MEMORANDUM DECISION FILED Apr 05 2016, 8:46 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Kesterke, April 5, 2016 Appellant-Defendant, Court of Appeals Case No. 02A04-1510-CR-1830 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge The Honorable Robert Ross, Magistrate Trial Court Cause No. 02D05-1412-CM-5047
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert C. Kesterke (Kesterke), appeals his convictions
for criminal trespass, a Class A misdemeanor, Ind. Code § 35-43-2-2(a)(4)
(2014); and conversion, a Class A misdemeanor, I.C. § 35-43-4-3(a).
[2] We affirm.
ISSUE
[3] Kesterke raises one issue on appeal, which we restate as follows: Whether his
convictions for criminal trespass and conversion violate the Indiana
Constitution’s prohibition against double jeopardy.
FACTS AND PROCEDURAL HISTORY
[4] In December 2014, Martin Enterprises (Martin), also known as Martin
Construction, had contracted with the City of Fort Wayne to demolish a school
building at 1903 St. Mary’s Avenue and replace it with a park. The contract
provided Martin with “salvage rights”—ownership of the debris resulting from
demolition. (Transcript p. 111). Before starting the project, Martin erected a
six-foot, chain-link fence around the work site. Martin also posted “clearly
legible” signs that read, “Keep out.” (Tr. pp. 113-14).
[5] On December 21, 2014, in the late afternoon, a witness called the police and
reported that he observed a man, later identified as Kesterke, entering the site
near the northwest corner of the fence where it was “leaning a little bit, but
[not] open.” (Tr. p. 95). The witness later testified that Kesterke, who had a
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 2 of 8 “newspaper carrying bag” with him, was sifting through the debris, removing
metal pieces, and placing them into a pile. (Tr. p. 96). Officer Mitchell
Gearhart of the City of Fort Wayne Police Department (Officer Gearhart)
responded to the call. When the officer arrived, Kesterke “had his back turned
to [the officer], and he was digging through the debris pile, and it appeared as
though he was taking metal objects and tossing them off to the side into a pile.”
(Tr. pp. 126-27). Officer Gearhart observed two piles of metal, one inside the
fenced area and one outside. Officer Gearhart called Kesterke and asked where
he had entered the work site. Kesterke showed him the corner of the fence, and
the officer asked Kesterke to meet him there. Officer Gearhart observed that
the fence at the northwest corner “was not attached to the post and it was bent
back and lying into the mud that was there at the facility.” (Tr. p. 130).
Kesterke informed the officer that he intended to collect “metal items” for
“scrap” and that he “had not gotten any approval of any kind to be on the
property.” (Tr. p. 128). When asked about the pile located outside of the fence,
Kesterke informed the officer that “those were items that he had tossed over, to
then retrieve at a later point in time.” (Tr. p. 138). Later, the police officers
inspected Kesterke’s bag and discovered bolt and wire cutters, screwdrivers,
hammers, and other tools inside.
[6] On December 22, 2014, the State filed an Information charging Kesterke with
Count I, criminal trespass, a Class A misdemeanor; and Count II, conversion, a
Class A misdemeanor. In Count I, the State alleged that Kesterke “knowingly
or intentionally interfere[d] with the possession or use of the property of 1903
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 3 of 8 St. Mary[’]s Ave., to wit: entered the fully fenced[-]in property to scrap metal
by entering in a hole in the fence which was not consented to by said [Gerald]
Martin, Martin Construction.” (Appellant’s App. p. 11). In Count II, the State
alleged that Kesterke “knowingly or intentionally exert[ed] unauthorized
control over the property of Martin Construction[,] to wit: was attempting to
scrap metal from a job site located at 1903 St. Mary[’]s Ave. by entering
fenced[-]in private property and throwing scrap metal over the fence to be
collected later.” (Appellant’s App. p. 12).
[7] At a jury trial on September 24, 2015, the trial court reproduced the charging
Information for the jury in both the preliminary and final instructions.
Additionally, in both sets of instructions, the trial court separated and
enumerated the elements of each crime. As to Count I, the trial court instructed
the jury:
Before you may convict the Defendant of Count I, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant, [Kesterke], 2. [K]nowingly or intentionally[,] 3. [I]nterfered with the possession or use of the property of [Gerald] Martin, Martin Construction[,] 4. [W]ithout the consent of [Gerald] Martin, Martin Construction.
(Appellant’s App. pp. 16, 32). As to Count II, the trial court instructed the jury:
Before you may convict the Defendant of Count II, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant[, Kesterke], Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 4 of 8 2. [K]nowingly or intentionally[,] 3. [E]xerted unauthorized control[,] 4. [O]ver property of [Gerald] Martin, Martin Construction.
(Appellant’s App. pp. 17, 31).
[8] Following the jury trial, Kesterke was found guilty as charged. On the same
day, the trial court sentenced Kesterke to a one-year, fully suspended sentence
for his criminal trespass conviction and a $25 fine for his conversion conviction.
[9] Kesterke now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Kesterke argues that his convictions for criminal trespass and conversion violate
Indiana’s prohibition against double jeopardy under the actual evidence test.
The Indiana Double Jeopardy Clause provides, “No person shall be put in
jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. A trial court’s
legal conclusion regarding whether convictions and sentences violate double
jeopardy principles is reviewed de novo. Singh v. State, 40 N.E.3d 981, 986 (Ind.
Ct. App. 2015), trans. denied. We analyze alleged violations of Indiana’s
Double Jeopardy Clause pursuant to our supreme court’s opinion in Richardson
v. State, 717 N.E.2d 32 (Ind. 1999).
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MEMORANDUM DECISION FILED Apr 05 2016, 8:46 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Kesterke, April 5, 2016 Appellant-Defendant, Court of Appeals Case No. 02A04-1510-CR-1830 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge The Honorable Robert Ross, Magistrate Trial Court Cause No. 02D05-1412-CM-5047
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert C. Kesterke (Kesterke), appeals his convictions
for criminal trespass, a Class A misdemeanor, Ind. Code § 35-43-2-2(a)(4)
(2014); and conversion, a Class A misdemeanor, I.C. § 35-43-4-3(a).
[2] We affirm.
ISSUE
[3] Kesterke raises one issue on appeal, which we restate as follows: Whether his
convictions for criminal trespass and conversion violate the Indiana
Constitution’s prohibition against double jeopardy.
FACTS AND PROCEDURAL HISTORY
[4] In December 2014, Martin Enterprises (Martin), also known as Martin
Construction, had contracted with the City of Fort Wayne to demolish a school
building at 1903 St. Mary’s Avenue and replace it with a park. The contract
provided Martin with “salvage rights”—ownership of the debris resulting from
demolition. (Transcript p. 111). Before starting the project, Martin erected a
six-foot, chain-link fence around the work site. Martin also posted “clearly
legible” signs that read, “Keep out.” (Tr. pp. 113-14).
[5] On December 21, 2014, in the late afternoon, a witness called the police and
reported that he observed a man, later identified as Kesterke, entering the site
near the northwest corner of the fence where it was “leaning a little bit, but
[not] open.” (Tr. p. 95). The witness later testified that Kesterke, who had a
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 2 of 8 “newspaper carrying bag” with him, was sifting through the debris, removing
metal pieces, and placing them into a pile. (Tr. p. 96). Officer Mitchell
Gearhart of the City of Fort Wayne Police Department (Officer Gearhart)
responded to the call. When the officer arrived, Kesterke “had his back turned
to [the officer], and he was digging through the debris pile, and it appeared as
though he was taking metal objects and tossing them off to the side into a pile.”
(Tr. pp. 126-27). Officer Gearhart observed two piles of metal, one inside the
fenced area and one outside. Officer Gearhart called Kesterke and asked where
he had entered the work site. Kesterke showed him the corner of the fence, and
the officer asked Kesterke to meet him there. Officer Gearhart observed that
the fence at the northwest corner “was not attached to the post and it was bent
back and lying into the mud that was there at the facility.” (Tr. p. 130).
Kesterke informed the officer that he intended to collect “metal items” for
“scrap” and that he “had not gotten any approval of any kind to be on the
property.” (Tr. p. 128). When asked about the pile located outside of the fence,
Kesterke informed the officer that “those were items that he had tossed over, to
then retrieve at a later point in time.” (Tr. p. 138). Later, the police officers
inspected Kesterke’s bag and discovered bolt and wire cutters, screwdrivers,
hammers, and other tools inside.
[6] On December 22, 2014, the State filed an Information charging Kesterke with
Count I, criminal trespass, a Class A misdemeanor; and Count II, conversion, a
Class A misdemeanor. In Count I, the State alleged that Kesterke “knowingly
or intentionally interfere[d] with the possession or use of the property of 1903
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 3 of 8 St. Mary[’]s Ave., to wit: entered the fully fenced[-]in property to scrap metal
by entering in a hole in the fence which was not consented to by said [Gerald]
Martin, Martin Construction.” (Appellant’s App. p. 11). In Count II, the State
alleged that Kesterke “knowingly or intentionally exert[ed] unauthorized
control over the property of Martin Construction[,] to wit: was attempting to
scrap metal from a job site located at 1903 St. Mary[’]s Ave. by entering
fenced[-]in private property and throwing scrap metal over the fence to be
collected later.” (Appellant’s App. p. 12).
[7] At a jury trial on September 24, 2015, the trial court reproduced the charging
Information for the jury in both the preliminary and final instructions.
Additionally, in both sets of instructions, the trial court separated and
enumerated the elements of each crime. As to Count I, the trial court instructed
the jury:
Before you may convict the Defendant of Count I, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant, [Kesterke], 2. [K]nowingly or intentionally[,] 3. [I]nterfered with the possession or use of the property of [Gerald] Martin, Martin Construction[,] 4. [W]ithout the consent of [Gerald] Martin, Martin Construction.
(Appellant’s App. pp. 16, 32). As to Count II, the trial court instructed the jury:
Before you may convict the Defendant of Count II, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant[, Kesterke], Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 4 of 8 2. [K]nowingly or intentionally[,] 3. [E]xerted unauthorized control[,] 4. [O]ver property of [Gerald] Martin, Martin Construction.
(Appellant’s App. pp. 17, 31).
[8] Following the jury trial, Kesterke was found guilty as charged. On the same
day, the trial court sentenced Kesterke to a one-year, fully suspended sentence
for his criminal trespass conviction and a $25 fine for his conversion conviction.
[9] Kesterke now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Kesterke argues that his convictions for criminal trespass and conversion violate
Indiana’s prohibition against double jeopardy under the actual evidence test.
The Indiana Double Jeopardy Clause provides, “No person shall be put in
jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. A trial court’s
legal conclusion regarding whether convictions and sentences violate double
jeopardy principles is reviewed de novo. Singh v. State, 40 N.E.3d 981, 986 (Ind.
Ct. App. 2015), trans. denied. We analyze alleged violations of Indiana’s
Double Jeopardy Clause pursuant to our supreme court’s opinion in Richardson
v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our supreme court held that
“two or more offenses are the ‘same offense’ in violation of Article I, Section 14
of the Indiana Constitution, if, with respect to either the statutory elements of
the challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” 717 N.E.2d at 49 (emphasis in original).
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 5 of 8 [11] Under the “actual evidence” test, a defendant must demonstrate a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish all of the
essential elements of a second challenged offense. Richardson, 717 N.E.2d at 53.
Application of this test requires the court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective. Therefore, we consider the essential elements of the offenses, the charging information, the jury instructions, the evidence, and the arguments of counsel. The term “reasonable possibility” turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions.
Bunch v. State, 937 N.E.2d 839, 845-46 (Ind. Ct. App. 2010) (internal citations omitted), trans. denied.
[12] The State charged Kesterke with criminal trespass as follows: Kesterke
“knowingly or intentionally interfere[d] with the possession or use of the
property of 1903 St. Mary[’]s Ave., to wit: entered the fully fenced[-]in property
to scrap metal by entering in a hole in the fence which was not consented to by
said [Gerald] Martin, Martin Construction.” (Appellant’s App. p. 11). The
State also charged Kesterke with conversion as follows: Kesterke “knowingly
or intentionally exert[ed] unauthorized control over the property of Martin
Construction[,] to wit: was attempting to scrap metal from a job site located at
1903 St. Mary[’]s Ave. by entering fenced[-]in private property and throwing
scrap metal over the fence to be collected later.” (Appellant’s App. p. 12).
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 6 of 8 [13] Kesterke claims that the evidence used to establish his conviction for criminal
trespass was the same as the evidence used to establish his conviction for
conversion. We disagree. Our review of the record indicates that the criminal
trespass charge was focused on Kesterke’s manipulation and interference with
Martin’s fence. During the trial, the reporting witness testified that before
Kesterke entered the work site, the fence was leaning slightly, but was not on
the ground. After Kesterke entered the site, the police officer observed the fence
to be detached from its post, bent back, and dropped into the mud. The police
officers later discovered different tools in Kesterke’s bag, such as bolt and wire
cutters, screwdrivers, and hammers. Kesterke’s conversion conviction, on the
other hand, was focused on the unauthorized control exerted over the scrap
metal, which was in Martin’s legal possession pursuant to Martin’s contract
with the city. Kesterke was found sifting through the debris, sorting the metal
out, and placing it into separate piles to retrieve later. Kesterke admitted that
he had no permission to take the metal and that his explicit intent was to sell it
for scrap.
[14] Further, the record reveals that the jury received proper preliminary and final
instructions, which focused on different acts. Both sets of instructions separated
each of the alleged crimes into distinct elements. The State and the trial court
urged the jury to read the jury instructions for guidance on the elements of the
charged crimes. Considering the evidence presented, we find no reasonable
possibility that the evidence used to establish the essential elements of criminal
trespass was used to establish all of the essential elements of conversion.
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 7 of 8 Accordingly, under the actual evidence test, Kesterke’s convictions for criminal
trespass and conversion are not the same offenses, and his convictions do not
violate the double jeopardy clause of the Indiana Constitution.
CONCLUSION
[15] Based on the foregoing, we hold that Kesterke’s convictions did not violate
Indiana’s double jeopardy clause.
[16] Affirmed.
[17] Kirsch, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 02A04-1510-CR-1830 | April 5, 2016 Page 8 of 8