                                                                  Jul 01 2015, 8:33 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joseph M. Johnson, II                                      Gregory F. Zoeller
Joseph M. Johnson, P.C.                                    Attorney General of Indiana
Decatur, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph M. Johnson, III,                                    July 1, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           01A02-1501-CR-25
        v.                                                 Appeal from the Adams Superior
                                                           Court

State of Indiana,                                          Case No. 01D01-1405-FD-51
Appellee-Plaintiff
                                                           The Honorable Max C. Ludy, Special
                                                           Judge.




Friedlander, Judge.




Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                    Page 1 of 14
[1]   Joseph M. Johnson III appeals his conviction of Criminal Trespass,1 a class A

      misdemeanor, presenting the following restated issues for review:

              1.       Is the criminal trespass statute unconstitutionally vague as
                       applied in this case?


              2.       Did the court properly apply the “mistake of fact” defense?


              3.       Was the evidence sufficient to sustain the conviction?


[2]   We affirm.

[3]   The facts favorable to the conviction are that approximately five years before

      the events that culminated in this conviction, Johnson and Danielle Lee had an

      extramarital affair. The relationship ended abruptly but amicably after a few

      months. In early February 2014, Johnson and Lee bumped into each other and

      Johnson apologized to Lee for their prior relationship. Johnson had recently

      separated from his wife. In March of that year, Johnson began calling Lee. At

      first, Lee did not answer the phone. Eventually, however, when Johnson’s calls

      came late at night, she answered and told Johnson not to contact her. Johnson

      persisted and Lee eventually agreed to meet him for dinner. Johnson picked




      1
       Ind. Code Ann. § 35-43-2-2(2) (West, Westlaw current with all 2015 First Regular Sess. of the 119th
      General Assembly legislation effective through June 28, 2015).

      Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                          Page 2 of 14
      her up at her apartment and the two went to dinner. For the next month or so,

      they communicated frequently by text and phone calls.

[4]   At some point around the beginning of April, however, Lee told Johnson that

      she did not want to see him or have a relationship with him. Johnson

      responded by “calling more and texting more.” Transcript at 12. Lee tried to

      ignore Johnson’s attempts at communication, but eventually “it just got too

      persistent” and she finally answered and again told him to leave her alone and

      stop calling. Id. On April 6, Johnson called and said he wanted to come to her

      apartment and talk to her. Lee told him that she did not want him to come

      over. According to Lee, “he was crying and acting upset a lot”. Id. at 13.

      Against Lee’s expressed wishes, however, Johnson appeared at her apartment

      door at approximately 8 or 9 o’clock that evening. Lee answered the door, but

      would not let Johnson enter her apartment. Johnson “kept saying he wanted to

      talk to [Lee] and explain how he felt and wanted to explain the life he could

      provide for [her]”. Id. Johnson stood in the doorway and would not let Lee

      shut her door. She told him to leave “[a]t least a dozen times.” Id. at 16. She

      informed him that she would call the police if he did not leave. When she did

      so, however, “[h]e just kept crying and saying that he wanted to explain and he

      wanted to talk to [her].” Id. During the conversation, although Johnson would

      occasionally walk away from the door, he soon returned and stood in the

      threshold of the doorway such that Lee could not close it. Finally, Lee warned

      him that if he did not leave she would call 911. It was only when she started

      dialing the number that he left.


      Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015   Page 3 of 14
[5]   Lee called police and reported what had happened. She told police that she did

      not want Johnson there and that he would not leave. A short time later, police

      arrived and spoke with Lee. She asked the police to contact Johnson, a local

      attorney, and ask him not to come back. They did. Even after the police spoke

      with him, however, Johnson repeatedly attempted to contact Lee through

      phone calls and texts during the next couple of days. Lee received “[a]t least

      fifty plus text messages” during those few days. Id. at 19. Lee informed police

      about Johnson’s repeated attempts to contact her.

[6]   At 4 a.m. or 5 a.m. on April 9, Lee walked her boyfriend to the door as he was

      leaving. When she opened the door to her apartment, she found a note in a

      manila envelope. Substantively, the note was “identical” to a text or texts she

      had received earlier from Johnson.2 Lee called police again and an officer




      2
          The typed, unsigned note stated:
               It’s just me. If you don’t want me just let me know personally. I will leave
               you alone. everything [sic] I have said is true and real. if [sic] what I have to
               offer a woman, that, being you, is not what you want then I’m fine with that.
               You’re everything I have ever wanted and I love you. Take it or leave it. I
               will treat you like the queen that you are. I understand that if you are in love
               with that other guy and that is really what you want then go get it. I have
               laid down everything before you. You will either accept it or reject it. I will
               continue to move on with or without you. I just wanted you to know how I
               felt and what I can provide. If you don’t want that, you are not what I
               thought you were and you used me. So there is. My last stab at it. Take it
               or leave it. I can assure you that there will be much happiness and love in
               the future. We can figure it all out as we go. I just have to know if your [sic]
               willing to at least talk to me so that you can hear it from my lips and mouth.
               If it is rejection then I want to hear it out of your mouth. As I write this I am
               spent. I have done all I can do to try to make myself happy. I just thought
               you might be the one that I could spend the rest of my life with. That’s all I

      Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                    Page 4 of 14
      responded and spoke with her at her apartment. As a result of that

      conversation, a police officer once again spoke with Johnson and asked him to

      stop contacting Lee.


[7]   At about 3:30 p.m. that day, Lee was standing on the balcony of her third-floor

      apartment watching for her kids to arrive home on the school bus. She saw the

      school bus driving into her parking lot, followed closely by Johnson’s car. Lee

      quickly went downstairs to meet her children and “rushed” them up and into

      the apartment “so that [she] could hurry up and shut the door before [Johnson]

      got up there.” Transcript at 24. She saw Johnson enter her apartment building

      and climb to the landing on her level. He said her first name, and she took a

      picture of him with her cell phone and began to dial her phone. He asked who

      she was calling and she told him to leave. She then shut her door and called the

      police. Johnson left the scene.

[8]   Johnson was charged under Counts I (based upon the April 6 incident) and II

      (based upon the April 9 incident) with criminal trespass, both as class A

      misdemeanors, and under Count III with making a false statement,3 as a class




              have to say. You know how to get ahold of me. Please let me know some
              how [sic]. I love you and always will.
      Exhibit Binder, State’s Exhibit 11.

      3
         The allegation supporting this charge was that Johnson answered "no" to the question whether he had
      been adjudicated mentally defective or ever been committed to a mental institution when filling out a form
      for purchasing a handgun, pursuant to Ind. Code Ann. § 35-47-2.5-3 (West, Westlaw current with all 2015
      First Regular Session of the 119th General Assembly legislation effective through June 28, 2015).

      Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                           Page 5 of 14
       D felony. Count III was dismissed upon Johnson’s motion prior to trial.

       Following a bench trial, Johnson was found guilty of Count I and not guilty of

       Count II.

                                                      1.
[9]    Johnson concedes that the criminal trespass statute, I.C. § 35-43-2-2, is

       constitutional on its face, but contends that it was unconstitutional as applied in

       his case. There is authority for the State’s argument that a challenge to the

       constitutionality of a criminal statute must be raised by a motion to dismiss

       prior to trial, and the failure to do so waives the issue on appeal. See Donaldson

       v. State, 904 N.E.2d 294 (Ind. Ct. App. 2009). Inasmuch as Johnson did not file

       a pretrial motion to dismiss on this basis, the State argues, the issue is waived.

       We note, however, that in some instances this court has considered such a

       challenge even where the defendant failed to file a pretrial motion to dismiss.

       See, e.g., Boyd v. State, 889 N.E.2d 321 (Ind. Ct. App. 2008); Vaughn v. State, 782

       N.E.2d 417 (Ind. Ct. App. 2003), trans. denied. We chose to do so here.


[10]   At the outset, we summarily reject Johnson’s contention that the trespass

       statute applies only for unwelcomed incursions onto real property, versus

       unwelcomed incursions onto leaseholds such as Lee’s apartment in the present

       case. See Walls v. State, 993 N.E.2d 262 (Ind. Ct. App. 2013), trans. denied.


[11]   Moving now to the second argument offered in support of Johnson’s challenge

       to the constitutionality of this statute, he contends the statute was applied under

       circumstances in which he “never entered [Lee’s] apartment, never crossed her


       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015       Page 6 of 14
       threshold or attempted to enter her apartment, and at all times remained in a

       common area open to the public [.]” Corrected Appellant’s Brief at 4. Johnson

       continues that because Lee had no possessory interest or control over the

       common areas of the apartment complex, the area where he was located at the

       time of this incident was not “the real property of another” within the meaning

       of I.C. § 35-43-2-2 and Lee did not have authority to order him from it.

[12]   The challenger to the validity of a statute must overcome a presumption that

       the statute is constitutional. Brown v. State, 868 N.E.2d 464 (Ind. 2007). That

       party bears the burden of proving otherwise. Id. A statute violates due process

       principles and is void for vagueness if it does not clearly define its prohibitions.

       Id.   Johnson contends his conviction violates this principle because the statute,

       as applied in his case, failed to “provide the kind of notice that will enable

       ordinary people to clearly understand what conduct is prohibited.” Corrected

       Appellant’s Brief at 7. A criminal statute may be deemed unconstitutionally

       vague if it (1) fails to provide notice enabling ordinary people to understand the

       conduct that it prohibits, or (2) if there exists the possibility that it authorizes or

       encourages arbitrary or discriminatory enforcement. Brown v. State, 868 N.E.2d

       464. In order to pass constitutional muster in this regard, the statutory language

       must convey a sufficiently definite warning with respect to the “proscribed

       conduct when measured by common understanding.” Id. at 467 (quoting

       Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985)). We note, however, that a

       statute may convey a sufficiently definite warning without listing specifically all

       of the items of prohibited conduct. Brown v. State, 868 N.E.2d 464.

       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015         Page 7 of 14
[13]   Johnson contends that he never committed the predicate act of entering the

       “real property” of Lee. He contends that under her lease, her premises included

       only “the portion of the apartment building located within the interior walls of

       the apartment.” Corrected Appellant’s Brief at 8. At most, he contends, he

       remained in the common areas of the apartment complex at all times, i.e.,

       “between the front door of the apartment building and the door to her

       apartment.” Id. at 10. The facts favorable to the conviction showed that

       Johnson traversed the area between the front door of the apartment building in

       which Lee’s apartment was located and walked up the stairs and across the

       landing on her floor and stood in the threshold of the door to her apartment.

       Could all of these areas be fairly characterized as Lee’s real property within the

       meaning of I.C. § 35-43-2-2(a)(1)?

[14]   In Walls v. State, 993 N.E.2d 262, the defendant was convicted of, among other

       things, criminal trespass. In that case, the intoxicated defendant was in the

       common area of an apartment building and believed that he knew people there.

       It turned out, however, that he was mistaken in this belief. He lay in front of

       the door to one apartment and started kicking on the door with his feet. The

       woman inside woke up and went to the door. When she opened it, she saw the

       defendant sleeping in the hallway. She attempted to awaken the defendant,

       asked him to leave, and then shut her door. Rather than leave, the defendant

       knocked on the woman’s door and asked to come in and spend the night.

       When he was refused entry, the defendant began banging on the door and

       yelling. The victim asked him to leave several times and finally threatened to


       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015    Page 8 of 14
       call the police if he did not leave. At about this time, two female roommates in

       a nearby apartment were awakened by the disturbance and opened their door to

       see what was happening. The defendant began walking toward their door, told

       them he was drunk, and asked if he could come in. When one of the women

       refused, the defendant tried to kiss her hand and grabbed her neck. He

       attempted to enter the apartment and placed his foot across the threshold of the

       apartment. The victim and her roommate finally managed to push him out of

       the apartment and shut the door. Police responded and eventually subdued the

       defendant.


[15]   The defendant was convicted of, among other things, criminal trespass with

       respect to the incident. In challenging the conviction, the defendant argued that

       only the owner of the apartment complex or its agent, and not any tenant, could

       ask him to leave common areas of the apartment complex. Upon appeal, we

       addressed the question “whether [the women tenants] had a sufficient interest

       in their leased apartment units to support their requests for [defendant] to leave

       the areas immediately outside their doors.” Id. at 267. We observed that

       defendant “was not merely present in the common areas” of the apartment

       complex. Id. Rather, he “also was positioned immediately outside the doors

       giving access to the leased apartment units, persistently banging on the doors to

       the units, and in [the roommates’] case, had his foot through the threshold of

       the door.” Id. In rejecting the defendant’s challenge, the court held:

               Under the circumstances of this case, the tenants, while not in
               exclusive control of the common areas, had a sufficient possessory
               interest in, at a minimum, their apartment doors, the threshold of their

       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015          Page 9 of 14
               apartments, and the immediate adjacent areas by which they accessed
               their leased apartment units, to request that a person leave that specific
               area and stop persistently banging on their doors. A rigid rule, applied
               without exception, that a tenant does not have a sufficient possessory
               interest in such property would defy logic and lead to an absurd result.
[16]   Id. at 267.


[17]   In the present case, Johnson was convicted of trespass in connection with the

       April 6 incident. After an emotional phone call, and against Lee’s expressed

       wishes, Johnson traveled to Lee’s apartment and said he wanted to talk to her.

       Lee answered the door, but would not let Johnson enter her apartment. While

       Johnson made an emotional appeal to talk to Lee about their relationship, Lee

       repeatedly told him to leave. In fact, she told Johnson to leave “[a]t least a

       dozen times”, Transcript at 16, but he refused to do so. During the encounter,

       Johnson stood in the threshold of the doorway such that Lee could not shut her

       door. Johnson finally left only after Lee began dialing 911. Lee had a sufficient

       possessory interest in her apartment door, the threshold to the door, and

       common area immediately adjacent to her door such as to possess authority to

       request that Johnson leave those areas and stop harassing her. Under these

       circumstances, a person of ordinary intelligence would have no difficulty

       determining that Lee’s behavior was prohibited by the I.C. § 35-43-2-2. See

       Walls v. State, 993 N.E.2d 262. Accordingly, Johnson’s claim that the statute is

       unconstitutionally vague as applied to him fails.

                                                      2.
[18]   Ind. Code Ann. § 35-41-3-7 provides: “It is a defense that the person who

       engaged in the prohibited conduct was reasonably mistaken about a matter of

       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015           Page 10 of 14
       fact, if the mistake negates the culpability required for commission of the

       offense.” (West, Westlaw current with all 2015 First Regular Session of the

       119th General Assembly legislation effective through June 28, 2015). Johnson

       asserted that he reasonably believed he had a right to be in the area near Lee’s

       apartment from which Lee ordered him to leave, and concomitantly that she

       did not have authority to order him off of that property. He contends that this

       belief negated the requisite mens rea element of the trespass offense, thus

       establishing the “mistake of fact” defense. He claims the trial court erred in

       concluding otherwise.


[19]   In order to establish a mistake-of-fact defense, the defendant must prove the

       following three elements: (1) The mistake was honest and reasonable; (2) the

       mistake concerned a matter of fact; and (3) the mistake negated the culpability

       required to commit the crime. Chavers v. State, 991 N.E.2d 148 (Ind. Ct. App.

       2013), trans. denied. After the State has made a prima facie case of guilt, the

       defendant bears the burden of establishing an evidentiary predicate of his

       claimed mistaken belief of fact. Id. Nevertheless, the State retains the ultimate

       burden of proving beyond a reasonable doubt every element of the charged

       crime, including culpability or intent. The State may meet this burden with

       respect to the mistake-of-fact defense in several ways, including (1) directly

       rebutting the defendant’s evidence, (2) affirmatively showing that the defendant

       made no such mistake, or (3) relying upon evidence from its case-in-chief. Id.


[20]   Upon appeal, Johnson’s mistake-of-fact argument is reflected in the following:



       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015    Page 11 of 14
               Mr. Johnson explained in his testimony that he did not believe that he
               entered or was on or within the real property of Ms. Lee, at any time,
               and that he believed that he was in a common area which was not real
               property of Ms. Lee. If the fact is that Ms. Lee’s “real property”, as
               such term is used in the Trespass Statute, could constitutionally
               include some undefined area outside her door, Mr. Johnson was
               mistaken in regard to such fact. His belief was reasonable and was in
               good faith. How would Mr. Johnson or for that matter, how would
               anyone know the location of, boundary of or the scope of such an
               undefined “possessory area”? …
               Mr. Johnson was in a common area of the apartment building where
               Ms. Lee’s apartment was located. As such, there was nothing which
               would have caused him to believe that Ms. Lee had some “possessory
               interest” in the common area, which gave her authority to demand
               that Mr. Johnson leave. Believing reasonably that he was lawfully in
               the common area as a public invitee, he knew that he was not
               trespassing on Ms. Lee’s real property, after she asked him to leave the
               area outside her door.
       Corrected Appellant’s Brief at 11-12.


[21]   In order to succeed in this argument, Johnson must first establish the factual

       predicate upon which it is premised, i.e., that he was in a “common area” of the

       apartment complex at all times. Lee testified that after Johnson knocked on her

       door, she answered but did not let him in. She asked at least a dozen times that

       Johnson leave. According to Lee, Johnson did not merely stand near her door

       in the hallway, he stood in the doorway such that she could not close the door.

       As Lee described it, “He was right in the threshold.” Transcript at 17. If

       believed, Lee’s testimony reflects that Johnson did not remain in the common

       area of the apartment complex at all times, but rather entered into the area of

       Lee’s leasehold when his physical location prevented Lee from closing her door

       and securing herself inside her apartment. Of course, Johnson’s testimony and

       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015         Page 12 of 14
       Lee’s testimony differed markedly on this point. The trial court noted as much

       in stating, “Mr. Johnson says basically today that that didn’t happen that way

       because the door wasn’t even opened and he never stood in the doorway and he

       never prevented her from closing the door.” Id. at 77. The trial court weighed

       the conflicting testimonies and concluded, “If I have to decide between … Miss

       Lee and Mr. Johnson, it’s going to be Miss Lee.” Id. at 78.


[22]   In resolving this issue, we need not determine the full extent of the physical

       boundaries of Lee’s authority to order Johnson from common areas of the

       apartment complex, i.e., areas located adjacent to but outside her apartment

       unit. This is because, as set out above, the trial court found that Johnson went

       beyond the common areas of Lee’s apartment building and stood in the

       threshold of the doorway to her apartment such that she could not close the

       door. See Walls v. State, 993 N.E.2d 262. Upon this set of facts, which is the

       one we must accept, Johnson’s belief that he had a right to stand in the

       doorway to Lee’s apartment such that she was prevented from closing it, and

       that she lacked authority to order him to leave that location was not reasonable.

       The trial court did not err in rejecting Johnson’s mistake-of-fact defense.

                                                      3.
[23]   Johnson contends the evidence was not sufficient to sustain his conviction.

       This issue is premised upon Johnson’s claim that he did not cross Lee’s

       threshold such that she was prevented from closing her door, and indeed that

       “[s]he clearly could have shut the door at any time.” Corrected Appellant’s Brief

       at 16. The factual predicate for this claim is clearly at odds with the trial court’s

       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015     Page 13 of 14
       finding that Johnson stood in Lee’s doorway such that she could not close it. It

       is of no significance that during the encounter he occasionally left the doorway

       and paced back and forth in the common area outside of her apartment. It is

       enough that Lee asked him “at least a dozen times” to leave and that there were

       times that he stood in the doorway such that Lee was prevented from shutting

       her door. Transcript at 16.


[24]   When reviewing a challenge to the sufficiency of the evidence, we consider only

       the evidence supporting the judgment, together with any reasonable inferences

       that can be drawn from such evidence, and we may not reweigh evidence nor

       judge witness credibility. Thang v. State, 10 N.E.3d 1256 (Ind. 2014). In order

       to reverse Johnson’s conviction on these grounds, we would be required to

       ignore these constraints upon our review. We cannot and will not do this.

       Considering the evidence favorable to the conviction and in deference to the

       trial court’s assessment of the credibility of Lee’s and Johnson’s testimonies, we

       conclude that the evidence was sufficient to support the conviction.


[25]   We affirm.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015   Page 14 of 14
