Bradley F. Wallace v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2020
• Docket: 20A-CR-20
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 16 2020, 11:34 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Matthew B. MacKenzie Brooklyn, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bradley F. Wallace, June 16, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-20 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Michael J. Cox, Magistrate Trial Court Cause No. 82C01-1902-F6-1404

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Bradley Wallace (Wallace), appeals following his

conviction for trespass, a Level 6 felony, Ind. Code § 35-43-2-2(b)(1).

[2] We affirm.

ISSUE [3] Wallace presents the court with one issue, which we restate as: Whether the

State presented sufficient evidence to prove beyond a reasonable doubt that

Wallace trespassed.

FACTS AND PROCEDURAL HISTORY [4] Prior to April 2018, Wallace’s father, George, allowed Wallace to live in his

home on Kleitz Road in Evansville, Indiana. However, Wallace refused to

follow George’s rules for the home, and George became afraid that Wallace

would hurt him. On April 27, 2018, George contacted the Vanderburgh

County Sheriff’s Office (VCSO) and had a ban put in place prohibiting Wallace

from being on George’s property. The ban went into effect on April 28, 2018,

and VCSO Deputy Mark Johnson (Deputy Johnson) advised Wallace in person

on that day that Wallace was not allowed to come onto George’s property

unless he had George’s permission. Deputy Johnson also informed Wallace

that if he entered the property without George’s permission, he would be

arrested for trespass. Wallace indicated to Deputy Johnson that he understood

the ban.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 2 of 6 [5] On February 26, 2019, Wallace came onto George’s property and entered his

garage. George discovered him and told Wallace to be gone by the time he

returned from work. Later in the day George returned from work, but Wallace

was still there. George called the VCSO, and Wallace was arrested.

[6] On February 28, 2019, the State filed an Information, charging Wallace with

Class A misdemeanor trespass which it alleged was elevated to a Level 6 felony

due to a prior trespass conviction in 2018. On August 23, 2019, the trial court

held Wallace’s bifurcated jury trial. George testified on cross-examination that

after the ban had been put in place, Wallace could have returned to retrieve any

property he had at the home and visit, as long as he did not stay. On re-direct

examination, George stated that after the ban was in effect, Wallace had never

returned to the property until February 26, 2019.

[7] In his closing statements, Wallace argued to the jury that he could not be

convicted of trespass because, after the ban was in place, George consented to

him being at the home. The State argued in response that George had never

contacted the VCSO to have the ban formally lifted and George’s oral consent

was irrelevant because the trespass statute did not provide an exception for

consent. The jury found Wallace guilty of Class A misdemeanor trespass, and

Wallace admitted that he had the previous conviction for trespass as alleged in

the enhancement Information. On December 5, 2019, the trial court sentenced

Wallace to two years of imprisonment.

[8] Wallace now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 3 of 6 DISCUSSION AND DECISION [9] Wallace argues that there was insufficient evidence to support the jury’s verdict.

It is well-established that when we review the sufficiency of the evidence to

support a conviction, we consider only the probative evidence and reasonable

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). It is not our role as an appellate court to assess witness credibility or to

weigh the evidence. Id. We will affirm the conviction unless no reasonable

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

doubt. Id.

[10] “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” commits criminal trespass, a Class A

misdemeanor. I.C. § 35-43-2-2(b)(1). The offense is elevated to a Level 6

felony if the person has a prior conviction for trespass. Id. Here, the evidence

showed that on February 26, 2019, Wallace entered George’s property after

Wallace had been given notice on April 28, 2018, that George had denied him

entry by placing a ban against him and being told that, if he entered the

property, he would be arrested for trespass. We hold this evidence to be

sufficient to sustain Wallace’s conviction. See Blair v. State, 62 N.E.3d 424, 426-

28 (finding sufficient evidence of trespass where Blair entered a home after

being told by its owner to leave).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 4 of 6 [11] Wallace acknowledges that he did not have a contractual interest in George’s

property and that he knowingly or intentionally entered on February 26, 2019.

Wallace disputes that he was denied entry to the property for purposes of the

trespass statute because the evidence showed that George consented to his

presence there. In support of this argument, Wallace directs our attention to

George’s testimony during cross-examination which Wallace asserts showed

that “George told Wallace that even after the ban Wallace was permitted to

enter the property to obtain his belongings and to visit the family at the home,

but Wallace was not permitted to stay there.” (Appellant’s Br. p. 5). Thus,

Wallace argues, George rescinded the ban, and “Wallace was only on notice

that he could enter the property if he wished but could not stay for an undefined

amount of time.” (Appellant’s Br. p. 9).

[12] We find this argument to be unpersuasive for at least two reasons. Wallace’s

argument is premised on a mischaracterization of George’s testimony. Our

review of the record leads us to conclude that even though George testified on

cross-examination that he would not have minded if Wallace entered his

property to briefly visit or retrieve his property, there is no evidence that George

ever communicated that to Wallace after the ban was in effect. In addition,

even if we were to assume, without deciding, that George could legally rescind

his denial of entry with such statements, George testified that he told Wallace

on February 26, 2019, to be gone from his property before he returned from

work, which was a subsequent denial of entry. This is the evidence that

supports the jury’s verdict, and it is the only evidence we consider as part of our

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 5 of 6 review. See Drane, 867 N.E.2d at 146. Accordingly, we find that sufficient

evidence supported the jury’s verdict.

CONCLUSION [13] Based on the foregoing, we conclude that the State proved beyond a reasonable

doubt that Wallace committed the offense of trespass.

[14] Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-20 | June 16, 2020 Page 6 of 6