Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

BARBARA J. SIMMONS GREGORY F. ZOELLER

Oldenburg, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMES KERNER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1205-CR-271

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM MARION SUPERIOR THE COURT

The Honorable Linda E. Brown, Judge

The Honorable Teresa Hall, Master Commissioner

Cause No. 49F10-1110-CM-76824

February 7, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
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Case Summary

James Kerner appeals his conviction for Class A misdemeanor trespass. We 

affirm.

Issue

Kerner raises one issue, which we restate as whether there is sufficient evidence to 

support his conviction. 

Facts

On the morning of October 27, 2011, Kerner was peacefully protesting outside of 

the Statehouse in Indianapolis. It was raining, and Kerner was carrying a large patio 

umbrella. Sergeant Russell Growe of the Indiana State Police asked Kerner to remove 

the umbrella. Although Kerner refused, another protester told Sergeant Growe she would 

have him remove it. 

Approximately an hour later, Kerner was still holding the umbrella, and Growe 

consulted his supervisor, Sergeant Jon Watson of the Indiana State Police, and the 

Commissioner of the Indiana Department of Administration, Robert Wynkoop. Sergeant 

Watson and Wynkoop approached Kerner and asked him to put the umbrella away 

several times, but Kerner did not put it away. Sergeant Watson then told Kerner three or 

four times that he could either put the umbrella away or leave the property. Kerner was 

also informed that, if he refused to comply, he was going to be arrested for criminal 

trespass. Kerner did not put the umbrella away or leave the property. 

Kerner was arrested and charged with Class A misdemeanor trespass. Following a 

jury trial, Kerner was convicted of trespass. He now appeals.
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Analysis

Kerner argues that there is insufficient evidence to support his conviction. The 

standard of review for claims of insufficient evidence is well settled. We do not reweigh 

the evidence or judge the credibility of the witnesses, and we respect the jury’s exclusive 

province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375 (Ind. 

2010). We consider only the probative evidence and reasonable inferences supporting 

the verdict and affirm if the probative evidence and reasonable inferences drawn from the 

evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond 

a reasonable doubt. Id. 

A person who, not having a contractual interest in the property, knowingly or 

intentionally refuses to leave the real property of another person after having been asked 

to leave by the other person or that person’s agent commits Class A misdemeanor 

criminal trespass. Ind. Code § 35-43-2-2(a)(2). “A person engages in conduct 

‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” 

I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he engages in 

the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b). 

Kerner argues that he was under the impression he was involved in a discussion 

with Wynkoop and the police officers regarding the umbrella and that he did not 

understand he would be arrested for trespass if he did not put the umbrella down or leave 

the premises. He asserts that he could not have knowingly or intentionally committed 

trespass when he had a good faith belief that he was allowed to be at the Statehouse. 

Indeed:
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if the act prohibited is committed in good faith, under a claim 

of right, no conviction will lie; but the belief in the right to do 

the act complained of must have a fair and reasonable 

foundation, which is a question for the jury, and it must 

appear from the evidence that defendant not only entered 

under a bona fide belief in his right to enter, but that he had 

reasonable grounds for such belief.

Myers v. State, 190 Ind. 269, 272-73, 130 N.E. 116, 117 (1921).

The evidence most favorable to the conviction does not show that Kerner had a 

fair and reasonable foundation for believing that he could remain on the Statehouse 

sidewalk while carrying an open patio umbrella. Sergeant Growe initially asked Kerner 

to put the umbrella down. An hour later, Kerner was asked by Sergeant Watson and 

Wynkoop to remove the umbrella. He was then informed that, if he did not remove the 

umbrella, he would have to leave the property. He was also informed that, if he did not 

put the umbrella away or leave, he would be arrested for trespass. Despite these requests, 

Kerner remained on the property with the umbrella open. This is sufficient evidence of 

Kerner’s intent.

Kerner also asserts the State failed to prove that he knowingly or intentionally 

refused to leave the property and there is no evidence he was given a reasonable period of 

time to leave the property. This is simply a request to reweigh the evidence. Sergeant 

Watson testified that he made several requests to Kerner and that the conversation with 

Kerner lasted three to five minutes. The jury was also shown a video of part of the 

encounter in which Kerner remained steadfastly standing with the umbrella. From this 

evidence the jury could infer that Kerner intended to remain on the property and that he 
5

was given reasonable time to leave the property. The evidence was sufficient to support 

Kerner’s conviction.

Conclusion

Kerner has not established that the evidence was insufficient to support his 

trespass conviction. We affirm.

Affirmed.

BAKER, J., and VAIDIK, J., concur.