STATE OF NEBRASKA, appellant, v. RUDY STANKO, appellee.
No. S-18-543
Nebraska Supreme Court
December 20, 2019
304 Neb. 675
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. - Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court‘s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable; an appellate court independently reviews questions of law.
- Statutes. The interpretation of a statute presents a question of law.
- Criminal Law: Intent: Appeal and Error. The purpose of a prosecutorial appeal brought under
Neb. Rev. Stat. § 29-2315.01 (Reissue 2016) is to provide an authoritative exposition of the law to serve as precedent in future cases. - Appeal and Error.
Neb. Rev. Stat. § 29-2316 (Reissue 2016) limits the relief an appellate court can afford, even if the exception taken by the State is sustained. - Criminal Law: Courts: Judgments: Appeal and Error. A judgment of acquittal in the county court shall not be reversed by either the district court acting as an intermediate appellate court or upon further consideration in an appeal to the Nebraska Supreme Court or the Nebraska Court of Appeals, since the defendant has been placed legally in jeopardy in the trial court.
- Criminal Law: Directed Verdict. In a criminal case, the court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged or (2) evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.
Criminal Law: Directed Verdict: Appeal and Error. In an appellate court‘s consideration of a criminal defendant‘s motion for a directed verdict, the State is entitled to have all its relevant evidence accepted as true, every controverted fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence. - Criminal Law: Proof. The burden is on the State to prove all essential elements of the crime charged.
- Invitor-Invitee. As a general matter, when a business holds a portion of its property open to the public, a person who enters the open area at a reasonable time and in a reasonable manner has the implied consent of the owner to enter the premises under a limited privilege.
- ____. Business property owners have a common-law right to exclude from their premises those whose actions disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants.
- Criminal Law: Statutes: Words and Phrases. The meaning of the word “know” or the word “knowingly” in a penal statute varies in the context in which it is used.
- Trespass: Words and Phrases. The plain language of “knowing” in
Neb. Rev. Stat. § 28-521(1) (Reissue 2016), in the context of entering any building or occupied structure “knowing that he or she is not licensed or privileged to do so,” imposes a subjective standard focused on the accused‘s actual knowledge. - Intent: Circumstantial Evidence. Knowledge, like intent, may be inferred from the circumstances surrounding the act.
- Trial. An affirmative defense is established as a matter of law only if there are no factual issues remaining to be resolved by the trier of fact.
- Trespass. A person entering premises open to the public has not “complied with all lawful conditions imposed on access to or remaining in the premises” pursuant to
Neb. Rev. Stat. § 28-522(2) (Reissue 2016) if he or she has been lawfully barred from the premises and the business has not reinstated its implied consent to entry.
Appeal from the District Court for Sheridan County, TRAVIS P. O‘GORMAN, Judge, on appeal thereto from the County Court for Sheridan County, PAUL G. WESS, Judge. Exception sustained.
Aaron J. Conn, Sheridan County Attorney, for appellant.
Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, Patras & Watson, P.C., L.L.O., for appellee.
NATURE OF CASE
In this exception proceeding, the question presented is whether the county court erred in directing a verdict in favor of the defendant at the close of the State‘s case in chief under a complaint for first degree trespass in violation of
BACKGROUND
The State filed a complaint in county court against Rudy Stanko for first degree trespass in violation of
(1) A person commits second degree criminal trespass if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:
(a) Actual communication to the actor; or
(b) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(c) Fencing or other enclosure manifestly designed to exclude intruders except as otherwise provided in section 28-520.
Trial
The evidence at trial adduced during the State‘s case in chief demonstrated that Stanko originally distributed a free newspaper at the Pump & Pantry in Gordon. After complaints from customers, Bosselman informed Stanko that it would no longer carry the newspaper at its stores and that Stanko could pick up the undistributed issues.
When retrieving the undistributed issues of his newspaper, Stanko was “[a]ggressive” in a verbal exchange between Stanko and the Pump & Pantry store manager. The district manager for the Bosselman properties in the area explained that the aggression was such that “people working didn‘t feel comfortable with [Stanko‘s] coming into the store by the things he was saying.”
In an effort to provide a safe environment for its customers and employees, Bosselman decided to send Stanko a “stay away” letter. On February 20, 2017, an attorney for Bosselman sent the certified “stay away” letter to Stanko. It was described “RE: STAY AWAY LETTER” and advised:
Bosselman Pump & Pantry, Inc. and any of its parent, sister, or subsidiary companies are requesting that you do not come onto any of its properties.
This notice follows the verbal request that you are specifically not welcome at the Bosselman property:
Pump & Pantry #34
101 W Hwy 20
Gordon, NE 69343
Furthermore, you are prohibited from telephoning any Bosselman business including Pump & Pantry # 34, 101 W Hwy 20, Gordon, Nebraska.
If you are found on this property or if you telephone this business or any Bosselman business, law enforcement will be called and you will be charged with trespassing and/or harassment.
A copy of this letter has been sent to the Gordon Police Department.
The letterhead listed all of the Bosselman businesses, including Subway. The district manager testified that the letter followed standard procedure for the company and that it could be rescinded under certain circumstances.
A copy of the letter was sent to the Gordon Police Department. Bosselman management verbally communicated to an officer of the police department that Stanko was not allowed on Bosselman‘s property. The officer testified that Stanko later told him that he had received the letter.
The Pump & Pantry and the Subway each have their own signage and operating hours, but they share the same building with the same address. There are separate entries for the Pump & Pantry and the Subway. Once in the building, however, people can move freely between one side and the other, unless the Subway side is closed. When the Subway side is closed and the Pump & Pantry side is open, there is a “little gate” blocking internal access. The larger entry is on the Pump & Pantry side but opens into the hallway that adjoins the Pump & Pantry and the Subway. Stanko‘s newspaper had been distributed in that hallway.
At the close of the State‘s case in chief, Stanko moved for a directed verdict. Stanko argued that the State had failed to prove the elements of first degree trespass because (1) first degree trespass involves a dwelling or other place designed for overnight accommodation; (2) unlike second degree trespass, notice is not an element of first degree trespass; and (3) the “stay away” letter warned that Stanko was not welcome at the Pump & Pantry and was prohibited from telephoning any Bosselman business, but merely “request[ed]” that Stanko not come onto any of Bosselman‘s properties. Further, Stanko asserted that a directed verdict should be granted because the evidence was undisputed that under the affirmative defense set forth in
Before ruling on the motion, the court rejected from the bench Stanko‘s argument that first degree trespass required a dwelling or overnight accommodation. But the court appeared to view Stanko‘s other arguments favorably, focusing on the affirmative defense and the absence of any dispute concerning the facts that Stanko did not create a disturbance or otherwise violate any lawful condition imposed upon the public at large and that the Subway was open to the public at the time in question. The court articulated the following:
[I]t looks to me like, given the testimony that we have had thus far, Subsection 2, for example, the premises were at the time open to members of the public, and the actor, . . . Stanko, complied with all lawful conditions imposed upon access to or remaining in the premises . . . .
So what I am thinking is the real issue is whether or not [the Subway staff member‘s] testimony that . . . Stanko had come in through the entry door of Subway, walked around until she informed him he was to leave. The manager came and said . . . Stanko was to leave, and he left. And so it seems like her testimony — and she testified specifically that at the time Subway was open to members of the public. And when asked to leave, he left. He didn‘t do anything, you know, unlawful as far as, you know, breaking anything or disturbing anyone coming in the door or leaving when he left.
So the issue is whether or not that affirmative defense, given all the evidence that we have, is sufficient to grant a directed verdict, or does that issue go to the jury for their decision? There isn‘t any contrary evidence that . . . Stanko, you know, was unruly while he was in there or failed to comply with the request to leave.
The court continued with its discussion of the affirmative defense by focusing on which party has the burden of proof, stating:
[T]he burden of proof does not shift to the defendant. It stays with the prosecution to prove that either the premises [were] not open to members of the public, or that . . . Stanko failed to comply with all lawful conditions, et cetera, et cetera. And so given that, given what I believe the instruction would be, it seems as though the State has failed to prove what in the proposed instructions is instrument or element No. 6, and, therefore, a directed verdict would be proper.
Instruction No. 6 is not in the record. The court asked the parties whether they disagreed with “the proposition that it‘s still the State‘s burden.” The court elaborated:
The defendant has the burden to prove that it was open to members of the public and that he failed to — or, excuse me, abided by all lawful conditions imposed on access to or remaining on the premises and, therefore, the
defendant must put on evidence and then the jury would decide that issue.
The court later continued: “[O]ne of the elements is knowing that one is not licensed or privileged to do so presupposes the defense. So, in other words, there would be no affirmative defense if a person not given notice, not to come in, didn‘t come in.” The court asked whether a person entering a business open to the public, by virtue of entering that business, is precluded from the affirmative defense that “it was open and I didn‘t do anything wrong while I was in there.”
In response, the State argued that Stanko was not lawfully following the conditions imposed upon him because he failed to follow the “stay away” letter.
Stanko‘s counsel argued that it was the State‘s burden to show that the Subway was not open to members of the public and to put on some evidence suggesting that Stanko may have done “anything other than lawfully comply with all conditions that were imposed on him at that moment.”
After a short recess, the court granted Stanko‘s motion for a directed verdict and dismissed the case. The court did not further articulate its reasons for reaching that conclusion.
EXCEPTION PROCEEDING
The State appealed the county court‘s decision to the district court pursuant to
The district court dismissed the appeal. Noting that jeopardy had already attached, the district court concluded that an opinion on appeal would result in an advisory opinion with at most “marginal precedential value” because the issues presented were limited to the unique facts of this particular case.
The State appealed to the Nebraska Court of Appeals pursuant to
ASSIGNMENTS OF ERROR
The State assigns that the district court erred in finding that the errors alleged by the county attorney in the appeal from the county court were limited to the facts of this particular case, that no issue of statutory interpretation was presented nor any other issue upon which a decision would be helpful in future cases, and that the application did not present an opportunity to provide an authoritative exposition of the law that would be sufficiently useful as precedent.
STANDARD OF REVIEW
[1-3] In an appeal of a criminal case from the county court, both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.1 When reviewing a judgment for errors appearing on the record, an appellate court‘s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable; we independently review questions of law.2 The interpretation of a statute presents a question of law.3
ANALYSIS
[4-6] The purpose of a prosecutorial appeal brought under
The Court of Appeals sustained the State‘s application in this case as to the error alleged regarding the county court‘s issuance of a directed verdict based on its interpretation of criminal trespass statutes and affirmative defenses. We agree that because these are issues of first impression concerning the meaning of
[7,8] This exception proceeding addresses the meaning of
[9] The burden is on the State to prove all essential elements of the crime charged.12 In the charges against Stanko under
The evidence demonstrated that the Subway was located in a building or occupied structure and that Stanko entered that building or occupied structure.
[10,11] As a general matter, when a business holds a portion of its property open to the public, a person who enters the open area at a reasonable time and in a reasonable manner has the implied consent of the owner to enter the premises under a limited privilege.14 Nevertheless, such implied consent can be revoked.15 Business property owners have a common-law right
Stanko has never contended that Bosselman did not properly exercise its right to exclude him; the evidence at trial was that the exclusion stemmed from an incident of disruptive and threatening behavior. Instead, Stanko asserted in his motion for a directed verdict that the State‘s evidence was lacking in sufficient probative value to demonstrate that he entered the Subway “knowing” that the exclusion communicated to him by the “stay away” letter included the Subway.
[12] We have never before directly addressed the knowledge element of
[13,14] We agree with the majority of other jurisdictions and find that the plain language of “knowing” in
[15] Stanko‘s motion for a directed verdict was also based on his contention that it was undisputed he had complied with “all lawful conditions imposed on access” and thus was entitled to a directed verdict on the affirmative defense set forth by
The propriety of a directed verdict on the affirmative defense set forth by
The affirmative defense found in
Only a few states have adopted this part of the Model Penal Code.31 One case from one of those states appears at first glance to support the county court‘s reading of the statute. In State v. Morse,32 the court held as a matter of law that the defendant should be acquitted of criminal trespass under the “open to the public” affirmative defense, despite the fact that the defendant had been indefinitely evicted from the casino in question for allegedly cheating at blackjack. The defendant had not exhibited cheating or disorderly conduct on the date he was alleged to have trespassed. The court reasoned that, as a place of public business, the casino could lawfully exclude patrons for cause only, and it stated that “fairness mandates that when the patron attempts to return to the casino and acts in accordance with all lawful conditions imposed, the patron
But, in State v. Slobin,34 a case from the same jurisdiction also involving blackjack at a casino, the court rejected as dicta any contention that an exclusion by a business open to the public can last for no more than 24 hours. The court then affirmed criminal trespass convictions of patrons who were indefinitely barred from the blackjack table for repeated disorderly conduct, despite the fact that they were not disorderly on the date they were alleged to have trespassed.35 Other courts in jurisdictions with statutes adopting the language of the Model Penal Code have similarly affirmed convictions of criminal trespass when the defendants were lawfully barred from the business premises, despite otherwise behaving reasonably at the time for which they were charged for trespassing.36
[16] We hold that a person entering premises open to the public has not “complied with all lawful conditions imposed on access to or remaining in the premises” pursuant to
Thus, the plain language of
The county court was correct that “one of the elements is knowing that one is not licensed or privileged to do so presupposes the defense,” inasmuch as the “open to the public” affirmative defense is one of privilege and negates the unlawful entry element of criminal trespass.39 The county court was incorrect, however, in its understanding of what “all lawful conditions” under the “open to the public” affirmative defense entails.
Under the facts presented, there was no legal basis for granting a directed verdict in Stanko‘s favor. The State presented evidence from which the trier of fact could have determined that Stanko was lawfully barred from the Subway, knew he was barred from the Subway, and did not comply with the condition that he not enter the Subway until his privilege was reinstated. Stanko‘s acquittal stands, pursuant to the limits of relief we can afford under a prosecutorial appeal brought under
CONCLUSION
For the foregoing reasons, we sustain the State‘s exception to the district court‘s order, which should have sustained the exception to the county court‘s judgment.
EXCEPTION SUSTAINED.
HEAVICAN, C.J., not participating.