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.
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[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).
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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
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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.
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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
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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
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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.
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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
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[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).
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