]   Lieutenant Johnson arrived at the playground, but Kennelly had already left the

      school. Other police officers stopped Kennelly a short distance away from the




      1
          Ind. Code § 35-43-2-2(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 2 of 8
      school and cited him for driving without a license. Lieutenant Johnson soon

      arrived and asked Kennelly why he had been at the elementary school.

      Kennelly refused to answer. Lieutenant Johnson took down Kennelly’s

      information and released him.


[5]   Lieutenant Johnson then returned to the school to discuss the matter with

      Principal Thompson. As an SRO, Lieutenant Johnson is required to report to

      Principal Thompson regarding all disciplinary, safety, and security matters.

      They entered Kennelly’s name into the school’s database and determined that

      he was not related to anyone in the building.


[6]   Afterwards, Lieutenant Johnson left and discovered Kennelly once again near

      the school’s playground. Lieutenant Johnson approached Kennelly and again

      asked him why he was there. Two other officers, Officer Tracy Marsh and

      Officer Tracy Jones, responded to the scene to assist Lieutenant Johnson. Both

      officers watched Kennelly while Lieutenant Johnson called a local prosecutor

      to determine if they could arrest Kennelly.


[7]   After finishing the call, Lieutenant Johnson warned Kennelly not to return to

      the school’s property. Kennelly dismissed the warning. Lieutenant Johnson

      repeated his warning and stated that he would be arrested if he returned to the

      school. The officers released Kennelly, who promptly left the scene. Shortly

      thereafter, Lieutenant Johnson and the two officers saw Kennelly driving back

      to the school. They pursued him and found him trying to enter the school

      through the front office.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 3 of 8
[8]    Officer Jones arrested Kennelly. Later that day, the State charged Kennelly

       with Class A misdemeanor criminal trespass.


[9]    Kennelly’s bench trial took place on January 31, 2018. Kennelly was found

       guilty and was sentenced to 365 days in the Hamilton County Jail with 363

       days suspended to probation. Kennelly now appeals.


                                  Discussion and Decision

[10]   Kennelly’s sole argument on appeal is that the State failed to present sufficient

       evidence to show that Lieutenant Johnson is an agent of the Hamilton

       Southeastern School Corporation.


[11]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn from the

       evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to “reweigh the evidence nor judge the credibility of the

       witnesses,” and “we consider any conflicting evidence most favorably to the

       trial court’s ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[12]   To convict Kennelly of Class A misdemeanor criminal trespass, the State was

       required to prove beyond a reasonable doubt that Kennelly, who did not have a

       contractual interest in the property, knowingly or intentionally entered the

       school’s property after having been denied entry by an agent of the school

       corporation. I.C. § 35-43-2-2(b)(1).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 4 of 8
[13]   At issue is the nature of the relationship between Lieutenant Johnson and the

       Hamilton Southeastern School Corporation. Kennelly argues that no agency

       relationship existed between the lieutenant and the school corporation. We

       disagree.


[14]   For an agency relationship to exist, “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.” Demming v.

       Underwood, 943 N.E.2d 878, 884 (Ind. Ct. App. 2011). There is no requirement

       that the agent’s authority to act be in writing. Id. All three elements must be

       present for an individual to have authorization to act as an agent on behalf of

       the principal.


[15]   As to the first and second elements, there is no dispute. Lieutenant Johnson

       maintains the title of SRO for the school corporation, and he was acting in that

       capacity when he warned Kennelly multiple times not to return to the school.

       He was given keys to the building and tasked with different duties primarily

       related to the school’s security and to disciplining the students. Additionally,

       the school corporation paid half his salary. Therefore, the school corporation

       manifested its consent to hold Lieutenant Johnson as its agent, and Lieutenant

       Johnson accepted the authority by assuming the role of SRO. Moreover, I.C.

       section 20-26-18.2-1(a)(2)(ii) explicitly provides that a school corporation may

       use SROs “to prevent unauthorized access to school property.” In other words,

       the Indiana General Assembly has spoken directly on this matter and intends

       for school corporations to entrust SROs with the authority to keep schools safe.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 5 of 8
[16]   As to the third element, Kennelly claims there is some ambiguity. Specifically,

       he argues that Lieutenant Johnson is wholly employed not by the school

       corporation but rather by the Fishers Police Department. Consequently,

       Kennelly maintains that the control exerted over Lieutenant Johnson’s

       decisions comes directly from his law enforcement supervisors rather than from

       the school corporation.


[17]   It is readily apparent that officers like Lieutenant Johnson can wear “different

       hats” in different capacities. While Lieutenant Johnson is a city police

       employee, he is also an employee of the school corporation and subjects himself

       to the control of the corporation through Principal Thompson. The record

       shows that Lieutenant Johnson throughout this incident checked and double-

       checked with Principal Thompson before taking any enforcement action against

       Kennelly. While Lieutenant Johnson also checked with a local prosecutor

       regarding the possibility of arresting Kennelly, Principal Thompson

       simultaneously retained authority over Lieutenant Johnson’s actions, and

       Lieutenant Johnson always reported to Principal Thompson for authorization

       to act on matters related to school safety. This is one such matter.


[18]   The State correctly points us to our prior decision in Berry v. State, 4 N.E.3d 204

       (Ind. Ct. App. 2014), in which we held that a police officer could serve as an

       agent for another entity—in addition to his or her respective law enforcement

       department—if there was a well-documented relationship with said entity.

       Consequently, although Lieutenant Johnson was an employee of the Fishers

       Police Department, he also worked under the control of the school corporation

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 6 of 8
       with the authority to search, secure, and restrict individuals who wanted to

       enter the school.


[19]   Both parties cite Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App. 2011), as a

       benchmark for how we determine if an agency relationship has been created. In

       that case, Officer Patrick McPherson of the Indianapolis Metropolitan Police

       Department was investigating an incident of trespassing outside a commercial

       building. Id. at 821. The business did not employ Officer McPherson, nor was

       there any preexisting relationship between the two. Officer McPherson was

       dispatched to this location simply because he was available to investigate a

       reported incident that evening. Officer McPherson discovered Glispie and

       another man “in the rear” of the building and warned them that they were

       trespassing. Id.


[20]   Like Kennelly in this case, Glispie appealed his conviction for criminal trespass,

       arguing that there was insufficient evidence to prove that Officer McPherson

       was an agent of the business. In Glispie, we held that an officer could not hold

       himself out as an agent to warn two individuals not to trespass solely based off

       his testimony that he “could act as an agent of the property.” Id. at 822. In

       short, we said that “[m]ore is required,” id., which Kennelly is quick to point

       out. Kennelly argues that more was required of the State in this case to show

       that Lieutenant Johnson was an agent of the school corporation. Here, as we

       have already found, the State offered a wealth of evidence showing a pre-

       existing relationship between Lieutenant Johnson and the school corporation.

       Therefore, Glispie is inapposite as in this case, and the State has met its burden.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 7 of 8
[21]   For the foregoing reasons, we conclude that there is sufficient evidence

       supporting Kennelly’s conviction.


[22]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018   Page 8 of 8
