Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 1 of 9

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT

Ruth Johnson

Marion County Public Defender Agency

Appellate Division

Indianapolis, Indiana

Timothy J. Burns

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Corey Brown,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 30, 2016

Court of Appeals Case No.

49A02-1604-CR-738

Appeal from the 

Marion Superior Court

The Honorable 

Ronnie Huerta, Commissioner

Trial Court Cause No.

49G19-1512-CM-43045

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-738 | November 30, 2016 Page 2 of 9

[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).