 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
                                                                  FILED
                                                                Jan 10 2012, 8:14 am
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                          CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

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

                                                     IAN MCLEAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN CUSACK,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 49A05-1106-CR-274
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Steven J. Rubick, Magistrate
                              Cause No. 49F19-1101-CM-220


                                          January 10, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

         On multiple occasions, Steven Cusack was denied entrance to an Indianapolis bar

several times and told to leave by the doorman and an off-duty police officer who was

moonlighting as a security guard for the bar. Cusack, however, returned each time and

was eventually arrested by the off-duty police officer.         Cusack now appeals his

conviction for Class A misdemeanor criminal trespass, arguing that the evidence is

insufficient. Finding that the evidence is sufficient to prove that Cusack entered the real

property of the bar and that the off-duty police officer was an agent of the bar, we affirm

the trial court.

                              Facts and Procedural History

         The facts most favorable to the judgment reveal that in January 2011, off-duty

Indianapolis Metropolitan Police Department Officer John Walters was working for Tiki

Bob’s Cantina as an “outside uniformed security person” at its downtown Indianapolis

bar. Tr. p. 5. Specifically, Tiki Bob’s paid Officer Walters to provide security, respond

to disturbances on the premises, and use his discretion to solve any disturbances. Id. at 7,

24-25.

         Officer Walters came in contact with Cusack four times during this particular

shift. On the first occasion around midnight, Officer Walters observed Cusack in front of

the entrance to Tiki Bob’s talking to the doorman about entering the bar. Cusack was

denied entrance because of dress-code violations. Cusack was wearing baggy pants

which had “fallen down.” Id. at 32. Cusask, however, would not get out of the entrance

line to the bar and continued arguing with the doorman. Officer Walters approached and


                                             2
told Cusack that “he needed to leave or he’d be arrested for trespass or public intox.” Id.

at 10.

         Cusack returned about twenty minutes later and again argued with the doorman

about entering the bar. Officer Walters approached and told Cusack that he needed to

“leave, [he’s] not allowed into the bar tonight, come back another evening.” Id. Again,

Cusack argued with Officer Walters and the doorman, saying it was “bullsh**” and that

the “rule didn’t apply to him.”       Id.   Cusack reluctantly left once Officer Walters

threatened to take him to jail if he kept arguing with them.

         About an hour later, Cusack returned. On this occasion, Cusack “actually got into

the entryway of the building,” that is, “right where . . . the entrance doors are.” Id. at 11.

Officer Walters explained that Cusack did not stay on the sidewalk but rather “br[e]ached

the actual entryway” and was “standing maybe a foot into the door.” Id. at 12, 21. The

doorman, however, “stopped him from entering.” Id. at 11. When Cusack and the

doorman got into another discussion, Officer Walters approached Cusack and said, “hey,

this is your last warning, I’m going to lock you up, get out of here.” Id. at 12. Cusack

grudgingly left.

         Cusack returned around 2:15 a.m. for the final time. Cusack approached the

entryway of Tiki Bob’s and was confronted by the doorman again. At this point, Officer

Walters told Cusack that he was going to jail and placed him in handcuffs. Cusack

continued to be belligerent, so Officer Walters had to “walk him forcefully over to [his]

car to get him out of the doorway.” Id. at 14-15.




                                              3
       The State charged Cusack with Class A misdemeanor criminal trespass.1 Cusack

testified at his bench trial that he never entered Tiki Bob’s but rather stayed on the

sidewalk. The trial court found that the evidence showed the following:

       Mr. Cusack broke the plan[e] of Tiki Bob’s and though [defense counsel]
       has argued very thoroughly on Mr. Cusack’s behalf, despite the fact that
       Mr. Cusack claimed otherwise, I find that the Officer’s testimony is
       sufficient to establish that on at least two (2) occasions after being
       confronted by the doorman and told to leave, Mr. Cusack broke the plane.
       Mr. Cusack was given multiple opportunities to simply walk away, but by
       his own admission came back.

Id. at 44. The trial court thus found Cusack guilty and sentenced him to eight days in the

Marion County Jail.

       Cusack now appeals.

                                    Discussion and Decision

       Cusack contends that the evidence is insufficient to support his conviction for

Class A misdemeanor criminal trespass. When reviewing the sufficiency of the evidence

to support a conviction, we must consider only the probative evidence and reasonable

inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

We do not assess witness credibility or reweigh the evidence. Id. When confronted with

conflicting evidence, we consider it most favorably to the trial court’s ruling. Id. We

affirm the conviction unless “no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt.” Id. (quotation omitted). It is not necessary

that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The




       1
          The State also charged Cusack with public intoxication, but the trial court granted Cusack’s
Trial Rule 41(B) dismissal at the conclusion of the State’s case-in-chief.
                                                  4
evidence is sufficient if an inference may reasonably be drawn from it to support the

judgment. Id.

       To convict Cusack of Class A misdemeanor criminal trespass as charged here, the

State was required to prove beyond a reasonable doubt that Cusack, who did not have a

contractual interest in the property, knowingly or intentionally entered the real property

of Tiki Bob’s Cantina after having been denied entry by Tiki Bob’s or its agent.

Appellant’s App. p. 16; see also Ind. Code § 35-43-2-2(a)(1). A person has been denied

entry under subsection (a)(1) when the person has been denied entry by means of

“personal communication, oral or written.” I.C. 35-43-2-2(b)(1).

       Cusack first argues that the evidence does not show, “with requisite sufficiency,”

that he entered the real property of Tiki Bob’s after being denied entry. Appellant’s Br.

p. 7. Instead, Cusack maintains that he never left the sidewalk and therefore did not enter

Tiki Bob’s property.

       To the contrary, the record is clear that Cusack, who wanted to enter Tiki Bob’s,

was denied entry and told to leave the premises on three separate occasions by the

doorman and Officer Walters. After receiving two of these orders, Cusack ignored them

and walked through the doorway, making it about a foot inside the door.2 Tr. p. 12, 21.

Cusack’s arguments that he testified that he never entered Tiki Bob’s but rather stayed on

the sidewalk are merely an invitation for us to reweigh the evidence, which we will not

do.



       2
          Because the evidence most favorable to the judgment shows that Cusack entered the property,
we need not address Cusack’s argument that the State failed to prove “where [Tiki Bob’s] real estate
began in relation to the outside sidewalk.” Appellant’s Br. p. 7.
                                                 5
        Cusack then asserts that assuming, arguendo, he entered Tiki Bob’s property and

was told to leave by Officer Walters, the State failed to prove that Officer Walters was

acting as Tiki Bob’s agent. Cusack relies on this Court’s recent opinion in Glispie v.

State, 955 N.E.2d 819 (Ind. Ct. App. 2011), reh’g denied,3 to prove that Officer Walters

was not an agent of Tiki Bob’s. We, however, find Glispie distinguishable.

        In that case, Officer Patrick McPherson arrested Glispie at a business for trespass.

Officer McPherson testified at trial that he had previously given Glispie verbal and

written warnings not to enter the business’s property. Id. at 822. Officer McPherson

further testified that he could act as an agent of such property. Id. We, however, held

that “[m]ore is required” because “[i]t is a well-established rule that agency cannot be

proven by the declaration of the agent alone.” Id.; see also id. at 823 (“Where a criminal

trespass charge is based on communication by the property owner’s agent, the State must

prove all of the elements necessary to show an agency relationship.”).

        Here, however, the evidence shows that Officer Walters was an off-duty police

officer who was working as a paid security guard at Tiki Bob’s. In his role as a security

guard for Tiki Bob’s, Officer Walters was given discretion on how to handle any

disturbances that might arise.           In Glispie, we found this type of situation to be

distinguishable. Id. at 823 (noting that Bowman v. State, 468 N.E.2d 1064 (Ind. Ct. App.

1984), was “distinguishable because it involves an off-duty police officer who was

working as a security guard at a retail store.”).



        3
           This Court denied rehearing in Glispie on December 21, 2011. Accordingly, the deadline for
petitioning for transfer has not yet passed. Nevertheless, because both parties rely heavily on Glispie for
this issue, we analyze it.
                                                    6
      In addition, the evidence shows that Officer Walters acted in concert with Tiki

Bob’s doorman, who Cusack admitted had authority to admit or deny him access to the

bar. Indeed, Officer Walters told Cusack, “you’re going to go to jail if you keeping

arguing with us,” referring to Officer Walters and the doorman. Tr. p. 10-11. The

evidence shows that Officer Walters had the authority, as Tiki Bob’s agent, to order

Cusack not to enter the bar. We therefore affirm Cusack’s conviction for Class A

misdemeanor criminal trespass.

      Affirmed.

ROBB, C.J., and NAJAM, J., concur.




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