MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                         FILED
court except for the purpose of establishing                              May 06 2019, 10:39 am
the defense of res judicata, collateral
                                                                                  CLERK
estoppel, or the law of the case.                                             Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Curtis Todd,                                       May 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3017
        v.                                               Appeal from the Sullivan Superior
                                                         Court
State of Indiana,                                        The Honorable Hugh R. Hunt,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         77D01-1804-CM-247



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019                           Page 1 of 5
                                          Case Summary
[1]   In March of 2018, James Curtis Todd removed a gate and part of a fencerow

      belonging to his cousin Jacob Todd, allegedly believing that the gate and

      fencerow were on his land. Prior to the removal, Jacob had told James that a

      survey had been conducted and it indicated that the fencerow was on Jacob’s

      land. James was charged with and convicted of Class B misdemeanor criminal

      mischief. James contends that the State produced insufficient evidence to

      sustain his conviction. We affirm.



                            Facts and Procedural History
[2]   In September of 2017, Jacob’s parents deeded to him a one-acre tract of land,

      on which he planned to place a modular home. The southern boundary of

      Jacob’s land abutted a tract of land that had once belonged to his great-

      grandfather but by 2017 was owned by his cousin James. Near the boundary

      line of the two properties was a fencerow which had been placed there years

      prior to either Jacob or James owning their respective tracts. Prior to deeding

      the land to Jacob, his parents contracted with a firm to conduct a land survey.

      The survey indicated that the fencerow rested on Jacob’s land, some seven to

      eight inches north of the southern boundary line.


[3]   In March of 2018, a heated verbal dispute occurred between Jacob and James

      after Jacob trimmed tree limbs along the fencerow. Jacob explained that a

      survey had been conducted on his land, he knew where the property lines were,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019   Page 2 of 5
      and there was no mistake as to the proper boundary lines. Jacob also offered to

      give James a copy of the survey. James, disagreeing, claimed that the northern

      boundary of his land extended eighteen feet north of the fencerow, meaning

      that the fencerow was on his land. Eventually, police arrived and broke up the

      dispute.


[4]   Prior to the dispute, a gate attached to the fencerow had been kept open by the

      previous owners for travel between the two tracts. After the dispute, however,

      Jacob decided to permanently close the gate by burying a pole in the ground to

      hold it shut and fastened it with a metal chain and lock. A day or two later,

      Jacob discovered the pole, chain, and lock laying in his driveway by his

      mailbox. Review of video footage recorded on a trail camera revealed that at

      approximately 1:45 a.m., James and his girlfriend had removed the gate and

      portions of the fencerow.


[5]   On April 12, 2018, the State charged James with Class A misdemeanor criminal

      trespass and Class B misdemeanor criminal mischief. A bench trial was held on

      September 12, 2018. On September 18, 2018, the trial court found James guilty

      of criminal mischief and acquitted him of criminal trespass. The trial court

      sentenced James to 180 days imprisonment with 168 days suspended and 353

      days of non-reporting probation.



                                Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019   Page 3 of 5
[6]   James contends that the State presented insufficient evidence to support his

      criminal mischief conviction. James does not challenge that Jacob’s property

      was damaged or defaced without his consent, only that he acted without the

      required mens rea. When reviewing the sufficiency of evidence to support a

      conviction, we consider only probative evidence and reasonable inferences

      supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind.

      Ct. App. 2012), trans. denied. It is the role of the factfinder, not ours, to assess

      witness credibility and weigh the evidence. Id. We will affirm a conviction

      unless “no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt.” Id. To convict James of Class B misdemeanor

      criminal mischief, the State had to establish that James recklessly, knowingly,

      or intentionally damaged or defaced Jacob’s property without Jacob’s consent.

      Ind. Code § 35-43-1-2(a).1


[7]   We conclude that there was sufficient evidence to sustain James’s conviction.

      Because Indiana Code section 35-43-1-2(a) is written in the disjunctive, the

      State was only required to prove that James acted with one of the mens rea

      listed. The record indicates that a survey was conducted which revealed that




      1
          Indiana Code section 35-41-2-2 dictates that
                 (a) A person engages in conduct “intentionally” if, when he engages in the conduct, it is his
                 conscious objective to do so.
                 (b) A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a
                 high probability that he is doing so.
                 (c) A person engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and
                 unjustifiable disregard of harm that might result and the disregard involves a substantial deviation
                 from acceptable standards of conduct.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019                           Page 4 of 5
      the fencerow was part of Jacob’s land. The record also indicates that James was

      made aware of the results of the survey and offered a copy of it. James was on

      notice that the boundary-line and ownership of the fencerow were disputed at

      best, and our justice system has proper avenues for settling such a dispute, of

      which James failed to avail himself. James’s claimed belief that the fencerow

      was on his land does not absolve his dismantling of Jacob’s gate and fence at

      1:45 a.m. in the morning, nor will we condone such actions. Dismantling the

      fencerow in the middle of the night could have resulted, but thankfully did not,

      in much more than just legal peril for James and his girlfriend, which is why the

      General Assembly has sought to dissuade such behavior. Therefore, a

      reasonable factfinder could find that James’s actions were reckless, knowing, or

      intentional. James has failed to establish that there was insufficient evidence to

      support his criminal mischief conviction.


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


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019   Page 5 of 5
