MEMORANDUM DECISION                                                          FILED
                                                                         Apr 05 2016, 8:46 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                             CLERK
this Memorandum Decision shall not be                                    Indiana Supreme Court
                                                                            Court of Appeals
regarded as precedent or cited before any                                     and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David L. Joley                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Kesterke,                                         April 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1510-CR-1830
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Robert Ross,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D05-1412-CM-5047



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016             Page 1 of 8
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Robert C. Kesterke (Kesterke), appeals his convictions

      for criminal trespass, a Class A misdemeanor, Ind. Code § 35-43-2-2(a)(4)

      (2014); and conversion, a Class A misdemeanor, I.C. § 35-43-4-3(a).


[2]   We affirm.


                                                     ISSUE

[3]   Kesterke raises one issue on appeal, which we restate as follows: Whether his

      convictions for criminal trespass and conversion violate the Indiana

      Constitution’s prohibition against double jeopardy.


                           FACTS AND PROCEDURAL HISTORY

[4]   In December 2014, Martin Enterprises (Martin), also known as Martin

      Construction, had contracted with the City of Fort Wayne to demolish a school

      building at 1903 St. Mary’s Avenue and replace it with a park. The contract

      provided Martin with “salvage rights”—ownership of the debris resulting from

      demolition. (Transcript p. 111). Before starting the project, Martin erected a

      six-foot, chain-link fence around the work site. Martin also posted “clearly

      legible” signs that read, “Keep out.” (Tr. pp. 113-14).


[5]   On December 21, 2014, in the late afternoon, a witness called the police and

      reported that he observed a man, later identified as Kesterke, entering the site

      near the northwest corner of the fence where it was “leaning a little bit, but

      [not] open.” (Tr. p. 95). The witness later testified that Kesterke, who had a

      Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 2 of 8
      “newspaper carrying bag” with him, was sifting through the debris, removing

      metal pieces, and placing them into a pile. (Tr. p. 96). Officer Mitchell

      Gearhart of the City of Fort Wayne Police Department (Officer Gearhart)

      responded to the call. When the officer arrived, Kesterke “had his back turned

      to [the officer], and he was digging through the debris pile, and it appeared as

      though he was taking metal objects and tossing them off to the side into a pile.”

      (Tr. pp. 126-27). Officer Gearhart observed two piles of metal, one inside the

      fenced area and one outside. Officer Gearhart called Kesterke and asked where

      he had entered the work site. Kesterke showed him the corner of the fence, and

      the officer asked Kesterke to meet him there. Officer Gearhart observed that

      the fence at the northwest corner “was not attached to the post and it was bent

      back and lying into the mud that was there at the facility.” (Tr. p. 130).

      Kesterke informed the officer that he intended to collect “metal items” for

      “scrap” and that he “had not gotten any approval of any kind to be on the

      property.” (Tr. p. 128). When asked about the pile located outside of the fence,

      Kesterke informed the officer that “those were items that he had tossed over, to

      then retrieve at a later point in time.” (Tr. p. 138). Later, the police officers

      inspected Kesterke’s bag and discovered bolt and wire cutters, screwdrivers,

      hammers, and other tools inside.


[6]   On December 22, 2014, the State filed an Information charging Kesterke with

      Count I, criminal trespass, a Class A misdemeanor; and Count II, conversion, a

      Class A misdemeanor. In Count I, the State alleged that Kesterke “knowingly

      or intentionally interfere[d] with the possession or use of the property of 1903


      Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 3 of 8
      St. Mary[’]s Ave., to wit: entered the fully fenced[-]in property to scrap metal

      by entering in a hole in the fence which was not consented to by said [Gerald]

      Martin, Martin Construction.” (Appellant’s App. p. 11). In Count II, the State

      alleged that Kesterke “knowingly or intentionally exert[ed] unauthorized

      control over the property of Martin Construction[,] to wit: was attempting to

      scrap metal from a job site located at 1903 St. Mary[’]s Ave. by entering

      fenced[-]in private property and throwing scrap metal over the fence to be

      collected later.” (Appellant’s App. p. 12).


[7]   At a jury trial on September 24, 2015, the trial court reproduced the charging

      Information for the jury in both the preliminary and final instructions.

      Additionally, in both sets of instructions, the trial court separated and

      enumerated the elements of each crime. As to Count I, the trial court instructed

      the jury:


              Before you may convict the Defendant of Count I, the State must
              have proved each of the following beyond a reasonable doubt:

              1. The Defendant, [Kesterke],
              2. [K]nowingly or intentionally[,]
              3. [I]nterfered with the possession or use of the property of
                 [Gerald] Martin, Martin Construction[,]
              4. [W]ithout the consent of [Gerald] Martin, Martin
                 Construction.

      (Appellant’s App. pp. 16, 32). As to Count II, the trial court instructed the jury:


              Before you may convict the Defendant of Count II, the State
              must have proved each of the following beyond a reasonable
              doubt:

              1. The Defendant[, Kesterke],
      Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 4 of 8
               2. [K]nowingly or intentionally[,]
               3. [E]xerted unauthorized control[,]
               4. [O]ver property of [Gerald] Martin, Martin Construction.

       (Appellant’s App. pp. 17, 31).


[8]    Following the jury trial, Kesterke was found guilty as charged. On the same

       day, the trial court sentenced Kesterke to a one-year, fully suspended sentence

       for his criminal trespass conviction and a $25 fine for his conversion conviction.


[9]    Kesterke now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[10]   Kesterke argues that his convictions for criminal trespass and conversion violate

       Indiana’s prohibition against double jeopardy under the actual evidence test.

       The Indiana Double Jeopardy Clause provides, “No person shall be put in

       jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. A trial court’s

       legal conclusion regarding whether convictions and sentences violate double

       jeopardy principles is reviewed de novo. Singh v. State, 40 N.E.3d 981, 986 (Ind.

       Ct. App. 2015), trans. denied. We analyze alleged violations of Indiana’s

       Double Jeopardy Clause pursuant to our supreme court’s opinion in Richardson

       v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our supreme court held that

       “two or more offenses are the ‘same offense’ in violation of Article I, Section 14

       of the Indiana Constitution, if, with respect to either the statutory elements of

       the challenged crimes or the actual evidence used to convict, the essential

       elements of one challenged offense also establish the essential elements of

       another challenged offense.” 717 N.E.2d at 49 (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 5 of 8
[11]   Under the “actual evidence” test, a defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish all of the

       essential elements of a second challenged offense. Richardson, 717 N.E.2d at 53.


               Application of this test requires the court to identify the essential
               elements of each of the challenged crimes and to evaluate the
               evidence from the jury’s perspective. Therefore, we consider the
               essential elements of the offenses, the charging information, the
               jury instructions, the evidence, and the arguments of counsel.
               The term “reasonable possibility” turns on a practical assessment
               of whether the jury may have latched on to exactly the same facts
               for both convictions.


       Bunch v. State, 937 N.E.2d 839, 845-46 (Ind. Ct. App. 2010) (internal
       citations omitted), trans. denied.


[12]   The State charged Kesterke with criminal trespass as follows: Kesterke

       “knowingly or intentionally interfere[d] with the possession or use of the

       property of 1903 St. Mary[’]s Ave., to wit: entered the fully fenced[-]in property

       to scrap metal by entering in a hole in the fence which was not consented to by

       said [Gerald] Martin, Martin Construction.” (Appellant’s App. p. 11). The

       State also charged Kesterke with conversion as follows: Kesterke “knowingly

       or intentionally exert[ed] unauthorized control over the property of Martin

       Construction[,] to wit: was attempting to scrap metal from a job site located at

       1903 St. Mary[’]s Ave. by entering fenced[-]in private property and throwing

       scrap metal over the fence to be collected later.” (Appellant’s App. p. 12).



       Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 6 of 8
[13]   Kesterke claims that the evidence used to establish his conviction for criminal

       trespass was the same as the evidence used to establish his conviction for

       conversion. We disagree. Our review of the record indicates that the criminal

       trespass charge was focused on Kesterke’s manipulation and interference with

       Martin’s fence. During the trial, the reporting witness testified that before

       Kesterke entered the work site, the fence was leaning slightly, but was not on

       the ground. After Kesterke entered the site, the police officer observed the fence

       to be detached from its post, bent back, and dropped into the mud. The police

       officers later discovered different tools in Kesterke’s bag, such as bolt and wire

       cutters, screwdrivers, and hammers. Kesterke’s conversion conviction, on the

       other hand, was focused on the unauthorized control exerted over the scrap

       metal, which was in Martin’s legal possession pursuant to Martin’s contract

       with the city. Kesterke was found sifting through the debris, sorting the metal

       out, and placing it into separate piles to retrieve later. Kesterke admitted that

       he had no permission to take the metal and that his explicit intent was to sell it

       for scrap.


[14]   Further, the record reveals that the jury received proper preliminary and final

       instructions, which focused on different acts. Both sets of instructions separated

       each of the alleged crimes into distinct elements. The State and the trial court

       urged the jury to read the jury instructions for guidance on the elements of the

       charged crimes. Considering the evidence presented, we find no reasonable

       possibility that the evidence used to establish the essential elements of criminal

       trespass was used to establish all of the essential elements of conversion.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 7 of 8
       Accordingly, under the actual evidence test, Kesterke’s convictions for criminal

       trespass and conversion are not the same offenses, and his convictions do not

       violate the double jeopardy clause of the Indiana Constitution.


                                               CONCLUSION

[15]   Based on the foregoing, we hold that Kesterke’s convictions did not violate

       Indiana’s double jeopardy clause.


[16]   Affirmed.


[17]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016   Page 8 of 8
