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Curtis v. State

Court of Appeals of Indiana

August 22, 2016

Douglas M. Curtis, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Jeffrey Mendes, Pro Tem Judge Trial Court Cause No. 49G08-1506-CM-22260

          ATTORNEY FOR APPELLANT Barbara J. Simmons Oldenburg, Indiana.

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana.

          Barnes, Judge.

         Case Summary

         [1] Douglas Curtis appeals his conviction for Class A misdemeanor criminal trespass. We reverse.

         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 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 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 ...


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