John J. Kennelly v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 5, 2018
• Docket: 18A-CR-412
• 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 Sep 05 2018, 8:36 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

APPELLANT PRO SE ATTORNEYS FOR APPELLEE John J. Kennelly Curtis T. Hill, Jr. Fishers, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John J. Kennelly, September 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-412 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Gail Z. Bardach, Appellee-Plaintiff Judge Trial Court Cause No. 29D06-1709-CM-7081

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 1 of 8 [1] John Kennelly appeals his conviction for Class A Misdemeanor Criminal

Trespass,1 arguing that there is insufficient evidence to support the conviction.

Finding the evidence sufficient, we affirm.

Facts

[2] On September 27, 2017, Deborah Majeski, a second-grade teacher at Lantern

Road Elementary School, which is part of the Hamilton Southeastern School

Corporation, was approached by one of her students during recess. The student

said a stranger, later identified as Kennelly, was watching them just outside the

school’s playground and taking pictures.

[3] Majeski contacted Principal Danielle Thompson for help. Principal Thompson

then contacted Lieutenant Mike Johnson of the Fishers Police Department for

assistance with the matter. Lieutenant Johnson is a Student Resource Officer

(SRO). SROs are hired by local schools for increased security. Lieutenant

Johnson also supervises the district’s six SROs, whose duties include security

detail for student safety. SROs must complete forty hours of training and are

given keys to the buildings in which they work. The city of Fishers pays half of

the SROs’ salaries, and the school district pays the other half.

[4] Lieutenant Johnson arrived at the playground, but Kennelly had already left the

school. Other police officers stopped Kennelly a short distance away from the

1 Ind. Code § 35-43-2-2(b)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 2 of 8 school and cited him for driving without a license. Lieutenant Johnson soon

arrived and asked Kennelly why he had been at the elementary school.

Kennelly refused to answer. Lieutenant Johnson took down Kennelly’s

information and released him.

[5] Lieutenant Johnson then returned to the school to discuss the matter with

Principal Thompson. As an SRO, Lieutenant Johnson is required to report to

Principal Thompson regarding all disciplinary, safety, and security matters.

They entered Kennelly’s name into the school’s database and determined that

he was not related to anyone in the building.

[6] Afterwards, Lieutenant Johnson left and discovered Kennelly once again near

the school’s playground. Lieutenant Johnson approached Kennelly and again

asked him why he was there. Two other officers, Officer Tracy Marsh and

Officer Tracy Jones, responded to the scene to assist Lieutenant Johnson. Both

officers watched Kennelly while Lieutenant Johnson called a local prosecutor

to determine if they could arrest Kennelly.

[7] After finishing the call, Lieutenant Johnson warned Kennelly not to return to

the school’s property. Kennelly dismissed the warning. Lieutenant Johnson

repeated his warning and stated that he would be arrested if he returned to the

school. The officers released Kennelly, who promptly left the scene. Shortly

thereafter, Lieutenant Johnson and the two officers saw Kennelly driving back

to the school. They pursued him and found him trying to enter the school

through the front office.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 3 of 8 [8] Officer Jones arrested Kennelly. Later that day, the State charged Kennelly

with Class A misdemeanor criminal trespass.

[9] Kennelly’s bench trial took place on January 31, 2018. Kennelly was found

guilty and was sentenced to 365 days in the Hamilton County Jail with 363

days suspended to probation. Kennelly now appeals.

Discussion and Decision

[10] Kennelly’s sole argument on appeal is that the State failed to present sufficient

evidence to show that Lieutenant Johnson is an agent of the Hamilton

Southeastern School Corporation.

[11] When reviewing the sufficiency of the evidence supporting a conviction, we

must affirm if the probative evidence and reasonable inferences drawn from the

evidence could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005). It is not our job to “reweigh the evidence nor judge the credibility of the

witnesses,” and “we consider any conflicting evidence most favorably to the

trial court’s ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).

[12] To convict Kennelly of Class A misdemeanor criminal trespass, the State was

required to prove beyond a reasonable doubt that Kennelly, who did not have a

contractual interest in the property, knowingly or intentionally entered the

school’s property after having been denied entry by an agent of the school

corporation. I.C. § 35-43-2-2(b)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 4 of 8 [13] At issue is the nature of the relationship between Lieutenant Johnson and the

Hamilton Southeastern School Corporation. Kennelly argues that no agency

relationship existed between the lieutenant and the school corporation. We

disagree.

[14] For an agency relationship to exist, “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.” Demming v.

Underwood, 943 N.E.2d 878, 884 (Ind. Ct. App. 2011). There is no requirement

that the agent’s authority to act be in writing. Id. All three elements must be

present for an individual to have authorization to act as an agent on behalf of

the principal.

[15] As to the first and second elements, there is no dispute. Lieutenant Johnson

maintains the title of SRO for the school corporation, and he was acting in that

capacity when he warned Kennelly multiple times not to return to the school.

He was given keys to the building and tasked with different duties primarily

related to the school’s security and to disciplining the students. Additionally,

the school corporation paid half his salary. Therefore, the school corporation

manifested its consent to hold Lieutenant Johnson as its agent, and Lieutenant

Johnson accepted the authority by assuming the role of SRO. Moreover, I.C.

section 20-26-18.2-1(a)(2)(ii) explicitly provides that a school corporation may

use SROs “to prevent unauthorized access to school property.” In other words,

the Indiana General Assembly has spoken directly on this matter and intends

for school corporations to entrust SROs with the authority to keep schools safe.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 5 of 8 [16] As to the third element, Kennelly claims there is some ambiguity. Specifically,

he argues that Lieutenant Johnson is wholly employed not by the school

corporation but rather by the Fishers Police Department. Consequently,

Kennelly maintains that the control exerted over Lieutenant Johnson’s

decisions comes directly from his law enforcement supervisors rather than from

the school corporation.

[17] It is readily apparent that officers like Lieutenant Johnson can wear “different

hats” in different capacities. While Lieutenant Johnson is a city police

employee, he is also an employee of the school corporation and subjects himself

to the control of the corporation through Principal Thompson. The record

shows that Lieutenant Johnson throughout this incident checked and double-

checked with Principal Thompson before taking any enforcement action against

Kennelly. While Lieutenant Johnson also checked with a local prosecutor

regarding the possibility of arresting Kennelly, Principal Thompson

simultaneously retained authority over Lieutenant Johnson’s actions, and

Lieutenant Johnson always reported to Principal Thompson for authorization

to act on matters related to school safety. This is one such matter.

[18] The State correctly points us to our prior decision in Berry v. State, 4 N.E.3d 204

(Ind. Ct. App. 2014), in which we held that a police officer could serve as an

agent for another entity—in addition to his or her respective law enforcement

department—if there was a well-documented relationship with said entity.

Consequently, although Lieutenant Johnson was an employee of the Fishers

Police Department, he also worked under the control of the school corporation

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 6 of 8 with the authority to search, secure, and restrict individuals who wanted to

enter the school.

[19] Both parties cite Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App. 2011), as a

benchmark for how we determine if an agency relationship has been created. In

that case, Officer Patrick McPherson of the Indianapolis Metropolitan Police

Department was investigating an incident of trespassing outside a commercial

building. Id. at 821. The business did not employ Officer McPherson, nor was

there any preexisting relationship between the two. Officer McPherson was

dispatched to this location simply because he was available to investigate a

reported incident that evening. Officer McPherson discovered Glispie and

another man “in the rear” of the building and warned them that they were

trespassing. Id.

[20] Like Kennelly in this case, Glispie appealed his conviction for criminal trespass,

arguing that there was insufficient evidence to prove that Officer McPherson

was an agent of the business. In Glispie, we held that an officer could not hold

himself out as an agent to warn two individuals not to trespass solely based off

his testimony that he “could act as an agent of the property.” Id. at 822. In

short, we said that “[m]ore is required,” id., which Kennelly is quick to point

out. Kennelly argues that more was required of the State in this case to show

that Lieutenant Johnson was an agent of the school corporation. Here, as we

have already found, the State offered a wealth of evidence showing a pre-

existing relationship between Lieutenant Johnson and the school corporation.

Therefore, Glispie is inapposite as in this case, and the State has met its burden.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 7 of 8 [21] For the foregoing reasons, we conclude that there is sufficient evidence

supporting Kennelly’s conviction.

[22] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-412 | September 5, 2018 Page 8 of 8