MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Aug 20 2020, 8:44 am
court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Colyer                                             August 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-122
        v.                                               Appeal from the
                                                         Brown Circuit Court
State of Indiana                                         The Honorable
Appellee-Plaintiff.                                      Mary H. Wertz, Judge
                                                         Trial Court Cause Nos.
                                                         07C01-1907-CM-248



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020              Page 1 of 9
[1]   James Colyer (“Colyer”) was convicted of criminal trespass1 as a Class A

      misdemeanor following a jury trial and was sentenced to sixty days executed.

      Colyer now appeals and raises the following issue for our review: whether the

      evidence presented at trial was sufficient to support his conviction for criminal

      trespass.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Joe McGlothlin (“McGlothlin”) was the director of operations at a wood

      framing business called The Beamery in Brown County, Indiana. Tr. Vol. 2 at

      65, 166. On June 24, 2019, McGlothlin saw a man (whom he identified as

      Colyer at trial) and a woman walking around the storage yard where The

      Beamery’s trucks and trailers were parked. Id. at 71-72, 84, 90. McGlothlin

      knew that they were not employees of The Beamery and noticed that the man

      was wearing an ankle monitor. Id. at 88. Being concerned about the two

      strangers, McGlothlin watched them and made his presence known by standing

      at a door. Id. at 71-72. Colyer and the woman walked off when they saw

      McGlothlin. Id. About an hour later, McGlothlin saw Colyer and the woman

      lingering on the property again and told them to leave. Id. at 73. As Colyer

      was walking away, he approached a storage facility where The Beamery kept its

      inventory and pulled on the door. Id. The door did not open. Id. McGlothin




      1
          See Ind. Code § 35-43-2-2(b).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 2 of 9
      approached Colyer and the woman and told them again that they had to leave.

      Id. Colyer and the woman walked away while laughing. Id. at 74.


[4]   The Beamery shares a building on the property with a wood flooring company

      named Quarter-Sawn Flooring (“Quarter-Sawn”), owned by Steve Edwards

      (“Edwards”). Id. at 68-71. On June 24, 2019, when Edwards arrived on the

      property, he saw Colyer coming from the shared property. Id. at 135. Edwards

      inquired as to why Colyer was there, but Colyer expressed to Edwards that he

      did not want to talk. Id. at 135-36.


[5]   Later in the day, McGlothlin and Edwards told each other about their

      interactions with Colyer. Id. at 136-37. McGlothlin called the Sheriff’s

      Department, reporting Colyer’s trespassing on the property of The Beamery and

      Quarter-Sawn. Id. at 88. Brown County Sheriff’s Deputy Nicholson Briles

      (“Deputy Briles”) was dispatched to The Beamery’s address. Id. at 99.

      Edwards spoke with Deputy Briles and told him that a person wearing black

      shorts, a black tee shirt, and an ankle monitor had trespassed on the property of

      the The Beamery and Quarter-Sawn. Id. at 100. Edwards told Deputy Briles

      that the person had left the property and walked west on State Road 45. Id. at

      101. Deputy Briles then drove in that direction and found a man who matched

      Edwards’s description of the trespasser. Id. at 101. Deputy Briles approached

      the man and confirmed his identity as Coyler. Id. at 102. Coyler admitted that

      he had been on The Beamery and Quart-Sawn’s property. Id. Coyler said that

      he was on home detention and was trying to get a signal for his ankle monitor

      there. Id. Deputy Briles explained to Coyler that it was not his property and
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 3 of 9
      that “if he wasn’t welcome there he shouldn’t be on . . . the property.” Id. at

      103. After confirming back with Edwards that he wanted to have Colyer

      trespassed, Deputy Briles told Coyler that he was “no longer welcome on that

      property” and if he returned there, he “could be arrested for trespassing.” Id. at

      103, 105.


[6]   However, Colyer continued coming to the property of The Beamery and

      Quarter-Sawn even after being warned by Deputy Briles about the potential

      consequence of an arrest. Id. at 89, 138. At trial, Edwards testified that

      between June 24 and July 13, 2019, he saw Colyer on the property between five

      to seven times; McGlothlin saw Colyer on the property three or four times in

      the same time period. Id. Two Quarter-Sawn employees also observed Colyer

      on the property on multiple occasions. Id. at 112, 149. Both Edwards and

      McGlothin told Colyer that he was not allowed on the property and not to

      come back. Id. at 90, 138. Multiple signs were on the property that prohibited

      entry onto the property by non-employees, and Colyer had never asked for

      permission to be on the property. Id. at 73, 81, 89, 133, 140-41.


[7]   On July 13, 2019, Edwards saw Colyer on the property of The Beamery and

      Quarter-Sawn again and asked him what he was doing. Id. at 138. Colyer

      claimed that “Mike Horn” said he could be there. Id. Edwards did not know

      anyone named Mike Horn and called the Sheriff’s Department. Id. at 139.

      Deputy William Pool (“Deputy Pool”) was dispatched to the scene. Id. at 155.

      Colyer told Deputy Pool that Deputy Horn, whose first name is Mike, from the

      Brown County Sheriff’s Department had given him permission to be on the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 4 of 9
      property of The Beamery and Quarter-Sawn. Id. at 157. Deputy Pool made a

      phone call while at the scene and confirmed that Deputy Horn had never

      spoken with Colyer. Id. Colyer was then arrested. Id. at 139. On July 22,

      2019, Colyer was charged with Class A misdemeanor criminal trespass.

      Appellant’s App. Vol. 2 at 13.


[8]   A jury trial was held on November 6, 2019. Tr. Vol. 2 at 38. At trial, there was

      testimony that, during the time period when Colyer was coming to The

      Beamery and Quarter-Sawn’s property, he was living with his father John

      Colyer (“Father”) in Brown County and was on home detention ordered by

      Marion County Community Corrections (“MCCC”). Id. at 192, 232-33.

      Colyer testified that he understood that under the MCCC rules he was required

      to stay in Father’s house. Id. at 235. He also testified that he had been unable

      to get a signal for his ankle monitor at Father’s house since the first night of

      moving in. Id. at 239. Colyer said that MCCC called him on the first night

      about a signal issue and asked him to step outside. Id. He then walked around

      while continuing the phone call and eventually got signal on Quarter-Sawn’s

      property. Id. 240, 245. Colyer admitted at trial that he could get the signal at

      two other locations, but the signal at those locations was intermittent. Id. at

      241.


[9]   At the conclusion of the trial, the jury found Colyer guilty of Class A

      misdemeanor criminal trespass. Tr. Vol. 3 at 109. The trial court sentenced

      Colyer to sixty days executed. Id. at 129. Colyer now appeals.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 5 of 9
                                      Discussion and Decision
[10]   Colyer contends the State did not present sufficient evidence to support his

       conviction. When we review the sufficiency of evidence to support a

       conviction, we do not reweigh the evidence or assess the credibility of the

       witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.

       denied. We consider only the evidence most favorable to the trial court’s ruling

       and the reasonable inferences that can be drawn from that evidence. Lock v.

       State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in

       the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,

       875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is

       substantial evidence of probative value such that a reasonable trier of fact could

       have concluded the defendant was guilty beyond a reasonable doubt. Wolf v.

       State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).


[11]   In order to convict Colyer of Class A misdemeanor criminal trespass, the State

       was required to prove beyond a reasonable doubt that Colyer, (1) not having a

       contractual interest in the property, (2) knowingly or intentionally entered the

       real property of another person, (3) after having been denied entry by the other

       person or that person’s agents. Ind. Code § 35-43-2-2(b)(1). On appeal, Colyer

       does not dispute that he had trespassed on Quarter-Sawn and The Beamery’s

       property. Appellant’s Br. at 12. Instead, he argues that he did so because of

       necessity and that the State failed to present sufficient evidence to rebut his

       defense of necessity. Id. This court has set forth the following requirements to

       establish a necessity defense:

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 6 of 9
        (1) the act charged as criminal must have been done to prevent a
        significant evil;


        (2) there must have been no adequate alternative to the
        commission of the act;


        (3) the harm caused by the act must not be disproportionate to
        the harm avoided;


        (4) the accused must entertain a good faith belief that his act was
        necessary to prevent greater harm;


        (5) such belief must be objectively reasonable under all the
        circumstances; and


        (6) the accused must not have substantially contributed to the
        creation of the emergency.


Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013) (citations

omitted), trans. denied. In order to negate a necessity defense, the State must

disprove at least one of the six elements beyond reasonable doubt. Clemons, 996

N.E.2d at 1285. The State may refute a claim of the defense of necessity by

direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-

chief. Id. The decision whether a claim of necessity has been disproved is

entrusted to the fact-finder. Id. Where a defendant is convicted despite his

claim of necessity, this court will reverse the conviction only if no reasonable

person could find that the defense was negated by the State beyond a reasonable

doubt. Id.


Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 7 of 9
[12]   Colyer contends that his trespassing was necessary to prevent his potential

       incarceration if he could not get a signal for his ankle monitor. Appellant’s Br. at

       14. Colyer argues that the fear of incarceration qualifies as the “significant evil”

       set out in the first of the elements and that there was “no adequate alternative”

       because The Beamery and Quarter-Sawn’s property was the only place where

       he could get stable signal that was within his walking distance. Id.


[13]   However, our review of the record shows that, Colyer could in fact get a signal

       from at least two other locations. He never sought permission to be on the

       property of The Beamery and Quarter-Sawn or talked to MCCC about

       accommodating his trouble getting signal at Father’s house. Therefore, a

       reasonable jury could have found that his trespassing on The Beamery and

       Quarter-Sawn’s property was not “necessary.” See Clemons, 996 N.E.2d at

       1285. Furthermore, while on home detention, Colyer knew that he was not

       allowed to leave Father’s house. Although Coyler claimed at trial that MCCC

       told him to step out of the house to get signal, the jury was not required to

       credit his testimony. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). He

       had also been warned multiple times by Deputy Briles, Edwards, and

       McGlothlin that he was not welcome on the property, and if he continued to

       trespass, he could be arrested for criminal trespass. Colyer could not have

       believed in good faith that he could avoid incarceration by committing criminal

       trespass in addition to violating the home detention order by leaving Father’s

       house. See Clemons, 996 N.E.2d at 1285. Moreover, Colyer’s belief was not

       “objectively reasonable” even if he had honestly thought so, because the


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 8 of 9
       aggregate harm of the two trespassing offenses was “disproportionate” to the

       harm he was trying to avoid. See id.


[14]   Based on this, we determine that a reasonable jury could have concluded

       beyond a reasonable doubt that Colyer’s claim of necessity had been disproved.

       We, therefore, conclude that the State presented sufficient evidence to support

       Colyer’s conviction for criminal trespass.


[15]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-122| August 20, 2020   Page 9 of 9
