MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             May 31 2016, 7:27 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Appellate Division
                                                        Justin F. Roebel
Indianapolis, Indiana                                   Deputy Attorney General
Barbara J. Simmons                                      Indianapolis, Indiana
Oldenburg, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcus Russell,                                         May 31, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1509-CR-1473
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Jose D. Salinas, Judge
                                                        Trial Court Cause No.
                                                        49G14-1412-CM-55024



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016         Page 1 of 6
[1]   Marcus Russell (“Russell”) was convicted after a bench trial of criminal

      trespass1 as a Class A misdemeanor and was sentenced to sixty days in the

      Marion County Jail. He now appeals and raises the following restated issue for

      our review: whether the State presented sufficient evidence to support Russell’s

      conviction for criminal trespass.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Sean McCurdy (“McCurdy”), the Assistant Public Safety Director for U.S.

      Security Associates, was working at the Keystone Fashion Mall in Indianapolis,

      Indiana (“the Fashion Mall”). McCurdy’s responsibilities included patrolling

      the property, keeping it safe, customer service, and trespassing individuals from

      the property. On November 28, 2014, McCurdy observed Russell in the

      parking lot and issued a Trespass Notice to him for possible suspicious activity.

      McCurdy verbally informed Russell that he had been trespassed from the

      Fashion Mall property.2 The next day, on November 29, 2014, Bob Gorman

      (“Gorman”), the general manager of the property, informed Russell by phone

      that he was trespassed from the property.




      1
          See Ind. Code § 35-43-2-2(b)(1)
      2
       To trespass an individual is the equivalent of banning one from the property. See Tr. 21-22. Both parties
      used “trespass” in their briefs.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016                Page 2 of 6
[4]   On December 14, 2014, Russell was spotted in the parking lot of the Fashion

      Mall by security officer, Donna Burk (“Burk”). Burk notified Indianapolis

      Metropolitan Police Department Officer Matthew McFadden (“McFadden”),

      who patrolled the Fashion Mall on a part-time basis, that there was a possible

      trespasser on the property. McCurdy was contacted, and he verified that

      Russell was “trespassed from the property.” Officer McFadden arrested Russell

      and transported him to jail.


[5]   On, December 15, 2014, the State charged Russell with criminal trespass as a

      Class A misdemeanor. A bench trial was held. Russell testified that he is self-

      employed and in the business of buying and selling Apple iPhones. His online

      cell phone business required him to visit the Apple store in the Fashion Mall on

      an almost daily basis, often using Apple gift cards. Russell also has a credit

      account with Saks Fifth Avenue located in the Fashion Mall for personal use.

      Russell testified that there is only one other Apple store, and no other Saks Fifth

      Avenue stores in the state of Indiana.


[6]   At the conclusion of the trial, Russell was found guilty of criminal trespass. At

      sentencing, the trial court imposed a sentence of sixty days with fifty-six days

      suspended and no probation. Russell now appeals.


                                     Discussion and Decision
[7]   When we review the sufficiency of evidence to support a conviction, we do not

      reweigh the evidence or assess the credibility of the witness. Cunningham v.

      State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). We consider only the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016   Page 3 of 6
       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We will not disturb the factfinder’s verdict if there is

       substantial evidence of probative value to support it. Id. We will affirm unless

       no reasonable factfinder could find the elements of the crime proven beyond a

       reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009).

       trans. denied. As the reviewing court, we respect “the [fact finder’s] exclusive

       province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124,126

       (Ind. 2005).


[8]    In order to convict Russell of criminal trespass, the State was required to prove

       beyond a reasonable doubt that Russell, not having a contractual interest in the

       property, knowingly or intentionally entered the real property of another person

       after having been denied entry by the other person or that person’s agent. Ind.

       Code § 35-43-2-2(b)(1).


[9]    Russell argues that his conviction for criminal trespass was not supported by

       sufficient evidence. Specifically, Russell contends that the State did not present

       sufficient evidence to prove that he had no contractual interest in the Fashion

       Mall property or to prove that the mall or its agents had denied him from entry

       to the Fashion Mall.


[10]   To prove that Russell did not have a contractual interest in the mall property,

       “the State does not have to disprove every conceivable contractual interest the

       defendant might have had in the property.” Fleck v. State, 508 N.E.2d 539, 541


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016   Page 4 of 6
       (Ind. 1987). Here, McCurdy testified that Russell was not employed at the

       mall, and he did not have an interest in the property, and there was no evidence

       that the Apple Store or Saks Fifth Avenue had the authority to grant a

       contractual interest in the mall. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind.

       Ct. App. 1996) (Defendant’s claim that he had a good faith belief that he was

       permitted to be in hotel lobby because of his status as a paid hotel guest was

       rejected).


[11]   Russell next contends that he did not commit criminal trespass because he did

       not acknowledge being previously denied entry to the Fashion Mall by an agent

       of the shopping complex. Here, the evidence established that Russell was orally

       notified that he was denied entry to the Fashion Mall property by McCurdy.

       McCurdy managed security for the Fashion Mall and his signature on the

       Trespass Notice sufficiently established that he possessed the authority to deny

       entry to the Fashion Mall. McCurdy also testified that he gave Russell a

       written “Ban from Private Property Notice.” Additionally, Gorman, the general

       manager for the property, informed Russell by phone that he was trespassed

       from the property. Under Indiana Code section 35-43-2-2(c), “[a] person has

       been denied entry under subdivision (b)(1) of this section when the person has

       been denied entry by means of personal communication, oral or written . . .”

       Sufficient evidence was presented to establish that Russell knowingly or

       intentionally committed criminal trespass as a Class A misdemeanor.


[12]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016   Page 5 of 6
[13]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1473 | May 31, 2016   Page 6 of 6
