author: ROBB, Chief Judge.

text:
    BOULDER ACQUISITION CORP. (n/k/a Affiliated Computer Services, LLC), et al., Appellants, v. UNEMPLOYMENT INSURANCE APPEALS OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellee.
    No. 93A02-1202-EX-127.
    Court of Appeals of Indiana.
    Oct. 30, 2012.

      David A. Given, Fenton D. Strickland, Faegre Baker Daniels LLP, Indianapolis, IN, for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, for Appel-lee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Boulder Acquisition Corporation (“BAC”), a subsidiary of Xerox Corporation, merged with Affiliated Computer Services, Inc. (“ACS”). In doing so, BAC acquired equity interests in various subsidiaries of ACS, several of which operate in Indiana (the “Subsidiaries”). In addition to combining the unemployment insurance experience accounts of BAC and ACS, the Indiana Department of Workforce Development (the “Department”) also combined the experience accounts of BAC and the Subsidiaries. BAC and the Subsidiaries raise the sole issue of whether the Department erred in combining the experience accounts of BAC and the Subsidiaries after the merger. Concluding the Department did so err, we reverse and remand.

Facts and Procedural History

In order to facilitate a merger with ACS, Xerox Corporation incorporated BAC, a directly owned subsidiary of Xerox. Prior to the merger, ACS was the parent corporation for over seventy subsidiaries, twenty-six of which operated in Indiana. In the course of the merger, these entities became subsidiaries of BAC.

Prior to the merger, the Subsidiaries, which each had its own employees, all had their own unemployment insurance accounts with the Department that were separate from ACS’s unemployment insurance account. Unemployment insurance experience accounts operate as follows:

Under the Indiana Employment and Training Services Act, unemployment insurance benefits are funded by a tax contribution imposed upon Indiana employers. Each year, the Department determines the contribution rate applicable to each employer, and the contribution is then credited to an “experience account” established for each employer by the Department. An employer’s experience account is charged when a qualifying employee receives unemployment benefits based upon employment with that employer. The experience account contribution rate for an employer is determined, in part, by the balance in its experience account. Therefore, when a company’s employees file more unemployment claims, its contribution rate will also increase.

Indianapolis Concrete, Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce Dev., 900 N.E.2d 48, 50 (Ind.Ct.App.2009) (citations omitted).

After the merger, BAC maintained the same relationship with the Subsidiaries as ACS had previously maintained. That is, each subsidiary is an individual legal entity. Most were incorporated, while some were formed as limited liability companies and one was formed as a limited partnership. As such, they each have their own governance, board of directors or managers, and elected officers. They each have their own assets and liabilities. They are each taxed separately for other federal and state tax purposes, and they each maintain separate financial reporting.

After BAC reported the merger to the Department, the Department determined BAC became the “successor employer” of the Subsidiaries pursuant to Indiana Code 22-4-9-3, and it consequently combined the experience accounts of all the Subsidiaries with BAC. The result of the combination of their experience accounts is that their combined account contribution rate was 3.7%, which equated to a higher combined unemployment insurance tax for BAC and the Subsidiaries. Additionally, the Department assessed a penalty to BAC for failure to timely pay the appropriate unemployment insurance fees.

BAC and the Subsidiaries sent three protest letters to the Department, each time claiming the Subsidiaries were separate and distinct from ACS and were unaffected by the merger, and that they should have kept their individual experience accounts with the Department. BAC also protested the Department’s assessment of penalties. After a hearing, the Department’s liability administrative law judge (“LALJ”) upheld the Department’s determination that BAC was the successor employer to the Subsidiaries and denied their protests. The LALJ’s findings of fact include:

On February 1, 2010, the Secretary of BAC sent a letter to the Department explaining the transaction and including a Report to Determine Status.... In the letter, the BAC Secretary indicated BAC had assumed all or any part of an existing Indiana business from another business entity and that there was a purchase or merger consolidation of a complete organization. The letter indicated Ernst & Young was assisting with the unemployment tax registrations and transfers. The letter directed the agency to contact Ernst & Young LLP with “information regarding the establishment of our accounts and direct all questions regarding the registrations” to Ernst & Young. In 2010, the Department assigned Tracey Moon to investigate and to determine BAC’s status for the Department. Ms. Moon attempted to contact BAC but was unable to reach anyone. She contacted Robin Davidson with Ernst and Young, who indicated the acquisition by BAC included acquisition of the subsidiaries from ACS. Ms. Moon reviewed press releases from Xerox regarding its acquisition of ACS.... On February 10, 2010, the Department voided the predecessor accounts of ACS and its subsidiaries. In separate Notice of Complete Disposition of Business to Acquirer, the Department sent to BAC on June 1, 2010, 26 Notices that BAC was the successor employer and that BAC assumed the experience account of each individual subsidiary. The Notice regarding the disposer Outsourced Administrative Systems showed a contribution rate for 2010 of 3.7%....
The statute required a successor simultaneously acquiring the experience account of two or more employers to pay the highest rate applicable to the experience accounts. (IC 22-4-10-6) This would give BAC a contribution rate of 5.6. The Department decided to apply IC 22-4-11.5-7 instead to be fair to BAC, and to allow a recalculation and a blended rate of 3.7. For 2011, the employer’s rate would be 4.068. Prior to the merger, ACS and the subsidiaries had separate employer accounts for purposes of unemployment contributions ....
Prior to the merger, ADP handled payroll and W2s for each subsidiary. The corporate address in Dallas, Texas appeared on all pay information. Payroll procedures were the same following the merger....

Appendix to Brief of Appellants at 2-3 (citations omitted).

BAC and the Subsidiaries now appeal.

Discussion and Decision

I. Standard of Review

Indiana’s Unemployment Compensation Act provides, “any decision of the [LALJ] shall be conclusive and binding as to all questions of fact,” and appeals may be made to this court “solely for errors of law.” Ind.Code § 22-4-32-9(a). Thus, the LALJ’s legal conclusions are not entitled to the same deference as its factual findings. Franklin Elec. Co., Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of Workforce Dev., 953 N.E.2d 1066, 1069 (Ind.2011). We apply a de novo standard of review to questions of law and will not defer to the LALJ’s legal conclusions. Highland Town Sch. Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 892 N.E.2d 652, 654 (Ind.Ct.App.2008). The issue raised by BAC and the Subsidiaries is a pure question of law, and we therefore apply de novo review.

II. BAC As Successor Employer to the Subsidiaries

Indiana Code section 22-4-10-6(a) provides:

When: ... (2) an employer acquires the organization, trade, or business, or substantially all the assets of another employer; or (3) an employer transfers all or a portion of the employer’s trade or business (including the employer’s workforce) to another employer as described in IC 22-4-11.5-7; the successor employer shall, in accordance with the rules prescribed by the department, assume the position of the predecessor with respect to all the resources and liabilities of the predecessor’s experience account.

The sole issue raised by the BAC and the Subsidiaries is whether the Department erred in determining BAC became the successor employer of the Subsidiaries. BAC contends the Department erred because it did not acquire “the organization, trade, or business, or substantially all the assets” of each of the Subsidiaries. The Department, on the other hand, argues Indiana Code section 22-4-11.5-7 applies, and that pursuant to that section, the Department correctly concluded BAC is the successor employer of the Subsidiaries and their experience accounts should have been recalculated and combined. That section provides:

(a) This section applies to a transfer of a trade or business that meets the following requirements:
(1) An employer transfers all or a portion of the employer’s trade or business to another employer.
(2) At the time of the transfer, the two (2) employers have substantially common ownership, management, or control.
(b) The successor employer shall assume the experience account balance of the predecessor employer for the resources and liabilities of the predecessor employer’s experience account that are attributable to the transfer.
(c) The contribution rates of both employers shall be recalculated, and the recalculated rate made effective on the effective date of the transfer described in subsection (a).

Ind.Cod’e § 22-4-11.5-7. Thus, we will consider each section in turn.

We give no deference to the LALJ’s legal conclusions. Highland, 892 N.E.2d at 654. Nevertheless, the LALJ concluded:

There is no dispute that the employer (BAC) purchased all of ACS’s assets. The [LALJ] concludes that the acquisition also included acquisition of the 26 subsidiaries. The subsidiaries had several common elements. Management for the subsidiaries was fluid with several of the managers having decision-making power over several subsidiaries. After the merger, the fate of each subsidiary was dependent on decision from Xerox. The essence of a subsidiary is that it is controlled by a larger entity, and its reason to be is to add some value to a larger entity. According to Xerox’s own release, the purpose of the transaction in this case was to enlarge Xerox’s share of the market for information technologies, business process and document management, including data processing, HR benefits management, finance support, and customer relationship management for commercial and government organizations worldwide. This could not be accomplished if the subsidiaries were not part of the transaction.

App. to Br. of Appellants at 5 (citation omitted).

BAC contends it did not acquire the “organization, trade, or business, or substantially all of the assets” of any of the Subsidiaries, and thus, it is not the “successor employer” of the Subsidiaries and the LALJ erred by combining BAC’s and the Subsidiaries’ experience accounts. Rather, it argues it acquired “the organization, trade, or business, or substantially all the assets” of only ACS, not any of the Subsidiaries.

The Department acknowledges that the relationship between the Subsidiaries and its parent company did not change when the parent company changed from ACS to BAC. Rather, the Department contends ACS and the Subsidiaries having separate experience accounts prior to the merger was in error pursuant to the Indiana Code, and the Department corrected the error when BAC notified the Department of its merger with ACS.

The issue of whether the acquisition of an equity interest in a subsidiary company includes the acquisition of the organization, trade, or business, or substantially all of the assets of the subsidiary is an issue that has not been decided by this court or our supreme court. In Franklin Electric, our supreme court addressed a similar issue. 953 N.E.2d 1066. There, Franklin Electric formed two new subsidiary companies and created new unemployment experience accounts for each subsidiary, which came with low introductory contribution rates. Thereafter, the Department concluded the subsidiaries were not new employers and combined the experience accounts of Franklin Electric and the two subsidiaries. Our supreme court affirmed, concluding the subsidiaries were not “employers” pursuant to Indiana Code section 22-4-7-2(b) because they did not “acquire[ ] a distinct and segregable portion of the organization, trade, or business” of another employer. Id. at 1069 (quoting Ind.Code § 22-4-7-2(b) (2007)). Because the subsidiaries were not employers, they did not qualify for separate experience accounts.

The supreme court concluded the subsidiaries were not employers because the employees of the subsidiaries were still paid by Franklin Electric, employee benefits for the subsidiaries were paid by Franklin Electric, Franklin Electric provided workers’ compensation coverage for the subsidiaries, and on one occasion Franklin Electric transferred assets to one of the subsidiaries and subsequently sold the same assets to a third party without first transferring the assets back to Franklin Electric. Our supreme court stated that, “[n]one of these facts alone would be dispositive, but taken together they adequately support the LALJ’s conclusion that [the subsidiaries] are not distinct and segregable from Franklin Electric.” Id. at 1070. The court also clarified:

Today’s holding is a narrow one. It deals only with the language “distinct and segregable” as used in the unemployment statutes and only concerns determining the proper merit rate for unemployment contribution. The instant ruling neither calls into question the validity of the wholly owned subsidiary arrangement, nor holds that the creation of a wholly owned subsidiary can never result in the new entity becoming a separate employer.

Id. at 1071.

The issue before us is not whether BAC and the Subsidiaries are “distinct and seg-regable,” but rather, whether BAC acquired the organization, trade, or business, or substantially all of the assets of the Subsidiaries, or whether the Subsidiaries transferred all or a portion of their trade or business to BAC. Thus, the narrow holding in Franklin Electric does not govern our interpretation of Indiana Code section 22-4-10-6(a).

While the court’s holding in Franklin Electric was narrowly construed, it provides principles helpful to our analysis. The court noted, “[b]ecause the same employees are doing the same work for the same people, we hold that the business acquired by [the subsidiaries] was not distinct and segregable from Franklin Electric.” Id. While the parent company went to the trouble of creating legally separate subsidiary companies, it did not turn over its role as employer of the employees who were supposed to be within the purview of those subsidiaries. Additionally, when Franklin Electric sold assets of a subsidiary to a third party without transferring the assets to itself first, Franklin Electric failed to respect the distinction between itself and the legally separate subsidiary company. While the law of corporations allows a parent company to benefit by creating legally separate subsidiary companies which the parent company owns, the legal separation between the companies must be respected by the parent company. See, e.g., Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1234 (Ind.1994) (“Just as equity permits the piercing of a corporate veil to reach the assets of an individual, so too equity permits the piercing of the subsidiary’s corporate veil to reach the assets of the parent to protect innocent third parties from fraud or injustice.”).

The evidence reveals BAC merged with ACS, and in doing so it acquired equity interests in the Subsidiaries, which added value to BAC and, consequently, to Xerox. The Department asserts we should conclude BAC is the “successor employer” to the Subsidiaries pursuant to Indiana Code section 22-4-10-6 because of BAC’s ownership of the Subsidiaries, combined with the fact that they all had a single employee benefit plan. BAC argues it did not become the successor employer to the Subsidiaries because it merely acquired equity interests in the Subsidiaries rather than acquiring the organization, trade, or business, or substantially all of the assets of any of the Subsidiaries.

We conclude BAC did not acquire the organization, trade, or business, or substantially all of the assets of any of the Subsidiaries, nor did the Subsidiaries transfer all or a portion of their trade or business to BAC. As our supreme court insinuated in Franklin Electric, subsidiary companies are separate legal entities and, as such, can be separate employers from their parent companies. 953 N.E.2d at 1071; see also McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1020 (Ind.1995) (“Under Indiana law, a corporation is a legal entity separate from its shareholders, and corporate shareholders are liable for corporate acts to the extent of their investment but are not personally liable for acts attributable to the corporation. Thus, we recognize a subsidiary and its parent corporation-shareholder as separate legal entities.”) (citations omitted). Because subsidiary companies are separate legal entities from their parent companies, acquiring equity ownership in a subsidiary, without more, does not constitute acquiring the organization, trade, or business, or substantially all the assets, of such a subsidiary.

Prior to the merger, the Subsidiaries were separate legal entities and acted separately for most purposes. The Subsidiaries had their own assets and liabilities; they performed their own financial and payroll reporting; they performed their own W-2 reporting; they had their own state and federal tax identification numbers; and they depended upon their own corporate governance. During and/or after the merger, BAC did not change the relationship between it and the Subsidiaries in a way that would have blurred the legal distinction between them. It did not merge the Subsidiaries’ legal entities into its own, nor did it take over the business operations of any of the Subsidiaries. It did not buy the assets of the Subsidiaries, but only the assets of ACS. It did not alter how the Subsidiaries operate or take employer-related responsibilities away from the Subsidiaries. Rather, BAC merely acquired equity ownership in the Subsidiaries.

This is unlike in Franklin Electric, where the parent company never truly turned over the reigns as the employer after creating newly-established subsidiaries. Here, the Subsidiaries held the reigns as the employers of their respective employees prior to the merger and never turned over that position to BAC during or after the merger. Thus, from a policy standpoint, BAC is not abusing the parameters of the parent-subsidiary relationship for its own benefit, and the Subsidiaries should be permitted to maintain their own unemployment experience accounts. As BAC points out, public policy is served by allowing the business entity that administers certain employees to face the unemployment tax consequence of the frequency with which its employees become unemployed, whether that consequence is positive or negative. This places the administrative burden of letting employees go directly upon the employer acting in control of the employees.

Additionally, we conclude our analysis does not change when considering whether the requirements of Indiana Code section 22-4-11.5-7 were met. To apply here, that section requires that the Subsidiaries transferred “all or a portion of [their] trade or business to [BAC],” and that at the time of such transfer, the Subsidiaries and BAC “have substantially common ownership, management, or control.” Above we concluded that BAC did not acquire the organization, trade or business of the Subsidiaries. The same reasoning applies here to whether there was a transfer of the trade or business of any of the Subsidiaries to BAC. BAC merely acquired equity interests in the Subsidiaries. It did not cause the Subsidiaries to transfer any part of their businesses or employees. The Subsidiaries remained separate legal entities. Thus, the contribution rates of BAC and the Subsidiaries should not be recalculated as Indiana Code section 22-4-11.5-7(c) provides due to BAC taking equity interests in the Subsidiaries.

Further, because we conclude the Department erred by concluding BAC is the successor employer to the Subsidiaries, we also conclude the Department erred by assessing retroactive contributions, interest, and penalties against BAC.

Conclusion

BAC did not acquire the organization, trade, or business, or substantially all the assets of the Subsidiaries, nor did the Subsidiaries transfer all or a portion of their trade or business to BAC. Thus, BAC is not a successor employer to the Subsidiaries pursuant to either Indiana Code section 22-4-10-6(a) or Indiana Code section 22-4-11.5-7, and the Subsidiaries’ unemployment experience accounts should not have been combined with BAC’s account, nor should the contribution rates of BAC and the Subsidiaries have been recalculated, other than the recalculation of BAC’s rate due to its merger with ACS. We therefore reverse and remand to the Department to adjust their respective experience accounts accordingly, and to refund any over-payment by BAC and/or the Subsidiaries.

Reversed and remanded.

BAKER, J., and BRADFORD, J., concur.

      . As BAC stated in a letter to the Department, "[sjhortly thereafter, BAC as successor will effect ... a name change from BAC to Affiliated Computer Services, Inc. and thereafter, will conduct its business under the name Affiliated Computer Services, Inc.” Appendix to Brief of Appellants at 105-06. For simplicity’s sake, we will refer to the legal entity that was formed in the merger as BAC, despite the fact that its name was thereafter changed to Affiliated Computer Services, Inc.

      . We held oral argument in the Court of Appeals Courtroom in Indianapolis on October 11, 2012. We thank counsel for their capable advocacy.

      . BAC’s contribution rate was, and should have been, recalculated due to its merger with ACS. This is distinct from BAC’s rate being recalculated due to the Subsidiaries transferring any portion of their trades or businesses to BAC.


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    Kenneth W. SMITH and Deb-Anne Smith, Appellants-Plaintiffs, v. DERMATOLOGY ASSOCIATES OF FORT WAYNE, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, PC, Appellee-Defendant.
    No. 02A03-1201-CT-41.
    Court of Appeals of Indiana.
    Sept. 7, 2012.

      Dennis R. Brown, Dennis H. Geisleman, Geisleman & Brown LLP, Fort Wayne, IN, Attorneys for Appellants.
    Karl L. Mulvaney, Nana Quay-Smith, Briana L. Clark, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Kenneth W. Smith (“Smith”) and his wife, Deb-Anne Smith, (collectively “the Smiths”) appeal from the trial court’s findings of fact and conclusions thereon after a bench trial on their medical malpractice claim against Dermatology Associates of Fort Wayne, P.C., a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C. (“DLSA”). The Smiths present two issues, which we consolidate and restate as follows: Whether the trial court erred by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur.

We affirm.

FACTS AND PROCEDURAL HISTORY

Smith, who has suffered from psoriasis since the age of thirteen, sought medical treatment for his condition. He became a patient of Dr. Alan R. Gilbert (“Dr. Gilbert”), a dermatologist employed by DLSA, in December of 1994. As a new patient, Smith was evaluated by Dr. Gilbert, and a treatment plan was proposed. Dr. Gilbert opined that Smith’s psoriasis was generalized, severe in nature, and unpredictable given Smith’s history. In addition to testing and medication therapy, Smith underwent UVA radiation treatments for his flare-ups of psoriasis.

In particular, his treatment plan called for Smith to periodically receive Psoralen UVA (“PUVA”) treatments. Psoralen is a drug derived from a plant, which, in its oral form, becomes activated when a certain wavelength of light is administered to a patient who had previously taken Psora-len. Psoralen is activated by UVA light, and a PUVA treatment is administered through a light box. The amount of UV light used to dose a patient is determined by the patient’s skin type, sensitivity to the sun, and the patient’s reaction to the initial dose of the UVA light.

Smith received PUVA therapy using the hght box at DLSA’s Lake Avenue office in Fort Wayne. Smith underwent the PUVA treatments from December 28, 1994 through December 8, 2004, and received a total of 147 treatments from DLSA. The most recent treatments were administered on December 3, 2004, December 6, 2004, and December 8, 2004. When Smith would notice an outbreak of psoriasis occurring, he would contact DLSA to schedule a treatment. Smith responded well to the PUVA treatments. However, after his last treatment at 1:00 p.m. on December 8, 2004, Smith suffered UV burn injuries to approximately 84% of his body.

Although he returned to work after his last treatment, a few hours thereafter, he started to feel an irritation to his skin. He noticed his skin getting red and started to feel a burning sensation. Smith left work at approximately 6:00 p.m. and went to bed after going home. Smith continued to feel poorly, began shaking uncontrollably, and started to notice blisters on his body from his torso area down. Smith went to the emergency room and complained of pain. The emergency room physician noticed that Smith had a severe sunburn on approximately 85% of his body. Smith was transferred from the emergency room to the Burn Unit of St. Joseph Hospital in Fort Wayne.

Dr. Gilbert received a telephone call on December 9, 2004, from the Burn Unit at St. Joe’s Hospital informing him that Smith had been admitted early that morning with first and second degree burns. Dr. Gilbert visited Smith at the hospital, but was not asked to assist in Smith’s treatment. Smith returned to work half days on December 14, 2004 and was released to return to work full time on December 15, 2004. By March of 2005, Smith’s burns were completely healed.

On December 4, 2006, the Smiths filed a proposed complaint with the Indiana Department of Insurance alleging that Smith received care from DLSA that fell below the required standard of care, that was negligent, and that constituted malpractice. A medical review panel convened and, on October 20, 2008, rendered its decision that the evidence did not support the conclusion that DLSA failed to comply with the appropriate standard of care.

On February 6, 2009, the Smiths filed a complaint against DLSA alleging medical malpractice. In particular, the Smiths alleged that the negligence of the medical personnel or machine malfunction created a res ipsa loquitur inference that an act of malpractice may have occurred. On April 20, 2011, DLSA filed a motion for partial summary judgment, claiming that the Smiths did not establish either of the two required elements of res ipsa loquitur. More specifically, DLSA argued that the Smiths did not show that DLSA employees were in exclusive control of the ultraviolet exposure level from the PUVA machine or that the injuries Smith sustained could not have occurred without negligence. After the Smiths filed their response, the trial court denied the motion for summary judgment, finding the existence of genuine issues of material fact.

A three-day bench trial began on June 21, 2011. At the close of the Smiths’ casein-chief, DLSA made an oral motion for involuntary dismissal. The trial court took the motion under advisement and requested post-trial briefing on the issues raised by DLSA. On January 4, 2012, the trial court entered its findings of fact and con-elusions thereon. The trial court concluded that the Smiths had failed to establish that DLSA had exclusive control of the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred without negligence. The trial court concluded that the doctrine of res ipsa loquitur was inapplicable and that the Smiths had failed to meet their burden of establishing by direct or circumstantial evidence that DLSA breached its duty of care. The trial court entered judgment in favor of DLSA. The Smiths now appeal.

DISCUSSION AND DECISION The trial court determined that the doctrine of res ipsa loquitur did not apply to allow the inference that an act of malpractice had occurred. The doctrine of res ipsa loquitur literally means “the thing speaks for itself,” and we have stated the following about the doctrine:

Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. To create an inference of negligence, the plaintiff must establish: (1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. In determining if the doctrine is applicable, the question is whether the incident more probably resulted from defendant’s negligence as opposed to another cause. A plaintiff may rely upon common sense and experience or expert testimony to prove that the incident more probably resulted from negligence. To invoke res ipsa loquitur, the plaintiff must demonstrate that the defendant had exclusive control of the injuring instrumentality at the time of injury. Exclusive control is an expansive concept which focuses upon who has the right or power of control and the opportunity to exercise it. The existence of multiple defendants or the possibility of multiple causes does not automatically defeat the application of res ipsa loquitur.

Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind.Ct.App.2004) (internal citations omitted).

Because the Smiths did not prevail at trial, they appeal from a negative judgment. A judgment entered against a party who bore the burden of proof at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411 (Ind.Ct.App.2002). On appeal, we will not reverse a negative judgment unless it is contrary to law. Mominee v. King, 629 N.E.2d 1280, 1282 (Ind.Ct.App.1994). To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482 (Ind.Ct.App.1998). A party appealing from a negative judgment must show that the evidence points unerringly to a conclusion different than that reached by the trial court. Mominee, 629 N.E.2d at 1282.

We have stated the following about medical malpractice actions:

To prevail in a medical malpractice action, the plaintiff must prove three elements: “(1) a duty on the part of the defendant in relation to the plaintiff; (2) a failure to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure.” The physician has a duty to conform to the standard of care of a reasonably prudent physician in providing care to a patient. More specifically, the physician is “required to possess and exercise that degree of skill and care ordinarily possessed and exercised by a reasonably careful, skillful and prudent practitioner in the same class to which he belongs treating such maladies under the same or similar circumstances.” Care that falls below the requisite standard establishes a breach of the physician’s duty. When a medical review panel issues an opinion in favor of the physician, the plaintiff must present expert medical testimony to negate the panel’s opinion. If the plaintiff fails to provide sufficient expert testimony, summary judgment should be granted in favor of the defendants. However, a medical malpractice case based upon negligence is rarely appropriate for disposal by summary judgment, particularly when the critical issue is whether the defendant exercised the appropriate standard of care under the circumstances. ■ This issue is generally inappropriate for resolution as a matter of law and is a question that should be reserved for the trier of fact.

Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (internal citations omitted).

Furthermore,

[I]n order for the plaintiff to cany [his] burden of proof, [he] must present evidence of probative value based on facts, or inferences to be drawn from the facts, establishing both that the wrongful act was the cause in fact of the occurrence and that the occurrence was the cause in fact of [his] injury. The plaintiffs burden may not be carried with evidence based merely upon supposition or speculation. Standing alone, evidence establishing a mere possibility of cause or which lacks reasonable certainty or probability is not sufficient evidence by itself to support a verdict. Civil liability may not be predicated purely upon speculation.

Daub v. Daub, 629 N.E.2d 873, 877 (Ind.Ct.App.1994) (internal citations omitted).

In this case, the Smiths presented the expert testimony of Dr. Jeffery Sass-mannshausen (“Dr. Sassmannshausen”), a board certified dermatologist, who agreed with the medical review panel that DLSA did not breach the standard of care owed to Smith and did not breach the standard of care in controlling the setting for the PUYA machine. Furthermore, while the Smiths did establish that Smith received serious burns to his body, at most, the trial court was left to speculate that the PUYA machine may have malfunctioned and that the malfunctioning may have caused his injuries.

The Smiths were not able to establish that Smith received both UVA and UVB treatment on December 8, 2004, which was their theory of how Smith’s burns occurred. Smith testified that there was nothing different about his treatment on that day as compared to any of his prior treatments. He did not perceive that anything different happened during his treatment and could not state that both the UVA and UVB bulbs were on during that treatment.

Additionally, the evidence presented to the trial court showed that there were no maintenance issues which could have caused both the UVA and UVB bulbs to come on during Smith’s treatment. The Smiths were not able to establish that a lack of maintenance or some other defect with the PUYA machine contributed to or caused Smith’s burns. DLSA employees inspected the machine after learning of Smith’s injuries and could not determine the cause of Smith’s burns. They could not decide which of the possibilities had led to Smith’s injuries. Those possibilities included, a machine malfunction, burns as a result of the treatment, or a problem with the doors of the machine increasing the time remaining for the pre-treatment warm-up of the machine.

The Smiths were also unable to establish that DLSA breached the standard of care by failing to evaluate Smith during his PUVA treatments. Dr. Gilbert routinely saw Smith following his treatments and would discuss them with him.

While the Smiths were able to point to a specific instrumentality, the PUVA machine, as the cause of Smith’s burn injuries, they were unable to establish that DLSA had exclusive control of the PUVA machine. Smith was alone in the room with the PUVA machine during and after his treatment on December 8, 2004 with keys to both the UVA and UVB control panels. Smith had the opportunity and ability to turn on the UVB lights, but denied doing so. None of the other patients who used the PUVA machine at DLSA’s Lake Avenue office on December 8, 2004 experienced a reaction such as Smith’s to the treatment.

In sum, the Smiths were unable to establish the first element of the doctrine of res ipsa loquitur, that DLSA had exclusive control of the PUVA machine. The trial court in this bench trial, in its fact-finding role, was the sole judge of the credibility of the witnesses. There was contrary evidence on this element, and the trial court was left to resolve those differences. We cannot say that the evidence leads unerringly to a conclusion that is different than that reached by the trial court.

Moreover, the Smiths were unable to establish the second element of the doctrine of res ipsa loquitur, that Smith’s injuries would not have occurred without negligence. Dr. Sassmannshausen testified that a patient who experiences UV burns does not necessarily receive those burns as a result of malpractice. He testified that while a properly functioning machine should not cause a UV burn to a patient, a UV burn could be caused by a patient receiving too much of a dose, which is not necessarily evidence of malpractice. A UV burn is one of the risks of light treatment.

Dr. Jeffrey Moore (“Dr. Moore”), a dermatologist who served on the medical review panel in this matter, testified that a UV burn could have occurred without negligence. Dr. Moore testified that he has had patients of his own become phototoxic, or adversely reacting to treatment due to light sensitivity, after receiving a treatment in a PUVA machine that was properly functioning, properly maintained, and properly set. Further, he testified that patients with unstable psoriasis, as was Smith’s condition, may have reactions to treatment that are described as idiosyncratic, or unexpected, and beyond explanation. In his opinion, phototoxicity is a known complication of PUVA treatment for psoriasis, and in his vernacular, a burn injury' such as Smith’s, was a phototoxic reaction.

The Smiths were unable to establish that Smith’s injuries would not have occurred without negligence. The trial court in this bench trial, in its fact-finding role, was the sole judge of the credibility of the witnesses. “The trier of fact must resolve conflicts in the evidence and determine which witness testimony to credit.” Bradley v. State, 765 N.E.2d 204, 212 (Ind.Ct.App.2002). There was contrary evidence on this element, and the trial court was left to resolve those differences. We cannot say that the evidence leads unerringly to a conclusion that is different than that reached by the trial court.

We further conclude that the Smiths’ substantial rights were not adversely affected as a result of the trial court’s refusal to apply the doctrine of res ipsa loquitur. The inference was not applied because there was contrary evidence on each of the elements of the doctrine. The trial court, as trier of fact, was left to resolve the conflicts in the evidence and to determine which testimony was more credible. Although the Smiths’ sole theory of recovery was res ipsa loquitur, they did not meet their burden of persuasion, and have failed to establish on their appeal from a negative judgment that the evidence leads unerringly to a conclusion that is different from that reached by the trial court.

Affirmed.

NAJAM, J., and MAY, J., concur.

      . We commend the trial court on the thoroughness and clarity of its findings and conclusions thereon, which greatly facilitated appellate review.


author: BAILEY, Judge. MATHIAS, Judge

text:
    Paul R. SEMENICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1111-CR-1035.
    Court of Appeals of Indiana.
    Oct. 9, 2012.

      Paul R. Semenick, Indianapolis, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Paul R. Semenick (“Semenick”), a long-term member of Lakeview Christian Church (“Lakeview”), appeals his conviction for Criminal Trespass, as a Class A misdemeanor, arising out of his attendance at Sunday morning services. Sem-enick challenges the sufficiency of the evidence to support the conviction. We reverse.

Facts and Procedural History

On September 5, 2010, certain worship-pers at Lakeview sought to impose their will over another similarly situated wor-shipper during Sunday morning services. One parishioner sought to engage the authority of the State to intervene in a private disagreement over the degree of reverence for the church sanctuary, and this ultimately led to a criminal conviction and order to stay off Lakeview property. We do not “take it on faith” that the off-duty police officer, acting as a security guard, had unfettered discretion to take sides and remove one worshipper at the behest of another.

On September 5, 2010, Semenick attended a Sunday morning worship service at Lakeview. During the musical portion of the service, Semenick approached Manuel Halbert (“Halbert”), a volunteer greeter, to complain that Halbert was speaking too loudly with Sheriffs Deputy Jennifer Crit-tendon (“Deputy Crittendon”). Deputy Crittendon then moved out of the sanctuary, and Halbert began to speak with James Martin (“Martin”).

Semenick left the sanctuary to seek the assistance of Donald Henry (“Henry”), the head volunteer greeter. Semenick requested that Henry direct Halbert and Martin to be quiet or continue their conversation outside the sanctuary. Henry responded that Halbert needed to welcome people, as “that’s his job.” (Tr. 72.) Martin nonetheless decided to apologize to Semenick. He approached Semenick by placing a hand on his shoulder. Semenick ordered Martin “get your hand off me” and Henry asked both men to sit down. (Tr. 72.) They complied.

Yet, Halbert left the sanctuary to seek assistance from security officers who were at the main entrance of the Lakeview parking lot. He located Sergeant John Dierdorf (“Sergeant Dierdorf’), an off-duty Town of Clermont police officer who provided services to Lakeview on a call-in basis and would “usually roam the parking lot in [his] car.” (Tr. 100.) And although Semenick was seated and participating in the service, Sergeant Dierdorf entered the sanctuary and asked Semenick to leave. Semenick initially refused to leave but, upon threat of forcible removal, moved into the main hallway. Sergeant Dierdorf directed Semenick to exit the door to his right.

In the hallway, Semenick approached Henry although Sergeant Dierdorf twice more insisted that Semenick leave. Sem-enick told Henry “you need to tell your rent-a-cops they can’t do nothing to me.” (Tr. 104-5.) Henry responded, “these officers are here by church’s orders ... they do traffic and everything else.” (Tr. 73.) According to Henry, “[Semenick] kept on ranting” and Sergeant Dierdorf responded, “I’ll show you what a rent-a-cop can do.” (Tr. 73.) Semenick was arrested and charged with Criminal Trespass and Disorderly Conduct.

Semenick was tried before a jury on October 25, 2011. Prior to the presentation of evidence, the trial court, without opposition from the State, quashed subpoenas that had been issued to a Lakeview senior pastor and another individual whose position was not specified. At the conclusion of the trial, Semenick was acquitted of Disorderly Conduct but convicted of Criminal Trespass. The trial court sentenced Semenick to 365 days imprisonment, suspended 363 days, and ordered him to stay away from Lakeview (absent an invitation of fellowship from the church). This appeal ensued.

Discussion and Decision

When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind.2005).

Pursuant to Indiana Code section 35-43-2-2(a)(2), one commits the offense of Criminal Trespass when he “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.” “The criminal trespass statute’s purpose is to punish those who willfully or without a bona fide claim of right commit acts of trespass on the land of another.” Woods v. State, 703 N.E.2d 1115, 1117 (Ind.Ct.App.1998) (citing Myers v. State, 190 Ind. 269, 273, 130 N.E. 116, 117 (1921)). The State must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

“Contractual interest,” as that phrase is used in the criminal trespass statute, refers to the right to be present on another’s property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing. Taylor v. State, 836 N.E.2d 1024, 1026 (Ind.Ct.App.2005), trans. denied. “[T]he State need not ‘disprove every conceivable contractual interest’ that a defendant might have obtained in the real property at issue.” Lyles v. State, 970 N.E.2d 140, 143 (Ind.2012) (quoting Fleck v. State, 508 N.E.2d 539, 541 (Ind.1987)). “[T]he State satisfies its burden when it disproves those contractual interests that are reasonably apparent from the context and circumstances under which the trespass is alleged to have occurred.” Id.

In Lyles, the State disproved the defendant’s contractual interest where there was evidence that the “irate and disrespectful” defendant was neither an owner nor an employee of the bank, as well as evidence that the bank manager had authority to ask customers to leave the bank premises. Id. at 142. Here, there is uncontroverted ' testimony that Semenick was a church member, and an absence of evidence that Sergeant Dier-dorf had authority to demand, without more, that a worshipper leave the sanctuary during Sunday services. Effectively, he intervened between parishioners who presumably had equal interests in the premises, and chose who would stay and who would go.

Semenick was not a stranger in the midst of the church, but was rather a longtime contributor, participant, and believer. He had attended Lakeview services on a regular basis for twenty-two to twenty-three years. He had enrolled his children in Lakeview’s elementary school for several years. He had “prayed for people that [he] thought needed it and they’ve prayed for [him].” (Tr. 131.) He considered himself to be a member of Lakeview, testifying that Lakeview did not have a formal procedure for attaining membership.

Moreover, Semenick’s membership was not challenged by the State in the trial court. There was no testimony from a pastor or member of the Lakeview governing board that Semenick had failed to comply with a membership requirement or was not a member. Thus, the evidence indicates only that Semenick was a church member having a right to be present at a church service on church property “arising out of an agreement.” Id.

Persons having the same interest in being present on the premises disagreed regarding the reverence to be afforded the sanctuary of the church. One parishioner insisted upon involving the Sunday morning parking lot patrol. Although the record suggests that Sergeant Dierdorf performed services for Lakeview as an independent contractor, there was no testimony from a pastor, governing board member or employee that Sergeant Dier-dorf had the authority, without more, to take sides and ask a parishioner to leave, let alone threaten to forcibly remove a member from the sanctuary, during Sunday morning services. Lyles is distinguishable on this basis. Even more compelling, a bank is a commercial setting and we should be ever more diligent to hold the State to its burden of proof where such fundamental rights of assembly and worship are implicated.

Clearly, one having a contractual interest in being on property is nevertheless not entitled to make unreasonable noise or disrupt services. See Woods, 703 N.E.2d at 1118 (“Woods’ membership did not entitle her to make unreasonable noise and disrupt Bally’s facility in demanding the return of her membership card”). See also A.E.B. v. State, 756 N.E.2d 536, 540 (Ind.Ct.App.2001) (concluding that a student “violated whatever contract existed when she interfered with the educational activities at Coleman Middle School to the point where she committed the crime of disorderly conduct.”). Nonetheless, although Semenick’s words and conduct were arguably unfriendly, it was his prerogative to verbally rebuff an unwanted touching and to seek out a volunteer coordinator to resolve a noise complaint. One could argue that Halbert’s boisterousness and gregariousness constituted unreasonable noise and it was certainly disruptive to at least one other worshipper. Regardless, the church service continued uninterrupted. Indeed, the jury acquitted Sem-enick of Disorderly Conduct. In short, there is evidence of unpleasant demeanor by several in attendance on that fateful morning but an unpleasant demeanor does not always equate to criminality.

The evidence does not establish that Sergeant Dierdorf was given the authority to remove someone from the church sanctuary. In fact, the only authority given to Sergeant Dierdorf that is in the record is that he was to direct traffic and see that no one “messed” with the cars — none of which is relevant to the issues herein. Accordingly, there is insufficient evidence to persuade a reasonable fact-finder that Sergeant Dierdorf acted as Lakeview’s agent when he removed Semenick. Indeed, by Sergeant Dierdorf s own account, he typically patrolled the parking lot and had not made a prior arrest in the church sanctuary. Distressingly, the instant arrest appears to have neatly coincided with Sem-enick’s rude and repetitious use of the phrase “rent-a-cop.” Without testimony from a church official disavowing Semen-ick’s contractual interest and otherwise clearly delineating the limits of a member’s contractual interests and the breadth of an occasional part-time contract employee’s authority, the State failed in its burden to prove material elements of Criminal Trespass within the meaning of Indiana Code Section 35-43-2-2(a)(2). Accordingly, there is insufficient evidence to sustain Semenick’s conviction.

Reversed.

ROBB, C.J., concurs.

MATHIAS, J., dissents with opinion.

MATHIAS, Judge

dissenting.

I respectfully dissent.

I believe that we are constrained to affirm the jury verdict in this case under our standard of review and because of the unique location in which Mr. Semenick’s disruptive behavior took place.

Mr. Semenick’s appeal is from a jury verdict. Our standard of review regarding a jury verdict requires us to consider only the facts most favorable to that verdict, along with any reasonable inference that the jury could have drawn from those facts. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We must respect the jury’s exclusive province to weigh conflicting evidence, and we should therefore neither reweigh the evidence nor judge witness credibility. Id. We must also recognize the province of the jury to disregard undisputed testimony. Griffin v. State, 493 N.E.2d 439, 443 (Ind.1986); Morphew v. Morphew, 419 N.E.2d 770, 777 (Ind.Ct.App.1981). What follows are the facts that I believe support the jury’s verdict.

On the morning in question, Manual Halbert (“Halbert”), who is a retired Special Deputy Sheriff for the Indianapolis Department of Public Works and uses a wheelchair as a result of his diabetes, was serving as a volunteer greeter at Lakeview Christian Church in Indianapolis (“the Church”). When Mr. Semenick entered the Church that morning, Halbert greeted him but received no response. As the services began, Halbert moved inside the entrance to the sanctuary, which seats approximately 2,000, to greet those who entered the sanctuary. Halbert began to speak with Jennifer Crittendon (“Critten-don”), a Deputy Sheriff employed by the Church to provide security for the Church during services. Shortly thereafter, Mr. Semenick, who was seated nearby in the back of the sanctuary, approached Halbert and Crittendon and told them to “shut up.” Tr. p. 26. Crittendon then left the sanctuary area, and Halbert began to speak with another churchgoer, James Martin (“Martin”). Mr. Semenick turned around in his seat, glared at Halbert and Martin and told them that they were “making too much noise.” Tr. pp. 26-27.

Mr. Semenick then left his seat in the sanctuary to look for Don Henry (“Henry”), who was the head usher and supervisor of the door greeters, to complain about people making too much noise. Henry assumed Mr. Semenick was complaining about other parishioners, but when he went with Mr. Semenick into the sanctuary, Mr. Semenick pointed at Halbert and Martin and stated, “these guys need to shut up.” Tr. p. 60. Henry informed Mr. Semenick that Halbert was one of the greeters and that it was his job to welcome people to the Church. He also told Mr. Semenick that he would hear the door greeters if he sat in the back of the Church. Martin attempted to apologize for disturbing Mr. Semenick, and extended his hand toward Mr. Semenick. This caused Mr. Semenick to yell or shout at Martin, “don’t touch me,” and “get your hand off me.” Tr. pp. 38, 72. Martin had “never seen that much anger in one person,” and was of the opinion that Mr. Semenick “created ... a clear and present danger.” Tr. p. 60. Mr. Semenick’s loud voice caused several people in the front of the sanctuary to turn around and look back.

Concerned that Mr. Semenick was causing or about to cause a disturbance in the sanctuary, Halbert left the sanctuary and flagged down Sergeant John Dierdorf (“Sgt. Dierdorf’) of the Town of Clermont Police Department, who worked as a security guard for the Church. Sgt. Dierdorf was in full uniform and was at that time speaking with Officer Kevin Brown (“Officer Brown”) of the Indianapolis Metropolitan Police Department. Halbert informed Sgt. Dierdorf of Mr. Semenick’s behavior. Sgt. Dierdorf stated that Halbert was extremely upset and “almost in tears,” which was uncharacteristic for Halbert. Tr. p. 102.

Sgt. Dierdorf then followed Halbert back into the sanctuary. As Halbert was informing him of what had happened, but before he had pointed to Mr. Semenick as the person involved, Sgt. Dierdorf noticed Mr. Semenick “fidgeting in his seat, looking behind him ... in an agitated mode,” as if “he was angry at whatever noise was going on around him.” Tr. pp. 103, 110. Sgt. Dierdorf wanted to “deescalate the situation” and approached Mr. Semenick in his seat and asked him to gather his belongings and step outside the sanctuary with Sgt. Dierdorf. Tr. p. 103. Mr. Sem-enick asked if he was under arrest, and when told that he was not, he refused to leave the sanctuary. Sgt. Dierdorf then informed Mr. Semenick that he had to leave the sanctuary on his own or Sgt. Dierdorf would “help him stand up and make him leave.” Tr. p. 104. Mr. Semen-ick then left the sanctuary with Sgt. Dier-dorf.

As he escorted Mr. Semenick out of the sanctuary and into the lobby, Sgt. Dierdorf told Mr. Semenick he needed to leave the Church. Instead of directly leaving the Church, Mr. Semenick approached Henry, who was also in the Church lobby at this time, and told him to “explain to these cops ... what was going on.” Tr. p. 73. Henry again told Mr. Semenick that the door greeters had to welcome people and that Mr. Semenick would hear them talking from where he was seated. Mr. Sem-enick asked Henry, “what are these rent-a cops doing here?” Tr. p. 73. Henry informed him that the police were there “by church’s orders.” Id. Mr. Semenick then stated that the officers, whom he again referred to as “rent-a-cops,” could not do anything to him. At this point Mr. Semen-ick was again being loud, causing people in a nearby cafe area of the church to stop and look at the disturbance. Sgt. Dierdorf then placed Mr. Semenick in handcuffs and took him outside the Church.

Discussion and Decision

To me, the resolution of this case is dictated by our well-settled standard of review. When reviewing a claim of insufficient evidence, in the case of a jury verdict, we consider only the facts most favorable to that verdict, along with any reasonable inference that the jury could have drawn from those facts. McHenry, 820 N.E.2d at 126. Respecting the jury’s exclusive province to weigh conflicting evidence, we neither reweigh the evidence nor judge witness credibility. Id. We must affirm the jury’s verdict if the probative evidence and reasonable inferences drawn from the evidence could have allowed a jury to find the defendant guilty beyond a reasonable doubt. Id.

In Lyles v. State, our supreme court summarized the elements of criminal trespass as follows:

“[T]he State must prove that the defendant (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 a contractual interest in the real property.”

970 N.E.2d 140, 142-43 (Ind.2012) (citing Ind.Code § 35-43-2-2(a)(2)).

Applying our standard of review, I conclude that the State presented sufficient evidence from which the jury could reasonable conclude that Mr. Semenick, not having a contractual interest in the property at issue, knowingly or intentionally refused to leave the real property of the Church after having been asked to leave by an agent of the Church.

A. Agent of the Church

First, I believe that the State presented sufficient evidence to prove that Mr. Sem-enick was asked to leave by the Church or an agent of the Church. Although “the property owner” did not testify, the State did present evidence that Sgt. Dierdorf was hired by the Church and was under the orders of the Church to act as a security officer. The majority claims that Sgt. Dierdorf was given authority only to patrol the parking lot. It is true that Sgt. Dier-dorf testified that he was patrolling the parking lot when he was called into the church to deal with the escalating situation involving Mr. Semenick. But he also testified that although he was typically outside during the first service, he would be inside the Church building during the second service. Thus, it is apparent that his authority extended beyond simply patrolling the parking lot and including acting as a security officer inside the Church building itself.

I think the jury could reasonably conclude that part of Sgt. Dierdorfs powers as a security officer was to ask anyone causing a disturbance to leave the Church premises. Indeed, Sgt. Dierdorf would be a distinctly ineffectual security officer if he were without authority to ask those causing a disturbance to leave the Church. In fact, Mr. Semenick’s own reference to Sgt. Dierdorf as a “rent-a-cop” strongly suggests that Mr. Semenick himself understood that Sgt. Dierdorf was hired by the Church to act as a security officer.

I find Mr. Semenick’s citation to Glispie v. State, 955 N.E.2d 819 (Ind.Ct.App.2011), unavailing. In that case, this court held that the testimony of a police officer that he could act as an agent of the property owner was insufficient to establish that the officer was in fact such an agent because “[i]t is a well-established rule that agency cannot be proven by the declaration of the agent alone.” Id. at 822 (citing United Artists Theatre Circuit, Inc. v. Ind. Dep’t of State Revenue, 459 N.E.2d 754, 758 (Ind.Ct.App.1984)). In Glispie, the State offered no other evidence indicating that the police officer had any authority to act on behalf of the property owner.

Here, however, Sgt. Dierdorf s testimony was not the only evidence of his agency for the Church. Indeed, Henry testified that Sgt. Dierdorf and the other security officers were there “by church’s orders.” Tr. p. 73. And, as indicated above, Mr. Semenick’s own”rent-a-cop” statements indicate that he understood that Sgt. Dier-dorf was hired by the Church to act as a security guard. From this, I believe that the jury could reasonably conclude that Sgt. Dierdorf was an agent of the Church who had the authority to ask anyone causing a disturbance on Church property, such as Mr. Semenick, to leave the Church.

B. Lack of a Contractual Interest in the Real Property of the Church

I also disagree with Mr. Semenick’s claim the State failed to prove that he did not have a contractual interest in the church property. See I.C. § 35-43-2-2(a)(2). “A ‘contractual interest in the property’ is a right, title, or legal share of real property arising out of a binding agreement between two or more parties.” Lyles, 970 N.E.2d at 143 n. 3. In proving the lack of a contractual interest, the State need not disprove every conceivable contractual interest that a defendant might have in the real property at issue. Id. at 143-44. Otherwise, the State would face a potentially impossible burden to identify and refute every possible contractual interest a defendant might have in the property, which is more than due process requires. Id. at 144. Thus, some contractual interests need not be disproven because they do not create any reasonable doubt that a defendant lacks a contractual interest in the property. Id. “For this reason, the State satisfies its burden when it disproves those contractual interests that are reasonably apparent from the context and circumstances under which the trespass is alleged to have occurred.” Id.

Here, the only possible contractual interest that is reasonably apparent from the context and circumstances under which the trespass was alleged to have occurred is that of a parishioner or member of the Church. Mr. Semenick claims that the State failed to prove his lack of a contractual interest in the church premises because there was no testimony from the property owner directly stating that he had no such interest or documentary proof to the same effect. This characterizes the State’s burden too strongly. The State need not present direct evidence to support each element of a crime, and it has long been held that circumstantial evidence will support a conviction. See Maul v. State, 731 N.E.2d 438, 439 (Ind.2000).

The majority states that Mr. Semenick was a “longtime contributor, participant, and believer.” Op., supra, at 10. It is true that Mr. Semenick testified that he had regularly attended the Church for over twenty years and that the Church considered him a “regular member,” even though he had no formal membership. He also testified that he had sent his children to school at the Church. The majority wholly credits Mr. Semenick’s testimony. Our constitution and common law make it the province of the jury, and not a court on appeal, to determine the credibility of such testimony. Ind. Const, art. 1, sec. 19 (“In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”); McHenry, 820 N.E.2d at 126. Here, the jury could have simply discredited Mr. Semenick’s claims regarding his membership at the Church. See Griffin v. State, 493 N.E.2d 439, 443 (Ind.1986) (noting that jury apparently disbelieved defendant’s allegedly uncontroverted evidence that he was in another state at the time the crime at issue was committed); Morphew v. Morphew, 419 N.E.2d 770, 777 (Ind.Ct.App.1981) (noting that uncontro-verted evidence is not necessarily binding on the trier of fact and may be disbelieved and given no weight).

But even if we accept Mr. Semenick’s testimony at face value, and even if Mr. Semenick was a member or regular parishioner of the Church, I cannot agree that his status as such created a “right, title, or legal share of real property arising out of a binding agreement between” Mr. Semen-ick and the Church. Lyles, 970 N.E.2d at 143 n. 3. (emphasis added). Lyles is instructive both on the issue of the nature of underlying agreements and the limitations of any interest in real property they might create.

In Lyles, the defendant, a bank customer, became “irate and disrespectful” after being informed by the bank manager that he could not obtain an account statement for free. 970 N.E.2d at 142. When the defendant refused the manager’s request to leave the bank, the manager called the police. The responding officer arrested the defendant after asking him to leave multiple times. On appeal, the defendant claimed that the State failed to prove that he did not have a contractual interest in the bank given his status as a bank customer. Our supreme court disagreed, noting that there was evidence that “the defendant was neither an owner nor an employee of the bank as well as evidence that the bank manager had authority to ask customers to leave the bank premises.” Id. at 143. This evidence, the court held, “refuted each of the most reasonably apparent sources from which a person in the defendant’s circumstances might have derived a contractual interest in the bank’s real property: as an owner, as an employee, and as an account holder.” Id,.

Thus, Lyles stands for the proposition that even a bank account holder, a person who actually has a written contract with the bank governing his deposits, has no right to remain on bank property after being asked to leave by someone with authority to make such a request or demand. Here, there is no suggestion that Mr. Sem-enick was an owner of the Church premises or that he was an employee of the Church. Only his status as a Church member or parishioner could have given him any right to be at the Church. Although there was no direct evidence that Sgt. Dierdorf was authorized to ask Church members to leave the church, the jury could, and apparently did, reasonably infer from all of the evidence that Sgt. Dierdorf, an off-duty police officer hired by the Church to act as a security officer for the Church, had such authority.

C. Disruptive Behavior May Terminate Limited Contractual Interest

Moreover, even someone like Mr. Sem-enick, with a limited right to come upon certain real property, may lose this right based on her or his behavior. This court concluded as much in Taylor v. State, 836 N.E.2d 1024, 1027 (Ind.Ct.App.2005), where we stated that “if a student has a contractual interest in school property, that interest is not unlimited and can be violated by the student’s conduct.” In Taylor, the student convicted for criminal trespass was roaming around the building over two hours after his classes had ended, even after being told to wait in the front entry for a bus. The student then refused a school police officer’s directions to leave the school premises. This evidence was sufficient to prove that the student “did not have a contractual interest in the school property where and when he was asked to leave the premises.” Id.

The same could be said here; even if Mr. Semenick had a limited right to be on the Church’s property, he lost this limited right through his disruptive behavior. See id.; see also A.E.B. v. State, 756 N.E.2d 536, 541 (Ind.Ct.App.2001) (holding that State presented sufficient evidence to establish that student abandoned whatever contractual interest she had in school property where her disruptive behavior rose to the level of disorderly conduct).

D. The Location of the Disruptive Behavior: a Sunday Worship Service

Perhaps just as important as our standard of review regarding jury verdicts is the location of Mr. Semenick’s disruptive behavior, in the sanctuary of a church during an ongoing, Sunday worship service. What is disruptive behavior in one context might not rise to the level of disruptive behavior in another context. See Price v. State, 622 N.E.2d 954, 964 (Ind.1993) (noting that “noise made during normal sleeping hours may be a nuisance, while the same or even greater noise during the day would not.”); Johnson v. State, 719 N.E.2d 445, 448 (Ind.Ct.App.1999) (noting that, in context of disorderly conduct, the State must prove that the defendant produced noise that was “too loud for the circumstances.”).

Thus, while Mr. Semenick’s actions might have been within the bounds of acceptable behavior at a loud, outdoor event, I cannot ignore, and the jury did not ignore, the fact that his actions occurred in the sanctuary of a church. Even though there was some indication that the Church had services that were relatively energetic, Mr. Semenick was angry, rude and, most importantly in the context of his actions, loud. In fact, Mr. Semenick was loud enough to cause people at the front of the Church, during a service that included loud music, to turn around and look at the confrontation when he told Martin not to touch him. He was also loud enough in the lobby of the Church while talking to Henry that people in a nearby Church cafe area stopped to see what was going on.

I believe that this level of disruption on a church premises during its Sunday worship service was sufficient to terminate any limited right Mr. Semenick might have had to be on the Church premises as a member or parishioner. That the jury acquitted Mr. Semenick of disorderly conduct is of no moment or relevance to the task of determining whether the probative evidence and reasonable inferences drawn from the evidence adduced at trial and most favorable to the verdict could have allowed a jury to find Mr. Semenick guilty of criminal trespass beyond a reasonable doubt. See Beattie v. State, 924 N.E.2d 643, 648-49 (Ind.2010) (noting that jury verdicts are not subject to appellate review on grounds that they are inconsistent and noting that the only task for the court on appeal is to review the sufficiency of the evidence supporting the jury’s verdict); McNeill v. State, 936 N.E.2d 358, 360 (Ind.Ct.App.2010) (noting that “the inner workings of juries are unknown, [and] jurors could return inconsistent verdicts for a variety of reasons, such as lenity or compromise.”); McHenry, 820 N.E.2d at 126 (setting forth standard of review for claims of sufficiency of the evidence). Thus, the jury’s acquittal of Mr. Semenick on the charge of disorderly conduct should have no impact on our review of the sufficiency of the evidence to support his conviction for criminal trespass. See Beattie, 924 N.E.2d at 648-49.

E. Refusal to Leave

The State also presented sufficient evidence to show that Mr. Semenick refused to leave after being asked to do so by an agent of the church. Sgt. Dierdorf testified that he asked Mr. Semenick to leave the church both before and after Mr. Sem-enick spoke with Henry in the church lobby. Instead of leaving, Mr. Semenick challenged Sgt. Dierdorfs authority. Indeed, Sgt. Dierdorf testified that when he asked Mr. Semenick to leave, Mr. Semen-ick responded, “I’m not leaving.” Tr. p. 106. This clearly shows that Mr. Semen-ick refused to leave after being asked to do so by Sgt. Dierdorf.

Thus, I believe that the evidence favorable to the verdict, and the reasonable inferences to be drawn therefrom, would allow a reasonable trier of fact to conclude that Mr. Semenick knowingly refused to leave the church premises after being asked to leave by an agent of the church and that Mr. Semenick lacked a contractual interest in the property. This is sufficient to support his conviction for criminal trespass under Indiana Code section 35-43-2-2(a)(2).

F. First Amendment

Lastly, I reject Mr. Semenick’s claim that the evidence is insufficient to support his conviction in that the State failed to prove that it had “a compelling interest requiring Mr. Semenick to be removed from the worship service at Lakeview against his natural right to worship[.]” Appellant’s Br. p. 47. Consideration of Mr. Semenick’s alleged natural right to worship is not a statutory element of the crime of criminal trespass. I therefore take Mr. Semenick’s argument to be that his arrest violated his First Amendment right to the free exercise of religion.

But even so, Mr. Semenick did not move to dismiss the charges against him based on this alleged constitutional violation. See Baumgartner v. State, 891 N.E.2d 1131, 1135-36 (Ind.Ct.App.2008) (noting that the failure to file a motion to dismiss raising a Constitutional challenged waives the issue on appeal). Nor is there any indication that Mr. Semenick ever presented this constitutional argument to the trial court. I therefore consider this argument waived for being presented for the first time on appeal. See Whitfield v. State, 699 N.E.2d 666, 669 (Ind.Ct.App.1998) (noting that an argument raised for the first time on appeal is waived and will not be considered by appellate court) (citing Goodner v. State, 685 N.E.2d 1058, 1060 (Ind.1997)).

Conclusion

Under the applicable standard of review for claims challenging the sufficiency of the evidence supporting a jury verdict, I conclude that the State presented sufficient evidence that Sgt. Dierdorf was an agent of the Church and that Mr. Semen-ick had no contractual interest in Church premises. And even if Mr. Semenick had some limited right to be on the Church premises, I believe his disruptive behavior terminated that limited right. I am also of the opinion that there was sufficient evidence demonstrating that Mr. Semenick refused to leave the Church premises after being asked to do so by Sgt. Dierdorf. In short, I believe that the evidence presented at trial was sufficient to support the jury’s conviction of Mr. Semenick’s for criminal trespass. I therefore respectfully dissent from the majority’s opinion reversing that conviction.

      . Ind.Code § 35-43-2-2.

      . In light of our disposition for insufficiency of the evidence, we need not address Semen-ick's contention that he could not be prosecuted under the Criminal Trespass statute because he was exercising his First Amendment right to worship. Semenick neither moved to dismiss the charge on this basis nor raised any constitutional issue in the trial court. Nonetheless, it is readily apparent that fundamental rights are implicated, including freedom of worship and freedom of assembly.

      .The dissent characterizes Semenick’s tone as yelling, but we do not feel it appropriate to over-dramatize the verbal discord, given that there was conflicting evidence as to any level of disruption. For example, Henry testified that Semenick had only been "a little loud” when asking Martin to remove his hand from Semenick’s shoulder and, as far as Henry was concerned, “the worship service was not interrupted, disrupted, stopped, [or] altered.” (Tr. 76-77.) Indeed, the jury acquitted Semen-ick of Disorderly Conduct and the evidence most favorable to this verdict of acquittal suggests only that a minor incident had ensued.

      . It is unclear from the record whether Sergeant Dierdorf also attended services at Lake-view, as he testified that he prefers to attend church rather than police the parking lot. In addition, he was dating, and later married, Deputy Crittendon.

      . Upon questioning from the trial court, the prosecutor indicated that one of the individuals subject to the subpoenas lacked “personal information regarding the facts of the case.” (Tr. 10.)

      . The dissent has expressed the view that the majority "wholly credits Mr. Semenick's self-serving testimony.” Op. at 15. Indeed, Sem-enick’s testimony in regard to his Church membership may be self-serving, but it is the sole testimony offered regarding Semenick's interest in being on Church premises. We could speculate that — had the trial court not quashed the subpoenas of Church leaders Semenick had sought to offer as witnesses— testimony might have been presented by a pastor or Church employee regarding Semen-ick’s lack of contractual interest. However, with full acquiescence of the State, such testimony was not offered. Where no evidence is offered by the State on an essential element of a charged crime, we cannot draw inferences favorable to the State from non-existent evidence. We will affirm a conviction only if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright, 828 N.E.2d at 906 (emphasis added).

      . The State did not confine itself to the presentation of relevant evidence, that is, evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. Evidence Rule 401. Rather, the prosecutor improperly suggested that Semen-ick was dangerous, in a manner designed to inflame the passions of the jury. The prosecutor inquired of Semenick whether he had a lawsuit against the City of Indianapolis. Semenick conceded that he had filed a lawsuit, but explained it was "unrelated” to the criminal charges against him. (Tr. 149.) Undeterred, the prosecutor asked, “So were you concerned when they found all the weapons in your car?” (Tr. 151.) Semenick was then obliged to explain that the rifles were part of his gun collection, all were unloaded, and they were locked in his trunk so that his son (convicted of credit card fraud at age 18) would not have access to any weapon in violation of the law. The prosecutor advised the trial court, upon inquiry, that Semenick had not been charged with any weapons violation. Nonetheless, the damage was done. Semen-ick, who had a Second Amendment right to lawfully bear arms, was portrayed — by the misconduct of the prosecutor intent upon introducing extraneous and inflammatory material — as a threatening individual in the midst of the Church. The dissent exacerbates the harm ensuing from the improper line of questioning by suggesting that unlawful conduct was afoot because Semenick's locked vehicle contained unloaded rifles.

      . The majority takes issue with the characterization of Mr. Semenick's behavior as "yelling,” choosing to characterize the words he used as an order, rather than characterizing the level or tone of voice that he used, as well. Witness Manuel Halbert agreed with the term, "yell,” and witness Donald Hemy testified that he only heard Mr. Semenick "yell or shout” when he "told James [Martin] to get his hands off of him.” See Tr. pp. 42-43, 77. The majority claims that characterizing Mr. Semenick's behavior as a yell or a shout "over-dramatiz[es]” Mr. Semenick’s behavior "given that there was conflicting evidence as to any level of disruption.” Op., supra, pp. 8-9. I disagree. There is conflicting evidence in every trial, and it was the sole province of the jury to weigh any conflicting testimony. McHenry, 820 N.E.2d at 126. On appeal, our role is to consider only the evidence that favors the jury’s verdict. Id.

      . A subsequent inventory search of Mr. Sem-enick’s car revealed several rifles.

      . Mr. Semenick's argument that he had a bona fide belief that he was rightfully remaining on church premises is little more than a request that this court reweigh the evidence considered by the jury and come to a conclusion that he did not act knowingly or intentionally, which is of course contrary to our standard of review.

      . Waiver notwithstanding, I would note that Mr. Semenick’s criminal behavior cannot be justified on First Amendment grounds, as the criminal trespass statute is a neutral law of general applicability. See Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 292-93 (Ind.2003) (noting that the Free Exercise Clause does not exempt religiously motivated action from neutral laws of general applicability) (citing Emp’t Div. v. Smith, 494 U.S. 872, 881-82, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)).