                                                                       FILED
                                                                  Aug 19 2016, 8:55 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Suzy St. John                                              Gregory F. Zoeller
Marion County Public Defender                              Attorney General of Indiana
Indianapolis, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jessi Apollos,                                             August 19, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1601-CR-15
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Amy Jones, Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           49G08-1501-CM-618



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016                   Page 1 of 6
[1]   Jessi Apollos appeals her conviction for Criminal Trespass, 1 a class A

      misdemeanor. Apollos argues that there is insufficient evidence supporting the

      conviction. We agree, and reverse and remand with instructions to vacate the

      conviction.


                                                      Facts
[2]   In December 2014, Apollos was seeking to move into a new residence. After a

      conversation with Apollos on social media, Andre Francois told Apollos that

      he was seeking to rent out a room in his house. On December 5, 2014, Apollos

      went to see Francois’s residence. He offered her a furnished bedroom in his

      house in exchange for rent, and Apollos accepted. Francois did not draft a

      written lease, and the parties never agreed upon a precise amount of rent that

      would be owed by Apollos.


[3]   Apollos moved in on December 14, 2014. Francois knew that Apollos was

      leaving her former residence permanently. He had cleaned out a closet in his

      own bedroom for her belongings. Apollos kept all of her belongings at the

      house, had a key to the house, and received mail at the house. Apollos and

      Francois became involved in a sexual relationship. Shortly after Apollos

      moved in, her car was stolen and she lost her job. Francois indicated that he

      might be willing to accept childcare services (he has a minor child who lives in




      1
          Ind. Code § 35-43-2-2.


      Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016   Page 2 of 6
      the home) in exchange for Apollos’s residency. She provided overnight

      childcare on approximately ten occasions.


[4]   On January 6, 2015, Apollos and Francois got into an argument. Francois

      ultimately told Apollos that she could not live there anymore. He was angry

      and packed up her belongings, telling her to leave the house about ten times.

      Each time Apollos responded, “No, I live here.” Tr. p. 25. She called the

      police and was frantic and sobbing, saying that her “boyfriend” was trying to

      kick her out of their house and she had nowhere to go. State’s Ex. 2.

      Indianapolis Police Officer Scott Emminger responded to the scene and found

      Apollos “upset” and “loud,” and asked her to calm down. Tr. p. 57-58.

      Apollos told Officer Emminger that she lived there, but as she had no written

      lease to show him as proof, he asked her to leave. She declined the officer’s

      offer to drive her to a homeless shelter. Ultimately, he arrested her for criminal

      trespass.


[5]   On January 6, 2015, the State charged Apollos with class A misdemeanor

      criminal trespass. On March 27, 2015, the State added a charge of class B

      misdemeanor disorderly conduct.2 On December 14, 2015, the jury found

      Apollos guilty as charged. The same day, the trial court sentenced Apollos to

      an aggregate term of 365 days, fully suspended to probation. Apollos now

      appeals.




      2
          Apollos is not appealing the disorderly conduct conviction.


      Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016   Page 3 of 6
                                     Discussion and Decision
[6]   Apollos argues that the evidence is insufficient to support her criminal trespass

      conviction. When reviewing a claim of insufficient evidence, we will consider

      only the evidence and reasonable inferences that support the conviction. Gray

      v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

      evidence and inferences, a reasonable jury could have found the defendant

      guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

      2009). To convict Apollos of class A misdemeanor criminal trespass, the State

      was required to prove beyond a reasonable doubt that she knowingly or

      intentionally refused to leave Francois’s residence after Francois asked her to

      leave, and that Apollos had no contractual interest in the property. I.C. § 35-

      43-2-2(b)(2). Apollos argues that the State failed to establish that she had no

      contractual interest in the property and that she acted with the requisite mens

      rea.3


[7]   The State need not disprove every conceivable contractual interest, but it must

      disprove contractual interests reasonably apparent from the circumstances

      under which the trespass allegedly occurred. Lyles v. State, 970 N.E.2d 140, 143

      (Ind. 2012). A “contractual interest” is the right to be present on another’s

      property, arising from an agreement between two parties that creates an

      obligation to do or not do a particular thing. Semenick v. State, 977 N.E.2d 7, 10




      3
       Because we resolve this case in Apollos’s favor based on the element of lack of contractual interest, we need
      not and will not consider her argument regarding mens rea.

      Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016                           Page 4 of 6
      (Ind. Ct. App. 2012). A lease need not be in writing to be a binding agreement.

      Barber v. Echo Lake Mobile Home Cmty., 759 N.E.2d 253, 255 (Ind. Ct. App.

      2001).


[8]   In this case, both Apollos and Francois understood that an agreement existed,

      pursuant to which Apollos would live at Francois’s residence in exchange for

      rent and/or childcare services for Francois’s daughter.4 Tr. p. 19-21, 23-24, 71-

      72, 79, 82-83. The precise terms may not have been agreed upon, but both

      parties understood that an agreement existed. Even if Apollos had breached

      that agreement by failing to make a rent payment, the lease—and Apollos’s

      contractual interest in the property—did not automatically terminate. Ind.

      Code § 32-31-1-8(5) (providing that a lease does not terminate automatically for

      failure to pay rent unless it contains an express term requiring the tenant to pay

      rent in advance and the tenant fails to pay); I.C. § 32-31-1-6 (providing that a

      landlord must give the tenant at least ten days’ notice before he can terminate

      the lease for failure to pay rent).5 Therefore, her contractual interest in the

      property still existed on the day she allegedly trespassed on that property.


[9]   Because it is undisputed that Apollos and Francois both understood that they

      had agreed that Apollos would live in Francois’ residence in exchange for

      money and/or childcare services, we find that the evidence does not establish




      4
          Even the prosecutor understood that the parties had a “renter agreement.” Tr. p. 100.
      5
        In its brief, the State acknowledges that there was a “tenancy at sufferance,” appellee’s br. p. 14, meaning
      that the lease did not terminate automatically even if Apollos had breached it. I.C. § 32-31-1-6.

      Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016                             Page 5 of 6
       beyond a reasonable doubt that Apollos did not have a contractual interest in

       the property. In other words, we find that the State failed to disprove

       contractual interests reasonably apparent from the circumstances under which

       the trespass allegedly occurred. Consequently, we reverse the criminal trespass

       conviction for insufficient evidence.


[10]   The judgment of the trial court is reversed and remanded with instructions to

       vacate the criminal trespass conviction and adjust Apollos’s sentence

       accordingly.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016   Page 6 of 6
