                                                      Jan 21 2014, 10:06 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

SCOTT MILKEY                                  BRIAN L. REITZ
Certified Legal Intern                        Deputy Attorney General
Indianapolis, Indiana                         Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TERRY BERRY,                                  )
                                              )
       Appellant-Defendant,                   )
                                              )
               vs.                            )         No. 49A02-1307-CR-583
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kimberly Brown, Judge
                            Cause No. 49F07-1210-CM-73382



                                   January 21, 2014

                              OPINION–FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Terry Berry was arrested after Marion County Sheriff’s

Department Deputy Craig Tegeler, who was employed as a part-time security guard at

Keystone North Apartments (Keystone), found Berry in the basement of a Keystone

building and discovered that Berry was on Keystone’s trespass list. Berry now appeals

his conviction for Criminal Trespass, 1 a class A Misdemeanor, arguing that there was

insufficient evidence. More particularly, Berry contends that the State failed to provide

sufficient evidence to prove that Deputy Tegeler had an agency relationship with

Keystone and asserts that the State failed to prove beyond a reasonable doubt that Berry

lacked a contractual interest in Keystone.

          We find that a reasonable fact-finder could determine that the State proved all the

elements of criminal trespass beyond a reasonable doubt and, therefore, affirm the

decision of the trial court.

                                            FACTS

          On October 24, 2012, Deputy Tegeler, who works as a part-time security guard for

Keystone, was patrolling the Keystone premises when he noticed Berry standing in the

basement of a Keystone building. The two made eye contact, and Berry stepped outside

of the building. Deputy Tegeler asked Berry to identify himself, and Berry provided a

name. When Deputy Tegeler could not confirm this name, Berry admitted he had given a

false name and provided his real name. He stated that he did not want the officers to get

in trouble because he was on the trespass list. Deputy Tegeler then arrested Berry for

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    Ind. Code. § 35-43-2-2.
                                               2
refusing to identify and trespass. Afterwards, Deputy Tegeler learned that two other

officers, Deputies Tiggs and Ellis, who also worked for Keystone as part-time security

guards, had previously denied entry to Berry, whom they added to the trespass list. Berry

was charged and convicted of criminal trespass as a class A misdemeanor.

       Based on Deputy Tegeler’s testimony, the trial court found Berry guilty as

charged, and sentenced him to 365 days in the Marion County Jail with 359 days

suspended and 6 days previously executed.

       Berry appeals.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

       When reviewing the sufficiency of the evidence to support a conviction, we must

consider only the probative evidence and reasonable inferences supporting the judgment.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of

witness nor do we reweigh the evidence. Id. We will affirm a conviction unless “no

reasonable fact finder could find the elements of the crime proven beyond a reasonable

doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000). The evidence is sufficient if

an inference may reasonably be drawn from it to support the verdict. Pickens v. State,

751 N.E.2d 331, 334 (Ind. Ct. App. 2001).

                                  II. Contractual Interest

       Berry argues that the State did not present sufficient evidence to show that he

lacked a contractual interest in Keystone. To convict an individual for trespass, the State

                                             3
must show 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 person or that person’s agent . . .” Ind. Code § 35-43-2-2(a)(1). The

question here is if, from the evidence presented, a reasonable fact-finder could conclude

that the State proved that Berry did not have a contractual interest in an apartment at

Keystone beyond a reasonable doubt.

       Here, Berry, upon being discovered on Keystone property, gave Deputy Tegeler a

false name. Tr. p. 7. He then admitted to Deputy Tegeler that he was trespassing. Id.

From this, we conclude that a reasonable fact-finder could determine that Berry had no

contractual rights to Keystone.

                                        III. Agency

       Indiana Code section 35-43-2-2 requires the State to prove that an individual

entered the property of another “after having been denied entry by the person or that

person’s agent . . .” Berry argues that the State failed to establish an agency relationship

between Deputy Tegeler and Keystone or between Deputies Tiggs and Ellis and

Keystone. To support his argument, Berry cites this Court’s decision in Glispie v. State,

955 N.E.2d 819 (Ind. Ct. App. 2011). In that case, Officer Patrick McPherson arrested

Glispie at a business for trespass and testified that he had previously warned Glispie to

stay away from the property. Id. at 822. He further stated that he could act as an agent of

the property. Id. This Court held that “more was required” and that agency could not be

proven by the agent’s declaration alone. Id. at 822-23.

                                             4
       We find Glispie distinguishable insofar as Officer McPherson was not an off-duty

police officer employed as a security guard, but rather an officer acting in his official

capacity. Id. Here, however, the deputies in question were off-duty police officers who

were working as paid security guards at Keystone. Tr. p. 5. Deputy Tegeler testified that

his duties included enforcing “the rules and regulations, such as the trespass list, no

loitering, things like that.” Id. at 6. Sufficient evidence was offered to allow a reasonable

fact-finder to determine that Deputy Tegeler and Deputies Tiggs and Ellis had authority

to act on behalf of Keystone and that Berry was barred from entering the property by an

agent of Keystone.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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