Jessi Apollos v. State of Indiana , 59 N.E.3d 266 ( 2016 )

FILED
Aug 19 2016, 8:55 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jessi Apollos, August 19, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1601-CR-15
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff Trial Court Cause No.
49G08-1501-CM-618
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 1 of 6
[1] Jessi Apollos appeals her conviction for Criminal Trespass, 1 a class A
misdemeanor. Apollos argues that there is insufficient evidence supporting the
conviction. We agree, and reverse and remand with instructions to vacate the
conviction.
Facts
[2] In December 2014, Apollos was seeking to move into a new residence. After a
conversation with Apollos on social media, Andre Francois told Apollos that
he was seeking to rent out a room in his house. On December 5, 2014, Apollos
went to see Francois’s residence. He offered her a furnished bedroom in his
house in exchange for rent, and Apollos accepted. Francois did not draft a
written lease, and the parties never agreed upon a precise amount of rent that
would be owed by Apollos.
[3] Apollos moved in on December 14, 2014. Francois knew that Apollos was
leaving her former residence permanently. He had cleaned out a closet in his
own bedroom for her belongings. Apollos kept all of her belongings at the
house, had a key to the house, and received mail at the house. Apollos and
Francois became involved in a sexual relationship. Shortly after Apollos
moved in, her car was stolen and she lost her job. Francois indicated that he
might be willing to accept childcare services (he has a minor child who lives in
1
Ind. Code § 35-43-2-2.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 2 of 6
the home) in exchange for Apollos’s residency. She provided overnight
childcare on approximately ten occasions.
[4] On January 6, 2015, Apollos and Francois got into an argument. Francois
ultimately told Apollos that she could not live there anymore. He was angry
and packed up her belongings, telling her to leave the house about ten times.
Each time Apollos responded, “No, I live here.” Tr. p. 25. She called the
police and was frantic and sobbing, saying that her “boyfriend” was trying to
kick her out of their house and she had nowhere to go. State’s Ex. 2.
Indianapolis Police Officer Scott Emminger responded to the scene and found
Apollos “upset” and “loud,” and asked her to calm down. Tr. p. 57-58.
Apollos told Officer Emminger that she lived there, but as she had no written
lease to show him as proof, he asked her to leave. She declined the officer’s
offer to drive her to a homeless shelter. Ultimately, he arrested her for criminal
trespass.
[5] On January 6, 2015, the State charged Apollos with class A misdemeanor
criminal trespass. On March 27, 2015, the State added a charge of class B
misdemeanor disorderly conduct.2 On December 14, 2015, the jury found
Apollos guilty as charged. The same day, the trial court sentenced Apollos to
an aggregate term of 365 days, fully suspended to probation. Apollos now
appeals.
2
Apollos is not appealing the disorderly conduct conviction.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 3 of 6
Discussion and Decision
[6] Apollos argues that the evidence is insufficient to support her criminal trespass
conviction. When reviewing a claim of insufficient evidence, we will consider
only the evidence and reasonable inferences that support the conviction. Gray
v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the
evidence and inferences, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009). To convict Apollos of class A misdemeanor criminal trespass, the State
was required to prove beyond a reasonable doubt that she knowingly or
intentionally refused to leave Francois’s residence after Francois asked her to
leave, and that Apollos had no contractual interest in the property. I.C. § 35-
43-2-2(b)(2). Apollos argues that the State failed to establish that she had no
contractual interest in the property and that she acted with the requisite mens
rea.3
[7] The State need not disprove every conceivable contractual interest, but it must
disprove contractual interests reasonably apparent from the circumstances
under which the trespass allegedly occurred. Lyles v. State, 970 N.E.2d 140, 143
(Ind. 2012). A “contractual interest” is the right to be present on another’s
property, arising from an agreement between two parties that creates an
obligation to do or not do a particular thing. Semenick v. State, 977 N.E.2d 7, 10
3
Because we resolve this case in Apollos’s favor based on the element of lack of contractual interest, we need
not and will not consider her argument regarding mens rea.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 4 of 6
(Ind. Ct. App. 2012). A lease need not be in writing to be a binding agreement.
Barber v. Echo Lake Mobile Home Cmty., 759 N.E.2d 253, 255 (Ind. Ct. App.
2001).
[8] In this case, both Apollos and Francois understood that an agreement existed,
pursuant to which Apollos would live at Francois’s residence in exchange for
rent and/or childcare services for Francois’s daughter.4 Tr. p. 19-21, 23-24, 71-
72, 79, 82-83. The precise terms may not have been agreed upon, but both
parties understood that an agreement existed. Even if Apollos had breached
that agreement by failing to make a rent payment, the lease—and Apollos’s
contractual interest in the property—did not automatically terminate. Ind.
Code § 32-31-1-8(5) (providing that a lease does not terminate automatically for
failure to pay rent unless it contains an express term requiring the tenant to pay
rent in advance and the tenant fails to pay); I.C. § 32-31-1-6 (providing that a
landlord must give the tenant at least ten days’ notice before he can terminate
the lease for failure to pay rent).5 Therefore, her contractual interest in the
property still existed on the day she allegedly trespassed on that property.
[9] Because it is undisputed that Apollos and Francois both understood that they
had agreed that Apollos would live in Francois’ residence in exchange for
money and/or childcare services, we find that the evidence does not establish
4
Even the prosecutor understood that the parties had a “renter agreement.” Tr. p. 100.
5
In its brief, the State acknowledges that there was a “tenancy at sufferance,” appellee’s br. p. 14, meaning
that the lease did not terminate automatically even if Apollos had breached it. I.C. § 32-31-1-6.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 5 of 6
beyond a reasonable doubt that Apollos did not have a contractual interest in
the property. In other words, we find that the State failed to disprove
contractual interests reasonably apparent from the circumstances under which
the trespass allegedly occurred. Consequently, we reverse the criminal trespass
conviction for insufficient evidence.
[10] The judgment of the trial court is reversed and remanded with instructions to
vacate the criminal trespass conviction and adjust Apollos’s sentence
accordingly.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Opinion 49A04-1601-CR-15 | August 19, 2016 Page 6 of 6