Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016 Page 1 of 19

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Scott L. Barnhart

Brooke Smith

Keffer Barnhart LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Blake John Drapeau,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 16, 2016

Court of Appeals Case No.

82A01-1506-CR-616

Appeal from the Vanderburgh 

Circuit Court

The Honorable David D. Kiely, 

Judge

Trial Court Cause No.

82C01-1501-F6-453

Najam, Judge
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Statement of the Case

[1] Blake Drapeau appeals his conviction for criminal trespass, as a Class A 

misdemeanor, and resisting law enforcement, as a Class A misdemeanor, 

following a bench trial. Drapeau raises three issues for our review, which we 

consolidate and restate as follows:

1. Whether the State presented sufficient evidence to support his 

convictions for criminal trespass and resisting law 

enforcement.

2. Whether there was a material and fatal variance between the 

crime of criminal trespass charged and the theory and 

evidence of criminal trespass presented at trial.

[2] We affirm.

1

Facts and Procedural History

[3] Sandra Beauchamp, Drapeau’s mother, lived at an apartment complex in 

Evansville. She and her boyfriend, Paul, were the only persons listed as the 

leaseholders of the apartment. However, Drapeau had a key to Beauchamp’s 

apartment and he periodically stayed there in a bed that was set up for him. He 

also kept his clothing at his mother’s apartment and used his food stamps to buy 

food that he sometimes shared with his mother and her boyfriend.

 

1

 We heard oral argument in this case at Vincennes University on January 26, 2016.
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[4] As of November 4, 2012, the management of the apartment complex and an 

Evansville police officer had banned Drapeau from the complex where his 

mother’s apartment was located. That information was placed on an alert 

system available to the local police, and Drapeau also had personal knowledge 

of this ban by management. Beauchamp, too, told Drapeau on at least one 

occasion that he had to leave her apartment, and she asked him to give back his 

apartment key. She also reminded Drapeau that he had been banned from the 

apartment by management. However, Drapeau continued to return to the 

apartment.

[5] On January 18, 2015, Drapeau had been drinking alcohol. At approximately 

2:00 or 3:00 a.m., he and some of his friends came to his mother’s apartment, 

and Drapeau used his key to unlock the apartment door. Upon discovering that 

a chair had been placed in front of the door to block the entrance, Drapeau 

forced the door open. He asked Beauchamp for the keys to her car, which she 

refused. Drapeau’s friends then left and he fell asleep on the mattress in the 

living room. Beauchamp then called the police to report that Drapeau was 

trespassing.

[6] Officers Elizabeth McKinney and Nathan Jones from the Evansville Police 

Department arrived at Beauchamp’s apartment at approximately 5:30 a.m. 

Before her arrival, Officer McKinney had been given an alert from the police 

department “system” that Drapeau had been banned from the apartment 

complex by the property management and another police officer. Tr. at 35. 

Officer McKinney was wearing a body camera that recorded the entire 
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interaction from the time she and Officer Jones entered the Beauchamp 

residence to the time they left. 

[7] Drapeau was asleep on a mattress in the living room when the officers entered. 

Beauchamp informed the officers that she wanted Drapeau to leave, so the 

officers awoke him and informed him he must leave the apartment. Officer 

McKinney repeatedly offered to take Drapeau to a shelter or a friend’s house. 

Drapeau told the officers they “should leave,” gesturing toward the door. 

State’s Ex. 1 at 5:41:51 a.m. Drapeau then turned toward the door himself, and 

Officer McKinney grabbed his arm and told him to “come here.” Id. at 5:41:55 

a.m. Although it cannot be seen on the video, it is undisputed that Drapeau 

pulled away from Officer McKinney’s grip and swung his fist at her. Officer 

McKinney ducked so that Drapeau’s strike never hit her. 

[8] Drapeau then backed toward the door and held his hands up as Officer Jones 

pointed a taser at him. Officer Jones fired his taser at Drapeau while his hands 

were still up in the air. Drapeau was hit with two taser darts and fell onto his 

back onto the floor, yelling, “Don’t do it.” Id. at 5:42:02 a.m. Officer 

McKinney yelled, “Put your hands behind your back” while the taser was 

cycling. Id. at 5:42:04 a.m. The sound of the taser operating continued while

Drapeau was lying on the floor with his hands held up in front of his face, 

repeatedly screaming, “Stop.” Id. Officer McKinney then told Drapeau to put 

his hands behind his back or he was “going to get it again.” Id. at 5:42:21. 

Drapeau continued to yell, “Stop,” and “Stop, please.” Id. 
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[9] Although the video from the body camera is too dark to see what was 

happening while Drapeau was on the floor, there was the sound of scuffling,

which lasted approximately forty seconds. Id. The officers loudly instructed 

Drapeau to turn over onto his stomach and tried to assist him in doing so as he 

yelled, “I’m trying.” Id. at 5:42:33 a.m. After an inaudible statement from one 

of the officers, Drapeau yelled, “I’m trying to, I’m trying to.” Id. at 5:42:35 a.m. 

One of the officers then said, “let go,” to which Drapeau replied, “I’m trying 

to.” Id. at 5:42:41 a.m. There was the continued sound of scuffling, then 

Drapeau yelled, “don’t hurt me.” Id. at 5:42:50 a.m. Officer McKinney

shouted “stop” several times, then asked, “Are you done?” Id. at 5:42:59 a.m. 

Drapeau said, “yes.” Id. at 5:43:00 a.m. The officers handcuffed Drapeau, 

assisted him in standing up, and removed him from the apartment.

[10] Drapeau was charged with attempted battery against a public safety officer, 

based on his attempt to strike Officer McKinney. Appellant’s App. at 16-17. 

He was also charged with forcibly resisting law enforcement, based on his 

failure to place his hands behind his back as ordered after he had been tased. 

Id.; Tr. at 52. And Drapeau was charged with criminal trespass for not having a 

contractual interest in Beachamp’s property, yet knowingly entering that 

property after having been denied entry by Beauchamp or her agent. Id. at 17. 

At trial, the video tape from Officer McKinney’s body camera was played for 

the court and entered into evidence as State’s Exhibit 1. 

[11] Officer McKinney testified for the State. She stated that, when Drapeau started 

to move toward the door of the apartment, there were knives lying around, and 
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so she grabbed his arm. She testified that Drapeau then pulled his arm away 

from her and, as his body turned, he swung at her with his right fist. She 

testified that Officer Jones then shot Drapeau with two taser darts, but she did 

not know how many times Officer Jones “recycled” the taser by pressing the 

trigger to send electric shocks into Drapeau. Id. at 42, 44-45. Officer 

McKinney testified that taser guns are designed to temporarily incapacitate a 

person’s muscles by shooting electricity that flows from the taser to the dart that 

is lodged in the person’s body. She stated that the goal of tasing someone is to 

make them unable to move, although the taser does not always incapacitate the 

person. She testified that the “zizzing” sound while Drapeau was being tased 

was the sound of the taser recycling, although she did not know if Drapeau was 

actually receiving the shocks. Id. at 46. Officer McKinney also stated that 

Officer Jones’ taser would have had a computerized component that showed 

how many times the taser had been “deployed” in this incident. Id. at 45. She 

stated that that information could be downloaded and printed out, but no such 

information was available at the trial. Officer McKinney then testified that, 

“[w]hile he was not being cycled,” Drapeau tensed up his body and refused to 

put his hands behind his back when told to do so.2 Id. at 33, 52. 

 

2

 Officer McKinney testified as follows: 

When he was, when I was giving him loud verbal commands to get on his stomach[,] he 

was on his side like this and refusing to roll onto his stomach and put his hand behind his 

back, and once he did roll onto his stomach, Officer Jones was able to get his right arm 

out, but his left arm was tucked up under him and I was trying to get it out from under 
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[12] In his defense, Drapeau testified that the apartment complex had new 

management who had seen him at Beauchamp’s apartment several times but 

never told him to leave. He also testified he was shocked “several times” by the 

taser. Id. at 59. He stated that the shocks made him “clinch up” such that he 

“couldn’t really like move.” Id. He stated that, after he was tased, he “couldn’t 

move [his] upper body,” and he was “very tense.” Id.

[13] The trial court found Drapeau guilty of attempted battery, criminal trespass, 

and resisting law enforcement. Drapeau appeals only the latter two

convictions.

Discussion and Decision

Issue One: Insufficiency of the Evidence

[14] Drapeau contends that the evidence is insufficient to support the criminal 

trespass and resisting law enforcement convictions. Our standard of review in a 

sufficiency of the evidence claim is clear:

[W]e examine only the probative evidence and reasonable 

inferences that support the [judgment]. We do not assess witness 

credibility, nor do we reweigh the evidence to determine if it was 

sufficient to support a conviction. Under our appellate system, 

those roles are reserved for the finder of fact. Instead, we 

 

him to place him into custody and he wouldn’t do that on his own, he wouldn’t bring his 

arm out from underneath him.

Tr. at 33.
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consider only the evidence most favorable to the trial court ruling 

and affirm the conviction unless no reasonable fact-finder could 

find the elements of the crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and 

quotation marks omitted). 

Criminal Trespass

[15] Pursuant to Indiana Code Section 35-43-2-2(b)(1) (2014), to prove Drapeau 

committed criminal trespass as a Class A misdemeanor, the State had to show

that Drapeau did not have a contractual interest in Beauchamp’s apartment, yet 

he knowingly or intentionally entered that property after having been denied 

entry by Beauchamp or the owner of the apartment complex or their agents. It 

is undisputed that Drapeau intentionally entered Beauchamp’s apartment on 

January 18, 2015. Thus, on appeal Drapeau argues (1) that he had a 

contractual interest in the apartment and (2) that he had not been denied entry 

by Beauchamp, the apartment complex, or their agents. 

[16] There was sufficient evidence presented that Drapeau had no contractual 

interest in Beauchamp’s apartment. The State’s burden of proof on this element 

of the criminal trespass statute is clear:

“Contractual interest,” as that phrase is used in the criminal 

trespass statute, refers to the right to be present on another’s 

property, arising out of an agreement between at least two parties 

that creates an obligation to do or not to do a particular thing. 

Taylor v. State, 836 N.E.2d 1024, 1026 (Ind. Ct. App. 2005), trans. 

denied. “[T]he State need not ‘disprove every conceivable 
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contractual interest’ that a defendant might have obtained in the 

real property at issue.” Lyles v. State, 970 N.E.2d 140, 143 (Ind.

2012) (quoting Fleck v. State, 508 N.E.2d 539, 541 (Ind. 1987)). 

“[T]he State satisfies its burden when it disproves those 

contractual interests that are reasonably apparent from the 

context and circumstances under which the trespass is alleged to 

have occurred.” Id. 

Semenick v. State, 977 N.E.2d 7, 10 (Ind. Ct. App. 2012), trans. denied; see also 

Lyle, 970 N.E.2d at 143 n.2 (noting that a “contractual interest in the property” 

is a right, title, or legal share of real property arising out of a binding agreement 

between two or more parties). Here, there was evidence that Drapeau was not 

listed on the lease of the apartment and that the property manager of the 

apartments had, in fact, banned Drapeau from not only Beauchamp’s 

apartment but the entire apartment complex. Moreover, Beauchamp testified 

that she had also asked Drapeau to return his apartment key and leave the 

apartment, which showed that she and Drapeau had not entered into an

agreement that Drapeau had a contractual interest in the apartment. This is 

sufficient evidence that Drapeau had no contractual interest in Beauchamp’s 

apartment.3

 

3

 Drapeau cites no statute or case law for his claim that his periodic contributions of food to the household

created a contractual interest in the property, and we have found none. Therefore, that argument is waived. 

Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to the authorities, statutes, 

and the Appendix or parts of the Record on Appeal relied on.”); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 

2015) (noting that the failure to support arguments with appropriate citations to legal authority and record 

evidence waives those arguments for our review).
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[17] There was also sufficient evidence that Drapeau had been denied entry to 

Beauchamp’s apartment by both Beauchamp and the apartment complex 

management.4 Under the statute, a person can be “denied entry by means of: 

(1) personal communication, oral or written; (2) posting or exhibiting a notice 

at the main entrance . . . or (3) a hearing authority or court order . . . ” I.C. § 

35-43-2-2(c). Officer McKinney testified that she viewed on the police “record 

system” a notification that, in November 2014, the apartment complex and an 

Evansville police officer had banned Drapeau from the apartment complex. Tr. 

at 35. She also testified that she believed Drapeau had been notified of the ban 

because, if he had not, that would have been noted on the police system. Id. 

Drapeau testified that he did have actual knowledge of the ban that was issued 

by apartment management in November 2014. And Beauchamp testified that 

she had told Drapeau in the past that “he had to leave” the apartment. Id. at 

11. This is sufficient evidence that Drapeau had been denied entry onto the 

premises by both Beauchamp and the apartment manager. Drapeau’s claim to 

the contrary is simply a request that we reweigh the evidence, which we will not 

do. 

 

4

 Under the criminal trespass statute as applied to an apartment, either the leaseholder or the owner or both 

may deny entry to the apartment. Johnson v. State, 38 N.E.2d 686, 689 (Ind. Ct. App. 2015) (citing Walls v. 

State, 993 N.E.2d 262 (Ind. Ct. App. 2013)), trans. denied.
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Resisting Law Enforcement

[18] Drapeau also argues that there was insufficient evidence that he forcibly resisted 

law enforcement. The State based its resisting law enforcement charge on 

Drapeau’s failure to put his arms behind his back while he was laying on the 

floor after having been shocked with Officer Jones’ taser.

5

 Thus, the only 

actions relevant to the resisting law enforcement charge are the actions Drapeau 

took after he had swung at Officer McKinney.

[19] Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic offense of resisting 

law enforcement has five essential elements: that [the defendant] (1) knowingly 

or intentionally (2) forcibly (3) resisted, obstructed, or interfered with (4) a law 

enforcement officer, (5) while the officer was lawfully engaged in the execution 

of the officer's duties.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). It is 

clear from the body camera video that Drapeau had his hands up in the air at 

the time Officer Jones shot him with the taser. Therefore, at that point in time, 

Drapeau was not resisting law enforcement. It is also clear from the video that 

Drapeau fell onto the floor and immediately put his hands back up in the air in 

front of his face after he was first shocked with the taser. Drapeau continued to 

hold his hands up in front of his face, yelling “stop,” while the sound of the 

taser cycling can be heard on the video. State’s Ex. 1 at 5:42:04 a.m. 

 

5

 The State based its attempted battery charge on Drapeau’s attempt to hit Officer McKinney with his fist.
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Therefore, at this point too Drapeau was not in any way resisting law 

enforcement. 

[20] However, the State argues that Drapeau resisted law enforcement by failing to 

place his hands behind his back when he was on the floor, after he was tased. 

Drapeau counters that there is insufficient evidence that he used “force” at this 

point, as required under the statute. One forcibly resists when “strong, 

powerful, violent means are used to evade a law enforcement official’s rightful 

exercise of his or her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). 

It is true, as Drapeau points out, that “merely walking away from a lawenforcement encounter, leaning away from an officer’s grasp, or twisting and 

turning a little bit against an officer’s actions do not establish ‘forcible’

resistance.” K.W., 984 N.E.2d at 612 (quotations and citations omitted). 

However, as our supreme court has pointed out, there is no bright-line test for 

whether a defendant acts “forcibly”; rather, such determinations must be made 

on a case-by-case basis, with guidance from our case law. Walker v. State, 998 

N.E.2d 724, 728 (Ind. 2013). Thus, Indiana courts have held that “showing 

strength and a threat of violence” is forcible resistance, Walker, 998 N.E.2d at 

727-28; that “aggressively pulling away” from an officer trying to arrest is 

forcible resistance, Glenn v. State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013); 

that “starting to pull away” from an officer and keeping one’s arms underneath 

oneself to prevent handcuffing are forcible resistance, Lopez v. State, 926 N.E.2d 

1090, 1093-94 (Ind. Ct. App. 2010), trans. denied; and that stiffening one’s arms 

to avoid handcuffing is forcible resistance, Graham v. State, 903 N.E.2d 963, 
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965-66 (Ind. 2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 

2005)).

[21] Here, the video provides evidence that there was a struggle between Drapeau 

and the officers while they were attempting to handcuff him and after Officer 

Jones had ceased using his taser. Although the struggle cannot be seen in the 

video because it was too dark, it was reasonable for the trial court to infer from 

the forty seconds of scuffling sounds and shouting that Drapeau was struggling 

against the officers as they were trying to handcuff him. In addition, Officer 

McKinney testified that Drapeau refused to place his hands behind his back 

when ordered to do so. Thus, this case is more like Lopez than K.W.; that is, 

there is sufficient evidence that Drapeau did not just “twist . . . and turn . . . a 

little bit,” K.W., 984 N.E.2d at 612, but actually struggled with the officers, kept 

his arm underneath his body, and refused to move his hands into a position

where they could be handcuffed,6 Lopez, 926 N.E.2d at 1093-94. 

[22] Drapeau also argues that the police officers engaged in excessive force and thus 

were not “lawfully engaged in the execution of their duties” as required under 

 

6

 It might have been a legitimate trial strategy for Drapeau to rebut Officer McKinney’s testimony by further 

examining the voluntariness of his “refusal” to put his hands behind his back after being tased, as he implies

in his appellate brief. See I.C. § 35-41-2-1(a) (providing a person only commits a criminal offense if he 

“voluntarily engages in the conduct in violation of the statute defining the offense”). However, Officer 

McKinney’s testimony is sufficient to establish the voluntariness of his actions, and Drapeau never elicited

evidence at trial to demonstrate that he was incapable of complying with the officers’ commands because the 

taser had immobilized him. For example, Drapeau did not call Officer Jones to testify as to how many times 

and when he had tased Drapeau. Drapeau did not subpoena the records to show how many times Officer 

Jones triggered his taser. And Drapeau did not present evidence as to the effects of being tased or how long 

those effects might last. Drapeau cannot now rely upon the lack of such evidence as proof that he was 

incapable of complying.
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the statute. Appellant’s Br. at 9. He notes that, after he was tased, “he was not 

fleeing, had been overcome by the officers, and did not present an immediate 

threat to their safety or anyone else’s.” Id. at 10. Although it is not entirely 

clear from his briefs, Drapeau’s argument seems to be that he was justified in 

struggling against the officers because they were using excessive force in 

repeatedly tasing him.

[23] We have recently explained the law on excessive force within the context of a 

resisting law enforcement charge:

The general rule in Indiana is that “a private citizen may not use 

force in resisting a peaceful arrest by an individual who he 

knows, or has reason to know, is a police officer performing his 

duties regardless of whether the arrest in question is lawful or 

unlawful.” Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 

2000) (quoting Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. 

Ct. App. 1985)), trans. denied. However, when an officer uses 

unconstitutionally excessive force in effecting an arrest, that 

officer is no longer lawfully engaged in the execution of his or her 

duty. Shoultz, 735 N.E.2d at 823.

Claims that law enforcement officers have used excessive force in 

the course of an arrest of a free citizen are analyzed under the 

Fourth Amendment to the United States Constitution and its 

“reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395 

(1989). Because the Fourth Amendment test of reasonableness is 

not capable of precise definition or mechanical application, its 

proper application requires careful attention to the facts and 

circumstances of each particular case, including the severity of 

the crime at issue, whether the suspect poses an immediate threat 

to the safety of the officers or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight. Id. at 396. 
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The “reasonableness” of a particular use of force must be judged 

from the perspective of a reasonable officer on the scene, rather 

than with the 20/20 vision of hindsight. Id. However, the 

“reasonableness” inquiry in an excessive force case is an 

objective one; the question is whether the officers’ actions are 

“objectively reasonable” in light of the facts and circumstances 

confronting them, without regard to their underlying intent or 

motivation. Id. at 396-97.

Patterson v. State, 11 N.E.3d 1036, 1039-40 (Ind. Ct. App. 2014).

[24] Here, it is clear that the officers’ actions of grabbing Drapeau as he moved in 

the direction of knives and tasing him after he swung at Officer McKinney were 

objectively reasonable and not excessive. Quite obviously, a reasonable officer 

in such a situation would suspect that Drapeau posed a threat to the safety of 

the officers or others. Graham, 490 U.S. at 395. And, although Drapeau’s 

hands were in the air at the exact moment he was tased, he had just swung at a 

police officer literally seconds before that. Therefore, it was objectively 

reasonable for Officer Jones to tase him. Furthermore, as previously noted, 

after being tased Drapeau “actively resisted” law enforcement by struggling 

with the officers. Thus, it was objectively reasonable for Officer Jones to 

continue tasing Drapeau until he became compliant. Id. 

Issue Two: Variance Between the Pleading and Proof

[25] Finally, Drapeau argues that there was a material and fatal variance between 

the crime of criminal trespass charged and the theory and evidence of criminal 

trespass presented at trial. Our supreme court has recently summarized the law 

on variances:
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Because the charging information advises a defendant of the 

accusations against him, the allegations in the pleading and the 

evidence used at trial must be consistent with one another. 

Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992). A 

variance is an essential difference between the two. Mitchem v. 

State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances, 

however, are fatal. Id. Relief is required only if the variance (1) 

misled the defendant in preparing a defense, resulting in 

prejudice, or (2) leaves the defendant vulnerable to future 

prosecution under the same evidence. Winn v. State, 748 N.E.2d 

352, 356 (Ind. 2001).

Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). 

[26] The State points out that Drapeau failed to raise an objection at trial regarding 

the alleged variance, and argues that this failure waives the issue for appeal. 

Appellee Br. at 21. As we recently noted regarding waiver,

Generally, a party waives an issue if it is raised for the first time 

on appeal. See Townsend v. State, 632 N.E.2d 727, 730 (Ind.

1994). “However, we may bypass an error that a party 

procedurally defaults when we believe that the error 

is . . . fundamental.” Id. (quoting Hart v. State, 578 N.E.2d 336, 

337 (Ind. 1991)). As our supreme court recently stated: “An 

error is fundamental, and thus reviewable despite failure to 

object, if it made a fair trial impossible or constituted a clearly 

blatant violation of basic and elementary principles of due 

process presenting an undeniable and substantial potential for 

harm.” Young v. State, 30 N.E.2d 719, 726 (Ind. 2015) (quotation 

marks omitted).
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Hilligoss v. State, No. 34A02-1506-CR-529, 2015 WL 7280731, *2 (Ind. Ct. App. 

Nov. 18, 2015). The rule against fatal variances is designed to protect a 

defendant’s basic 

constitutional right to be informed of the nature and cause of the 

accusation in sufficient detail to enable him to prepare his 

defense, to protect him in the event of double jeopardy[,] and to 

define the issues so that the court will be able to determine what 

evidence is admissible and to pronounce judgment. 

Reed v. State, 438 N.E.2d 704, 705 (Ind. 1982) (citation omitted). Because the 

error of a fatal variance is fundamental, Young, 30 N.E.3d at 726, we will 

address Drapeau’s variance claim despite his failure to raise the claim at trial.

[27] Drapeau argues that he was charged with entering his mother’s apartment 

“after having been denied entry” by Beauchamp or her agent, pursuant to

Indiana Code Section 5-43-2-2(b)(1), but that the proof offered by the State at 

trial was designed to show that he “refuse[d] to leave the real property of

another person after having been asked to leave by the other person or that 

person’s agent,” pursuant to Indiana Code Section 35-43-2-2(b)(2). He argues 

this is a fatal variance.

[28] We find no variance here, fatal or otherwise. The charging information alleged

that Drapeau committed criminal trespass by entering Beauchamp’s apartment 

“after having been denied entry.” Appellant’s App. at 17. And the State’s 

proof was consistent with that charge. The State presented evidence that 

Drapeau previously had been denied entry to Beauchamp’s apartment by both 
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Beauchamp and by the apartment complex. That evidence was presented 

through Beauchamp’s testimony, Officer McKinney’s testimony, and 

Drapeau’s own admission that he was aware of the November 2014 ban by the 

apartment complex yet entered Beauchamp’s apartment anyway. 

[29] Drapeau bases his claim that the evidence varied from the charge only on the 

following sentence during the prosecutor’s opening statement: “The allegations 

are that Mr. Drapeau was in his mother’s apartment, she wanted him to leave, 

she called the Police, the Police arrived, tried to get him to leave on his own, he 

would not . . . ” Appellant’s Br. at 12. Drapeau claims this was evidence that 

he had refused to leave after being asked to leave, which is a different criminal 

trespass charge than the one on the charging information. Id. However, this 

sentence in the prosecutor’s opening statement was not substantive evidence or 

a recitation of the charge against Drapeau; it was merely a summary of the facts 

the prosecutor intended to prove. See, e.g., Schuh v. Silcox, 581 N.E.2d 926, 927 

(Ind. Ct. App. 1991). Moreover, none of the State’s actual evidence presented 

at trial was consistent with a charge that Drapeau refused to leave after being 

asked to leave; rather, it was consistent with the charge that Drapeau entered 

the apartment after having been denied entry by both his mother and the 

apartment complex.7

 

7

 Moreover, even if the alleged variance existed, it would not have been fatal. Drapeau was not misled in 

preparing his defense, as his own evidence was directed toward proving he had not been previously denied 

entry to Beauchamp’s apartment. And, “under Indiana’s double jeopardy jurisprudence, [Drapeau would 

not be] vulnerable to being tried again for the same crime.” Winn v. State, 748 N.E.2d at 357; see also, e.g.,

Scott v. State, 859 N.E.2d 749, 752 (Ind. Ct. App. 2007) (explaining Indiana’s Double Jeopardy Clause 
Court of Appeals of Indiana | Memorandum Decision 82A01-1506-CR-616 | February 16, 2016 Page 19 of 19

[30] The State presented sufficient evidence to support Drapeau’s convictions for 

criminal trespass and resisting law enforcement. And there was no fatal 

variance between the pleadings and the proof. Accordingly, we affirm his 

convictions.

[31] Affirmed.

Baker, J., and Altice, J., concur.

 

jurisprudence). Thus, Drapeau would not have been prejudiced in any way by the alleged variance. See 

Blount, 22 N.E.3d at 569.