                                                                            FILED
                                                                       Aug 22 2016, 8:49 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Barbara J. Simmons                                         Gregory F. Zoeller
      Oldenburg, Indiana                                         Attorney General of Indiana

                                                                 Jodi Kathryn Stein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Douglas M. Curtis,                                         August 22, 2016
      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 49A02-1512-CR-2293
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Jeffrey Mendes,
      Appellee-Plaintiff.                                        Pro Tem Judge
                                                                 Trial Court Cause No.
                                                                 49G08-1506-CM-22260



      Barnes, Judge.


                                              Case Summary
[1]   Douglas Curtis appeals his conviction for Class A misdemeanor criminal

      trespass. We reverse.



      Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016                Page 1 of 7
                                                       Issue
[2]   The issue before us is whether there is sufficient evidence to sustain Curtis’s

      conviction.


                                                      Facts
[3]   Curtis lived with his father, Michael, in Michael’s apartment in the Nora

      Commons on the Monon (“Nora Commons”) complex in Indianapolis.

      Because Nora Commons is a complex for residents fifty-five years old and

      older, Curtis could not be a tenant there. In 2010, Curtis executed a “Live-In

      Attendant” agreement that permitted him to live in Michael’s apartment to

      allow Michael to live independently. Ex. A. However, Nora Commons’s

      policy was that such an agreement had to be re-executed annually whenever a

      lease was renewed and attached to the lease. Curtis had never renewed the

      agreement, and none was attached to the most recent lease Michael had

      executed.


[4]   Cathy Neff is the property manager of the Nora Commons complex. On June

      24, 2015, Neff learned that Curtis had resold books stolen from the Nora

      Commons library to a secondhand bookstore. On that same date, Neff

      prepared a written “No Trespass Notice” and hand-delivered it to Curtis,

      barring him from the Nora Commons premises. Ex. 1. Neff told Curtis when

      giving him the notice, “I will give you 48 hours and to get anything out if you

      need to or make arrangements with your father . . . .” Tr. p. 24. Shortly after

      Neff gave Curtis the no trespass notice, several Nora Commons residents


      Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016   Page 2 of 7
      approached Neff and told her Curtis was removing some electronic equipment

      from the complex’s community room, which they believed did not belong to

      Curtis. Neff then contacted police, who arrived on the scene approximately

      twenty minutes after Neff had given the no trespass notice to Curtis. Police

      arrested Curtis for criminal trespass. There is no evidence Curtis was ever

      arrested or charged for any attempted theft of electronic equipment from the

      community room; Curtis claimed the equipment was a PA system he had

      loaned to the complex.


[5]   The State charged Curtis with Class A misdemeanor criminal trespass. After a

      bench trial, Curtis was convicted as charged. Curtis now appeals.


                                                    Analysis
[6]   Curtis contends there is insufficient evidence to support his conviction for

      criminal trespass. When reviewing a claim of insufficient evidence we neither

      reweigh the evidence nor judge the credibility of the witnesses. Suggs v. State, 51

      N.E.3d 1190, 1193 (Ind. 2016). We will consider only the evidence and

      reasonable inferences therefrom that support the conviction. Id. We will affirm

      if there is probative evidence from which a reasonable fact-finder could have

      found the defendant guilty beyond a reasonable doubt. Id.


[7]   The State charged Curtis under Indiana Code Section 35-43-2-2(b)(1), which

      provides that a person commits Class A misdemeanor criminal trespass if, “not

      having a contractual interest in the property, [that person] knowingly or

      intentionally enters the real property of another person after having been denied

      Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016   Page 3 of 7
      entry by the other person or that person’s agent . . . .” However, there is no

      evidence here that Curtis left the Nora Commons premises and then re-entered

      the premises after being given the no trespass notice by Neff. Rather, it appears

      he never left the property before police arrived on the scene and arrested him. If

      anything, this factual scenario would fall under Indiana Code Section 35-43-2-

      2(b)(2), which provides that a person commits Class A misdemeanor criminal

      trespass if, “not having a contractual interest in the property, [that person]

      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 . . .

      .”


[8]   Under the criminal trespass statute, “the element of communication of denial of

      entry or request to leave necessarily implies a reasonable period of time for the

      person receiving that communication to leave of her/his own volition.” 1 Lemon

      v. State, 868 N.E.2d 1190, 1196-97 (Ind. Ct. App. 2007). If a person is not given

      a reasonable period of time to comply with a request to leave, then there is no

      trespass. Id. Moreover, “[t]he criminal trespass statute’s purpose is to punish

      those who wilfully 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, 1117–18 (Ind. Ct.

      App. 1998) (citing Myers v. State, 190 Ind. 269, 273, 130 N.E. 116, 117 (1921)).




      1
        Curtis argues in part that he had a contractual interest in the property because he claims he had been living
      at Nora Commons with his father for several years with Nora Commons’s consent. We need not address
      that issue. Instead, we reverse Curtis’s conviction based upon his argument that Neff had provided him with
      a forty-eight-hour grace period to remove his property from the Nora Commons premises.

      Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016                          Page 4 of 7
       An act of criminal trespass requires a mens rea of at least knowingly; “[a]

       person engages in conduct ‘knowingly’ if, when he engages in conduct, he is

       aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). As

       such, if a person has a fair and reasonable foundation for believing that he or

       she has a right to be present on the property, there is no criminal trespass. See

       Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996).


[9]    At trial, Neff testified that she told Curtis he had forty-eight hours to remove

       any of his property from the Nora Commons premises. More specifically, Neff

       testified, “I said he had 48 hours to allow him to get his belongings out if he had

       anything that belonged to him.” Tr. p. 24. She subsequently clarified that she

       told Curtis, “I will give you 48 hours and to get anything out if you need to or

       make arrangements with your father . . . .” Id. Neff changed her mind about

       allowing Curtis forty-eight hours to remove his belongings when other residents

       approached her and claimed Curtis was attempting to steal electronic

       equipment from the complex’s community room. However, there is no

       evidence Neff told Curtis that she was rescinding the forty-eight hour grace

       period; instead, she called police and Curtis was arrested for trespassing,

       approximately twenty minutes after Neff had given the no trespass notice to

       Curtis.


[10]   The trial court seemed to find, and the State argues on appeal, that Neff both

       told Curtis to leave the premises immediately, and that he could return within

       the next forty-eight hours to remove his personal property or alternatively

       arrange to have his property removed and delivered to him with his father’s

       Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016   Page 5 of 7
       assistance. We conclude that a person in Curtis’s position, being told he or she

       had forty-eight hours to somehow remove his personal property from the

       premises, would reasonably believe he or she had permission to remain on or

       re-enter the premises at any time during the next forty-eight hours. Indeed,

       Curtis testified that when police arrived, he was in the process of loading his car

       with his personal property; there is no evidence to contradict this testimony.

       Furthermore, Neff did not tell Curtis that he had to immediately leave and/or

       that he had to arrange through his father to get his personal property, rather

       than removing the property himself. There also is no evidence that Curtis

       attempted to dispute Neff’s no trespass order or indicated that he would refuse

       to leave. In sum, there is insufficient evidence Curtis had the necessary mens

       rea to have committed criminal trespass.2


                                                     Conclusion
[11]   There is insufficient evidence to sustain Curtis’s conviction for Class A

       misdemeanor criminal trespass. We reverse.


[12]   Reversed.




       2
         Additionally, if Curtis had in fact been attempting to steal property after being given the no trespass notice,
       theft or attempted theft is the charge he should have faced, but the State made no effort to prove that crime.
       That conduct, even if it had occurred and was illegal, cannot form a basis for the trespass conviction. See
       Woods, 703 N.E.2d at 1117–18 (holding defendant who had right to be on property but created disturbance
       on the premises was not guilty of criminal trespass and noting State could have charged defendant with
       disorderly conduct but did not).

       Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016                            Page 6 of 7
       Riley, J., and Bailey, J., concur.

[13]




       Court of Appeals of Indiana | Opinion 49A02-1512-CR-2293 | August 22, 2016   Page 7 of 7
