                                                                                 FILED
                                                                            Mar 24 2016, 9:52 am

                                                                                 CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brian J. Johnson                                          Gregory F. Zoeller
      Danville, Indiana                                         Attorney General of Indiana

                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jennifer L. Frink,                                        March 24, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                73A05-1507-CR-761
              v.                                                Appeal from the Shelby Superior
                                                                Court
      State of Indiana,                                         The Honorable David N. Riggins,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                73D02-1411-F6-139



      Crone, Judge.


                                              Case Summary
[1]   In spring 2014, the Shelbyville Central School Corporation (the “School

      Corporation”) terminated the employment of Jennifer Frink after an eighteen-

      year-old male student alleged that he and Frink, a secretary at Shelbyville High

      Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016                      Page 1 of 11
      School, were having an inappropriate sexual relationship. In addition to

      terminating Frink’s employment, the School Corporation instructed the

      Shelbyville Police Department to issue a criminal trespass warning to Frink

      advising her that she was prohibited from coming onto all School Corporation

      property. In fall 2014, Frink entered onto the property of Coulston Elementary

      School, part of the School Corporation, and the State subsequently charged her

      with level 6 felony criminal trespass.


[2]   Frink filed a motion to dismiss the charge pursuant to Indiana Code Section 35-

      34-1-4(a)(5). Specifically, Frink alleged that she cannot be guilty of criminal

      trespass because she had a contractual interest in School Corporation property

      by virtue of her status as a parent of children living within the school system.

      She also claimed that the School Corporation’s no-trespass warning violated her

      substantive and procedural due process rights. Following a hearing, the trial

      court denied the motion. The trial court certified its order at Frink’s request,

      and we accepted jurisdiction of this interlocutory appeal. The sole issue

      presented for our review is whether the trial court abused its discretion in

      denying the motion to dismiss. Finding that the State alleged sufficient facts to

      disprove that Frink had a contractual interest in School Corporation property

      and that her substantive and procedural due process claims are not proper issues

      for the motion to dismiss, we affirm.


                                  Facts and Procedural History
[3]   In January 2013, Frink became employed by the School Corporation as a

      secretary in the athletic office at Shelbyville High School (the “High School”).
      Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 2 of 11
      In early May 2014, a teacher at the High School overheard students discussing

      the “sexual, inappropriate relationship” that was going on between Frink and

      an eighteen-year-old male student. Tr. at 20. The teacher reported what she

      overheard to the High School principal, Kathleen Miltz. Miltz directed

      assistant principal Andy Hensley to speak with the male student.


[4]   The student disclosed to Hensley that he and Frink had sexual intercourse on

      multiple occasions during school hours, both on and off school property. The

      student stated that on some occasions, Frink had removed him from school

      property in her vehicle during school in order to have intercourse. Hensley

      notified Miltz, the student’s parents, and the High School resource officer,

      Shelbyville Police Sergeant Bart Smith, about what he had learned. Miltz

      notified the Department of Child Services as well as the superintendent of the

      School Corporation. After conferring with the superintendent, Miltz decided

      that the correct course of action would be to immediately terminate Frink’s

      employment and to give her a no-trespass warning.


[5]   Miltz and Sergeant Smith met with Frink. Miltz informed Frink about the

      student’s allegations. Frink “didn’t try to defend herself” but simply said, “Not

      very good.” Id. at 22. Miltz terminated Frink’s employment. Also, at Miltz’s

      direction, Sergeant Smith advised Frink that she was not to come onto the

      property of the School Corporation, and he gave her a document entitled

      “Criminal Trespass Warning.” Appellant’s App. at 43. The document cites

      Indiana Code Section 35-43-2-2 and explains the elements of the offense of



      Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 3 of 11
      criminal trespass. Frink acknowledged her understanding that she was not to

      be on any School Corporation property.


[6]   Approximately one week later, on May 18, 2014, Miltz contacted Officer

      Edward Hadley of Shelbyville Police Department to report that Frink had been

      on School Corporation property despite the no-trespass warning. Officer

      Hadley subsequently went to Frink’s residence to speak with her and to again

      advise her of the no-trespass warning. Frink stated that she understood that she

      was not to come onto any School Corporation property.


[7]   Thereafter, on Friday, November 14, 2014, Frink went to Coulston Elementary

      School, a school within the School Corporation. She completed forms to

      transfer her children from their prior school to Coulston. At the time of Frink’s

      visit, staff at Coulston were not aware of the no-trespass warning. Coulston

      staff later learned of the no-trespass warning when they requested the children’s

      records from the prior school. Accordingly, Coulston staff notified the

      Shelbyville Police Department. Officer Hadley was dispatched to the scene and

      made a report of Frink’s prohibited visit. Coulston staff informed police that

      Frink would likely return the following Monday to meet the teachers. Frink

      and her husband indeed returned to Coulston the following Monday to meet

      the children’s teachers. Frink talked, drank coffee, and remained at the school

      for approximately ten minutes. Coulston staff again notified the Shelbyville

      Police Department. Officer Hadley responded to the scene, but Frink left

      before he arrived.



      Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 4 of 11
[8]   The State charged Frink with one count of level 6 felony criminal trespass based

      on her entry onto the Coulston Elementary School property on November 14,

      2104. Frink filed a motion to dismiss the information pursuant to Indiana Code

      Section 35-34-1-4(a). Following a hearing, the trial court denied the motion to

      dismiss. At Frink’s request, the trial court certified its order for interlocutory

      appeal. We accepted jurisdiction, and this interlocutory appeal ensued.


                                      Discussion and Decision

                                          Standard of Review
[9]   Frink filed her motion to dismiss pursuant to Indiana Code Section 35-34-1-

      4(a)(5), which provides that “[t]he court may, upon motion of the defendant,

      dismiss the indictment or information” upon the grounds that “[t]he facts stated

      do not constitute an offense.” We review a trial court’s denial of a motion to

      dismiss for an abuse of discretion, and we reverse only where the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances.

      Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App. 2011), trans. denied.

      Generally, when a defendant files a motion to dismiss an information, the facts

      alleged in the information are to be taken as true. Lebo v. State, 977 N.E.2d

      1031, 1035 (Ind. Ct. App. 2012). “Questions of fact to be decided at trial or

      facts constituting a defense are not properly raised by a motion to dismiss.”

      Delagrange, 951 N.E.2d at 594-95. A trial court considering a motion to dismiss

      need not rely entirely on the text of the charging information but can hear and

      consider evidence in determining whether a defendant can be charged with the

      crime alleged. State v. Fettig, 884 N.E.2d 341, 343 (Ind. Ct. App. 2008).

      Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016    Page 5 of 11
           Section 1 – The State alleged sufficient facts to disprove that
              Frink had a contractual interest in School Corporation
                                     property.
[10]   The State charged Frink with criminal trespass pursuant to Indiana Code

       Section 35-43-2-2(b)(1), which provides that a person who “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 class A misdemeanor criminal trespass. The

       offense becomes a level 6 felony if committed on school property. Ind. Code §

       35-43-2-2(b).


[11]   Frink claims that the facts stated here do not constitute the offense of criminal

       trespass because the State did not allege sufficient facts to disprove that she had

       a contractual interest in the Coulston Elementary School property. Specifically,

       she argues that she had a contractual interest in that property “arising out of her

       status as a legal custodial parent of two children living in the Shelbyville School

       system” for whom “the Indiana Constitution guarantees a public education.” 1

       Appellant’s Br. at 10,12. We must disagree.




       1
        Article 8, Section 1 of the Indiana Constitution provides in relevant part that “it shall be the duty of the
       General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural
       improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition
       shall be without charge, and equally open to all.” In accordance with this “constitutional mandate,” our
       supreme court has “long recognized that ‘[t]he General Assembly of this state is under a constitutional
       imperative duty to provide by law for a general and uniform system of common schools.’” Hoagland v.
       Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 742 (Ind. 2015) (citation omitted).

       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016                         Page 6 of 11
[12]   Noting that the phrase “contractual interest in the property” is not defined by

       the criminal trespass statute or elsewhere in the Indiana Code, our supreme

       court has determined that “a contractual interest in the property” should be

       very narrowly defined as “a right, title, or legal share of real property arising out

       of a binding agreement between two or more parties.” Lyles v. State, 970 N.E.2d

       140, 143 n.2 (Ind. 2012). The lack of a contractual interest in the real property

       at issue is a material element of the offense that the State must prove beyond a

       reasonable doubt. Id. at 143 n.3. While the State here need only to have alleged

       facts constituting an offense in order to survive a motion to dismiss, we note

       that in order to prove the offense of criminal trespass beyond a reasonable

       doubt, “the State need not ‘disprove every conceivable contractual interest’ that

       a defendant might have obtained in the real property at issue.” Id. (citation

       omitted). Rather, the 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.


[13]   The facts presented by the State and taken as true indicate that Frink is a former

       employee of the School Corporation who knowingly or intentionally entered

       the real property of the School Corporation after having been specifically and

       repeatedly denied entry by an authorized agent of the School Corporation. The

       facts as alleged disprove that Frink had any right, title, or legal share of the

       Coulston Elementary School property arising out of a binding agreement

       between Frink and the School Corporation, and the lack of such contractual




       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016    Page 7 of 11
       interest is reasonably apparent from the context and circumstances under which

       the trespass is alleged to have occurred.


[14]   Frink’s assertion that her mere status as a parent of children within the School

       Corporation conferred upon her a contractual interest in the Coulston

       Elementary School property is made without citation to relevant authority and

       is unpersuasive. Indeed, Lyles instructs us to not think so broadly regarding

       what constitutes a contractual interest in real property. Moreover, even

       assuming Frink were correct in her assertion, we have held that the contractual

       interest of a student in being on school property, if there is any, is not absolute.

       See A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001), and Taylor v. State,

       836 N.E.2d 1024, 1027 (Ind. Ct. App. 2005), trans. denied (2006) (each case

       upholding a criminal trespass conviction/delinquency adjudication against a

       student while assuming, without deciding, that a student of a school has a

       limited contractual interest in being on school property).


[15]   In advocating for dismissal of the charge against her, Frink essentially asks that

       we declare, as a matter of law, that a parent of a student can never be charged

       with criminal trespass when the real property involved happens to be the

       student’s school because the status of being a parent of a child living within the

       school district confers a contractual interest in school property that the State

       cannot disprove. Neither our legislature nor our judiciary has limited the

       application of our criminal trespass statute in such a way, and we will not do so

       here. The State has alleged sufficient facts to disprove that Frink had a

       contractual interest in the Coulston Elementary School property.

       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 8 of 11
            Section 2 – Frink’s substantive and procedural due process
           claims against the School Corporation are not proper issues
                            for the motion to dismiss.
[16]   In moving to dismiss the criminal trespass charge, we observe that Frink does

       not challenge the constitutionality of our criminal trespass statute on its face or

       as applied, and she does not claim that the State’s prosecution of that charge,

       per se, would violate her constitutional rights. See State v. Davis, 898 N.E.2d

       281, 285 (Ind. 2008) (noting that “courts have the inherent authority to dismiss

       criminal charges where the prosecution of such charges would violate a

       defendant’s constitutional rights.”). Instead, Frink challenges on substantive

       and procedural due process grounds the lawfulness of the School Corporation’s

       act of denying her entry onto its property. 2 Specifically, she asserts that by

       denying her entry onto its property, the School Corporation is violating a

       constitutional liberty interest, namely her “ability to have reasonable and

       meaningful participation in the public education of her children.” 3 Appellant’s




       2
         In her motion to dismiss, Frink states that “[t]he issue is whether a public school corporation can
       permanently ban the parent of a child residing with[in] corporation boundaries from ever setting foot on
       school corporation property….” Appellant’s App. at 34.
       3
         Although we do not reach her constitutional claims, we note that the threshold issue with any due process
       claim under the Fourteenth Amendment is the existence of a fundamental right or liberty interest. See IHSAA
       v. Carlberg, 694 N.E.2d 222, 242 (Ind. 1997). Frink concedes that the United States Supreme Court has never
       recognized that parents have a fundamental right or liberty interest to have reasonable and meaningful
       participation in their child’s public education. What has been recognized is a parent’s right to make decisions
       concerning “the care, custody and control of their children,” which includes the right to “direct the education
       and upbringing” of their children. Troxel v Granville, 530 U.S. 57, 66 (2000) (citing Meyer v. Nebraska, 262
       U.S. 390, 399 (1923), and Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925)). This is a far cry from Frink’s
       unrecognized claimed right to the unfettered physical entry onto School Corporation property in order to
       participate in her children’s education.

       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016                             Page 9 of 11
       Br. at 14. She also argues that the School Corporation is violating her

       procedural due process rights because it has banned her from its property for an

       indefinite term without a hearing and an opportunity for her to be heard on the

       validity of the ban. These claims, however, are misplaced.


[17]   The lawfulness of the School Corporation’s act of denying Frink entry onto its

       property and the question of whether the School Corporation is constitutionally

       compelled to provide procedural safeguards regarding its decision to deny a

       parent entry onto its property are issues not properly before us on this motion to

       dismiss. To prove criminal trespass in Indiana, the State need not allege or

       prove that a person has been “lawfully” denied entry onto the property of

       another, as the lawfulness of the denial is not an element of the offense. The

       State need only allege facts sufficient to show that the defendant, not having a

       contractual interest in the property, knowingly or intentionally entered the real

       property of another person after having been denied entry by the other person

       or that person’s agent. Ind. Code § 35-43-2-2(b)(1). The State has clearly done

       so here. The School Corporation is not a party to this criminal case, and if

       Frink wishes to litigate the question of whether the School Corporation has

       violated her constitutional rights, she must do so in a civil action against the

       School Corporation.


[18]   In sum, the State alleged sufficient facts to show that Frink, not having a

       contractual interest in the property, knowingly or intentionally entered the real

       property of the School Corporation after having been denied entry by the

       School Corporation or the School Corporation’s agent. Accordingly, the trial

       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 10 of 11
       court did not abuse its discretion in denying Frink’s motion to dismiss the

       criminal trespass charge. The order of the trial court is affirmed.


[19]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 73A05-1507-CR-761 | March 24, 2016   Page 11 of 11
