MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Oct 31 2017, 12:06 pm
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rory Gallagher                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Patricia Kittrell,                                       October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1704-CR-845
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven Rubick,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G07-1510-CM-34868



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017            Page 1 of 9
                                         Statement of the Case
[1]   Patricia Kittrell (“Kittrell”) appeals her conviction, following a bench trial, for

      Class A misdemeanor criminal trespass.1 Kittrell argues that there was

      insufficient evidence to support her conviction. Because there is evidence to

      show that Kittrell, not having a contractual interest in the property of Meijer,

      knowingly or intentionally entered the Meijer property after having been denied

      entry by Meijer employees, we affirm her conviction.


[2]   We affirm.


                                                        Issue
              Whether sufficient evidence supports Kittrell’s conviction.

                                                       Facts
[3]   The facts most favorable to the judgment reveal that, prior to September 7,

      2015, Kittrell had worked at the Meijer store on East Washington Street in

      Marion County and had been “let go[.]” (Tr. Vol. 2 at 9). On September 7,

      2015, Kittrell went into the Meijer store, but she did not have permission to be

      there. Kittrell had an “incident” with an employee, and one of the Meijer

      managers told her to leave the Meijer store. (Tr. Vol. 2 at 9). The manager also

      told the other Meijer employees that Kittrell “was not supposed to be in the




      1
        IND. CODE § 35-43-2-2. We note that the current version of the criminal trespass statute was enacted with
      an effective date of July 1, 2016. Because Kittrell committed her crime in September 2015, we will apply the
      statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017            Page 2 of 9
      store at all.” (Tr. Vol. 2 at 10). One of the Meijer employees notified the

      Meijer store detective and loss prevention officer, James Austin (“Austin”), that

      Kittrell was in the store, that she “was not welcome in the store[,]” and that she

      had refused to leave. (Tr. Vol. 2 at 12). Meijer employees, including Austin

      and manager, Tanya Terhune (“Terhune”), told Kittrell to leave the store.

      Kittrell refused to leave.


[4]   A Meijer employee called the police, and Cumberland Police Officer Michael

      Crooke II (“Officer Crooke”) went to the store. When Officer Crooke arrived,

      Kittrell was out in the parking lot with Austin, and “[t]here was a lot of chaos

      going on.” (Tr. Vol. 2 at 27). Kittrell “cussed at” Austin, and she initially

      refused to leave after the police arrived. (Tr. Vol. 2 at 23). While in the parking

      lot, Austin told Kittrell that “she was not allowed to be on the property.” (Tr.

      Vol. 2 at 28). Kittrell “got a very aggressive stance” and “ball[ed] up her fist”

      towards Austin, and Officer Crooke placed her in handcuffs. (Tr. Vol. 2 at 27).

      Officer Crooke told Kittrell that she would be arrested if she returned to the

      store, and she eventually left the store premises.


[5]   On September 15, 2015, Kittrell returned to the Meijer store. A Meijer

      employee, Jasmine Gray (“Gray”), saw Kittrell checking out at the self-scan

      area. Gray “told [Kittrell] that she was not supposed to be there because, of

      course, she was trespassing.” (Tr. Vol. 2 at 8). Kittrell left the store, and an

      employee called the police to report that Kittrell “who had been trespassed from

      the store previously” had been in the store. (Tr. Vol. 2 at 30). Officer Charles

      Page IV (“Officer Page”) went to the Meijer and took a report from employees.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017   Page 3 of 9
      Video footage from the Meijer surveillance cameras showed that Kittrell had

      been in the store.


[6]   Thereafter, the State charged Kittrell with Class A misdemeanor criminal

      trespass. On March 23, 2017, the trial court held a bench trial. The State

      presented testimony from Meijer employees, Gray and Austin, and from

      Officers Crooke and Page. The State also admitted into evidence State’s

      Exhibit 1, the Meijer surveillance video.


[7]   After the State’s presentation of evidence, Kittrell’s counsel moved for an

      involuntary dismissal pursuant to Trial Rule 41(B), arguing that there had been

      “no testimony that [Kittrell] was trespassed from an agent of Meijer” and no

      written or oral communication that “Kittrell was not able to return to the

      property.” (Tr. Vol. 2 at 33). The trial court denied Kittrell’s motion, stating

      that “[t]he unchallenged testimony of Detective Austin is that on September 7,

      2015, he and leadership advised Ms. Kittrell she was not welcome on the

      property, and she was trespassed from the property.” (Tr. Vol. 2 at 34).


[8]   Kittrell then testified on her own behalf, and she also presented testimony from

      her girlfriend, Re’Gine Garrett (“Garrett”). Garrett testified that she was in the

      store with Kittrell on September 7 and that no one had told Kittrell to leave the

      store or told her that she could not return to the store. When Kittrell testified,

      she acknowledged that, when she was on the Meijer property on September 7,

      she had argued with a Meijer employee and that she had “yell[ed]” and

      “curs[ed]” at Austin. (Tr. Vol. 2 at 39). She also acknowledged that Austin


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017   Page 4 of 9
       and two Meijer managers were outside in the parking lot with her, but she

       testified that they had never told her to leave the store. Kittrell testified that

       Officer Crooke was the only person who had told her to leave the store

       premises. Kittrell acknowledged that she had returned to the Meijer store on

       September 15. She testified that she thought that she could return because she

       had not been arrested and because “no one [had] told [her] that [she] could not

       come back[.]” (Tr. Vol. 2 at 41).


[9]    The trial court found Kittrell guilty of criminal trespass as charged. The trial

       court imposed a 365-day suspended sentence and ordered Kittrell to stay away

       from the Meijer store for one year. Kittrell now appeals.


                                                   Decision
[10]   Kittrell argues that the evidence was insufficient to support her conviction for

       Class A misdemeanor criminal trespass.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder would find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017   Page 5 of 9
       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original).


[11]   The purpose of the criminal trespass statute is “to punish those who willfully or

       without a bona fide claim of right commit acts of trespass on the land of

       another.” Willis v. State, 983 N.E.2d 670, 671 (Ind. Ct. App. 2013). The

       criminal trespass statute in effect at the time of Kittrell’s crime, INDIANA CODE

       § 35-43-2-2, provided, in relevant part, that a “person who . . . not having a

       contractual interest in the property, knowingly or intentionally enters the real

       property of another person after having been denied entry by the other person

       or that person’s agent . . . commits criminal trespass, a Class A misdemeanor.”

       I.C. § 35-43-2-2(b)(1). To convict Kittrell as charged, the State was required to

       prove beyond a reasonable doubt that Kittrell, not having a contractual interest

       in the property of Meijer, knowingly or intentionally entered the Meijer

       property on September 15, 2015, after having been denied entry by Meijer or its

       agents.


[12]   Kittrell does not dispute that she did not have a contractual interest in Meijer or

       that she entered the store on September 15. Additionally, she acknowledges

       that the evidence reveals that Meijer employees had told her to leave the store

       on September 7 and that Austin had told her that “she was not allowed to be on

       the property.” (Kittrell’s Br. 9). Nevertheless, Kittrell contends that there was

       insufficient evidence to support her criminal trespass conviction. Kittrell

       contends that there was insufficient evidence of the mens rea element, arguing

       that “[w]hen [she] returned to Meijer [on September 15], she had a reasonable,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017   Page 6 of 9
       good faith belief that her denial of entry was temporary.” (Kittrell’s Br. 7). She

       also argues that the State should have been required to, but did not, present

       evidence that Meijer employees had “clearly communicated an indefinite ban”

       to Kittrell. (Kittrell’s Br. 9). She contends that her conviction should be

       reversed because there was no evidence that Meijer employees had told her that

       “she was permanently banned from the property” or that she was “not allowed

       on the property in the future.” (Kittrell’s Br. 8, 10).


[13]   We reject Kittrell’s arguments and her assertion that there is insufficient

       evidence to support her criminal trespass conviction. As far as intent, the State

       was required to prove that Kittrell knowingly or intentionally entered the Meijer

       property on September 15, 2015, after having been denied entry by Meijer

       employees. The evidence revealed that, on September 7, a Meijer manager told

       Kittrell to leave the Meijer premises, and the Meijer detective/loss prevention

       officer, told Kittrell that “she was not allowed to be on the property.” (Tr. Vol.

       2 at 28).2 Kittrell admitted that she returned to the Meijer store on September

       15. Therefore, there was sufficient evidence that Kittrell possessed the requisite

       intent for criminal trespass because she knowingly or intentionally entered the

       Meijer store after having been denied entry.




       2
         We disagree with the State’s suggestion that Officer Crooke’s warning to Kittrell that she had to leave the
       Meijer property was additional evidence that she had been denied entry to the Meijer premises. See Glispie v.
       State, 955 N.E.2d 819, 823 (Ind. Ct. App. 2011) (explaining that a police officer’s oral and written warnings
       to a defendant not to enter a company’s property—without evidence to show that the officer was an agent of
       the company—was not sufficient to show that an agent of the company had denied entry to the defendant),
       reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017             Page 7 of 9
[14]   We also reject Kittrell’s argument that the denial of entry element of subsection

       (b)(1) of the criminal trespass statute should require that the communication of

       that denial of entry must specify that the ban from the property is indefinite. In

       regard to this element, the legislature has specifically explained that “[a] person

       has been denied entry under subsection (b)(1) when the person has been denied

       entry by means of . . . personal communication, oral or written[.]” I.C. § 35-43-

       2-2(c)(1).3 “We must apply a criminal statute strictly according to its terms.”

       See Glispie v. State, 955 N.E.2d 819, 823 (Ind. Ct. App. 2011), reh’g denied.

       Accordingly, we refuse Kittrell’s request to engraft an additional requirement

       onto the criminal trespass statute regarding the denial of entry element. 4 See,

       e.g., Frink v. State, 52 N.E.3d 842, 847-48 (Ind. Ct. App. 2016) (refusing the

       defendant’s argument that the State needed to prove that a school had

       “lawfully” denied entry to the defendant because “the lawfulness of the denial

       [was] not an element of the offense” of criminal trespass).




       3
        In addition to a personal communication, INDIANA CODE § 35-43-2-2(c) also provides that a person has
       been denied entry for purposes of the criminal trespass statute when the person has been denied entry by
       means of a written posting or court order.
       4
         We also reject Kittrell’s suggestion that this Court should hold that a denial of entry that is not specifically
       specified at a indefinite or permanent denial should “persist[] for a reasonable period of time under a totality
       of the circumstances, from the perspective of the person being denied entry.” (Kittrell’s Br. 8). We have
       explained that “[i]f a person has a fair and reasonable foundation for believing he has a right to be present on
       the property, there is no criminal trespass. Blair v. State, 62 N.E.3d 424, 428 (Ind. Ct. App. 2016) (citing Olsen
       v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996)). Here, however, there was no “fair and reasonable
       foundation” to support Kittrell’s belief that the denial of entry onto Meijer property lasted only one day. See
       Olsen, 663 N.E.2d at 1196 (rejecting a defendant’s claim that his refusal to leave a hotel property was justified
       by his “bona fide belief” that he had a right to be on the property after he had been asked to leave); see also
       Blair, 62 N.E.3d at 428 (Ind. Ct. App. 2016) (rejecting the defendant’s “good faith claim” that he had a right
       to enter the property).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017                Page 8 of 9
[15]   The evidence presented at trial and the inferences drawn therefrom were

       sufficient for the trial court, as trier of fact, to conclude that Kittrell knowingly

       or intentionally entered Meijer’s property after having been denied entry by

       Meijer employees. Accordingly, we affirm her criminal trespass conviction.

       See, e.g., Blair v. State, 62 N.E.3d 424, 428 (Ind. Ct. App. 2016) (affirming a

       defendant’s criminal trespass conviction where the defendant returned to a

       house after being told to leave and that he was not allowed to be there). Cf.

       Willis, 983 N.E.2d at 672 (reversing a defendant’s criminal trespass conviction

       where the State failed to prove that a denial of entry had been communicated to

       the defendant).


[16]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-845 | October 31, 2017   Page 9 of 9
