MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 19 2018, 9:20 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Victoria L. Bailey Attorney General of Indiana
Marion County Public Defender –
Lyubov Gore
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny Sherrod, October 19, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-434
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David M. Hooper,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G12-1710-CM-40830
Mathias, Judge.
[1] Following a bench trial in Marion Superior Court, Danny Sherrod (“Sherrod”)
was convicted of Class A misdemeanor criminal trespass and Class B
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misdemeanor disorderly conduct. Sherrod appeals and argues that the State
failed to present sufficient evidence to support his conviction for criminal
trespass.
[2] We affirm.
Facts and Procedural History
[3] On the night of October 21 and early morning hours of October 22, 2017,
Sherrod went to the Hideaway Nightclub in downtown Indianapolis. Working
at the club that night as a bouncer was Austin Larimore (“Larimore”).1 At
approximately 1:00 a.m., Larimore received a radio call regarding a disturbance
near the bar. He also saw rapid movement of people at the bar. He and other
bouncers quickly went to the bar to assess the situation. When he arrived,
Larimore saw Sherrod with his “hands on a young lady” in an unfriendly
manner. Tr. p. 7. Larimore immediately attempted to separate Sherrod from the
woman and, after a brief struggle, was eventually able to separate them.
[4] Because Sherrod had made physical contact with another patron, Larimore
informed him that he had to leave.2 Larimore escorted Sherrod from the club.
1
The State refers to Larimore as “Officer Larimore,” and he his occasionally referred to as such in the
transcript. However, the transcript does not explicitly state that Larimore was a police officer. Instead, he
testified that he worked as a bouncer and occasional promoter at the Hideaway.
2
The woman Sherrod grabbed was also escorted from the club.
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Sherrod was angry and resisted “a little,” but Larimore was ultimately able to
get Sherrod out of the club. Id. at p. 8.
[5] Outside the club, Larimore again told Sherrod that he had to leave and could
not return. Sherrod was loud, angry, and boisterous, and argued with Larimore
and the doorman to let him back in. They refused and again told Sherrod to
leave. Sherrod stated that he needed to stay there and wait for another patron,
his cousin. Larimore explained to Sherrod that this was not an option and that
he needed to leave the premises. Sherrod angrily made it known that he had no
intention of leaving. Larimore warned Sherrod that if he did not leave, he
would go to jail.
[6] Indianapolis Metropolitan Police Department (“IMPD”) Officer Michelle
Garcia (“Officer Garcia”) was in uniform, off duty, and working as additional
security for the Hideaway nightclub. She was parked in her patrol car outside
the club. She saw Larimore kick Sherrod out of the club and heard Larimore
tell Sherrod to leave and not come back. Sherrod briefly walked away, but then
returned and attempted to reenter the club as people were exiting. Although he
did not actually make it into the club, “[h]is feet were right in front of the door
where people were trying to exit the nightclub.” Id. at p. 23.
[7] Officer Garcia confronted Sherrod and told him he needed to leave the
property. Sherrod “became aggressive” with Officer Garcia and called her a
“bitch.” Id. at p. 19. Officer Garcia could tell that Sherrod was intoxicated, as
he smelled strongly of alcohol. Sherrod also postured himself in such a manner
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that Officer Garcia thought Sherrod might fight her. Officer Garcia repeatedly
told Sherrod to be quiet and leave, to no avail. Officer Garcia then placed
Sherrod in handcuffs and removed him from the property.
[8] On October 22, 2017, the State charged Sherrod with Class A misdemeanor
criminal trespass and Class B misdemeanor disorderly conduct. A bench trial
was held on February 14, 2018. The trial court found Sherrod guilty as charged.
The trial court then sentenced Sherrod to 363 days, all suspended, on the Class
A misdemeanor conviction and a concurrent term of 178 days, all suspended,
on the Class B misdemeanor conviction. The trial court ordered Sherrod to
serve twenty-four hours of community service. Sherrod now appeals.
Discussion and Decision
[9] On appeal, Sherrod argues that the State presented insufficient evidence to
support his conviction for criminal trespass.3 Our standard of review on claims
of insufficient evidence is well settled but bears repeating:
When reviewing a claim that the evidence is insufficient to
support a conviction, we neither reweigh the evidence nor judge
the credibility of the witnesses; instead, we respect the exclusive
province of the trier of fact to weigh any conflicting evidence. We
consider only the probative evidence supporting the [judgment]
and any reasonable inferences which may be drawn from this
evidence. We will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a
3
Sherrod does not challenge the sufficiency of the evidence to support his conviction for disorderly conduct.
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reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).
[10] To convict Sherrod of Class A misdemeanor criminal trespass, the State was
required to prove that Sherrod, not having a contractual interest in the property,
knowingly or intentionally refused to leave the real property of another person,
i.e., the Hideaway Nightclub, after having been asked to leave by the Hideaway
Nightclub or its agent. See Appellant’s App. p. 16; Ind. Code § 35-43-2-2(b)(2).
[11] Sherrod argues that the evidence presented by the State is insufficient to support
his conviction because, he claims:
Sherrod was no longer on the property of Hideaway Nightclub
after he complied with the bouncer’s request to leave the
building. After the bouncer escorted him out, Sherrod remained
on the sidewalk in front of the building. He made several requests
to be allowed back inside. The record is clear, however, that his
feet never crossed the threshold of the entrance.
Appellant’s Br. at 7. He further contends that there was no evidence that the
sidewalk outside of the nightclub belonged to the nightclub.
[12] In support of his argument, Sherrod relies on our opinion in Powell v. State, 45
N.E.3d 480 (Ind. Ct. App. 2015), the facts of which are somewhat similar to the
present case. In Powell, the defendant was asked to leave a downtown
Indianapolis bar by a bouncer, who escorted him outside of the bar. An off-duty
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IMPD officer, who was working as security for the bar, told Powell that he had
to leave. Powell told the officer that he did not want to leave and announced his
intention to go back inside. The officer informed Powell that, if he did not
leave, he would be arrested for trespassing. Powell began to scream at the
officer and other people outside the bar, so the officer moved him “from [the
bar]’s side of the sidewalk over to—over across the street to the other sidewalk
to get him away from people.” Id. at 481 (transcript citation omitted). Powell
was then arrested and subsequently convicted of criminal trespass.
[13] On appeal, Powell challenged the sufficiency of the evidence to support his
conviction. A panel of this court held that, based on the limited testimony of the
officer, “there [wa]s no specific information as to where Powell was standing
when the officer ordered him to leave.” Id. The court therefore held that “the
State failed to prove that Powell refused to leave the bar’s real property after
[the arresting officer] told him to do so,” and we therefore held that there was
insufficient evidence to support Powell’s conviction. Id. at 481–82.
[14] Sherrod claims that his case is on all fours with Powell. We disagree. In Powell,
there was no evidence regarding where the defendant was standing when he
was ordered to leave. In contrast, here, Sherrod was in the nightclub when he
was first, and repeatedly, told to leave. Larimore testified that Sherrod
somewhat resisted his efforts to remove Sherrod from the club. This alone
would support Sherrod’s conviction, as it indicates that Sherrod was not
compliant with the order to leave. Moreover, Officer Garcia testified that
Sherrod was standing immediately in front of an entrance to the club when she
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ordered him to leave. Sherrod nevertheless argues that there was no evidence
that the nightclub owned the property where he was standing, i.e., the sidewalk
area immediately outside the entrance to the club.
[15] We agree with the State that the facts of the present case are more aligned with
those in Walls v. State, 993 N.E.2d 262 (Ind. Ct. App. 2013), trans. denied. In
Walls, the intoxicated defendant awakened a resident of an apartment complex
by kicking on her front door early in the morning and asking to be let in. When
the tenant refused, Walls continued to bang on her door and yell. He then did
the same to another apartment, whose occupants also opened the door and
refused Walls entry. Walls then attempted to put his foot through the threshold
of that apartment, but the tenants pushed him out, shut the door, and locked it.
Walls was subsequently convicted of criminal trespass.
[16] On appeal, Walls argued that only the owner of the apartment complex or its
agent could ask him to leave the common area of the complex. A panel of this
court held that the tenants of the apartment complex had a sufficient possessory
interest in “at a minimum, their apartment doors, the threshold of their
apartments, and the immediate adjacent areas by which they accessed their
leased apartment units” that would permit a criminal trespass conviction of
someone who refuses to leave those specific areas after being asked to do so. Id.
at 267; see also Johnson v. State, 38 N.E.3d 686, 693 (Ind. Ct. App. 2015) (holding
that there was sufficient evidence to support defendant’s conviction for criminal
trespass where defendant traversed the area between the front door of the
apartment building in which the victim’s apartment was located, walked up the
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stairs and across the landing on her floor, and stood in the threshold of the door
to her apartment such that the door could not be shut).
[17] In distinguishing Walls, the Powell court noted that, in the case before it, there
was no indication that “Powell attempted to re-enter the bar or put his foot
across the threshold.” 45 N.E.3d at 482. In contrast, here, there was evidence
that Sherrod attempted to re-enter the bar and was just outside the entry door
when ordered to leave. Even if Sherrod did not actually cross the threshold, we
believe that the nightclub had a sufficient possessory interest in the area
immediately outside its door to permit its owners and agents to ask someone to
leave under threat of criminal trespass.
[18] Indeed, the right to exclude others is one of the key rights in the “bundle” of
rights that are inherent to the very concept of property ownership. See Donovan
v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111, 1113 (Ind. 2010) (“One
of the time-honored principles of property law is the absolute and unconditional
right of private property owners to exclude from their domain those entering
without permission.”) (citing William Blackstone, Commentaries on the Laws of
England 2 (1766)); see also id. at 1112 (“An owner of an Indiana business has
long had the absolute right to exclude a visitor or customer, subject only to
applicable civil rights laws.”). This right to exclude would be of little utility if a
business could exclude someone from inside their premises but be forbidden
from excluding someone from standing at the very threshold of their entrance.
See Tymon v. M. L. S. Const. Co., 186 N.E. 429, 430 (N.Y. 1933) (“It would,
indeed, be a novel idea that the stoop leading up to a man’s front door could be
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used by the public with the same freedom as the sidewalk, and that the owner
had no right to exclude idlers and loafers.”).
Conclusion
[19] Under the facts and circumstances present here, we conclude that the trial
court, acting as the trier of fact, could reasonably conclude that Sherrod was
guilty of criminal trespass. Larimore told Sherrod to leave, and Sherrod slightly
resisted Larimore’s efforts to remove him. Once outside, Sherrod refused to
leave and demanded to be let back inside. When Larimore left, Sherrod
attempted to sneak back in via a doorway where others were exiting the club
but was thwarted by Officer Garcia. Then, standing immediately in front of the
door, Sherrod refused Officer Garcia’s repeated requests to leave. We hold that
this evidence was sufficient to support a conviction for criminal trespass, and
we accordingly affirm the judgment of the trial court.
[20] Affirmed.
Bailey, J., and Bradford, J., concur.
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