MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 16 2016, 8:37 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP
Indianapolis, Indiana                                    Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Blake John Drapeau,                                      February 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1506-CR-616
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         82C01-1501-F6-453



Najam, Judge

Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016    Page 1 of 19
                                          Statement of the Case
[1]   Blake Drapeau appeals his conviction for criminal trespass, as a Class A

      misdemeanor, and resisting law enforcement, as a Class A misdemeanor,

      following a bench trial. Drapeau raises three issues for our review, which we

      consolidate and restate as follows:

                1. Whether the State presented sufficient evidence to support his
                   convictions for criminal trespass and resisting law
                   enforcement.


                2. Whether there was a material and fatal variance between the
                   crime of criminal trespass charged and the theory and
                   evidence of criminal trespass presented at trial.


[2]   We affirm.1


                                    Facts and Procedural History
[3]   Sandra Beauchamp, Drapeau’s mother, lived at an apartment complex in

      Evansville. She and her boyfriend, Paul, were the only persons listed as the

      leaseholders of the apartment. However, Drapeau had a key to Beauchamp’s

      apartment and he periodically stayed there in a bed that was set up for him. He

      also kept his clothing at his mother’s apartment and used his food stamps to buy

      food that he sometimes shared with his mother and her boyfriend.




      1
          We heard oral argument in this case at Vincennes University on January 26, 2016.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 2 of 19
[4]   As of November 4, 2012, the management of the apartment complex and an

      Evansville police officer had banned Drapeau from the complex where his

      mother’s apartment was located. That information was placed on an alert

      system available to the local police, and Drapeau also had personal knowledge

      of this ban by management. Beauchamp, too, told Drapeau on at least one

      occasion that he had to leave her apartment, and she asked him to give back his

      apartment key. She also reminded Drapeau that he had been banned from the

      apartment by management. However, Drapeau continued to return to the

      apartment.


[5]   On January 18, 2015, Drapeau had been drinking alcohol. At approximately

      2:00 or 3:00 a.m., he and some of his friends came to his mother’s apartment,

      and Drapeau used his key to unlock the apartment door. Upon discovering that

      a chair had been placed in front of the door to block the entrance, Drapeau

      forced the door open. He asked Beauchamp for the keys to her car, which she

      refused. Drapeau’s friends then left and he fell asleep on the mattress in the

      living room. Beauchamp then called the police to report that Drapeau was

      trespassing.


[6]   Officers Elizabeth McKinney and Nathan Jones from the Evansville Police

      Department arrived at Beauchamp’s apartment at approximately 5:30 a.m.

      Before her arrival, Officer McKinney had been given an alert from the police

      department “system” that Drapeau had been banned from the apartment

      complex by the property management and another police officer. Tr. at 35.

      Officer McKinney was wearing a body camera that recorded the entire

      Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 3 of 19
      interaction from the time she and Officer Jones entered the Beauchamp

      residence to the time they left.


[7]   Drapeau was asleep on a mattress in the living room when the officers entered.

      Beauchamp informed the officers that she wanted Drapeau to leave, so the

      officers awoke him and informed him he must leave the apartment. Officer

      McKinney repeatedly offered to take Drapeau to a shelter or a friend’s house.

      Drapeau told the officers they “should leave,” gesturing toward the door.

      State’s Ex. 1 at 5:41:51 a.m. Drapeau then turned toward the door himself, and

      Officer McKinney grabbed his arm and told him to “come here.” Id. at 5:41:55

      a.m. Although it cannot be seen on the video, it is undisputed that Drapeau

      pulled away from Officer McKinney’s grip and swung his fist at her. Officer

      McKinney ducked so that Drapeau’s strike never hit her.


[8]   Drapeau then backed toward the door and held his hands up as Officer Jones

      pointed a taser at him. Officer Jones fired his taser at Drapeau while his hands

      were still up in the air. Drapeau was hit with two taser darts and fell onto his

      back onto the floor, yelling, “Don’t do it.” Id. at 5:42:02 a.m. Officer

      McKinney yelled, “Put your hands behind your back” while the taser was

      cycling. Id. at 5:42:04 a.m. The sound of the taser operating continued while

      Drapeau was lying on the floor with his hands held up in front of his face,

      repeatedly screaming, “Stop.” Id. Officer McKinney then told Drapeau to put

      his hands behind his back or he was “going to get it again.” Id. at 5:42:21.

      Drapeau continued to yell, “Stop,” and “Stop, please.” Id.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 4 of 19
[9]    Although the video from the body camera is too dark to see what was

       happening while Drapeau was on the floor, there was the sound of scuffling,

       which lasted approximately forty seconds. Id. The officers loudly instructed

       Drapeau to turn over onto his stomach and tried to assist him in doing so as he

       yelled, “I’m trying.” Id. at 5:42:33 a.m. After an inaudible statement from one

       of the officers, Drapeau yelled, “I’m trying to, I’m trying to.” Id. at 5:42:35 a.m.

       One of the officers then said, “let go,” to which Drapeau replied, “I’m trying

       to.” Id. at 5:42:41 a.m. There was the continued sound of scuffling, then

       Drapeau yelled, “don’t hurt me.” Id. at 5:42:50 a.m. Officer McKinney

       shouted “stop” several times, then asked, “Are you done?” Id. at 5:42:59 a.m.

       Drapeau said, “yes.” Id. at 5:43:00 a.m. The officers handcuffed Drapeau,

       assisted him in standing up, and removed him from the apartment.


[10]   Drapeau was charged with attempted battery against a public safety officer,

       based on his attempt to strike Officer McKinney. Appellant’s App. at 16-17.

       He was also charged with forcibly resisting law enforcement, based on his

       failure to place his hands behind his back as ordered after he had been tased.

       Id.; Tr. at 52. And Drapeau was charged with criminal trespass for not having a

       contractual interest in Beachamp’s property, yet knowingly entering that

       property after having been denied entry by Beauchamp or her agent. Id. at 17.

       At trial, the video tape from Officer McKinney’s body camera was played for

       the court and entered into evidence as State’s Exhibit 1.


[11]   Officer McKinney testified for the State. She stated that, when Drapeau started

       to move toward the door of the apartment, there were knives lying around, and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 5 of 19
so she grabbed his arm. She testified that Drapeau then pulled his arm away

from her and, as his body turned, he swung at her with his right fist. She

testified that Officer Jones then shot Drapeau with two taser darts, but she did

not know how many times Officer Jones “recycled” the taser by pressing the

trigger to send electric shocks into Drapeau. Id. at 42, 44-45. Officer

McKinney testified that taser guns are designed to temporarily incapacitate a

person’s muscles by shooting electricity that flows from the taser to the dart that

is lodged in the person’s body. She stated that the goal of tasing someone is to

make them unable to move, although the taser does not always incapacitate the

person. She testified that the “zizzing” sound while Drapeau was being tased

was the sound of the taser recycling, although she did not know if Drapeau was

actually receiving the shocks. Id. at 46. Officer McKinney also stated that

Officer Jones’ taser would have had a computerized component that showed

how many times the taser had been “deployed” in this incident. Id. at 45. She

stated that that information could be downloaded and printed out, but no such

information was available at the trial. Officer McKinney then testified that,

“[w]hile he was not being cycled,” Drapeau tensed up his body and refused to

put his hands behind his back when told to do so.2 Id. at 33, 52.




2
    Officer McKinney testified as follows:

          When he was, when I was giving him loud verbal commands to get on his stomach[,] he
          was on his side like this and refusing to roll onto his stomach and put his hand behind his
          back, and once he did roll onto his stomach, Officer Jones was able to get his right arm
          out, but his left arm was tucked up under him and I was trying to get it out from under

Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016             Page 6 of 19
[12]   In his defense, Drapeau testified that the apartment complex had new

       management who had seen him at Beauchamp’s apartment several times but

       never told him to leave. He also testified he was shocked “several times” by the

       taser. Id. at 59. He stated that the shocks made him “clinch up” such that he

       “couldn’t really like move.” Id. He stated that, after he was tased, he “couldn’t

       move [his] upper body,” and he was “very tense.” Id.


[13]   The trial court found Drapeau guilty of attempted battery, criminal trespass,

       and resisting law enforcement. Drapeau appeals only the latter two

       convictions.


                                       Discussion and Decision
                                 Issue One: Insufficiency of the Evidence

[14]   Drapeau contends that the evidence is insufficient to support the criminal

       trespass and resisting law enforcement convictions. Our standard of review in a

       sufficiency of the evidence claim is clear:


                [W]e examine only the probative evidence and reasonable
                inferences that support the [judgment]. We do not assess witness
                credibility, nor do we reweigh the evidence to determine if it was
                sufficient to support a conviction. Under our appellate system,
                those roles are reserved for the finder of fact. Instead, we




                him to place him into custody and he wouldn’t do that on his own, he wouldn’t bring his
                arm out from underneath him.

       Tr. at 33.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016        Page 7 of 19
               consider only the evidence most favorable to the trial court ruling
               and affirm the conviction unless no reasonable fact-finder could
               find the elements of the crime proven beyond a reasonable doubt.


       Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and

       quotation marks omitted).

                                                Criminal Trespass


[15]   Pursuant to Indiana Code Section 35-43-2-2(b)(1) (2014), to prove Drapeau

       committed criminal trespass as a Class A misdemeanor, the State had to show

       that Drapeau did not have a contractual interest in Beauchamp’s apartment, yet

       he knowingly or intentionally entered that property after having been denied

       entry by Beauchamp or the owner of the apartment complex or their agents. It

       is undisputed that Drapeau intentionally entered Beauchamp’s apartment on

       January 18, 2015. Thus, on appeal Drapeau argues (1) that he had a

       contractual interest in the apartment and (2) that he had not been denied entry

       by Beauchamp, the apartment complex, or their agents.


[16]   There was sufficient evidence presented that Drapeau had no contractual

       interest in Beauchamp’s apartment. The State’s burden of proof on this element

       of the criminal trespass statute is clear:


               “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

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 8 of 19
         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.


Semenick v. State, 977 N.E.2d 7, 10 (Ind. Ct. App. 2012), trans. denied; see also

Lyle, 970 N.E.2d at 143 n.2 (noting that 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). Here, there was evidence that Drapeau was not

listed on the lease of the apartment and that the property manager of the

apartments had, in fact, banned Drapeau from not only Beauchamp’s

apartment but the entire apartment complex. Moreover, Beauchamp testified

that she had also asked Drapeau to return his apartment key and leave the

apartment, which showed that she and Drapeau had not entered into an

agreement that Drapeau had a contractual interest in the apartment. This is

sufficient evidence that Drapeau had no contractual interest in Beauchamp’s

apartment.3




3
  Drapeau cites no statute or case law for his claim that his periodic contributions of food to the household
created a contractual interest in the property, and we have found none. Therefore, that argument is waived.
Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to the authorities, statutes,
and the Appendix or parts of the Record on Appeal relied on.”); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind.
2015) (noting that the failure to support arguments with appropriate citations to legal authority and record
evidence waives those arguments for our review).



Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016           Page 9 of 19
[17]   There was also sufficient evidence that Drapeau had been denied entry to

       Beauchamp’s apartment by both Beauchamp and the apartment complex

       management.4 Under the statute, a person can be “denied entry by means of:

       (1) personal communication, oral or written; (2) posting or exhibiting a notice

       at the main entrance . . . or (3) a hearing authority or court order . . . ” I.C. §

       35-43-2-2(c). Officer McKinney testified that she viewed on the police “record

       system” a notification that, in November 2014, the apartment complex and an

       Evansville police officer had banned Drapeau from the apartment complex. Tr.

       at 35. She also testified that she believed Drapeau had been notified of the ban

       because, if he had not, that would have been noted on the police system. Id.

       Drapeau testified that he did have actual knowledge of the ban that was issued

       by apartment management in November 2014. And Beauchamp testified that

       she had told Drapeau in the past that “he had to leave” the apartment. Id. at

       11. This is sufficient evidence that Drapeau had been denied entry onto the

       premises by both Beauchamp and the apartment manager. Drapeau’s claim to

       the contrary is simply a request that we reweigh the evidence, which we will not

       do.




       4
         Under the criminal trespass statute as applied to an apartment, either the leaseholder or the owner or both
       may deny entry to the apartment. Johnson v. State, 38 N.E.2d 686, 689 (Ind. Ct. App. 2015) (citing Walls v.
       State, 993 N.E.2d 262 (Ind. Ct. App. 2013)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016          Page 10 of 19
                                              Resisting Law Enforcement


[18]   Drapeau also argues that there was insufficient evidence that he forcibly resisted

       law enforcement. The State based its resisting law enforcement charge on

       Drapeau’s failure to put his arms behind his back while he was laying on the

       floor after having been shocked with Officer Jones’ taser.5 Thus, the only

       actions relevant to the resisting law enforcement charge are the actions Drapeau

       took after he had swung at Officer McKinney.


[19]   Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic offense of resisting

       law enforcement has five essential elements: that [the defendant] (1) knowingly

       or intentionally (2) forcibly (3) resisted, obstructed, or interfered with (4) a law

       enforcement officer, (5) while the officer was lawfully engaged in the execution

       of the officer's duties.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). It is

       clear from the body camera video that Drapeau had his hands up in the air at

       the time Officer Jones shot him with the taser. Therefore, at that point in time,

       Drapeau was not resisting law enforcement. It is also clear from the video that

       Drapeau fell onto the floor and immediately put his hands back up in the air in

       front of his face after he was first shocked with the taser. Drapeau continued to

       hold his hands up in front of his face, yelling “stop,” while the sound of the

       taser cycling can be heard on the video. State’s Ex. 1 at 5:42:04 a.m.




       5
           The State based its attempted battery charge on Drapeau’s attempt to hit Officer McKinney with his fist.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016          Page 11 of 19
       Therefore, at this point too Drapeau was not in any way resisting law

       enforcement.


[20]   However, the State argues that Drapeau resisted law enforcement by failing to

       place his hands behind his back when he was on the floor, after he was tased.

       Drapeau counters that there is insufficient evidence that he used “force” at this

       point, as required under the statute. One forcibly resists when “strong,

       powerful, violent means are used to evade a law enforcement official’s rightful

       exercise of his or her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993).

       It is true, as Drapeau points out, that “merely walking away from a law-

       enforcement encounter, leaning away from an officer’s grasp, or twisting and

       turning a little bit against an officer’s actions do not establish ‘forcible’

       resistance.” K.W., 984 N.E.2d at 612 (quotations and citations omitted).

       However, as our supreme court has pointed out, there is no bright-line test for

       whether a defendant acts “forcibly”; rather, such determinations must be made

       on a case-by-case basis, with guidance from our case law. Walker v. State, 998

       N.E.2d 724, 728 (Ind. 2013). Thus, Indiana courts have held that “showing

       strength and a threat of violence” is forcible resistance, Walker, 998 N.E.2d at

       727-28; that “aggressively pulling away” from an officer trying to arrest is

       forcible resistance, Glenn v. State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013);

       that “starting to pull away” from an officer and keeping one’s arms underneath

       oneself to prevent handcuffing are forcible resistance, Lopez v. State, 926 N.E.2d

       1090, 1093-94 (Ind. Ct. App. 2010), trans. denied; and that stiffening one’s arms

       to avoid handcuffing is forcible resistance, Graham v. State, 903 N.E.2d 963,


       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 12 of 19
       965-66 (Ind. 2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App.

       2005)).


[21]   Here, the video provides evidence that there was a struggle between Drapeau

       and the officers while they were attempting to handcuff him and after Officer

       Jones had ceased using his taser. Although the struggle cannot be seen in the

       video because it was too dark, it was reasonable for the trial court to infer from

       the forty seconds of scuffling sounds and shouting that Drapeau was struggling

       against the officers as they were trying to handcuff him. In addition, Officer

       McKinney testified that Drapeau refused to place his hands behind his back

       when ordered to do so. Thus, this case is more like Lopez than K.W.; that is,

       there is sufficient evidence that Drapeau did not just “twist . . . and turn . . . a

       little bit,” K.W., 984 N.E.2d at 612, but actually struggled with the officers, kept

       his arm underneath his body, and refused to move his hands into a position

       where they could be handcuffed,6 Lopez, 926 N.E.2d at 1093-94.


[22]   Drapeau also argues that the police officers engaged in excessive force and thus

       were not “lawfully engaged in the execution of their duties” as required under



       6
         It might have been a legitimate trial strategy for Drapeau to rebut Officer McKinney’s testimony by further
       examining the voluntariness of his “refusal” to put his hands behind his back after being tased, as he implies
       in his appellate brief. See I.C. § 35-41-2-1(a) (providing a person only commits a criminal offense if he
       “voluntarily engages in the conduct in violation of the statute defining the offense”). However, Officer
       McKinney’s testimony is sufficient to establish the voluntariness of his actions, and Drapeau never elicited
       evidence at trial to demonstrate that he was incapable of complying with the officers’ commands because the
       taser had immobilized him. For example, Drapeau did not call Officer Jones to testify as to how many times
       and when he had tased Drapeau. Drapeau did not subpoena the records to show how many times Officer
       Jones triggered his taser. And Drapeau did not present evidence as to the effects of being tased or how long
       those effects might last. Drapeau cannot now rely upon the lack of such evidence as proof that he was
       incapable of complying.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016          Page 13 of 19
       the statute. Appellant’s Br. at 9. He notes that, after he was tased, “he was not

       fleeing, had been overcome by the officers, and did not present an immediate

       threat to their safety or anyone else’s.” Id. at 10. Although it is not entirely

       clear from his briefs, Drapeau’s argument seems to be that he was justified in

       struggling against the officers because they were using excessive force in

       repeatedly tasing him.


[23]   We have recently explained the law on excessive force within the context of a

       resisting law enforcement charge:


               The general rule in Indiana is that “a private citizen may not use
               force in resisting a peaceful arrest by an individual who he
               knows, or has reason to know, is a police officer performing his
               duties regardless of whether the arrest in question is lawful or
               unlawful.” Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App.
               2000) (quoting Casselman v. State, 472 N.E.2d 1310, 1315 (Ind.
               Ct. App. 1985)), trans. denied. However, when an officer uses
               unconstitutionally excessive force in effecting an arrest, that
               officer is no longer lawfully engaged in the execution of his or her
               duty. Shoultz, 735 N.E.2d at 823.


               Claims that law enforcement officers have used excessive force in
               the course of an arrest of a free citizen are analyzed under the
               Fourth Amendment to the United States Constitution and its
               “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395
               (1989). Because the Fourth Amendment test of reasonableness is
               not capable of precise definition or mechanical application, its
               proper application requires careful attention to the facts and
               circumstances of each particular case, including the severity of
               the crime at issue, whether the suspect poses an immediate threat
               to the safety of the officers or others, and whether he is actively
               resisting arrest or attempting to evade arrest by flight. Id. at 396.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 14 of 19
               The “reasonableness” of a particular use of force must be judged
               from the perspective of a reasonable officer on the scene, rather
               than with the 20/20 vision of hindsight. Id. However, the
               “reasonableness” inquiry in an excessive force case is an
               objective one; the question is whether the officers’ actions are
               “objectively reasonable” in light of the facts and circumstances
               confronting them, without regard to their underlying intent or
               motivation. Id. at 396-97.


       Patterson v. State, 11 N.E.3d 1036, 1039-40 (Ind. Ct. App. 2014).


[24]   Here, it is clear that the officers’ actions of grabbing Drapeau as he moved in

       the direction of knives and tasing him after he swung at Officer McKinney were

       objectively reasonable and not excessive. Quite obviously, a reasonable officer

       in such a situation would suspect that Drapeau posed a threat to the safety of

       the officers or others. Graham, 490 U.S. at 395. And, although Drapeau’s

       hands were in the air at the exact moment he was tased, he had just swung at a

       police officer literally seconds before that. Therefore, it was objectively

       reasonable for Officer Jones to tase him. Furthermore, as previously noted,

       after being tased Drapeau “actively resisted” law enforcement by struggling

       with the officers. Thus, it was objectively reasonable for Officer Jones to

       continue tasing Drapeau until he became compliant. Id.


                       Issue Two: Variance Between the Pleading and Proof

[25]   Finally, Drapeau argues that there was a material and fatal variance between

       the crime of criminal trespass charged and the theory and evidence of criminal

       trespass presented at trial. Our supreme court has recently summarized the law

       on variances:
       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 15 of 19
               Because the charging information advises a defendant of the
               accusations against him, the allegations in the pleading and the
               evidence used at trial must be consistent with one another.
               Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992). A
               variance is an essential difference between the two. Mitchem v.
               State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances,
               however, are fatal. Id. Relief is required only if the variance (1)
               misled the defendant in preparing a defense, resulting in
               prejudice, or (2) leaves the defendant vulnerable to future
               prosecution under the same evidence. Winn v. State, 748 N.E.2d
               352, 356 (Ind. 2001).


       Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014).


[26]   The State points out that Drapeau failed to raise an objection at trial regarding

       the alleged variance, and argues that this failure waives the issue for appeal.

       Appellee Br. at 21. As we recently noted regarding waiver,


               Generally, a party waives an issue if it is raised for the first time
               on appeal. See Townsend v. State, 632 N.E.2d 727, 730 (Ind.
               1994). “However, we may bypass an error that a party
               procedurally defaults when we believe that the error
               is . . . fundamental.” Id. (quoting Hart v. State, 578 N.E.2d 336,
               337 (Ind. 1991)). As our supreme court recently stated: “An
               error is fundamental, and thus reviewable despite failure to
               object, if it made a fair trial impossible or constituted a clearly
               blatant violation of basic and elementary principles of due
               process presenting an undeniable and substantial potential for
               harm.” Young v. State, 30 N.E.2d 719, 726 (Ind. 2015) (quotation
               marks omitted).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 16 of 19
       Hilligoss v. State, No. 34A02-1506-CR-529, 2015 WL 7280731, *2 (Ind. Ct. App.

       Nov. 18, 2015). The rule against fatal variances is designed to protect a

       defendant’s basic

               constitutional right to be informed of the nature and cause of the
               accusation in sufficient detail to enable him to prepare his
               defense, to protect him in the event of double jeopardy[,] and to
               define the issues so that the court will be able to determine what
               evidence is admissible and to pronounce judgment.


       Reed v. State, 438 N.E.2d 704, 705 (Ind. 1982) (citation omitted). Because the

       error of a fatal variance is fundamental, Young, 30 N.E.3d at 726, we will

       address Drapeau’s variance claim despite his failure to raise the claim at trial.


[27]   Drapeau argues that he was charged with entering his mother’s apartment

       “after having been denied entry” by Beauchamp or her agent, pursuant to

       Indiana Code Section 5-43-2-2(b)(1), but that the proof offered by the State at

       trial was designed to show that he “refuse[d] to leave the real property of

       another person after having been asked to leave by the other person or that

       person’s agent,” pursuant to Indiana Code Section 35-43-2-2(b)(2). He argues

       this is a fatal variance.


[28]   We find no variance here, fatal or otherwise. The charging information alleged

       that Drapeau committed criminal trespass by entering Beauchamp’s apartment

       “after having been denied entry.” Appellant’s App. at 17. And the State’s

       proof was consistent with that charge. The State presented evidence that

       Drapeau previously had been denied entry to Beauchamp’s apartment by both


       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016   Page 17 of 19
       Beauchamp and by the apartment complex. That evidence was presented

       through Beauchamp’s testimony, Officer McKinney’s testimony, and

       Drapeau’s own admission that he was aware of the November 2014 ban by the

       apartment complex yet entered Beauchamp’s apartment anyway.


[29]   Drapeau bases his claim that the evidence varied from the charge only on the

       following sentence during the prosecutor’s opening statement: “The allegations

       are that Mr. Drapeau was in his mother’s apartment, she wanted him to leave,

       she called the Police, the Police arrived, tried to get him to leave on his own, he

       would not . . . ” Appellant’s Br. at 12. Drapeau claims this was evidence that

       he had refused to leave after being asked to leave, which is a different criminal

       trespass charge than the one on the charging information. Id. However, this

       sentence in the prosecutor’s opening statement was not substantive evidence or

       a recitation of the charge against Drapeau; it was merely a summary of the facts

       the prosecutor intended to prove. See, e.g., Schuh v. Silcox, 581 N.E.2d 926, 927

       (Ind. Ct. App. 1991). Moreover, none of the State’s actual evidence presented

       at trial was consistent with a charge that Drapeau refused to leave after being

       asked to leave; rather, it was consistent with the charge that Drapeau entered

       the apartment after having been denied entry by both his mother and the

       apartment complex.7




       7
         Moreover, even if the alleged variance existed, it would not have been fatal. Drapeau was not misled in
       preparing his defense, as his own evidence was directed toward proving he had not been previously denied
       entry to Beauchamp’s apartment. And, “under Indiana’s double jeopardy jurisprudence, [Drapeau would
       not be] vulnerable to being tried again for the same crime.” Winn v. State, 748 N.E.2d at 357; see also, e.g.,
       Scott v. State, 859 N.E.2d 749, 752 (Ind. Ct. App. 2007) (explaining Indiana’s Double Jeopardy Clause

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016            Page 18 of 19
[30]   The State presented sufficient evidence to support Drapeau’s convictions for

       criminal trespass and resisting law enforcement. And there was no fatal

       variance between the pleadings and the proof. Accordingly, we affirm his

       convictions.


[31]   Affirmed.


       Baker, J., and Altice, J., concur.




       jurisprudence). Thus, Drapeau would not have been prejudiced in any way by the alleged variance. See
       Blount, 22 N.E.3d at 569.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016     Page 19 of 19
