MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Apr 16 2018, 8:57 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Justin F. Roebel
Logansport, Indiana                                      Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn Michael Perkinson,                                 April 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A05-1710-CR-2525
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1707-CM-579



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018             Page 1 of 6
                                  Case Summary and Issue
[1]   Following a bench trial, Shawn Perkinson was convicted of criminal trespass

      and possession of a controlled substance, both Class A misdemeanors.

      Perkinson appeals his conviction of criminal trespass, raising one issue for our

      review: whether sufficient evidence supports his conviction. Concluding that

      the evidence is insufficient to support his conviction for criminal trespass, we

      reverse and remand.



                             Facts and Procedural History                                  1




[2]   Brittany Lambert rented a home in Logansport, Indiana, from Rudolpho

      Sanchez. In July of 2017, Lambert was evicted from the home by court order.

      The court order required Lambert to vacate the home by July 14. 2 At some

      point prior to this date, Sanchez departed for Mexico and asked his son-in-law,

      John Quinones, to oversee the property while he was gone.


[3]   On July 15, Quinones noticed the lights were on inside the home. Quinones

      entered the home, shut off the lights, closed the windows, and locked the doors.

      The next day, Quinones again noticed the lights were on inside the home and




      1
        We held oral argument in this case on March 20, 2018, at Purdue University Northwest in Hammond,
      Indiana, in conjunction with the Lake County Bar Association. We thank the Lake County Bar Association,
      Purdue University Northwest, and its faculty, staff, and students for their hospitality and participation. We
      also commend counsel for their excellent oral advocacy.
      2
       The court order is not included in the record. John Quinones, Sanchez’s son-in-law, testified Lambert
      should have been out of the home by July 14. See Transcript, Volume 1 at 11. Officer Rozzi testified he
      believed the court order stated July 13. Id. at 15.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018              Page 2 of 6
      the door and window were open. Quinones immediately called the police.

      Shortly thereafter, Officer Christopher Rozzi of the Logansport Police

      Department arrived at the residence and Quinones showed him the court order

      evicting Lambert.


[4]   Upon entry into the home, Officer Rozzi found Perkinson asleep on a mattress

      in the living room. After waking Perkinson, Officer Rozzi placed him in

      handcuffs and began to question him. Perkinson told Officer Rozzi that

      “Brittany and . . . her boyfriend, Jesus, said that he could stay there to watch

      the residence.” Tr., Vol. 1 at 16. Perkinson also stated he “had no idea”

      Lambert had been evicted from the home. Id. at 18. Officer Rozzi then

      conducted a pat down of Perkinson and discovered twelve Clonazepam pills in

      a bag in Perkinson’s pocket. Officer Rozzi and Quinones never determined

      how Perkinson accessed the home, but Officer Rozzi noted there was no

      damage caused by Perkinson.


[5]   The State charged Perkinson with criminal trespass and possession of a

      controlled substance, both Class A misdemeanors. On the morning of trial,

      Perkinson attempted to plead guilty to possession of a controlled substance in

      exchange for the State’s dismissal of the criminal trespass charge, but the parties

      failed to establish a factual basis to the trial court’s satisfaction. The trial court

      then immediately conducted a bench trial at which Quinones and Officer Rozzi

      testified for the State. The trial court found Perkinson guilty as charged and

      sentenced him to concurrent sentences of seventy days in the county jail on

      each count. Perkinson now appeals.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018   Page 3 of 6
                                 Discussion and Decision
                                     I. Standard of Review
[6]   In reviewing challenges to the sufficiency of the evidence, we do not reweigh

      the evidence or judge witness credibility. Leonard v. State, 80 N.E.3d 878, 882

      (Ind. 2017). We consider only the evidence and reasonable inferences

      supporting the verdict and will affirm a conviction if there is probative evidence

      from which a reasonable trier of fact could have found the defendant guilty

      beyond a reasonable doubt. Id. Evidence is sufficient if an inference may

      reasonably be drawn from it to support the verdict. Sallee v. State, 51 N.E.3d

      130, 133 (Ind. 2016). We will reverse if, after considering all the evidence, the

      evidence is insufficient to prove any element of the crime. Brown v. State, 868

      N.E.2d 464, 470 (Ind. 2007).


                              II. Sufficiency of the Evidence
[7]   The State charged Perkinson with criminal trespass under Indiana Code section

      35-43-2-2(b)(1). That section, in relevant part, provides,


              (b)      A person who:

                       (1) not having a contractual interest in the property,
                       knowingly or intentionally enters the real property of
                       another person after having been denied entry by the other
                       person or that person’s agent;

              ***

              commits criminal trespass, a Class A misdemeanor.

              ***
      Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018   Page 4 of 6
              (c)      A person has been denied entry under subsection (b)(1)
                       when the person has been denied entry by means of:

                       (1) personal communication, oral or written;

                       (2) posting or exhibiting a notice at the main entrance in a
                       manner that is either prescribed by law or likely to come to
                       the attention of the public; or

                       (3) a hearing authority or court order under IC 32-30-6
                       [nuisance actions], IC 32-30-7 [indecent nuisance actions],
                       IC 32-30-8 [drug nuisance actions], IC 36-7-9 [unsafe
                       building law], or IC 36-7-36 [abatement of vacant
                       structures and abandoned structures].


      Ind. Code § 35-43-2-2. A person acts “‘knowingly’ if, when he engages in the

      conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-

      41-2-2(b). As such, there is no criminal trespass if a person has a fair and

      reasonable foundation for believing he has a right to be present on the property.

      Blair v. State, 62 N.E.3d 424, 428 (Ind. Ct. App. 2016).


[8]   The record is absent of any evidence that Perkinson had knowledge of

      Lambert’s eviction or was otherwise “denied entry” by the landowner, Sanchez,

      or his agent, Quinones. As defined in the statute, a person is “denied entry”

      when they have been prohibited from entering the premises by personal

      communication, oral or written; posting or exhibiting a notice at the entrance;

      or by a hearing authority or court order. The State does not allege Perkinson

      received notice pursuant to Indiana Code section 35-43-2-2(c)(2) or (3), nor do

      these facts present a basis for such an argument. Moreover, the record does not

      support the fact that Perkinson was denied entry by either oral or written

      Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018   Page 5 of 6
       personal communication. Neither Lambert nor Sanchez testified at trial and

       Quinones stated he had “[n]ever” seen or met Perkinson before. Tr., Vol. 1 at

       13. Even if the trial court simply did not believe Perkinson’s testimony that

       Lambert told him he could stay in the house, there is no evidence in the record

       from which a trier of fact could reasonably infer Perkinson had previously been

       denied entry to the home or had knowledge that Lambert had been evicted.

       Therefore, the evidence is insufficient to support Perkinson’s conviction of

       criminal trespass.



                                               Conclusion
[9]    The evidence is insufficient to support Perkinson’s conviction for criminal

       trespass and his conviction is therefore reversed. Accordingly, this case is

       remanded to the trial court for further proceedings consistent with this opinion.


[10]   Reversed and remanded.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1710-CR-2525| April 16, 2018   Page 6 of 6
