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: ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

M.M., )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1307-JV-367

)

STATE OF INDIANA, )

)

Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable, Marilyn A. Moores, Judge

The Honorable Scott Stowers, Magistrate

Cause No. 49D09-1303-JD-688

February 27, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

M.M. appeals his adjudication as a delinquent child for an act that, if committed 

by an adult, would constitute Class A misdemeanor criminal mischief. We affirm.

Issue

M.M. raises one issue, which we restate as whether the evidence is sufficient to 

sustain his adjudication.

Facts

Sergeant Donald Asbury worked as a police officer for the Southport Police 

Department and a “courtesy officer” for Berkley Commons Apartments. Tr. p. 10. As a 

courtesy officer, Sergeant Asbury handled tenant disputes, trespassing issues, warrant 

sweeps, noise complaints, and similar problems at the apartment complex. Sergeant 

Asbury is compensated with a free townhouse. 

On March 8, 2013, Sergeant Asbury was at home on his patio when he saw M.M. 

and another juvenile walking on the sidewalk. M.M. and the other juvenile stopped and 

spray painted the sidewalk. The boys then tossed the cans aside and continued walking. 

Sergeant Asbury went inside, got his badge, radio, and gun, and started driving around 

the complex. He found M.M. and the other juvenile nearby. Berkley Commons 

Apartments does not allow spray paint markings to be made on its property. 

The State alleged that M.M. committed an act that would be Class A misdemeanor 

criminal mischief if committed by an adult. At the hearing, M.M. filed a motion for 

involuntary dismissal under Indiana Trial Rule 41(B), arguing that Sergeant Asbury was 

not an agent of the apartment complex and that the State failed to prove the consent 
3

requirement under the criminal mischief statute. The juvenile court denied M.M.’s 

motion and entered a true finding. M.M. now appeals.

Analysis

M.M. argues that the evidence is insufficient to sustain his adjudication. When the 

State seeks to have a juvenile adjudicated to be a delinquent for committing an act that 

would be a crime if committed by an adult, the State must prove every element of the 

crime beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct. App. 

2006), trans. denied. Upon review of a juvenile adjudication, this court will consider 

only the evidence and reasonable inferences supporting the judgment. Id. We will 

neither reweigh the evidence nor judge witness credibility. Id. If there is substantial 

evidence of probative value from which a reasonable trier of fact could conclude that the 

defendant was guilty beyond a reasonable doubt, we will affirm the adjudication. Id.

Indiana Code Section 35-43-1-2 governs the offense of criminal mischief and 

provides: “A person who . . . recklessly, knowingly, or intentionally damages or defaces 

property of another person without the other person’s consent . . . commits criminal 

mischief . . . .” The offense is a Class A misdemeanor if “the property damage or 

defacement was caused by paint or other markings.” Ind. Code § 35-43-1-2(a)(A)(vii). 

M.M. argues that the State failed to prove the element of consent because, according to 

M.M., the State failed to prove that Sergeant Asbury was an agent of the apartment 

complex.

In support of this argument, M.M. relies on Glispie v. State, 955 N.E.2d 819 (Ind. 

Ct. App. 2011). However, Glispie is distinguishable. In Glispie, the defendant was 
4

found guilty of Class A misdemeanor criminal trespass, which required proof that the 

defendant, without having a contractual interest in the property, knowingly or 

intentionally entered real property belonging to the business after having been denied 

entry by the business or its agent. The State argued that the police officer had previously 

denied the defendant entry to the business and that the police officer was acting as the 

business’s agent. On appeal, we concluded that the State failed to prove the agency 

relationship between the officer and the business. Consequently, the evidence was 

insufficient to sustain the conviction.

Here, however, an agency relationship is not an element of the offense. M.M. 

seeks to equate “consent” with an agency relationship, but that argument is unpersuasive. 

The State properly notes that it “was not required to show an agency relationship to prove 

that Berkley Commons did not consent to M.M. spray painting its sidewalk.” Appellee’s 

Br. p. 4. The State demonstrated that Sergeant Asbury, who was a courtesy officer for 

the apartment complex, saw M.M. and another juvenile spray paint the apartment 

complex’s sidewalk. Sergeant Asbury, who had worked as a courtesy officer for two 

years, testified that the apartment complex did not allow the spray painting of its 

property. This evidence is sufficient to sustain M.M.’s adjudication for an act that would 

be Class A misdemeanor criminal mischief if committed by an adult.

Conclusion

The evidence is sufficient to sustain the adjudication. We affirm.

Affirmed.

ROBB, J., and BROWN, J., concur