MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Dec 29 2017, 9:03 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                      Curtis T. Hill, Jr.
Oldenburg, Indiana                                      Attorney General of Indiana

                                                        Lee M. Stoy, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ross E. Embry,                                          December 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1706-CR-1374
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Clayton A.
Appellee-Plaintiff                                      Graham, Judge
                                                        The Honorable Anne
                                                        Flannelly, Magistrate
                                                        Trial Court Cause No.
                                                        49G07-1612-CM-49262, 49G07-
                                                        1701-CM-517



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017          Page 1 of 5
                                               Case Summary


[1]   Ross Embry appeals following his convictions for two counts of Class A

      misdemeanor criminal trespass and argues that the State presented insufficient

      evidence to support his convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On December 29, 2016, Marshal Michael Kiefer of the Rocky Ripple Police

      Department was called to the IndyGo Transit Center to assist with a patron

      who was causing a disturbance. Upon Marshal Kiefer’s arrival, IndyGo

      employees directed his attention to Embry, who was in the lobby. The

      employees informed Marshal Kiefer that Embry had been smoking in the lobby,

      which was a nonsmoking area, and refused to put his cigarette out when asked.

      Marshal Kiefer approached Embry, who denied that he had been smoking and

      became argumentative. Marshal Kiefer eventually asked Embry to leave, but

      Embry refused and continued to argue. Marshal Kiefer informed Embry that if

      he did not leave, he would be banned from entering IndyGo property for a year.

      Embry still did not leave, so Marshal Kiefer issued him a written criminal

      trespass warning, which provided that “Your signature indicates that you

      understand that you are banned from the above named property and that if you violate

      this notice, you may be arrested.” Exhibit Volume, State’s Ex. 1 (emphasis in

      original). Embry signed just below this warning, and Marshal Kiefer repeatedly

      explained to Embry that he was not to come back onto the property unless he

      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 2 of 5
      received a notice in the mail informing him that he could return. Thereafter,

      Embry continued to argue and told Marshal Kiefer that he had no right to ban

      him from the property. After more arguing, Embry finally left.


[4]   The next day, Marshal Kiefer and Chief Deputy David Howe of the Southport

      Police Department were called to respond to a patron causing a disturbance on

      a bus at the IndyGo Transit Center. When they arrived, they encountered

      Embry, who was refusing to pay his fare or get off the bus. Embry again began

      arguing with Marshal Kiefer, stating that he had no right to make him get off

      the bus or to ban him from IndyGo property. Marshal Kiefer placed Embry

      under arrest for criminal trespass, and in the process of doing so, found the

      trespass warning issued the previous day in Embry’s pocket.


[5]   Embry returned to IndyGo property many times after this incident. Instead of

      arresting Embry, Marshal Kiefer would usually just order him to leave. Embry

      would sometimes argue, but he always eventually complied. On January 4,

      2017, Deputy Howe was notified that Embry had once again returned to the

      IndyGo Transit Center. After determining that Embry’s trespass warning was

      still active, Deputy Howe arrested Embry for criminal trespass.


[6]   The State charged Embry with two counts of criminal trespass, one for the

      December 30 incident and one for the January 4 incident. A bench trial was

      held on June 7, 2017, at the conclusion of which the trial court found Embry

      guilty as charged. Embry was sentenced to concurrent terms of 365 days with

      363 days suspended. Embry now appeals.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 3 of 5
                                          Discussion & Decision


[7]   Embry argues that the State presented insufficient evidence to support his

      convictions. In reviewing a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

      State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

      evidence supporting the conviction and the reasonable inferences flowing

      therefrom. Id. If there is substantial evidence of probative value from which a

      reasonable trier of fact could have drawn the conclusion that the defendant was

      guilty of the crime charged beyond a reasonable doubt, the judgment will not be

      disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[8]   To convict Embry of criminal trespass as a Class A misdemeanor, the State was

      required to prove that Embry, not having a contractual interest in the property,

      knowingly or intentionally entered the IndyGo property after having been

      denied entry by IndyGo or its agent. See Ind. Code § 35-43-2-2. On appeal,

      Embry concedes that he had no contractual interest in the property and that he

      had been issued a trespass warning by an authorized agent of IndyGo. He

      argues, however, that the evidence was insufficient to prove that he knowingly

      or intentionally entered the property in violation of the trespass warning. In

      support, he directs our attention to his own testimony that he suffers from

      periodic memory loss due to a chronic illness and could not recall that he had

      been banned from the IndyGo Transit Center at the time of either arrest.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 4 of 5
[9]    Embry’s arguments are nothing more than requests to reweigh the evidence and

       judge the credibility of witnesses, which we will not do on appeal. The trial

       court was not obligated to credit Embry’s testimony regarding his alleged

       memory loss, and it expressly declined to do so. The State presented evidence

       that on December 29, 2016, Embry signed a written trespass warning and

       Marshal Kiefer repeatedly told Embry that he was not to return to the property.

       Marshal Kiefer testified that Embry appeared to understand. Nevertheless,

       with the trespass warning still in his pocket, Embry came back to the property

       the next day. When confronted by Marshal Kiefer, Embry asserted that

       Marshal Kiefer had no right to ban him from the property. Thereafter, Embry

       repeatedly returned to the property and was told to leave multiple times.

       Embry continued to ignore the trespass notice and was arrested a second time

       on January 4, 2017. This evidence was more than sufficient to support Embry’s

       convictions.


[10]   Judgment affirmed.


[11]   May, J., and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017   Page 5 of 5
