from the Marion Superior Court Trial Court Cause No.
49G08-1501-CM-618 The Honorable Amy Jones, Judge.
Attorney for Appellant Suzy St. John Marion County Public
Defender Indianapolis, Indiana
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana Angela N. Sanchez Deputy Attorney General
Jessi Apollos appeals her conviction for Criminal Trespass,
class A misdemeanor. Apollos argues that there is
insufficient evidence supporting the conviction. We agree,
and reverse and remand with instructions to vacate the
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 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 the
home) in exchange for Apollos's residency. She provided
overnight childcare on approximately ten occasions.
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
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. 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.
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.
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 (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).
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. 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). Therefore, her contractual
interest in the property still existed on the day she
allegedly trespassed on that property.
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 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 ...