Jan 21 2014, 10:06 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
SCOTT MILKEY BRIAN L. REITZ
Certified Legal Intern Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERRY BERRY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-583
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly Brown, Judge
Cause No. 49F07-1210-CM-73382
January 21, 2014
OPINION–FOR PUBLICATION
BAKER, Judge
Appellant-defendant Terry Berry was arrested after Marion County Sheriff’s
Department Deputy Craig Tegeler, who was employed as a part-time security guard at
Keystone North Apartments (Keystone), found Berry in the basement of a Keystone
building and discovered that Berry was on Keystone’s trespass list. Berry now appeals
his conviction for Criminal Trespass, 1 a class A Misdemeanor, arguing that there was
insufficient evidence. More particularly, Berry contends that the State failed to provide
sufficient evidence to prove that Deputy Tegeler had an agency relationship with
Keystone and asserts that the State failed to prove beyond a reasonable doubt that Berry
lacked a contractual interest in Keystone.
We find that a reasonable fact-finder could determine that the State proved all the
elements of criminal trespass beyond a reasonable doubt and, therefore, affirm the
decision of the trial court.
FACTS
On October 24, 2012, Deputy Tegeler, who works as a part-time security guard for
Keystone, was patrolling the Keystone premises when he noticed Berry standing in the
basement of a Keystone building. The two made eye contact, and Berry stepped outside
of the building. Deputy Tegeler asked Berry to identify himself, and Berry provided a
name. When Deputy Tegeler could not confirm this name, Berry admitted he had given a
false name and provided his real name. He stated that he did not want the officers to get
in trouble because he was on the trespass list. Deputy Tegeler then arrested Berry for
1
Ind. Code. § 35-43-2-2.
2
refusing to identify and trespass. Afterwards, Deputy Tegeler learned that two other
officers, Deputies Tiggs and Ellis, who also worked for Keystone as part-time security
guards, had previously denied entry to Berry, whom they added to the trespass list. Berry
was charged and convicted of criminal trespass as a class A misdemeanor.
Based on Deputy Tegeler’s testimony, the trial court found Berry guilty as
charged, and sentenced him to 365 days in the Marion County Jail with 359 days
suspended and 6 days previously executed.
Berry appeals.
DISCUSSION AND DECISION
I. Standard of Review
When reviewing the sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and reasonable inferences supporting the judgment.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of
witness nor do we reweigh the evidence. Id. We will affirm a conviction unless “no
reasonable fact finder could find the elements of the crime proven beyond a reasonable
doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000). The evidence is sufficient if
an inference may reasonably be drawn from it to support the verdict. Pickens v. State,
751 N.E.2d 331, 334 (Ind. Ct. App. 2001).
II. Contractual Interest
Berry argues that the State did not present sufficient evidence to show that he
lacked a contractual interest in Keystone. To convict an individual for trespass, the State
3
must show that 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 person or that person’s agent . . .” Ind. Code § 35-43-2-2(a)(1). The
question here is if, from the evidence presented, a reasonable fact-finder could conclude
that the State proved that Berry did not have a contractual interest in an apartment at
Keystone beyond a reasonable doubt.
Here, Berry, upon being discovered on Keystone property, gave Deputy Tegeler a
false name. Tr. p. 7. He then admitted to Deputy Tegeler that he was trespassing. Id.
From this, we conclude that a reasonable fact-finder could determine that Berry had no
contractual rights to Keystone.
III. Agency
Indiana Code section 35-43-2-2 requires the State to prove that an individual
entered the property of another “after having been denied entry by the person or that
person’s agent . . .” Berry argues that the State failed to establish an agency relationship
between Deputy Tegeler and Keystone or between Deputies Tiggs and Ellis and
Keystone. To support his argument, Berry cites this Court’s decision in Glispie v. State,
955 N.E.2d 819 (Ind. Ct. App. 2011). In that case, Officer Patrick McPherson arrested
Glispie at a business for trespass and testified that he had previously warned Glispie to
stay away from the property. Id. at 822. He further stated that he could act as an agent of
the property. Id. This Court held that “more was required” and that agency could not be
proven by the agent’s declaration alone. Id. at 822-23.
4
We find Glispie distinguishable insofar as Officer McPherson was not an off-duty
police officer employed as a security guard, but rather an officer acting in his official
capacity. Id. Here, however, the deputies in question were off-duty police officers who
were working as paid security guards at Keystone. Tr. p. 5. Deputy Tegeler testified that
his duties included enforcing “the rules and regulations, such as the trespass list, no
loitering, things like that.” Id. at 6. Sufficient evidence was offered to allow a reasonable
fact-finder to determine that Deputy Tegeler and Deputies Tiggs and Ellis had authority
to act on behalf of Keystone and that Berry was barred from entering the property by an
agent of Keystone.
The judgment of the trial court is affirmed.
NAJAM, J., and CRONE, J., concur.
5