Anthony Bozzo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2016
• Docket: 49A02-1509-CR-1486
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be May 11 2016, 8:18 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General

Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony Bozzo, May 11, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1509-CR-1486 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy Jones, Judge Appellee-Plaintiff. Trial Court Cause No. 49G08-1412-CM-56413

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 1 of 10 [1] Following a bench trial, Anthony Bozzo was convicted of Trespass as a Class A

misdemeanor. On appeal, Bozzo challenges the sufficiency of the evidence

supporting his conviction.

[2] We affirm.

Facts & Procedural History

[3] Bozzo is a graduate student of Indiana University (IU) at the Indiana

University-Purdue University Indianapolis (IUPUI) campus. In order to carry

out research related to his coursework, his graduate program issued him a key

to Room 121 in Cavanaugh Hall (CA 121), which is located on the IUPUI

campus. Bozzo was not issued a key to any outside doors of Cavanaugh Hall.

[4] In 2013, Bozzo breached security at Cavanaugh Hall by propping open an

outside door and leaving the building unsecured after hours. On December 6,

2013, Sherry Queener, Director of the Graduate Office for IU, sent a letter to

Bozzo about the breach. She advised Bozzo that “IUPUI Police will not grant

you access to Cavanaugh Hall after hours in the future and that you should

arrange your schedule such that you can be out of the building by the time

IUPUI Police officers lock the building down for the evening or weekends.”

State’s Exhibits at 4. Cavanaugh Hall closes at 10:00 p.m. Monday through

Friday and at 7:30 p.m. on Saturday and Sunday.

[5] Shortly after midnight on February 9, 2014, Officer Scott Dunning, a police

officer for the IUPUI campus, found Bozzo in CA 121. Bozzo admitted that he

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 2 of 10 had attempted to hide from Officer Dunning. After learning Bozzo had been

notified by letter that he was not permitted to be in Cavanaugh Hall after hours,

Officer Dunning confiscated Bozzo’s key to CA 121 and issued him a trespass

warning. The warning informed Bozzo that he was “banned from reentering”

Cavanaugh Hall after building hours from February 9, 2014, until February 9,

2016, and that he would be prosecuted for criminal trespass for a violation. Id.

at 2.

[6] At approximately 1:30 a.m. on December 22, 2014, Simone Evans,1 an IU

police officer working the IUPUI campus, found Bozzo and a woman in a

second-floor classroom in Cavanaugh Hall. Bozzo claimed he was working on

finals. After learning of the previous trespass warning, Officer Evans arrested

Bozzo for criminal trespass. On December 31, 2014, the State charged Bozzo

accordingly.

[7] A bench trial was held on June 10, 2015, at the conclusion of which the trial

court found Bozzo guilty of criminal trespass as a Class A misdemeanor. A

sentencing hearing immediately followed. The trial court sentenced Bozzo to

one year, with 361 days suspended to probation. As a condition of his

probation, the trial court ordered that Bozzo “stay away from IUPUI Campus .

. . through December 31st, 2015 or longer should the university want it to be

1 Officer Evans was accompanied by a second officer, Kevin Kinghorn.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 3 of 10 longer.” Transcript at 29. After the restriction is lifted, Bozzo would then be

permitted in the buildings on the IUPUI campus when open to the public.

Discussion & Decision

[8] Bozzo argues that the evidence was insufficient to support his conviction.

Specifically, he contends the State failed to prove (1) that he did not have a

contractual interest in IUPUI’s property and (2) that the officers were agents of

the university. Our standard of reviewing challenges to the sufficiency of the

evidence supporting a criminal conviction is well settled.

When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence— even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004).

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

[9] To prove trespass as a Class A misdemeanor, the State was required to show

that Bozzo, “not having a contractual interest in the property, knowingly or

intentionally enter[ed] the real property of [IU] after having been denied entry

by [IU] or [IU]’s agent.” Ind. Code § 35-43-2-2(b)(1). A person may be denied

entry through a personal communication, oral or written. I.C. § 35-43-2-2(c)(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 4 of 10 [10] Bozzo first argues that he had a contractual interest in the property by virtue of

his enrollment as a student and his employment on campus, and as such, he

could not have been convicted of criminal trespass.

[11] The phrase “contractual interest in the property” is not defined by the criminal

trespass statute or elsewhere in the Indiana Code. Our Supreme Court,

however, has determined that “a contractual interest in the property” should be

very narrowly defined as “a right, title, or legal share of real property arising out

of a binding agreement between two or more parties.” Lyles v. State, 970 N.E.2d

140, 143 n. 2 (Ind. 2012).2 The lack of a contractual interest in the real property

at issue is a material element of the offense that the State must prove beyond a

reasonable doubt. Id. at 143 n.3. In order to prove the offense of criminal

trespass beyond a reasonable doubt, “the State need not ‘disprove every

conceivable contractual interest’ that a defendant might have obtained in the

real property at issue.” Id. (citation omitted). Rather, the State “satisfies its

burden when it disproves those contractual interests that are reasonably

apparent from the context and circumstances under which the trespass is

alleged to have occurred.” Id.

2 As Justice Rucker noted in dissent, prior to this pronouncement by our Supreme Court, the Court of Appeals had declared that the term “‘contractual interest,’ as it is used in the criminal trespass statute, refers to the right to be present on another’s property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing. Taylor v. State, 836 N.E.2d 1024, 1026 (Ind. Ct. App. 2005) (citing A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001)), trans. denied.” Lyles, 970 N.E.2d at 144 (Rucker, J. dissenting).

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 5 of 10 [12] By virtue of his status as a student and/or employee of IU, Bozzo had a

contractual interest in the university’s property. This contractual interest,

however, was not without limitation. The record clearly reflects that Bozzo’s

access to Cavanaugh Hall was limited to the building’s regular hours. Although

Bozzo had a key to CA 121, he was not provided with a key to access the outer

doors of that building after hours. Officer Evans testified that students are not

permitted in Cavanaugh Hall after hours, and she was not aware of any special

privileges granted to Bozzo. Further, after a security breach incident

occasioned by Bozzo in 2013, he received a written communication from the

Director of the Graduate Office expressly informing him that he did not have

after-hours access to Cavanaugh Hall and that he should arrange his schedule

accordingly. Two months after receiving this letter, Bozzo was found in

Cavanaugh Hall after hours and issued a trespass warning, which explicitly

provided that Bozzo was “banned from reentering” Cavanaugh Hall after

building hours for a two-year period and further warned him that he would be

prosecuted for criminal trespass for a violation. State’s Exhibits at 2.

[13] We have before held that when a contractual interest ends, the criminal trespass

statute is triggered. In Taylor, the defendant was a student who was scheduled

to attend class from 8:15 a.m. to 10:15 a.m., but was still on school property

around noon. After the student refused to leave, he was arrested for criminal

trespass. On appeal, Taylor argued that he had a contractual interest to stay on

the school’s property. This court affirmed the defendant’s conviction because

his interest in the school’s property was “limited temporally to when taking

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 6 of 10 classes or engaged in other school activities and limited spatially to areas

necessary to the attendance function.” Taylor, 836 N.E.2d at 1028 (citing Olsen

v. State, 663 N.E.2d 1194 (Ind. Ct. App. 1996)).

[14] Like the defendant in Taylor, Bozzo’s contractual interest in IUPUI’s property

was limited temporally and spatially. He was permitted to access Cavanaugh

Hall during regular hours without breaking the law. After the building closed,

his interest ceased. The State’s evidence sufficiently disproved the contractual

interests that are reasonably apparent from the context and circumstances under

which the trespass is alleged to have occurred. See Frink v. State, 2016 WL

1158614 *3 (Ind. Ct. App. Mar. 24, 2016) (concluding the lack of contractual

interest was “reasonably apparent” under the circumstances where defendant

had been informed numerous times that she was not to be on school property

and reminded of the trespass warning).

[15] Bozzo also argues that the State failed to prove that Officer Dunning, who

issued the written trespass warning, and Officer Evans, who arrested him for

trespass, were agents of IU. We disagree.

[16] We have described the elements of an agency relationship as follows:

“Agency is a relationship resulting from the manifestation of consent by one party to another that the latter will act as an agent for the former.” To establish an actual agency relationship, three elements must be shown: (1) manifestation of consent by the principal, (2) acceptance of authority by the agent, and (3) control exerted by the principal over the agent. These elements

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 7 of 10 may be proven by circumstantial evidence, and there is no requirement that the agent’s authority to act be in writing.

Glispie v. State, 955 N.E.2d 819, 822 (Ind. Ct. App. 2011) (quoting Demming v.

Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011)) (citations omitted).

[17] Here, Officer Dunning testified that he has been “employed with Indiana

University since 1995” and that he transferred from the Bloomington campus to

IUPUI in 2011. Transcript at 17. He further testified that one of his duties is “to

trespass someone who is not supposed to be on school property.” Id. at 18.

Likewise, Officer Evans testified that she was employed by IU and she had an

employment contract with IU. She also corroborated Officer Dunning’s

testimony that as an officer for IUPUI, she “can trespass people.” Id. at 7.

Officer Evans further described that her duties were to “ensure the safety and

security of the campus.” Id. at 6.

[18] Additional evidence demonstrating that Officer Dunning and Officer Evans

were agents of IU is found in the letters to Bozzo from the Director of the

Graduate Office. In the December 6, 2013 letter, Queener noted that Bozzo left

a door to Cavanaugh Hall open “when the building had been locked down by

police officers in the course of their routine actions.” State’s Exhibits at 4. She

further advised Bozzo that “IUPUI Police will not grant you access to

Cavanaugh Hall after hours.” Id. Queener’s February 10 and March 3, 2014

letters show that Officer Dunning reported to IU administration: “I have

received a copy of the police action from Sergeant Scott Dunning (Indiana

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 8 of 10 University PD – Indianapolis)” and “I was called upon to act based upon the

report of police action from [Dunning].” State’s Exhibits at 6, 9.

[19] The State also submitted into evidence an exchange of emails between Brian

Tomlinson, Assistant Dean of Students for IUPUI, and Bozzo that show IU

administration and IU police work together. In one exchange, Tomlinson notes

that the building coordinator “had not provided [Bozzo] additional access or

permissions to the building beyond what Dr. Queener or IUPD had originally

instructed.” Id. at 14. In a response to an email from Bozzo, Tomlinson noted,

“I know that you are concerned about complying with the directives of IUPD.

I believe Capt. Figg has communicated to you the current status of the no

trespass order.” Id. at 13. Finally, Bozzo himself acknowledged that IU police

officers are agents of IU, writing: “I’m forbidden by the police department,

acting as an agent of the university . . . .” Id. at 12.

[20] Here, the State’s evidence consisted of more than bald assertions by the IU

police officers that they were acting as agents of IU. Communications by

university administration clearly indicate that IU consented to the officers

acting on behalf of IU and that the officers reported to university

administration. The testimony of the officers demonstrates that they accepted

the authority granted them by the university. The State presented ample

evidence to establish an agency relationship between the IU police officers and

the university.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 9 of 10 [21] Having concluded that the State’s evidence is sufficient to support the court’s

determination that Bozzo did not have a contractual interest and that the

officers were agents of the university, we affirm Bozzo’s conviction for criminal

trespass as a Class A misdemeanor.

[22] Judgment affirmed.

[23] Bailey, J. and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1486 | May 11, 2016 Page 10 of 10