Ross E. Embry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 29, 2017
• Docket: 49A04-1706-CR-1374
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 29 2017, 9:03 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana

Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ross E. Embry, December 29, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1706-CR-1374 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff Graham, Judge The Honorable Anne Flannelly, Magistrate Trial Court Cause No. 49G07-1612-CM-49262, 49G07- 1701-CM-517

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017 Page 1 of 5 Case Summary

[1] Ross Embry appeals following his convictions for two counts of Class A

misdemeanor criminal trespass and argues that the State presented insufficient

evidence to support his convictions.

[2] We affirm.

Facts & Procedural History

[3] On December 29, 2016, Marshal Michael Kiefer of the Rocky Ripple Police

Department was called to the IndyGo Transit Center to assist with a patron

who was causing a disturbance. Upon Marshal Kiefer’s arrival, IndyGo

employees directed his attention to Embry, who was in the lobby. The

employees informed Marshal Kiefer that Embry had been smoking in the lobby,

which was a nonsmoking area, and refused to put his cigarette out when asked.

Marshal Kiefer approached Embry, who denied that he had been smoking and

became argumentative. Marshal Kiefer eventually asked Embry to leave, but

Embry refused and continued to argue. Marshal Kiefer informed Embry that if

he did not leave, he would be banned from entering IndyGo property for a year.

Embry still did not leave, so Marshal Kiefer issued him a written criminal

trespass warning, which provided that “Your signature indicates that you

understand that you are banned from the above named property and that if you violate

this notice, you may be arrested.” Exhibit Volume, State’s Ex. 1 (emphasis in

original). Embry signed just below this warning, and Marshal Kiefer repeatedly

explained to Embry that he was not to come back onto the property unless he

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017 Page 2 of 5 received a notice in the mail informing him that he could return. Thereafter,

Embry continued to argue and told Marshal Kiefer that he had no right to ban

him from the property. After more arguing, Embry finally left.

[4] The next day, Marshal Kiefer and Chief Deputy David Howe of the Southport

Police Department were called to respond to a patron causing a disturbance on

a bus at the IndyGo Transit Center. When they arrived, they encountered

Embry, who was refusing to pay his fare or get off the bus. Embry again began

arguing with Marshal Kiefer, stating that he had no right to make him get off

the bus or to ban him from IndyGo property. Marshal Kiefer placed Embry

under arrest for criminal trespass, and in the process of doing so, found the

trespass warning issued the previous day in Embry’s pocket.

[5] Embry returned to IndyGo property many times after this incident. Instead of

arresting Embry, Marshal Kiefer would usually just order him to leave. Embry

would sometimes argue, but he always eventually complied. On January 4,

2017, Deputy Howe was notified that Embry had once again returned to the

IndyGo Transit Center. After determining that Embry’s trespass warning was

still active, Deputy Howe arrested Embry for criminal trespass.

[6] The State charged Embry with two counts of criminal trespass, one for the

December 30 incident and one for the January 4 incident. A bench trial was

held on June 7, 2017, at the conclusion of which the trial court found Embry

guilty as charged. Embry was sentenced to concurrent terms of 365 days with

363 days suspended. Embry now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017 Page 3 of 5 Discussion & Decision

[7] Embry argues that the State presented insufficient evidence to support his

convictions. In reviewing a challenge to the sufficiency of the evidence, we

neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

evidence supporting the conviction and the reasonable inferences flowing

therefrom. Id. If there is substantial evidence of probative value from which a

reasonable trier of fact could have drawn the conclusion that the defendant was

guilty of the crime charged beyond a reasonable doubt, the judgment will not be

disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

[8] To convict Embry of criminal trespass as a Class A misdemeanor, the State was

required to prove that Embry, not having a contractual interest in the property,

knowingly or intentionally entered the IndyGo property after having been

denied entry by IndyGo or its agent. See Ind. Code § 35-43-2-2. On appeal,

Embry concedes that he had no contractual interest in the property and that he

had been issued a trespass warning by an authorized agent of IndyGo. He

argues, however, that the evidence was insufficient to prove that he knowingly

or intentionally entered the property in violation of the trespass warning. In

support, he directs our attention to his own testimony that he suffers from

periodic memory loss due to a chronic illness and could not recall that he had

been banned from the IndyGo Transit Center at the time of either arrest.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017 Page 4 of 5 [9] Embry’s arguments are nothing more than requests to reweigh the evidence and

judge the credibility of witnesses, which we will not do on appeal. The trial

court was not obligated to credit Embry’s testimony regarding his alleged

memory loss, and it expressly declined to do so. The State presented evidence

that on December 29, 2016, Embry signed a written trespass warning and

Marshal Kiefer repeatedly told Embry that he was not to return to the property.

Marshal Kiefer testified that Embry appeared to understand. Nevertheless,

with the trespass warning still in his pocket, Embry came back to the property

the next day. When confronted by Marshal Kiefer, Embry asserted that

Marshal Kiefer had no right to ban him from the property. Thereafter, Embry

repeatedly returned to the property and was told to leave multiple times.

Embry continued to ignore the trespass notice and was arrested a second time

on January 4, 2017. This evidence was more than sufficient to support Embry’s

convictions.

[10] Judgment affirmed.

[11] May, J., and Vaidik, C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1374 | December 29, 2017 Page 5 of 5