MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 08 2017, 8:14 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Smiley,                                          August 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1701-CR-189
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marshelle D.
Appellee-Plaintiff                                       Broadwell, Magistrate
                                                         Trial Court Cause No.
                                                         49G17-1611-CM-45397



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-189 | August 8, 2017          Page 1 of 5
                                          Statement of the Case
[1]   Michael Smiley appeals his conviction, following a bench trial, for criminal

      trespass, as a Class A misdemeanor.1 He raises one issue on appeal, namely,

      whether the State presented sufficient evidence to support his conviction.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Angela Reed and Smiley have known each other for over twenty years and

      have a daughter together. In November of 2016, Reed and her daughter were

      living at Reed’s sister’s rental property in Indianapolis. Smiley visited his

      daughter once or twice per week.


[4]   On November 23, 2016, at approximately 6:00 p.m., Reed came home from

      work and saw Smiley in his car, parked in the grass, at her sister’s house.

      Smiley was drunk, belligerent, and playing loud music in his car. Reed asked

      Smiley to get off of the grass, but he did not leave. Reed asked him to leave two

      or three more times, but he did not comply.2


[5]   The State charged Smiley with two counts of criminal trespass, as Class A

      misdemeanors. At Smiley’s ensuing bench trial, Reed testified:




      1
       The trial court found Smiley guilty of a second count of criminal trespass, as a Class A misdemeanor.
      However, the court vacated that conviction for double jeopardy reasons.
      2
        Reed was not on the lease at her sister’s house, but she paid rent. Reed’s authority to ask Smiley to leave
      the property is not challenged on appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-189 | August 8, 2017                Page 2 of 5
              I’m standing in the yard and I say, “Mike, could you please get
              off her grass, she’s renting.” And you know, he got the music
              loud, I don’t think he heard me, but . . . he wouldn’t get off. I
              asked him two or three times to please leave and he wouldn’t.


      Tr. Vol. III at 7. The trial court found Smiley guilty of criminal trespass and

      sentenced him accordingly. This appeal ensued.


                                     Discussion and Decision
[6]   Smiley contends that the State failed to present sufficient evidence to support

      the judgment against him. Our standard of review on a claim of insufficient

      evidence is well settled:


              For a sufficiency of the evidence claim, we look only at the
              probative evidence and reasonable inferences supporting the
              verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
              not assess the credibility of witnesses or reweigh the evidence. Id.
              We will affirm the conviction unless no reasonable fact-finder
              could find the elements of the crime proven beyond a reasonable
              doubt. Id.


      Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[7]   To prove that Smiley committed criminal trespass, as a Class A misdemeanor,

      the State was required to show that Smiley 1) did not have a contractual interest

      in the property; and 2) knowingly or intentionally refused to leave the real

      property of Reed; 3) after having been asked to leave by Reed. Ind. Code § 35-

      43-2-2(b) (2017). Here, the parties only dispute whether Smiley knowingly or

      intentionally refused to leave Reed’s property after he was asked to leave. “A

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-189 | August 8, 2017   Page 3 of 5
      person engages in conduct ‘intentionally’ if, when he engages in the conduct, it

      is his conscious objective to do so.” I.C. § 35-41-2-2(a). “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.” I.C. § 35-41-2-2(b).


[8]   Smiley argues that there is no evidence that he heard Reed ask him to leave,

      especially since she only asked him two or three times and the music in his car

      was loud. But we agree with the State that a reasonable fact-finder could have

      determined that Smiley knowingly or intentionally refused to leave the property

      after Reed had asked him to do so. Reed asked Smiley to get off of the grass.

      After being unsure if Smiley had heard her, Reed made the request two or three

      times. Smiley did not comply. Reed made no further requests and took no

      further action.


[9]   Further, when “reviewing sufficiency claims, we look at what evidence was

      presented . . . not what evidence was not presented.” Meehan v. State, 7 N.E.3d

      255, 259 (Ind. 2014). Although Reed testified that she was uncertain whether

      Smiley had heard her when she asked him to leave, there was no evidence other

      than Reed’s speculation that Smiley may not have heard her request that he

      leave the property. A reasonable fact-finder could infer that because Smiley had

      parked his vehicle in the grass, where it obviously did not belong, and was

      making a nuisance of himself by broadcasting loud music, Smiley understood

      that the reason Reed approached and spoke to him, not once but three times,

      was to ask that he cease and desist and move along. There is no evidence to

      suggest that she had—or would have had—any other reason to approach

      Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-189 | August 8, 2017   Page 4 of 5
       Smiley. We hold that the State presented sufficient evidence from which a

       reasonable fact-finder could conclude that Smiley knowingly or intentionally

       refused to leave the property.


[10]   In sum, the evidence most favorable to the judgment shows that Smiley was

       present at the home where Reed was living, that Reed repeatedly asked Smiley

       to leave, and that Smiley did not leave the property. That is sufficient evidence

       to support a reasonable inference that Smiley committed trespass, as a Class A

       misdemeanor. Smiley’s contentions to the contrary are simply requests that we

       reweigh the evidence, which we cannot do. We affirm Smiley’s conviction.


[11]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-189 | August 8, 2017   Page 5 of 5
