State v. Stanko
936 N.W.2d 353
Neb.2019Background
- Bosselman Enterprises owned adjacent Pump & Pantry and Subway businesses in the same building; Stanko had previously distributed a newspaper and acted aggressively at Pump & Pantry.
- Bosselman sent Stanko a certified "stay away" letter (copied to police) listing all Bosselman businesses, including Subway, and warning against coming onto any Bosselman property.
- On April 3, 2017, Stanko entered the Subway while it was open; Subway staff told him he was not allowed there and he left without incident.
- The State charged first-degree trespass under Neb. Rev. Stat. § 28-520(1)(a) (entry of a building "knowing that he or she is not licensed or privileged to do so").
- At the close of the State’s case, the county court granted Stanko a directed verdict based on the § 28-522(2) affirmative defense (premises open to public and actor complied with all lawful conditions), reasoning the Subway was open and Stanko complied by leaving when asked.
- The State sought a prosecutorial appeal; the Nebraska Supreme Court reviewed whether (1) the knowledge element under § 28-520(1)(a) is subjective and whether the State presented sufficient evidence, and (2) whether § 28-522(2)’s "complied with all lawful conditions" includes individualized exclusions such as a stay-away letter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did State prove defendant "knew" he was not licensed/privileged under § 28-520(1)(a)? | Evidence (stay-away letter listing Subway; letter copy to police; Stanko acknowledged receipt) supports that Stanko had actual knowledge. | Letter wording was permissive/requesting and ambiguous as to Subway; insufficient proof he knew it applied to Subway. | "Knowing" is a subjective standard; evidence was sufficient to let a factfinder decide—directed verdict for failure of proof was improper. |
| Does § 28-522(2) (open-to-public affirmative defense) cover a person lawfully barred from the premises who otherwise complies with public-access conditions? | "All lawful conditions" include conditions specific to a particular actor; a lawful bar (stay-away) revokes the implied privilege and defeats the defense. | Defendant said premises were open and he complied (entered during business hours, left when asked), so defense applies as matter of law. | "All lawful conditions" includes actor-specific conditions; a lawfully barred person who has not had privilege reinstated has not complied—defense does not apply as a matter of law. |
| Was the county court’s directed verdict appropriate at close of State’s case? | State: evidence allowed a reasonable jury to find guilt; directed verdict premature. | Stanko: evidence undisputed that he complied with conditions and defense established as matter of law. | Directed verdict was improper; State’s exception sustained (but acquittal remains because of double jeopardy limits). |
Key Cases Cited
- State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (Neb. 2018) (standards and purpose for prosecutorial appeals from county court)
- State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (Neb. 2017) (standards for directed verdicts in criminal cases)
- State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (Neb. 2011) (subjective knowledge standard applied to statutory mental element)
- State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (Neb. 2008) (prosecutorial appeal framework)
- State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (Neb. 1990) (burden on State to prove all elements beyond a reasonable doubt)
- State v. Morse, 276 N.J. Super. 129, 647 A.2d 495 (N.J. Super. Ct. App. Div. 1994) (interpretation of open-to-public defense in casino exclusion context)
- State v. Slobin, 294 N.J. Super. 154, 682 A.2d 1205 (N.J. Super. Ct. App. Div. 1996) (upholding trespass convictions where patrons were lawfully barred despite non-disorderly conduct on charged date)
- Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (N.J. 1982) (business’s common-law right to exclude patrons for security or operational reasons)