Joseph M. Johnson, III v. State of Indiana ( 2015 )


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  •                                                                   Jul 01 2015, 8:33 am
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Joseph M. Johnson, II                                      Gregory F. Zoeller
    Joseph M. Johnson, P.C.                                    Attorney General of Indiana
    Decatur, Indiana
    Angela N. Sanchez
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Joseph M. Johnson, III,                                    July 1, 2015
    Appellant-Defendant,                                       Court of Appeals Case No.
    01A02-1501-CR-25
    v.                                                 Appeal from the Adams Superior
    Court
    State of Indiana,                                          Case No. 01D01-1405-FD-51
    Appellee-Plaintiff
    The Honorable Max C. Ludy, Special
    Judge.
    Friedlander, Judge.
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                    Page 1 of 14
    [1]   Joseph M. Johnson III appeals his conviction of Criminal Trespass,1 a class A
    misdemeanor, presenting the following restated issues for review:
    1.       Is the criminal trespass statute unconstitutionally vague as
    applied in this case?
    2.       Did the court properly apply the “mistake of fact” defense?
    3.       Was the evidence sufficient to sustain the conviction?
    [2]   We affirm.
    [3]   The facts favorable to the conviction are that approximately five years before
    the events that culminated in this conviction, Johnson and Danielle Lee had an
    extramarital affair. The relationship ended abruptly but amicably after a few
    months. In early February 2014, Johnson and Lee bumped into each other and
    Johnson apologized to Lee for their prior relationship. Johnson had recently
    separated from his wife. In March of that year, Johnson began calling Lee. At
    first, Lee did not answer the phone. Eventually, however, when Johnson’s calls
    came late at night, she answered and told Johnson not to contact her. Johnson
    persisted and Lee eventually agreed to meet him for dinner. Johnson picked
    1
    Ind. Code Ann. § 35-43-2-2(2) (West, Westlaw current with all 2015 First Regular Sess. of the 119th
    General Assembly legislation effective through June 28, 2015).
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                          Page 2 of 14
    her up at her apartment and the two went to dinner. For the next month or so,
    they communicated frequently by text and phone calls.
    [4]   At some point around the beginning of April, however, Lee told Johnson that
    she did not want to see him or have a relationship with him. Johnson
    responded by “calling more and texting more.” Transcript at 12. Lee tried to
    ignore Johnson’s attempts at communication, but eventually “it just got too
    persistent” and she finally answered and again told him to leave her alone and
    stop calling. 
    Id. On April
    6, Johnson called and said he wanted to come to her
    apartment and talk to her. Lee told him that she did not want him to come
    over. According to Lee, “he was crying and acting upset a lot”. 
    Id. at 13.
    Against Lee’s expressed wishes, however, Johnson appeared at her apartment
    door at approximately 8 or 9 o’clock that evening. Lee answered the door, but
    would not let Johnson enter her apartment. Johnson “kept saying he wanted to
    talk to [Lee] and explain how he felt and wanted to explain the life he could
    provide for [her]”. 
    Id. Johnson stood
    in the doorway and would not let Lee
    shut her door. She told him to leave “[a]t least a dozen times.” 
    Id. at 16.
    She
    informed him that she would call the police if he did not leave. When she did
    so, however, “[h]e just kept crying and saying that he wanted to explain and he
    wanted to talk to [her].” 
    Id. During the
    conversation, although Johnson would
    occasionally walk away from the door, he soon returned and stood in the
    threshold of the doorway such that Lee could not close it. Finally, Lee warned
    him that if he did not leave she would call 911. It was only when she started
    dialing the number that he left.
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015   Page 3 of 14
    [5]   Lee called police and reported what had happened. She told police that she did
    not want Johnson there and that he would not leave. A short time later, police
    arrived and spoke with Lee. She asked the police to contact Johnson, a local
    attorney, and ask him not to come back. They did. Even after the police spoke
    with him, however, Johnson repeatedly attempted to contact Lee through
    phone calls and texts during the next couple of days. Lee received “[a]t least
    fifty plus text messages” during those few days. 
    Id. at 19.
    Lee informed police
    about Johnson’s repeated attempts to contact her.
    [6]   At 4 a.m. or 5 a.m. on April 9, Lee walked her boyfriend to the door as he was
    leaving. When she opened the door to her apartment, she found a note in a
    manila envelope. Substantively, the note was “identical” to a text or texts she
    had received earlier from Johnson.2 Lee called police again and an officer
    2
    The typed, unsigned note stated:
    It’s just me. If you don’t want me just let me know personally. I will leave
    you alone. everything [sic] I have said is true and real. if [sic] what I have to
    offer a woman, that, being you, is not what you want then I’m fine with that.
    You’re everything I have ever wanted and I love you. Take it or leave it. I
    will treat you like the queen that you are. I understand that if you are in love
    with that other guy and that is really what you want then go get it. I have
    laid down everything before you. You will either accept it or reject it. I will
    continue to move on with or without you. I just wanted you to know how I
    felt and what I can provide. If you don’t want that, you are not what I
    thought you were and you used me. So there is. My last stab at it. Take it
    or leave it. I can assure you that there will be much happiness and love in
    the future. We can figure it all out as we go. I just have to know if your [sic]
    willing to at least talk to me so that you can hear it from my lips and mouth.
    If it is rejection then I want to hear it out of your mouth. As I write this I am
    spent. I have done all I can do to try to make myself happy. I just thought
    you might be the one that I could spend the rest of my life with. That’s all I
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                    Page 4 of 14
    responded and spoke with her at her apartment. As a result of that
    conversation, a police officer once again spoke with Johnson and asked him to
    stop contacting Lee.
    [7]   At about 3:30 p.m. that day, Lee was standing on the balcony of her third-floor
    apartment watching for her kids to arrive home on the school bus. She saw the
    school bus driving into her parking lot, followed closely by Johnson’s car. Lee
    quickly went downstairs to meet her children and “rushed” them up and into
    the apartment “so that [she] could hurry up and shut the door before [Johnson]
    got up there.” Transcript at 24. She saw Johnson enter her apartment building
    and climb to the landing on her level. He said her first name, and she took a
    picture of him with her cell phone and began to dial her phone. He asked who
    she was calling and she told him to leave. She then shut her door and called the
    police. Johnson left the scene.
    [8]   Johnson was charged under Counts I (based upon the April 6 incident) and II
    (based upon the April 9 incident) with criminal trespass, both as class A
    misdemeanors, and under Count III with making a false statement,3 as a class
    have to say. You know how to get ahold of me. Please let me know some
    how [sic]. I love you and always will.
    Exhibit Binder, State’s Exhibit 11.
    3
    The allegation supporting this charge was that Johnson answered "no" to the question whether he had
    been adjudicated mentally defective or ever been committed to a mental institution when filling out a form
    for purchasing a handgun, pursuant to Ind. Code Ann. § 35-47-2.5-3 (West, Westlaw current with all 2015
    First Regular Session of the 119th General Assembly legislation effective through June 28, 2015).
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015                           Page 5 of 14
    D felony. Count III was dismissed upon Johnson’s motion prior to trial.
    Following a bench trial, Johnson was found guilty of Count I and not guilty of
    Count II.
    1.
    [9]    Johnson concedes that the criminal trespass statute, I.C. § 35-43-2-2, is
    constitutional on its face, but contends that it was unconstitutional as applied in
    his case. There is authority for the State’s argument that a challenge to the
    constitutionality of a criminal statute must be raised by a motion to dismiss
    prior to trial, and the failure to do so waives the issue on appeal. See Donaldson
    v. State, 
    904 N.E.2d 294
    (Ind. Ct. App. 2009). Inasmuch as Johnson did not file
    a pretrial motion to dismiss on this basis, the State argues, the issue is waived.
    We note, however, that in some instances this court has considered such a
    challenge even where the defendant failed to file a pretrial motion to dismiss.
    See, e.g., Boyd v. State, 
    889 N.E.2d 321
    (Ind. Ct. App. 2008); Vaughn v. State, 
    782 N.E.2d 417
    (Ind. Ct. App. 2003), trans. denied. We chose to do so here.
    [10]   At the outset, we summarily reject Johnson’s contention that the trespass
    statute applies only for unwelcomed incursions onto real property, versus
    unwelcomed incursions onto leaseholds such as Lee’s apartment in the present
    case. See Walls v. State, 
    993 N.E.2d 262
    (Ind. Ct. App. 2013), trans. denied.
    [11]   Moving now to the second argument offered in support of Johnson’s challenge
    to the constitutionality of this statute, he contends the statute was applied under
    circumstances in which he “never entered [Lee’s] apartment, never crossed her
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015       Page 6 of 14
    threshold or attempted to enter her apartment, and at all times remained in a
    common area open to the public [.]” Corrected Appellant’s Brief at 4. Johnson
    continues that because Lee had no possessory interest or control over the
    common areas of the apartment complex, the area where he was located at the
    time of this incident was not “the real property of another” within the meaning
    of I.C. § 35-43-2-2 and Lee did not have authority to order him from it.
    [12]   The challenger to the validity of a statute must overcome a presumption that
    the statute is constitutional. Brown v. State, 
    868 N.E.2d 464
    (Ind. 2007). That
    party bears the burden of proving otherwise. 
    Id. A statute
    violates due process
    principles and is void for vagueness if it does not clearly define its prohibitions.
    
    Id. Johnson contends
    his conviction violates this principle because the statute,
    as applied in his case, failed to “provide the kind of notice that will enable
    ordinary people to clearly understand what conduct is prohibited.” Corrected
    Appellant’s Brief at 7. A criminal statute may be deemed unconstitutionally
    vague if it (1) fails to provide notice enabling ordinary people to understand the
    conduct that it prohibits, or (2) if there exists the possibility that it authorizes or
    encourages arbitrary or discriminatory enforcement. Brown v. State, 
    868 N.E.2d 464
    . In order to pass constitutional muster in this regard, the statutory language
    must convey a sufficiently definite warning with respect to the “proscribed
    conduct when measured by common understanding.” 
    Id. at 467
    (quoting
    Rhinehardt v. State, 
    477 N.E.2d 89
    , 93 (Ind. 1985)). We note, however, that a
    statute may convey a sufficiently definite warning without listing specifically all
    of the items of prohibited conduct. Brown v. State, 
    868 N.E.2d 464
    .
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015         Page 7 of 14
    [13]   Johnson contends that he never committed the predicate act of entering the
    “real property” of Lee. He contends that under her lease, her premises included
    only “the portion of the apartment building located within the interior walls of
    the apartment.” Corrected Appellant’s Brief at 8. At most, he contends, he
    remained in the common areas of the apartment complex at all times, i.e.,
    “between the front door of the apartment building and the door to her
    apartment.” 
    Id. at 10.
    The facts favorable to the conviction showed that
    Johnson traversed the area between the front door of the apartment building in
    which Lee’s apartment was located and walked up the stairs and across the
    landing on her floor and stood in the threshold of the door to her apartment.
    Could all of these areas be fairly characterized as Lee’s real property within the
    meaning of I.C. § 35-43-2-2(a)(1)?
    [14]   In Walls v. State, 
    993 N.E.2d 262
    , the defendant was convicted of, among other
    things, criminal trespass. In that case, the intoxicated defendant was in the
    common area of an apartment building and believed that he knew people there.
    It turned out, however, that he was mistaken in this belief. He lay in front of
    the door to one apartment and started kicking on the door with his feet. The
    woman inside woke up and went to the door. When she opened it, she saw the
    defendant sleeping in the hallway. She attempted to awaken the defendant,
    asked him to leave, and then shut her door. Rather than leave, the defendant
    knocked on the woman’s door and asked to come in and spend the night.
    When he was refused entry, the defendant began banging on the door and
    yelling. The victim asked him to leave several times and finally threatened to
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015    Page 8 of 14
    call the police if he did not leave. At about this time, two female roommates in
    a nearby apartment were awakened by the disturbance and opened their door to
    see what was happening. The defendant began walking toward their door, told
    them he was drunk, and asked if he could come in. When one of the women
    refused, the defendant tried to kiss her hand and grabbed her neck. He
    attempted to enter the apartment and placed his foot across the threshold of the
    apartment. The victim and her roommate finally managed to push him out of
    the apartment and shut the door. Police responded and eventually subdued the
    defendant.
    [15]   The defendant was convicted of, among other things, criminal trespass with
    respect to the incident. In challenging the conviction, the defendant argued that
    only the owner of the apartment complex or its agent, and not any tenant, could
    ask him to leave common areas of the apartment complex. Upon appeal, we
    addressed the question “whether [the women tenants] had a sufficient interest
    in their leased apartment units to support their requests for [defendant] to leave
    the areas immediately outside their doors.” 
    Id. at 267.
    We observed that
    defendant “was not merely present in the common areas” of the apartment
    complex. 
    Id. Rather, he
    “also was positioned immediately outside the doors
    giving access to the leased apartment units, persistently banging on the doors to
    the units, and in [the roommates’] case, had his foot through the threshold of
    the door.” 
    Id. In rejecting
    the defendant’s challenge, the court held:
    Under the circumstances of this case, the tenants, while not in
    exclusive control of the common areas, had a sufficient possessory
    interest in, at a minimum, their apartment doors, the threshold of their
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015          Page 9 of 14
    apartments, and the immediate adjacent areas by which they accessed
    their leased apartment units, to request that a person leave that specific
    area and stop persistently banging on their doors. A rigid rule, applied
    without exception, that a tenant does not have a sufficient possessory
    interest in such property would defy logic and lead to an absurd result.
    [16]   
    Id. at 267.
    [17]   In the present case, Johnson was convicted of trespass in connection with the
    April 6 incident. After an emotional phone call, and against Lee’s expressed
    wishes, Johnson traveled to Lee’s apartment and said he wanted to talk to her.
    Lee answered the door, but would not let Johnson enter her apartment. While
    Johnson made an emotional appeal to talk to Lee about their relationship, Lee
    repeatedly told him to leave. In fact, she told Johnson to leave “[a]t least a
    dozen times”, Transcript at 16, but he refused to do so. During the encounter,
    Johnson stood in the threshold of the doorway such that Lee could not shut her
    door. Johnson finally left only after Lee began dialing 911. Lee had a sufficient
    possessory interest in her apartment door, the threshold to the door, and
    common area immediately adjacent to her door such as to possess authority to
    request that Johnson leave those areas and stop harassing her. Under these
    circumstances, a person of ordinary intelligence would have no difficulty
    determining that Lee’s behavior was prohibited by the I.C. § 35-43-2-2. See
    Walls v. State, 
    993 N.E.2d 262
    . Accordingly, Johnson’s claim that the statute is
    unconstitutionally vague as applied to him fails.
    2.
    [18]   Ind. Code Ann. § 35-41-3-7 provides: “It is a defense that the person who
    engaged in the prohibited conduct was reasonably mistaken about a matter of
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015           Page 10 of 14
    fact, if the mistake negates the culpability required for commission of the
    offense.” (West, Westlaw current with all 2015 First Regular Session of the
    119th General Assembly legislation effective through June 28, 2015). Johnson
    asserted that he reasonably believed he had a right to be in the area near Lee’s
    apartment from which Lee ordered him to leave, and concomitantly that she
    did not have authority to order him off of that property. He contends that this
    belief negated the requisite mens rea element of the trespass offense, thus
    establishing the “mistake of fact” defense. He claims the trial court erred in
    concluding otherwise.
    [19]   In order to establish a mistake-of-fact defense, the defendant must prove the
    following three elements: (1) The mistake was honest and reasonable; (2) the
    mistake concerned a matter of fact; and (3) the mistake negated the culpability
    required to commit the crime. Chavers v. State, 
    991 N.E.2d 148
    (Ind. Ct. App.
    2013), trans. denied. After the State has made a prima facie case of guilt, the
    defendant bears the burden of establishing an evidentiary predicate of his
    claimed mistaken belief of fact. 
    Id. Nevertheless, the
    State retains the ultimate
    burden of proving beyond a reasonable doubt every element of the charged
    crime, including culpability or intent. The State may meet this burden with
    respect to the mistake-of-fact defense in several ways, including (1) directly
    rebutting the defendant’s evidence, (2) affirmatively showing that the defendant
    made no such mistake, or (3) relying upon evidence from its case-in-chief. 
    Id. [20] Upon
    appeal, Johnson’s mistake-of-fact argument is reflected in the following:
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015    Page 11 of 14
    Mr. Johnson explained in his testimony that he did not believe that he
    entered or was on or within the real property of Ms. Lee, at any time,
    and that he believed that he was in a common area which was not real
    property of Ms. Lee. If the fact is that Ms. Lee’s “real property”, as
    such term is used in the Trespass Statute, could constitutionally
    include some undefined area outside her door, Mr. Johnson was
    mistaken in regard to such fact. His belief was reasonable and was in
    good faith. How would Mr. Johnson or for that matter, how would
    anyone know the location of, boundary of or the scope of such an
    undefined “possessory area”? …
    Mr. Johnson was in a common area of the apartment building where
    Ms. Lee’s apartment was located. As such, there was nothing which
    would have caused him to believe that Ms. Lee had some “possessory
    interest” in the common area, which gave her authority to demand
    that Mr. Johnson leave. Believing reasonably that he was lawfully in
    the common area as a public invitee, he knew that he was not
    trespassing on Ms. Lee’s real property, after she asked him to leave the
    area outside her door.
    Corrected Appellant’s Brief at 11-12.
    [21]   In order to succeed in this argument, Johnson must first establish the factual
    predicate upon which it is premised, i.e., that he was in a “common area” of the
    apartment complex at all times. Lee testified that after Johnson knocked on her
    door, she answered but did not let him in. She asked at least a dozen times that
    Johnson leave. According to Lee, Johnson did not merely stand near her door
    in the hallway, he stood in the doorway such that she could not close the door.
    As Lee described it, “He was right in the threshold.” Transcript at 17. If
    believed, Lee’s testimony reflects that Johnson did not remain in the common
    area of the apartment complex at all times, but rather entered into the area of
    Lee’s leasehold when his physical location prevented Lee from closing her door
    and securing herself inside her apartment. Of course, Johnson’s testimony and
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015         Page 12 of 14
    Lee’s testimony differed markedly on this point. The trial court noted as much
    in stating, “Mr. Johnson says basically today that that didn’t happen that way
    because the door wasn’t even opened and he never stood in the doorway and he
    never prevented her from closing the door.” 
    Id. at 77.
    The trial court weighed
    the conflicting testimonies and concluded, “If I have to decide between … Miss
    Lee and Mr. Johnson, it’s going to be Miss Lee.” 
    Id. at 78.
    [22]   In resolving this issue, we need not determine the full extent of the physical
    boundaries of Lee’s authority to order Johnson from common areas of the
    apartment complex, i.e., areas located adjacent to but outside her apartment
    unit. This is because, as set out above, the trial court found that Johnson went
    beyond the common areas of Lee’s apartment building and stood in the
    threshold of the doorway to her apartment such that she could not close the
    door. See Walls v. State, 
    993 N.E.2d 262
    . Upon this set of facts, which is the
    one we must accept, Johnson’s belief that he had a right to stand in the
    doorway to Lee’s apartment such that she was prevented from closing it, and
    that she lacked authority to order him to leave that location was not reasonable.
    The trial court did not err in rejecting Johnson’s mistake-of-fact defense.
    3.
    [23]   Johnson contends the evidence was not sufficient to sustain his conviction.
    This issue is premised upon Johnson’s claim that he did not cross Lee’s
    threshold such that she was prevented from closing her door, and indeed that
    “[s]he clearly could have shut the door at any time.” Corrected Appellant’s Brief
    at 16. The factual predicate for this claim is clearly at odds with the trial court’s
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015     Page 13 of 14
    finding that Johnson stood in Lee’s doorway such that she could not close it. It
    is of no significance that during the encounter he occasionally left the doorway
    and paced back and forth in the common area outside of her apartment. It is
    enough that Lee asked him “at least a dozen times” to leave and that there were
    times that he stood in the doorway such that Lee was prevented from shutting
    her door. Transcript at 16.
    [24]   When reviewing a challenge to the sufficiency of the evidence, we consider only
    the evidence supporting the judgment, together with any reasonable inferences
    that can be drawn from such evidence, and we may not reweigh evidence nor
    judge witness credibility. Thang v. State, 
    10 N.E.3d 1256
    (Ind. 2014). In order
    to reverse Johnson’s conviction on these grounds, we would be required to
    ignore these constraints upon our review. We cannot and will not do this.
    Considering the evidence favorable to the conviction and in deference to the
    trial court’s assessment of the credibility of Lee’s and Johnson’s testimonies, we
    conclude that the evidence was sufficient to support the conviction.
    [25]   We affirm.
    Baker, J., and Najam, J., concur.
    Court of Appeals of Indiana | Opinion 01A02-1501-CR-25 | July 1, 2015   Page 14 of 14
    

Document Info

Docket Number: 01A02-1501-CR-25

Judges: Friedlander, Baker, Najam

Filed Date: 7/1/2015

Precedential Status: Precedential

Modified Date: 11/11/2024