MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 09/06/2017, 9:57 am this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Timothy J. Burns Attorney General of Indiana Marion County Public Defender Appellate Division Christina D. Pace Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven Cunningham, September 6, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-419 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Rebekah Pierson- Appellee-Plaintiff Treacy, Judge The Honorable Steven Rubick, Magistrate Trial Court Cause No. 49G19-1609-CM-35137
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 1 of 8 [1] Steven Cunningham challenges the sufficiency of evidence supporting his
convictions for Class A misdemeanor trespass 1 and Class B misdemeanor public
intoxication. 2 We affirm.
Facts and Procedural History [2] Doskieanna Howard lived with her fiancé, Daniel Gary, and knew
Cunningham because “he comes on [their] street and walks and bother [sic]
people on [their] street all the time.” (Tr. at 6.) On September 3, 2016,
Cunningham came into Howard and Gary’s yard calling Howard’s name.
[3] Gary was in the driveway talking to a friend, Lyle Rogers. Howard and
Cunningham began to argue. Howard, Gary, and Rogers believed
Cunningham to be intoxicated. Cunningham had a vodka bottle in his back
pocket. Gary thought Cunningham was intoxicated “[b]ecause of the way that
he was talking.” (Id. at 24.) Rogers believed Cunningham was intoxicated
because he “was rantin’ [sic] and ravin’ [sic] [and] was going off.” (Id. at 18.)
[4] Cunningham threw a “little rock” at Howard and she threw it back at him. (Id.
at 11.) Cunningham threatened to throw a rock through Howard and Gary’s
house window. At that point, Gary told him to leave the property. Gary told
Cunningham “to leave out of [sic] the yard a couple of times.” (Id. at 8.)
1 Ind. Code § 35-43-2-2 (2016). 2 Ind. Code § 7.1-5-1-3 (2012).
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 2 of 8 Howard told Cunningham to leave “a bunch” of times. (Id.) Cunningham did
not immediately leave.
[5] Indianapolis Metropolitan Police Department Officer Ivan Ivanov was
dispatched to the residence “on disturbance for some trespassing.” (Id. at 29.)
He talked with Howard who identified Cunningham as the man walking “[i]n
the middle of Eastern Avenue . . . zig zagging.” (Id.) When Officer Ivanov
approached Cunningham he noticed the “the odor of alcoholic beverage [and
that] his eyes were glassy and bloodshot.” (Id. at 30.) Cunningham started
yelling profanities at Officer Ivanov. Officer Ivanov detained Cunningham.
[6] The State charged Cunningham with Class A misdemeanor trespass and Class
B misdemeanor public intoxication. Cunningham was convicted of both
charges following a bench trial. The trial court sentenced him to two
concurrent fourteen-day sentences in the Marion County Jail.
Discussion and Decision [7] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 3 of 8 is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
Trespass
[8] The definition of criminal trespass provides, in pertinent part, “[a] person who .
. . not having a contractual interest in the property, knowingly or intentionally
refuses to leave the real property of another person after having been asked to
leave by the other person or that person’s agent . . . commits criminal trespass.”
Ind. Code § 35-43-2-2(b)(2) (2016). The charging information stated
Cunningham “not having a contractual interest in the property, did knowingly
or intentionally refuse to leave the real property of another person, to-wit:
Doskieanna Howard, after having been asked to leave by Doskieanna Howard
or Her agent.” (App. Vol. II at 15.)
[9] Cunningham asserts he “could not be found guilty of criminal trespass,” (Br. of
Appellant at 9), because the charging information was incorrect. Cunningham
notes the charging information stated the real property belonged to Howard,
when it was, in fact, owned by Gary. However, Cunningham has failed to cite
any authority to suggest, much less demonstrate, that a person had to own the
real property at issue in order to in order for the property to be “the real
property of” that person as required for criminal trespass. See Ind. Code § 35-
43-2-2(b) (2016). When an appellant fails to cite authority in support of an Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 4 of 8 argument, such argument can be waived for appellate review. See Pierce v. State,
29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to support his
arguments with appropriate citations to legal authority and record evidence
waives those arguments for our review.”).
[10] Waiver notwithstanding, a person need not hold title to real property in order to
have the right to exclude others for purposes of the criminal trespass statute.
For example, a tenant has a “possessory interest in a rental unit for the purpose
of supporting a criminal trespass action.” Walls v. State, 993 N.E.2d 262, 267
(Ind. Ct. App. 2013), trans. denied. Similarly, apartment residents have
sufficient possessory interest in the common areas outside their apartments “to
possess authority to request [a defendant] leave.” Johnson v. State, 38 N.E.3d
686, 691 (Ind. Ct. App. 2015).
[11] Howard testified she had lived in Gary’s home for years. Gary stated Howard,
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), 09/06/2017, 9:57 am this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Timothy J. Burns Attorney General of Indiana Marion County Public Defender Appellate Division Christina D. Pace Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Steven Cunningham, September 6, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-419 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Rebekah Pierson- Appellee-Plaintiff Treacy, Judge The Honorable Steven Rubick, Magistrate Trial Court Cause No. 49G19-1609-CM-35137
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 1 of 8 [1] Steven Cunningham challenges the sufficiency of evidence supporting his
convictions for Class A misdemeanor trespass 1 and Class B misdemeanor public
intoxication. 2 We affirm.
Facts and Procedural History [2] Doskieanna Howard lived with her fiancé, Daniel Gary, and knew
Cunningham because “he comes on [their] street and walks and bother [sic]
people on [their] street all the time.” (Tr. at 6.) On September 3, 2016,
Cunningham came into Howard and Gary’s yard calling Howard’s name.
[3] Gary was in the driveway talking to a friend, Lyle Rogers. Howard and
Cunningham began to argue. Howard, Gary, and Rogers believed
Cunningham to be intoxicated. Cunningham had a vodka bottle in his back
pocket. Gary thought Cunningham was intoxicated “[b]ecause of the way that
he was talking.” (Id. at 24.) Rogers believed Cunningham was intoxicated
because he “was rantin’ [sic] and ravin’ [sic] [and] was going off.” (Id. at 18.)
[4] Cunningham threw a “little rock” at Howard and she threw it back at him. (Id.
at 11.) Cunningham threatened to throw a rock through Howard and Gary’s
house window. At that point, Gary told him to leave the property. Gary told
Cunningham “to leave out of [sic] the yard a couple of times.” (Id. at 8.)
1 Ind. Code § 35-43-2-2 (2016). 2 Ind. Code § 7.1-5-1-3 (2012).
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 2 of 8 Howard told Cunningham to leave “a bunch” of times. (Id.) Cunningham did
not immediately leave.
[5] Indianapolis Metropolitan Police Department Officer Ivan Ivanov was
dispatched to the residence “on disturbance for some trespassing.” (Id. at 29.)
He talked with Howard who identified Cunningham as the man walking “[i]n
the middle of Eastern Avenue . . . zig zagging.” (Id.) When Officer Ivanov
approached Cunningham he noticed the “the odor of alcoholic beverage [and
that] his eyes were glassy and bloodshot.” (Id. at 30.) Cunningham started
yelling profanities at Officer Ivanov. Officer Ivanov detained Cunningham.
[6] The State charged Cunningham with Class A misdemeanor trespass and Class
B misdemeanor public intoxication. Cunningham was convicted of both
charges following a bench trial. The trial court sentenced him to two
concurrent fourteen-day sentences in the Marion County Jail.
Discussion and Decision [7] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 3 of 8 is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
Trespass
[8] The definition of criminal trespass provides, in pertinent part, “[a] person who .
. . not having a contractual interest in the property, knowingly or intentionally
refuses to leave the real property of another person after having been asked to
leave by the other person or that person’s agent . . . commits criminal trespass.”
Ind. Code § 35-43-2-2(b)(2) (2016). The charging information stated
Cunningham “not having a contractual interest in the property, did knowingly
or intentionally refuse to leave the real property of another person, to-wit:
Doskieanna Howard, after having been asked to leave by Doskieanna Howard
or Her agent.” (App. Vol. II at 15.)
[9] Cunningham asserts he “could not be found guilty of criminal trespass,” (Br. of
Appellant at 9), because the charging information was incorrect. Cunningham
notes the charging information stated the real property belonged to Howard,
when it was, in fact, owned by Gary. However, Cunningham has failed to cite
any authority to suggest, much less demonstrate, that a person had to own the
real property at issue in order to in order for the property to be “the real
property of” that person as required for criminal trespass. See Ind. Code § 35-
43-2-2(b) (2016). When an appellant fails to cite authority in support of an Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 4 of 8 argument, such argument can be waived for appellate review. See Pierce v. State,
29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to support his
arguments with appropriate citations to legal authority and record evidence
waives those arguments for our review.”).
[10] Waiver notwithstanding, a person need not hold title to real property in order to
have the right to exclude others for purposes of the criminal trespass statute.
For example, a tenant has a “possessory interest in a rental unit for the purpose
of supporting a criminal trespass action.” Walls v. State, 993 N.E.2d 262, 267
(Ind. Ct. App. 2013), trans. denied. Similarly, apartment residents have
sufficient possessory interest in the common areas outside their apartments “to
possess authority to request [a defendant] leave.” Johnson v. State, 38 N.E.3d
686, 691 (Ind. Ct. App. 2015).
[11] Howard testified she had lived in Gary’s home for years. Gary stated Howard,
who is his fiancé, had lived with him for “five or six years [and] has the right to
ask people to leave.” (Tr. at 24.) In Walls, we noted that a “rigid rule, applied
without exception, that a tenant does not have a sufficient possessory interest in
[common areas by which to access the leased apartment] would defy logic and
lead to an absurd result.” 993 N.E.2d at 267. We believe the same reasoning
applies here. To hold that Howard, who had lived in her fiancé’s house for five
or six years, had no authority to deny access to a person who had no
contractual interest in the property would defy logic and lead to an absurd
result. We therefore hold Howard had a possessory interest in the property
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 5 of 8 sufficient to exclude Cunningham for the purposes of the criminal trespass
statute.
[12] Howard told Cunningham to leave “a bunch” of times. (Tr. at 8.) Rogers
heard Howard tell Cunningham to leave, but Cunningham did not do so.
Thus, the State presented sufficient evidence to support the charge of
trespassing as Cunningham did not have a contractual interest in the property,
Howard had sufficient possessory interest, Howard requested Cunningham
leave the premises, and Cunningham did not do so. See, e.g., Olsen v. State, 663
N.E.2d 1194, 1196 (Ind. Ct. App. 1996) (evidence sufficient to support
conviction of criminal trespass where defendant failed to leave after being
repeatedly asked to leave).
Public Intoxication
[13] The statute defining public intoxication provides “it is a Class B misdemeanor
for a person to be in a public place or a place of public resort in a state of
intoxication caused by the person’s use of alcohol or a controlled substance . . .
if the person. . . harasses, annoys, or alarms another person.” Ind. Code § 7.1-
5-1-3(a)(4) (2012). The charging information stated Cunningham “was found at
. . . a public place or a place of public resort, in a state of intoxication caused by
the person’s use of alcohol or a controlled substance and . . . was harassing,
annoying or alarming Doskieanna Howar [sic].” (App. Vol. II at 15.) Thus, to
prove Cunningham committed this offense, the State had to prove not only that
Cunningham was in a state of intoxication but also that he was harassing,
annoying, or alarming Howard. Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 6 of 8 [14] Cunningham concedes he was intoxicated in public. But Cunningham denies
Howard “was harassed, annoyed or alarmed by [Cunningham’s] intoxication”
because the parties “had constant on-going arguments with each other . . . and
they freely engaged in verbal arguments in the yard.” (Appellant’s Br. at 10.)
[15] Cunningham correctly notes our Indiana Supreme Court has held the
determination of whether a defendant’s behavior was annoying must be based
on whether the behavior “would annoy the reasonable person.” Morgan v. State,
22 N.E.3d 570, 577 (Ind. 2014) (emphasis added). The Court so held because
“a subjective application of the term ‘annoys’ would lead to absurd results and
exceedingly broad discretion in enforcement.” 3 Id. at 576. Thus, for example,
if other people in the area are “trying to back away” as the defendant “yell[s] . .
. and walk[s] in an aggressive manner,” that would lead to an inference that the
reasonable person would be disturbed by the defendant’s behavior. Naas v.
State, 993 N.E.2d 1151, 1153 (Ind. Ct. App. 2013).
[16] Cunningham came to Howard’s residence “rantin’ [sic] and ravin’ [sic] [and]
was going off.” (Tr. at 18.) He threw a rock at Howard. He threatened to
throw a rock through the window of the house. That evidence was sufficient
for the jury to find a reasonable person would have found Cunningham’s
3 Because the standard is based on a reasonable person, we need not consider Cunningham’s assertions about Howard’s “mental condition.” (Br. of Appellant at 10.) Nor did she have any responsibility to “de- escalat[e] the situation.” (Id.) See, e.g., Brown v. State, 12 N.E.3d 952, 955 (Ind. Ct. App. 2014) (evidence sufficient that defendant harassed, annoyed, or alarmed a woman when woman “started going berserk” when intoxicated defendant ran into her), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 7 of 8 behavior harassing, annoying, and/or alarming. Thus, the State sufficiently
proved the charge.
Conclusion [17] The State presented sufficient evidence to prove the charges. Accordingly, we
affirm.
[18] Affirmed.
Barnes, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-419 | September 6, 2017 Page 8 of 8