ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM F. THOMS, JR. JEFFREY A. MODISETT
Thoms & Thoms Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
COURT OF APPEALS
ROBERT RUST, )
vs. ) No. 49A04-9908-CR-344
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William S. Mercuri, Judge
Cause No. 49F07-9811-184063
March 8, 2000
OPINION - FOR PUBLICATION
Robert Rust appeals his conviction in a bench trial of criminal trespass,
misdemeanor. He presents two issues:
I. Whether there is sufficient evidence to support his conviction;
II. Whether the charging information is defective.
FACTS AND PROCEDURAL HISTORY
As a volunteer for Truth and Compassion Ministries, Robert Rust frequently demonstrates against
abortion outside the Affiliated Womens Services building. He knows that the building owners
do not want him on their property, so he stands on the street
holding a protest sign. While he was protesting in October 1998, a
car stopped in the building driveway. Inside the car was a woman
whom Rust had seen entering and leaving the building. She motioned Rust
to the car. Rust put his sign on the driveway, came to
the car, and stood in the driveway to speak to the woman.
From inside the building, the president of Affiliated Womens Services saw Rust on
the driveway. She came outside and asked Rust to go back to
the street. She then turned to pick up Rusts sign from the
driveway. Rust also turned to pick up the sign, and the two
collided. The president went back inside and called the sheriff.
The State charged Rust with criminal trespass and battery. On the trespass
charge, the Information alleged that Rust knowingly or intentionally interfered with the use
or possession of the presidents property without her consent. Record at 6.
The trial court convicted Rust of trespass, and Rust now appeals.
DISCUSSION AND DECISION
I. Evidentiary Sufficiency
When reviewing a challenge to evidentiary sufficiency, this court neither assesses the credibility
of witnesses nor reweighs the evidence. Case v. State, 458 N.E.2d 223,
226 (Ind. 1984). We must affirm the conviction in this case if
the inferences from the evidence establish that the trial court could find beyond
a reasonable doubt that Rust committed trespass as charged. Id. We
examine the evidence relevant to each element of the charged crime. See
id. at 226-27.
The elements of the trespass charge against Rust are set out in IC
A person who . . . knowingly or intentionally interferes with the possession
or use of the property of another person without the persons consent
commits criminal trespass, a Class A misdemeanor.
Rusts appeal centers on the second element of the offense: he contends
there is no evidence that he interfered with possession or use of the
Affiliated Womens Services property. In support of this contention, he relies on
the following testimony from the president:
Rusts] act of placing a sign on your property, did
that interfere with your possession of your property?
A: No, I felt that it was trash and I needed to
pick it up off my property.
Record at 29.
The State acknowledges this testimony, but maintains that the trial court could reasonably
infer from other evidence that Rusts sign was impeding access to the driveway.
In addition, the State argues that while Rust was speaking with
the woman in the car, Rust himself blocked the driveway. In
support of these arguments, the State cites McCaffrey v. State, 605 N.E.2d 241,
243 (Ind. Ct. App. 1992) and Johnson v. State, 659 N.E.2d 194 (Ind.
Ct. App. 1995).
Neither of the cases cited by the State are dispositive. In McCaffrey,
this court held that a person who refuses to move after being placed
under arrest may be convicted of resisting law enforcement. 605 N.E.2d at
243. Similarly, in Johnson, we held that abortion protesters who blocked the
entry to a clinic and refused to leave could be convicted of criminal
trespass. 659 N.E.2d at 196-98. Here, in contrast, Rust moved from
the driveway when asked to do so by the Affiliated Womens Services president.
His conduct is thus not analogous to that of the defendants in
McCaffrey and Johnson.
Nonetheless, the evidence is sufficient to convict Rust of criminal trespass. Trespass
is the knowing or intentional interference with the possession or use of anothers
property. Thus, although Rusts presence and placing the sign on the driveway
may not have interfered with possession, it interfered with use by preventing others
from coming onto or leaving the property by using the driveway.
Rust also contends there is no evidence that he intended to block the
building driveway, noting that he promptly responded to the presidents instruction to return
to the street. He argues that [t]here is a total lack of
evidence that [he] knowingly
and intentionally interfered with the . . . property.
Reply Brief at 2 (emphasis added). This argument misperceives the intent element
of the trespass charge against him. The State did not have to
prove that Rust intentionally blocked the driveway. Rather, the State only had
to prove that Rust knowingly blocked the driveway, i.e., that when Rust came
to the stopped car, he knew he would be interfering with use of
The State met this burden. First, the State offered into evidence a
videotape depicting Rust, the car, and the driveway. Record at 30.
Further, Rust admitted that he stood on the driveway. Record at 57,
60. The president testified that while Rust was standing there, he was
blocking the driveway. Record at 46. Another witness testified that
Rust stood on the driveway for two or three minutes while talking with
the woman in the car. Record at 63. From this testimony,
the trial court could reasonably infer that when Rust came to the stopped
car, he knew he was blocking the driveway.
Rust insists that it was the stopped car that blocked the driveway, not
him. This argument is akin to a reckless driver blaming a sideswipe
accident on a parked car. Just as the law requires drivers to
be aware of road conditions, the law requires demonstrators to be aware of
private property restrictions. Here, Rust had a choice: come to the car
on the driveway, or motion the car to meet him on the street.
Rust chose to enter the driveway and to remain there for some
time. This choice rendered him subject to conviction for criminal trespass.
Rusts case is in this way distinguishable from the facts in the cases
cited in his briefs, Osbon v. State, 213 Ind. 413, 13 N.E.2d 223
(1938) and Baker v. State, 236 Ind. 55, 138 N.E.2d 641 (1956).
In Osbon, a murder case, the State failed to offer proof of modus
operandi and of motive, and provided no evidence to link the accused to
the crime. 213 Ind. at 428, 13 N.E.2d at 228. Similarly,
in Baker, the State failed to provide proof of the assailants identity.
Moreover, our supreme court has criticized the Baker opinion because it implies that
appellate courts may reweigh testimony. See Davis v. State, 249 Ind.
373, 376, 232 N.E.2d 867, 868 (Ind. 1968).
Here, the State established that Rust was familiar with the layout of the
Affiliated Womens Services property and knew that he was standing on the driveway.
This evidence allowed a ready inference that Rust knew his
presence was blocking the building ingress or egress.
II. Charging Information
Rust argues that the Information failed to provide the requisite facts about the
nature of his alleged interference with the property. Additionally, Rust argues that
there was a material variance between the Information and the evidence adduced at
trial. In support of his argument, Rust relies on Griffen v. State,
439 N.E.2d 160 (Ind. 1982) and Garcia v. State, 433 N.E.2d 1207 (Ind.
Ct. App. 1982). In response, the State maintains that the Information is
sufficient because it contained all of the necessary elements.
The Information stated:
On or about October 24, 1998, in Marion County, State of Indiana, at
2215 Distributors Drive location, the following named defendant, Robert Rust, did knowingly or
intentionally interfere with the use or possession of the property of [the president
of Affiliated Womens Services], another person, without the consent of said other person.
Record at 6. This statement contains all of the elements of the
charged crime: knowing or intentional interference with the property of another without
the others consent. The statement also specifically identifies the time and place
of the alleged trespass. In this way, the Information provided the requisite
material allegations of the charged offense. See Mitchem v. State, 685 N.E.2d
671, 676 (Ind. 1997)
Turning to the variance issue, we must determine whether there is in
fact a variance, and if so, whether the variance is material. A
variance is a significant difference between a charging information and the evidence at
Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). If
the variance misleads the defendant in the preparation of the defense, or
presents a risk of double jeopardy, the variance is material and the conviction
must be overturned. Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997).
The Information here is not like those declared
invalid in the cases Rust cites. In Griffen, 439 N.E.2d 160 (Ind.
1982), our supreme court held that an information alleging receipt of stolen property
was fatally defective for failure to describe the property and to identify the
rightful owners. Id. at 162. The court explained that the information
did not enable the defendant to prepare a defense and that it was
so vague it placed the defendant in jeopardy of being tried again for
the same crimes. Id. Similarly, in Garcia, 433 N.E.2d 1207
(Ind. 1985), the information charged the defendant with robbery and battery, but the
jury convicted the defendant of aggravated battery. This court held that the
information failed to give the defendant notice that he could be convicted of
aggravated battery. Id. at 1210-11.
Here, in contrast, the Information specifically charged Rust with criminal trespass by interfering
with an owners use or possession of property. The Information stated the
property address and identified the property owner.
Although Rust claims that
he thought the States evidence would focus on the interference caused by the
sign on the driveway rather than on his person, he neither describes how
this discrepancy misled him nor explains why the discrepancy placed him at risk
of double jeopardy. The Information did not limit the State to proof
concerning the sign, and nothing contained therein suggested that the State would so
limit its proof. Accordingly, we find that that any variance between the
Information and the evidence was immaterial.
SHARPNACK, C.J., and RILEY, J., concur.
See IC 35-43-2-2 (a)(4).
Rust also argues that the Information was defective because it named the
president as the owner of the property, while the actual owner was Affiliated
Womens Services. Rust does not elaborate as to how this difference misled
him or altered the preparation of his defense. The argument is thus