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A Vincennes police officer was not acting as an agent of a store when he asked a man to leave the store’s property and later arrested him, the Court of Appeals of Indiana ruled Monday in reversing a trial court’s conviction of the man on a misdemeanor trespassing charge.
According to court records, sometime before Nov. 24, 2019, the control division of the Vincennes Police Department received emails stating that Red’s Country Store in Vincennes requested an extra patrol of its property.
On Nov. 24, VPD Capt. Harold Hensley was on patrol and drove by the store.
He saw no one there, so he went to a nearby Subway restaurant and spoke with an employee there.
The employee directed Hensley to an individual, later identified as Marion Young, who “was just now walking out from the side of the building.”
Hensley approached Young, but Young refused to provide Hensley with his name, explain why he was there or provide him with any indication that he had an interest in the property.
The VPD captain asked Young to leave the property, but he refused.
Hensley, now assisted by an unknown officer, attempted to take Young into custody.
Young resisted, and the police had to take him to the ground to subdue him.
Hensley took Young to jail, where jail staff identified him as Young.
The next day, Hensley spoke with the owner of RCS, Mark Pepmyer, who was unfamiliar with Young and stated that Young had no interest in the RCS property.
On July 27, 2020, the state charged Young with one count of criminal trespass, a Class A misdemeanor.
A bench trial was held on Nov. 10, 2022, in Knox Superior Court. At trial, the state’s only witness was Hensley.
Young’s defense counsel argued that the state failed to prove that the VPD officers were acting as RCS’s agents at the time of the arrest and, therefore, had no authority to ask Young to leave.
The trial court found Young guilty as charged and sentenced him to time served, with credit for 159 actual days served plus 159 days of good-time credit.
Young appealed his conviction, arguing that the state failed to present sufficient evidence to support his conviction for criminal trespass.
The Court of Appeals agreed with Young and reversed his conviction.
Judge Elizabeth Tavitas wrote the opinion for the appellate court.
Tavitas noted that Young attacked the sufficiency of the state’s evidence on several grounds, one of which was that the state failed to prove that Young was asked to leave by RCS or RCS’s agent.
“Young’s refusal amounted to criminal trespass, however, only if the person who asked him to leave was either the owner of the property or the owner’s agent. Young contends that there was insufficient evidence that Captain Hensley was an ‘agent’ of RCS. We agree,” Tavitas wrote.
The appellate court acknowledged that Hensley testified that “they,” presumably RCS, had asked VPD “to act as an agent of the store.”
Tavitas wrote that the appellate court had held before, citing Glispie v. State, 955 N.E.2d 819 (Ind. Ct. App. 2011), that the testimony of a police officer, by itself, that he was acting as an agent of the property owner is insufficient to establish that the officer was in fact an agent of the owner.
According to Tavitas, the only other indication that Hensley was acting as an agent of RCS was his testimony that someone from RCS had asked the police to conduct extra patrols of the property and “remove anyone that was not allowed on the property.”
Tavitas wrote that there was simply no evidence presented that established that Hensley or any other VPD officer was an “agent” of RCS as that term is defined by the relevant statute.
“Because there was no evidence that Young was asked to leave RCS property by either the owner of that property, or an agent of that property, the State did not prove one of the essential elements of criminal trespass,” she wrote.
Tavitas acknowledged that the ruling may seem to place an impractical burden on police officers, but the judge added that it was the Indiana General Assembly’s role, not the appellate court’s, to rewrite the criminal trespass statute if it believed it would result in better public policy.
Judges Terry Crone and Elaine Brown concurred.
The case is Marion L. Young v. State of Indiana, 22A-CR-2923.
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