State v. Stanko, 304 Neb. 675

Background

Bosselman Enterprises owned two adjoining businesses in one building: a Pump & Pantry and a Subway; they share internal access through a hallway.
After an aggressive interaction at Pump & Pantry, Bosselman sent Stanko a certified stay away letter advising he was not welcome on Bosselman properties; a copy was sent to local police and Stanko acknowledged receipt.
On April 3, 2017, Stanko entered the Subway while it was open to the public; Subway staff immediately told him he was not allowed there and he left without incident.
The State charged Stanko with first degree criminal trespass under Neb. Rev. Stat. § 28-520(1)(a) (entering a building knowing one is not licensed or privileged to do so).
At the close of the State’s case the county court granted Stanko a directed verdict, concluding the § 28-522(2) affirmative defense (premises open to public and actor complied with all lawful conditions) applied; the district court dismissed the State’s appeal as advisory.
The Nebraska Supreme Court took the matter to decide statutory meaning of knowing and the scope of the § 28-522(2) affirmative defense; it sustained the State’s exception (acquittal remains but law clarified).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved the knowledge element of § 28-520(1)(a)	State: evidence (stay away letter listing Subway; Stanko acknowledged receipt) permitted a finder of fact to infer actual knowledge	Stanko: he entered a business open to the public, did not disturb anyone, so no proof he knew he was not privileged to enter	Held: knowing is a subjective standard; evidence was sufficient for a factfinder to infer Stanko knew he was not privileged to enter, so directed verdict for failure of proof was improper
Whether § 28-522(2) affirmative defense (open to public and actor complied with all lawful conditions) shields a person lawfully barred by a business	State: "all lawful conditions imposed on access" includes conditions specific to an individual (eg, an individualized ban or stay-away)	Stanko: affirmative defense applies because premises were open to the public and he complied with public-facing lawful conditions (hours, non-disruptive behavior)	Held: "all lawful conditions imposed on access" covers conditions specific to a particular actor; a lawfully barred person who enters without reinstated permission has not complied with all lawful conditions; county court erred in treating the defense as applying regardless of individualized bans
Proper standard for directed verdict in criminal trespass	State: appellate review requires accepting State evidence as true and resolving all doubts for State; directed verdict only if complete failure of evidence or evidence too doubtful	Stanko: facts undisputed and supported affirmative defense so directed verdict appropriate	Held: directed verdict standard reiterated; given State evidence, directed verdict was improper because material factual issues (knowledge, compliance with individualized ban) remained for the trier of fact

Key Cases Cited

State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (Neb. 2018) (standard for appeals from county court and appellate review)
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (Neb. 2017) (directed verdict standard in criminal cases)
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (Neb. 2011) (subjective knowledge standard in criminal statutes)
State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (Neb. 1990) (burden on State to prove essential elements)
State v. Morse, 276 N.J. Super. 129, 647 A.2d 495 (N.J. Super. Ct. App. Div. 1994) (case addressing application of open-to-public affirmative defense)
State v. Slobin, 294 N.J. Super. 154, 682 A.2d 1205 (N.J. Super. Ct. App. Div. 1996) (refusal to limit exclusions to brief periods; convictions affirmed where patrons were lawfully barred)
Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (Neb. 1953) (knowledge and intent may be inferred from circumstances)