                                                                   Oct 27 2015, 8:57 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deborah Markisohn                                         Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana                                     Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jonathan E. Powell,                                       October 27, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1503-CR-135
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Rebekah Pierson-
Appellee-Plaintiff                                        Treacy
                                                          Trial Court Cause No.
                                                          49G19-1410-CM-46248



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015                 Page 1 of 6
                                           Case Summary
[1]   Jonathan Edward Powell was convicted in a bench trial of Class A

      misdemeanor criminal trespass after a bouncer at a downtown Indianapolis bar

      escorted him out of the bar and he refused to comply with an off-duty police

      officer’s request that he leave the premises. However, because the State failed

      to prove that Powell was on the bar’s property when the officer asked him to

      leave, there is insufficient evidence to support his criminal trespass conviction.

      We therefore reverse.



                             Facts and Procedural History
[2]   On October 3, 2014, Indianapolis Metropolitan Police Department Officer

      Matthew Cook was working off-duty at Bartini’s in downtown Indianapolis.

      Officer Cook explained his duties as follows: “[I] stand outside the – out of

      police presence. If there is a disturbance inside, one they can’t handle then I

      will go inside and deal with it. Otherwise, I stay – [bouncers] bring people

      outside that need to leave. I make sure they go away.” Tr. p. 8.

[3]   At some point in the evening, a Bartini’s bouncer asked Jonathan Edward

      Powell to leave and escorted him out of the bar. Once outside, Powell, who

      appeared intoxicated, was told by Officer Cook that he had to leave. Powell

      responded that he did not want to leave and that he was going back inside the

      club. The officer explained to Powell that he would be arrested for trespassing.

      Powell began screaming at the officer and people walking by the club, and the


      Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015   Page 2 of 6
      officer “had to move him from Bartini’s side of the sidewalk over to – over

      across the street to the other sidewalk to get him away from people.” Id. at 22.


[4]   Powell was arrested and charged with one count of criminal trespass and one

      count of public intoxication. Following a bench trial where Officer Cook was

      the only witness, the trial court convicted Powell of criminal trespass but

      dismissed the public intoxication charge. Powell appeals his conviction.



                                 Discussion and Decision
[5]   Powell argues that there is insufficient evidence to support his conviction for

      criminal trespass as a Class A misdemeanor. When reviewing the sufficiency of

      the evidence to support a conviction, we do not reweigh the evidence or judge

      the credibility of the witnesses. Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct.

      App. 2012), trans. denied. We consider only the probative evidence and the

      reasonable inferences therefrom that support the conviction. Id. We will affirm

      if the probative evidence and reasonable inferences from that evidence could

      have allowed a reasonable trier of fact to find the defendant guilty beyond a

      reasonable doubt. Id. Further, where the State has offered no evidence on an

      essential element of a charged crime, we cannot draw inferences favorable to

      the State from non-existent evidence. Semenick v. State, 977 N.E.2d 7, 10 n.6

      (Ind. Ct. App. 2012).

[6]   To convict Powell of Class A misdemeanor criminal trespass, the State had to

      prove that Powell knowingly or intentionally refused to leave the Bartini’s real


      Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015   Page 3 of 6
      property after Officer Cook asked him to do so, and that Powell did not have a

      contractual interest in the property. See Ind. Code § 35-43-2-2(b)(2). Powell’s

      sole argument is that the State failed to present evidence that he was on

      Bartini’s property when Officer Cook asked him to leave. We agree.

[7]   Our review of the evidence reveals that the Bartini’s bouncer escorted Powell

      out of the club. When Powell got outside the club, the officer told him that he

      had to leave. Tr. p. 18. Powell responded that he wanted to go back inside the

      club, and when the officer refused to allow him to do so, Powell began

      screaming at the officer and people walking by the club. The officer then

      moved Powell from Bartini’s side of the sidewalk to the sidewalk across the

      street. In this limited testimony from Officer Cook, there is no specific

      information as to where Powell was standing when the officer ordered him to

      leave. Thus, the State failed to prove that Powell refused to leave the bar’s real

      property after Officer Cook told him to do so, and we therefore find insufficient

      evidence to support Powell’s conviction for criminal trespass. See I.C. § 35-43-

      202(b)(2).

[8]   The State nevertheless directs us to Walls v. State, 993 N.E.2d 262 (Ind. Ct. App.

      2013), in support of its argument that even if Powell was not on Bartini’s

      property when Officer Cook asked him to leave, this Court can still affirm his

      conviction. However, the facts in Walls are distinguishable from the facts in this

      case. In the Walls case, an intoxicated Walls awakened apartment resident

      Kristy Zurita at 5:15 a.m. by kicking her front door and asking to enter her

      apartment. When Zurita refused to let in Walls, he continued to bang on her

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015   Page 4 of 6
      door and yell. Walls then turned his attention to another apartment, and when

      refused entry, Walls attempted to put his foot through the threshold of that

      apartment. After those tenants pushed Walls out of their apartment, shut the

      door, and locked it, Walls continued to bang on the door.

[9]   Walls was convicted of criminal trespass. On appeal he argued that only the

      apartment complex or its agent could ask him to leave the common area of the

      apartment complex. This Court held that the tenants in an apartment complex

      have a sufficiency possessory interest in, “at a minimum, their apartment doors,

      the threshold of their apartments, and the immediate areas by which they

      accessed their leased apartment units” to allow a criminal trespass conviction

      when the defendant refused to leave those specific areas after being requested to

      do so. Id. at 267. Here, however, we do not know where Powell was in

      relation to the bar. The only testimony from Officer Cook was that Powell was

      on Bartini’s side of the sidewalk. There is no indication that Powell attempted

      to re-enter the bar or put his foot across the threshold. Walls provides no basis

      to affirm Powell’s conviction.1




      1
        The State also relies on a footnote in Alves v. State, 816 N.E.2d 64 (Ind. Ct. App. 2004), trans. denied. In the
      Alves case, this Court affirmed Alves’ criminal trespass conviction where Alves was seen standing on a
      property owner’s gate that had a No-Trespassing sign attached to it and was located thirty to forty feet from
      the road. In a footnote, we explained that the State was not obligated to show Alves climbed over the fence
      and set foot on the ground on the other side because trespass is not confined to an invasion of the surface. Id.
      at 66, n.4. Rather, we further explained that an intrusion into air space above the surface and an invasion
      below the surface may both be trespass. Id. Here, however, there is no evidence that Powell intruded into air
      space above Bartini’s or invaded below its surface. Powell’s reliance on this footnote is therefore misplaced.

      Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015                             Page 5 of 6
[10]   Last, the State contends that even if the evidence did not show that Powell was

       on Bartini’s property when Officer Cook told him to leave, there is sufficient

       evidence to support Powell’s conviction for criminal trespass because a

       reasonable inference could be made that while inside the bar, Powell refused the

       bouncer’s request that he leave. First, the State’s theory at trial was that Powell

       committed the trespass after the bouncer brought him outside and he refused to

       leave. Second, we find no evidence to support this contention where Officer

       Cook was the only witness at trial, and he was not in the bar at the time of

       Powell’s expulsion. There is insufficient evidence to support Powell’s

       conviction.

[11]   Reversed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1503-CR-135| October 27, 2015   Page 6 of 6
