Corey Brown v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Nov 30 2016, 6:52 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Paula J. Beller Indianapolis, Indiana Deputy Attorney General Timothy J. Burns Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey Brown, November 30, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-738 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Ronnie Huerta, Commissioner Trial Court Cause No. 49G19-1512-CM-43045

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 1 of 9 [1] Corey Brown (“Brown”) appeals his convictions following a bench trial for

criminal trespass1 as a Class A misdemeanor and battery2 as a Class B

misdemeanor. On appeal, Brown challenges the sufficiency of the evidence to

support his convictions.

[2] We affirm.

Facts and Procedural History [3] In December 2015, Luke Wahlberg (“Wahlberg”) was employed at a Rickers

Gas Station located in Marion County. As general manager, Wahlberg “had

authority to trespass people from the store.” Appellant’s Br. at 5. On December

4, around 10:00 a.m., Wahlberg was working at Rickers when he discovered

that Brown, who by that time had been on the premises for about three hours,

had just lit a Cigarillo inside the store. Wahlberg asked Brown to take the lit

Cigarillo outside. After Brown ignored Wahlberg’s request, Wahlberg repeated

the command and told Brown to leave the store at least seven or eight times.

Tr. at 14.

[4] When Wahlberg suggested that Brown “was bumming around,” Brown became

aggravated and approached Wahlberg in an aggressive manner saying that he

worked “hard for what he does” and was just resting in the store. Id. at 12, 13.

Brown continued to “get more aggressive,” and “got in” Wahlberg’s face,

1 See Ind. Code § 35-43-2-2 (2015). 2 See Ind. Code § 35-42-2-1 (2015).

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 2 of 9 telling Wahlberg that he did not want to have any problems with Brown. Id.

Specifically, Brown said, “[Y]ou don’t want any drama.” Id. at 19.

[5] Wahlberg, who was concerned about the safety of other patrons and store

associates, pushed Brown several feet toward the front door, while another

employee of Rickers called the police. Id. at 14, 20. Brown, in turn, grabbed

Wahlberg’s coat and pushed him around the store, causing Wahlberg to strike

several store displays. Id. at 14. When Brown eventually lost his grip on

Wahlberg, Wahlberg grabbed Brown and was able to shove him out the front

door. Id. Brown, however, reentered the store and attempted to choke

Wahlberg. Wahlberg again pushed Brown outside the store, and there, two

customers tackled the men and held Brown to the ground, allowing Wahlberg

to get free. Id. at 16. The police arrived and took Brown into custody. Id. at

25. At that time, Wahlberg told a responding officer that he felt discomfort

around his neck. Id. at 26.

[6] The State charged Brown with Count I, criminal trespass as a Class A

misdemeanor, and Count II, battery as a Class B misdemeanor. A bench trial

was held on March 17, 2016. At the close of the State’s case, Brown filed a

Trial Rule 41(B) motion for involuntary dismissal, which the trial court denied.

Id. at 31-36. The defense presented no witnesses. Brown rested his case and

renewed his motion for involuntary dismissal. Id. at 37. The trial court found

Brown guilty on both counts and sentenced him to 270 days executed for the

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 3 of 9 criminal trespass and 180 days executed for the battery, to be served

concurrently. Brown now appeals.3 Id. at 40.

Discussion and Decision [7] When reviewing the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from that evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We also consider conflicting evidence in the light most

favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

App. 2013), trans. denied. The decision comes before us with a presumption of

legitimacy, and we will not substitute our judgment for that of the fact-finder.

Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007). We will affirm unless no

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

reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012).

3 Brown is not appealing the denial of his Trial Rule 41(B) motion for involuntary dismissal of the charges against him. Instead, he claims that the evidence was insufficient to support his convictions. We note, “In a criminal action such as this, a defendant’s motion to dismiss pursuant to Trial Rule 41(B) is essentially a test of the sufficiency of the State’s evidence.” Helms v. State, 926 N.E.2d 511, 515 (Ind. Ct. App. 2010) (quoting another source). Here, applying either standard, we arrive at the same result. Accordingly, we follow the parties’ lead and evaluate the issues before us as a question of sufficiency of the evidence.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 4 of 9 I. Criminal Trespass [8] Brown first argues that the State failed to present sufficient evidence to support

his conviction for criminal trespass as a Class A misdemeanor. The criminal

trespass statute criminalizes several categories of conduct relating to one

person’s interference with another’s property. Lyles v. State, 970 N.E.2d 140,

142-43 (Ind. 2012) (citing Ind. Code § 35-43-2-2). Here, Brown was charged

under Indiana Code section 35-43-2-2(b)(2); as such, the State had to prove that

Brown “(1) knowingly or intentionally (2) refused to leave (3) the real property

(4) of another person (5) after having been asked to leave (6) by the person or

the person’s agent (7) when such defendant lacked contractual interest in the

real property.” Id. (citing I.C. § 35-43-2-2(a)(2)). Neither party disputes that

Brown lacked a contractual interest in the Rickers store. Moreover, Brown

concedes that: (1) the Rickers store is real property of another; (2) Wahlberg, as

general manager, had authority to ask Brown to leave the store; and (3)

Wahlberg did ask Brown to leave the store. Appellant’s Br. at 8. Instead, Brown

maintains that he was not given sufficient time to leave the premises and that he

was physically prevented from leaving the premises because he was being held

either by Wahlberg or customers outside the store. We disagree.

[9] Here, Wahlberg testified that Brown remained on the premises for about three

hours without incident. Tr. at 11. It was only after Brown lit a Cigarillo inside

the store that Wahlberg told him he would have to “take it outside.” Id. Brown

ignored Wahlberg, so Wahlberg repeated his request in a louder voice and told

Brown that he “needed to leave the property.” Id. Wahlberg testified that he

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 5 of 9 asked Brown to leave the store at least seven or eight times prior to the physical

altercation. Id. at 14. Brown became aggravated, approached Wahlberg, and

said that he works hard for what he does and that he was just resting at the

store. Id. at 13. Wahlberg testified that Brown “got in his face,” “[j]ust pretty

much trying to become the aggressor.” Id. at 12, 13. Brown was screaming at

Wahlberg and got close enough to hit his chest against Wahlberg’s chest. Id. at

19-20. Wahlberg became concerned that he needed to get Brown out of the

store for the safety of customers and store associates, so the matter “could be

taken care of by police.” Id. at 20. As Wahlberg pushed Brown toward the

front door, Brown did not relent, but instead grabbed Wahlberg’s coat and

hiked it up over Wahlberg’s arms so that Wahlberg could not move his arms.

Id. at 14. This enabled Brown to push Wahlberg around the store, causing

Wahlberg to run into several displays. Id. When Brown eventually lost his

grip, Wahlberg grabbed Brown and was able to shove him through the store’s

front door. Id. However, Brown did not stay outside; instead, he charged back

into the store and started to again attack Wahlberg, attempting to choke him.

Id. at 16. The probative evidence and reasonable inferences from that evidence

allowed a reasonable trier of fact to find that these were not the actions of a

man who either needed more time to leave the premises or was prevented from

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 6 of 9 leaving the premises by other customers. Sufficient evidence supports Brown’s

conviction for criminal trespass as a Class A misdemeanor. 4

II. Battery [10] Brown next argues that the State failed to present sufficient evidence to support

his conviction for battery as a Class B misdemeanor. At the time Brown

committed the battery, Indiana Code section 35-42-2-l(b), in pertinent part,

provided,5 “[A] person who knowingly or intentionally: (1) touches another

person in a rude, insolent, or angry manner . . . commits battery, a Class B

misdemeanor.” Count II alleged that “Brown did knowingly or intentionally

touch Luke Wahlberg in a rude, insolent, or angry manner, to-wit: he grabbed

his neck.” Appellant’s App. at 15.

[11] Brown maintains that the record contains no “specific information that at any

point of physical encounter with Mr. Wahlberg, [Brown] grabbed Mr.

Wahlber[g]’s neck.” Appellant’s Br. at 10. We disagree. Here, Wahlberg

4 In support of his claim that the evidence was insufficient, Brown relies on Powell v. State, 45 N.E.3d 480, 482 (Ind. Ct. App. 2015). Appellant’s Br. at 9. We find Powell distinguishable. There, the issue was not whether the defendant refused to leave land owned by a bar after being asked to leave; instead, the issue was whether defendant was standing on land that was actually owned by the bar. Finding that there was insufficient evidence regarding where defendant was standing when the bar asked him to leave, our court determined that there was insufficient evidence that the bar had authority to demand that defendant leave the land. Powell, 45 N.E.3d at 481-82. Unlike Powell, here, it is clear that Brown was on property owned by Rickers when Wahlberg repeatedly asked Brown to leave and that Wahlberg had the authority to ask Brown to leave the Rickers store. 5 Brown’s battery count was charged under Indiana Code section 35-42-2-l(b). In 2016, the General Assembly added a new subsection (b) to Indiana Code section 35-42-2-1; therefore, the same definition of battery that was previously is subsection (b) can now be found in Indiana Code section 35-42-2-1(c). Ind. Pub.L. 65-2016, Sec. 33.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 7 of 9 testified that once Wahlberg had succeeded in pushing Brown out of the

Rickers store, Brown charged back inside and “attempted to choke” Wahlberg.

Tr. at 16. Wahlberg was able to prevent Brown from choking him by dropping

his chin to keep Brown from obtaining a hold on his neck. Id. Wahlberg

reported to police that he had discomfort in his neck. Id. at 26.

[12] The task for us, as an appellate tribunal reviewing the sufficiency of the

evidence, “is to consider only the probative evidence and reasonable inferences

supporting the verdict.” Anthony v. State, 56 N.E.3d 670, 673 (Ind. Ct. App.

2016), trans. denied (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

“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.” Id. (quoting Drane, 867 N.E.2d at 146). “To preserve

this structure, when appellate courts are confronted with conflicting evidence,

they must consider it most favorably to the trial court’s ruling. . . . [a]nd affirm

the conviction unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Id. (quoting Drane, 867 N.E.2d at

146). We cannot say that it was unreasonable for the trier of fact to believe the

testimony presented by the State and conclude that Brown had grabbed

Wahlberg’s neck. Sufficient evidence supports Brown’s conviction for battery

as a Class B misdemeanor.6

6 In his brief, Brown suggests that any contact he had with Wahlberg constituted self-defense. In support of this argument, Brown cites to no authority and makes just two conclusory statements. Because Brown makes

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 8 of 9 [13] Affirmed.

May, J., and Crone, J., concur.

no cogent argument to support this suggestion, he has waived the argument. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 9 of 9