Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019 Page 1 of 5

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.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

James Curtis Todd,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 6, 2019

Court of Appeals Case No.

18A-CR-3017

Appeal from the Sullivan Superior 

Court

The Honorable Hugh R. Hunt,

Judge

Trial Court Cause No.

77D01-1804-CM-247

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019 Page 2 of 5

Case Summary

[1] In March of 2018, James Curtis Todd removed a gate and part of a fencerow 

belonging to his cousin Jacob Todd, allegedly believing that the gate and 

fencerow were on his land. Prior to the removal, Jacob had told James that a 

survey had been conducted and it indicated that the fencerow was on Jacob’s 

land. James was charged with and convicted of Class B misdemeanor criminal 

mischief. James contends that the State produced insufficient evidence to 

sustain his conviction. We affirm. 

Facts and Procedural History

[2] In September of 2017, Jacob’s parents deeded to him a one-acre tract of land, 

on which he planned to place a modular home. The southern boundary of 

Jacob’s land abutted a tract of land that had once belonged to his greatgrandfather but by 2017 was owned by his cousin James. Near the boundary

line of the two properties was a fencerow which had been placed there years 

prior to either Jacob or James owning their respective tracts. Prior to deeding 

the land to Jacob, his parents contracted with a firm to conduct a land survey. 

The survey indicated that the fencerow rested on Jacob’s land, some seven to 

eight inches north of the southern boundary line.

[3] In March of 2018, a heated verbal dispute occurred between Jacob and James 

after Jacob trimmed tree limbs along the fencerow. Jacob explained that a 

survey had been conducted on his land, he knew where the property lines were, 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019 Page 3 of 5

and there was no mistake as to the proper boundary lines. Jacob also offered to 

give James a copy of the survey. James, disagreeing, claimed that the northern 

boundary of his land extended eighteen feet north of the fencerow, meaning 

that the fencerow was on his land. Eventually, police arrived and broke up the 

dispute.

[4] Prior to the dispute, a gate attached to the fencerow had been kept open by the 

previous owners for travel between the two tracts. After the dispute, however, 

Jacob decided to permanently close the gate by burying a pole in the ground to 

hold it shut and fastened it with a metal chain and lock. A day or two later, 

Jacob discovered the pole, chain, and lock laying in his driveway by his 

mailbox. Review of video footage recorded on a trail camera revealed that at 

approximately 1:45 a.m., James and his girlfriend had removed the gate and 

portions of the fencerow.

[5] On April 12, 2018, the State charged James with Class A misdemeanor criminal 

trespass and Class B misdemeanor criminal mischief. A bench trial was held on 

September 12, 2018. On September 18, 2018, the trial court found James guilty 

of criminal mischief and acquitted him of criminal trespass. The trial court 

sentenced James to 180 days imprisonment with 168 days suspended and 353 

days of non-reporting probation.

Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019 Page 4 of 5

[6] James contends that the State presented insufficient evidence to support his 

criminal mischief conviction. James does not challenge that Jacob’s property 

was damaged or defaced without his consent, only that he acted without the 

required mens rea. When reviewing the sufficiency of evidence to support a 

conviction, we consider only probative evidence and reasonable inferences 

supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind. 

Ct. App. 2012), trans. denied. It is the role of the factfinder, not ours, to assess 

witness credibility and weigh the evidence. Id. We will affirm a conviction 

unless “no reasonable fact-finder could find the elements of the crime proven 

beyond a reasonable doubt.” Id. To convict James of Class B misdemeanor 

criminal mischief, the State had to establish that James recklessly, knowingly, 

or intentionally damaged or defaced Jacob’s property without Jacob’s consent. 

Ind. Code § 35-43-1-2(a).1

[7] We conclude that there was sufficient evidence to sustain James’s conviction. 

Because Indiana Code section 35-43-1-2(a) is written in the disjunctive, the 

State was only required to prove that James acted with one of the mens rea 

listed. The record indicates that a survey was conducted which revealed that 

 

1

Indiana Code section 35-41-2-2 dictates that 

(a) A person engages in conduct “intentionally” if, when he engages in the conduct, it is his 

conscious objective to do so. 

(b) 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. 

(c) A person engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and 

unjustifiable disregard of harm that might result and the disregard involves a substantial deviation 

from acceptable standards of conduct.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3017 | May 6, 2019 Page 5 of 5

the fencerow was part of Jacob’s land. The record also indicates that James was 

made aware of the results of the survey and offered a copy of it. James was on 

notice that the boundary-line and ownership of the fencerow were disputed at 

best, and our justice system has proper avenues for settling such a dispute, of 

which James failed to avail himself. James’s claimed belief that the fencerow 

was on his land does not absolve his dismantling of Jacob’s gate and fence at 

1:45 a.m. in the morning, nor will we condone such actions. Dismantling the 

fencerow in the middle of the night could have resulted, but thankfully did not, 

in much more than just legal peril for James and his girlfriend, which is why the 

General Assembly has sought to dissuade such behavior. Therefore, a 

reasonable factfinder could find that James’s actions were reckless, knowing, or 

intentional. James has failed to establish that there was insufficient evidence to 

support his criminal mischief conviction. 

[8] The judgment of the trial court is affirmed. 

Crone, J., and Tavitas, J., concur.