MEMORANDUM DECISION                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                         09/06/2017, 9:57 am
this Memorandum Decision shall not be                                               CLERK
                                                                                Indiana Supreme Court
regarded as precedent or cited before any                                          Court of Appeals
                                                                                     and Tax Court
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
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Timothy J. Burns                                         Attorney General of Indiana
Marion County Public Defender
Appellate Division                                       Christina D. Pace
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Cunningham,                                       September 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-419
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Rebekah Pierson-
Appellee-Plaintiff                                       Treacy, Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G19-1609-CM-35137



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017           Page 1 of 8
[1]   Steven Cunningham challenges the sufficiency of evidence supporting his

      convictions for Class A misdemeanor trespass 1 and Class B misdemeanor public

      intoxication. 2 We affirm.



                                Facts and Procedural History
[2]   Doskieanna Howard lived with her fiancé, Daniel Gary, and knew

      Cunningham because “he comes on [their] street and walks and bother [sic]

      people on [their] street all the time.” (Tr. at 6.) On September 3, 2016,

      Cunningham came into Howard and Gary’s yard calling Howard’s name.


[3]   Gary was in the driveway talking to a friend, Lyle Rogers. Howard and

      Cunningham began to argue. Howard, Gary, and Rogers believed

      Cunningham to be intoxicated. Cunningham had a vodka bottle in his back

      pocket. Gary thought Cunningham was intoxicated “[b]ecause of the way that

      he was talking.” (Id. at 24.) Rogers believed Cunningham was intoxicated

      because he “was rantin’ [sic] and ravin’ [sic] [and] was going off.” (Id. at 18.)


[4]   Cunningham threw a “little rock” at Howard and she threw it back at him. (Id.

      at 11.) Cunningham threatened to throw a rock through Howard and Gary’s

      house window. At that point, Gary told him to leave the property. Gary told

      Cunningham “to leave out of [sic] the yard a couple of times.” (Id. at 8.)




      1
          Ind. Code § 35-43-2-2 (2016).
      2
          Ind. Code § 7.1-5-1-3 (2012).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 2 of 8
      Howard told Cunningham to leave “a bunch” of times. (Id.) Cunningham did

      not immediately leave.


[5]   Indianapolis Metropolitan Police Department Officer Ivan Ivanov was

      dispatched to the residence “on disturbance for some trespassing.” (Id. at 29.)

      He talked with Howard who identified Cunningham as the man walking “[i]n

      the middle of Eastern Avenue . . . zig zagging.” (Id.) When Officer Ivanov

      approached Cunningham he noticed the “the odor of alcoholic beverage [and

      that] his eyes were glassy and bloodshot.” (Id. at 30.) Cunningham started

      yelling profanities at Officer Ivanov. Officer Ivanov detained Cunningham.


[6]   The State charged Cunningham with Class A misdemeanor trespass and Class

      B misdemeanor public intoxication. Cunningham was convicted of both

      charges following a bench trial. The trial court sentenced him to two

      concurrent fourteen-day sentences in the Marion County Jail.



                                 Discussion and Decision
[7]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 3 of 8
      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.


                                                    Trespass

[8]   The definition of criminal trespass provides, in pertinent part, “[a] person who .

      . . not having a contractual interest in the property, knowingly or intentionally

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

      leave by the other person or that person’s agent . . . commits criminal trespass.”

      Ind. Code § 35-43-2-2(b)(2) (2016). The charging information stated

      Cunningham “not having a contractual interest in the property, did knowingly

      or intentionally refuse to leave the real property of another person, to-wit:

      Doskieanna Howard, after having been asked to leave by Doskieanna Howard

      or Her agent.” (App. Vol. II at 15.)


[9]   Cunningham asserts he “could not be found guilty of criminal trespass,” (Br. of

      Appellant at 9), because the charging information was incorrect. Cunningham

      notes the charging information stated the real property belonged to Howard,

      when it was, in fact, owned by Gary. However, Cunningham has failed to cite

      any authority to suggest, much less demonstrate, that a person had to own the

      real property at issue in order to in order for the property to be “the real

      property of” that person as required for criminal trespass. See Ind. Code § 35-

      43-2-2(b) (2016). When an appellant fails to cite authority in support of an
      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 4 of 8
       argument, such argument can be waived for appellate review. See Pierce v. State,

       29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to support his

       arguments with appropriate citations to legal authority and record evidence

       waives those arguments for our review.”).


[10]   Waiver notwithstanding, a person need not hold title to real property in order to

       have the right to exclude others for purposes of the criminal trespass statute.

       For example, a tenant has a “possessory interest in a rental unit for the purpose

       of supporting a criminal trespass action.” Walls v. State, 993 N.E.2d 262, 267

       (Ind. Ct. App. 2013), trans. denied. Similarly, apartment residents have

       sufficient possessory interest in the common areas outside their apartments “to

       possess authority to request [a defendant] leave.” Johnson v. State, 38 N.E.3d

       686, 691 (Ind. Ct. App. 2015).


[11]   Howard testified she had lived in Gary’s home for years. Gary stated Howard,

       who is his fiancé, had lived with him for “five or six years [and] has the right to

       ask people to leave.” (Tr. at 24.) In Walls, we noted that a “rigid rule, applied

       without exception, that a tenant does not have a sufficient possessory interest in

       [common areas by which to access the leased apartment] would defy logic and

       lead to an absurd result.” 993 N.E.2d at 267. We believe the same reasoning

       applies here. To hold that Howard, who had lived in her fiancé’s house for five

       or six years, had no authority to deny access to a person who had no

       contractual interest in the property would defy logic and lead to an absurd

       result. We therefore hold Howard had a possessory interest in the property



       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 5 of 8
       sufficient to exclude Cunningham for the purposes of the criminal trespass

       statute.


[12]   Howard told Cunningham to leave “a bunch” of times. (Tr. at 8.) Rogers

       heard Howard tell Cunningham to leave, but Cunningham did not do so.

       Thus, the State presented sufficient evidence to support the charge of

       trespassing as Cunningham did not have a contractual interest in the property,

       Howard had sufficient possessory interest, Howard requested Cunningham

       leave the premises, and Cunningham did not do so. See, e.g., Olsen v. State, 663

       N.E.2d 1194, 1196 (Ind. Ct. App. 1996) (evidence sufficient to support

       conviction of criminal trespass where defendant failed to leave after being

       repeatedly asked to leave).


                                              Public Intoxication

[13]   The statute defining public intoxication provides “it is a Class B misdemeanor

       for a person to be in a public place or a place of public resort in a state of

       intoxication caused by the person’s use of alcohol or a controlled substance . . .

       if the person. . . harasses, annoys, or alarms another person.” Ind. Code § 7.1-

       5-1-3(a)(4) (2012). The charging information stated Cunningham “was found at

       . . . a public place or a place of public resort, in a state of intoxication caused by

       the person’s use of alcohol or a controlled substance and . . . was harassing,

       annoying or alarming Doskieanna Howar [sic].” (App. Vol. II at 15.) Thus, to

       prove Cunningham committed this offense, the State had to prove not only that

       Cunningham was in a state of intoxication but also that he was harassing,

       annoying, or alarming Howard.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 6 of 8
[14]   Cunningham concedes he was intoxicated in public. But Cunningham denies

       Howard “was harassed, annoyed or alarmed by [Cunningham’s] intoxication”

       because the parties “had constant on-going arguments with each other . . . and

       they freely engaged in verbal arguments in the yard.” (Appellant’s Br. at 10.)


[15]   Cunningham correctly notes our Indiana Supreme Court has held the

       determination of whether a defendant’s behavior was annoying must be based

       on whether the behavior “would annoy the reasonable person.” Morgan v. State,

       22 N.E.3d 570, 577 (Ind. 2014) (emphasis added). The Court so held because

       “a subjective application of the term ‘annoys’ would lead to absurd results and

       exceedingly broad discretion in enforcement.” 3 Id. at 576. Thus, for example,

       if other people in the area are “trying to back away” as the defendant “yell[s] . .

       . and walk[s] in an aggressive manner,” that would lead to an inference that the

       reasonable person would be disturbed by the defendant’s behavior. Naas v.

       State, 993 N.E.2d 1151, 1153 (Ind. Ct. App. 2013).


[16]   Cunningham came to Howard’s residence “rantin’ [sic] and ravin’ [sic] [and]

       was going off.” (Tr. at 18.) He threw a rock at Howard. He threatened to

       throw a rock through the window of the house. That evidence was sufficient

       for the jury to find a reasonable person would have found Cunningham’s




       3
         Because the standard is based on a reasonable person, we need not consider Cunningham’s assertions about
       Howard’s “mental condition.” (Br. of Appellant at 10.) Nor did she have any responsibility to “de-
       escalat[e] the situation.” (Id.) See, e.g., Brown v. State, 12 N.E.3d 952, 955 (Ind. Ct. App. 2014) (evidence
       sufficient that defendant harassed, annoyed, or alarmed a woman when woman “started going berserk” when
       intoxicated defendant ran into her), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017          Page 7 of 8
       behavior harassing, annoying, and/or alarming. Thus, the State sufficiently

       proved the charge.



                                               Conclusion
[17]   The State presented sufficient evidence to prove the charges. Accordingly, we

       affirm.


[18]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017   Page 8 of 8
