State v. Stanko , 304 Neb. 675 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/06/2020 01:08 AM CST
- 675 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
State of Nebraska, appellant,
v. Rudy Stanko, appellee.
___ N.W.2d ___
Filed December 20, 2019. No. S-18-543.
1. 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.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable; an appellate court inde-
pendently reviews questions of law.
3. Statutes. The interpretation of a statute presents a question of law.
4. Criminal Law: Intent: Appeal and Error. The purpose of a prosecuto-
rial 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.
5. 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.
6. 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 consider-
ation 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.
7. 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.
- 676 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
8. 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.
9. Criminal Law: Proof. The burden is on the State to prove all essential
elements of the crime charged.
10. 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.
11. ____. 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.
12. 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.
13. Trespass: Words and Phrases. The plain language of “knowing” in
Neb. Rev. Stat. § 28-521(1) (Reissue 2016), in the context of enter-
ing 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.
14. Intent: Circumstantial Evidence. Knowledge, like intent, may be
inferred from the circumstances surrounding the act.
15. 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.
16. Trespass. A person entering premises open to the public has not “com-
plied 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.
- 677 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
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 Neb.
Rev. Stat. § 28-520(1)(a) (Reissue 2016). The defendant had
received a “stay away” letter intended to apply to all busi-
nesses owned by the parent company issuing the letter, includ-
ing two adjoining businesses owned by the same company
and located in the same building, where the defendant entered
during business hours and exited without incident when told
to leave. The county court appeared to conclude the affirma-
tive defense to criminal trespass described by Neb. Rev. Stat.
§ 28-522(2) (Reissue 2016), that compliance with “all lawful
conditions imposed on access to or remaining in” the premises
“at the time open to members of the public,” did not encom-
pass compliance with a “stay away” letter directed toward the
defendant.
BACKGROUND
The State filed a complaint in county court against Rudy
Stanko for first degree trespass in violation of § 28-520(1)(a).
The complaint related to Stanko’s presence on April 3, 2017, at
a Subway sandwich shop located in the same physical structure
as a Pump & Pantry convenience store in Gordon, Nebraska.
Bosselman Enterprises (Bosselman) owns both the Pump &
Pantry and the Subway franchise at that location and had pre­
viously sent Stanko a “stay away” letter.
Section 28-520(1)(a) provides that a person commits first
degree criminal trespass if he or she (1) enters or secretly
remains (2) in any building or occupied structure, or any sepa-
rately secured or occupied portion thereof, (3) knowing that he
- 678 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
or she is not licensed or privileged to do so. In contrast, Neb.
Rev. Stat. § 28-521(1) (Reissue 2016) provides:
(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 reason-
ably likely to come to the attention of intruders; or
(c) Fencing or other enclosure manifestly designed to
exclude intruders except as otherwise provided in sec-
tion 28-520.
Section 28-522 provides that “[i]t is an affirmative defense
to prosecution under sections 28-520 and 28-521 that . . . (2)
[t]he premises were at the time open to members of the public
and the actor complied with all lawful conditions imposed on
access to or remaining in the premises[.]”
Trial
The evidence at trial adduced during the State’s case in chief
demonstrated that Stanko originally distributed a free newspa-
per 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 newspa-
per, 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 custom-
ers 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:
- 679 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
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 spe-
cifically 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, includ-
ing Subway. The district manager testified that the letter fol-
lowed 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” block-
ing 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.
- 680 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
On April 3, 2017, Stanko entered directly into the Subway
side of the building in Gordon. It was undisputed that the
Subway was open to the public at that time. Stanko was imme-
diately informed by Subway staff that he was not allowed to be
there. Stanko asked why he could not order a sandwich. The
manager replied that Stanko was not allowed on the property.
Stanko left the building without further incident.
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 tres-
pass, 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 telephon-
ing 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 affirma-
tive defense set forth in § 28-522(2), the building was open
to members of the public and Stanko had complied with all
lawful conditions.
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 ques-
tion. 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 . . . .
- 681 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
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 affirma-
tive 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 prem-
ises [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 instru-
ment or element No. 6, and, therefore, a directed verdict
would be proper.
Instruction No. 6 is not in the record. The court asked the par-
ties 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
- 682 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
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 busi-
ness 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 fur-
ther articulate its reasons for reaching that conclusion.
Exception Proceeding
The State appealed the county court’s decision to the district
court pursuant to Neb. Rev. Stat. § 29-2317 (Reissue 2016).
The State alleged, among other things, that the county court
had erred in directing a verdict in favor of Stanko.
The district court dismissed the appeal. Noting that jeopardy
had already attached, the district court concluded that an opin-
ion 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 pursu-
ant to Neb. Rev. Stat. § 29-2315.01 (Reissue 2016). The Court
of Appeals granted leave to docket the appeal. Though the
State had assigned several errors, the Court of Appeals granted
leave to appeal only as to the error alleged regarding the
- 683 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
county court’s issuance of a directed verdict based on its inter-
pretation of criminal trespass statutes and affirmative defenses.
We subsequently moved the case to our docket.
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 indepen-
dently 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
§ 29-2315.01 is to provide an authoritative exposition of the
law to serve as precedent in future cases.4 Neb. Rev. Stat.
§ 29-2316 (Reissue 2016) limits the relief we can afford, even
if the exception taken by the State is sustained.5 A judgment
1
See State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
2
See id.
3
State v. Thalken, supra note 1.
4
State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008).
5
See State v. Thalken, supra note 1.
- 684 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
of acquittal in the county court “shall not be reversed”6 by
either the district court acting as an intermediate appellate
court or upon further consideration in an appeal to this court
or the Court of Appeals,7 since the defendant has been “placed
legally in jeopardy”8 in the trial court. The relief in an appeal
by the State under § 29-2316 in such circumstances is limited
to determining the law to govern in any similar case that may
be pending or that may thereafter arise.9
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 §§ 28-520 and 28-522, an authoritative exposi-
tion of the law is needed. The district court erred in determin-
ing otherwise.
[7,8] This exception proceeding addresses the meaning of
§§ 28-520 and 28-522 within the context of whether the
county court erred by granting Stanko’s motion for a 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.10
In our 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.11
6
§ 29-2316.
7
Id. See, also, State v. Thalken, supra note 1.
8
§ 29-2316.
9
See id.
10
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
11
Id.
- 685 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
In light of the county court’s comments from the bench
before its ruling, the court appeared to grant Stanko’s motion
for a directed verdict because it believed that under the affirm­
ative defense to criminal trespass described by § 28-522(2),
compliance with “all lawful conditions imposed on access to
or remaining in” the premises “at the time open to members
of the public,” did not encompass compliance with a “stay
away” letter directed toward the defendant. The court also
appeared to consider the affirmative defense and the element
of “knowing that he or she is not licensed or privileged” to be
interwoven. We will begin our analysis with the elements of
the crime charged.
[9] The burden is on the State to prove all essential elements
of the crime charged.12 In the charges against Stanko under
§ 28-520(1)(a), it was the State’s burden to prove beyond a
reasonable doubt that Stanko (1) entered or secretly remained
in a building or occupied structure (2) with knowledge that he
was not licensed or privileged to do so.13
The evidence demonstrated that the Subway was located in
a building or occupied structure and that Stanko entered that
building or occupied structure. Section 28-520 applies to “any
building or occupied structure, or any separately secured or
occupied portion thereof.” Section 28-520 is not specifically
crafted for, but encompasses, buildings or structures hosting
business operations open to the public.
[10,11] As a general matter, when a business holds a por-
tion 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
12
State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (1990).
13
See id.
14
87 C.J.S. Trespass § 151 (2018). See 75 Am. Jur. 2d Trespass § 40 (2018).
15
See id.
- 686 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
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.16
Stanko has never contended that Bosselman did not prop-
erly 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 § 28-520(1)(a). We have said that the meaning of
the word “know” or the word “knowingly” in a penal statute
varies in the context in which it is used.17 In other contexts, we
have synonymized “knowingly” with “willfully” and distin-
guished it from “accidentally” or “involuntarily,” stating that
to commit an act knowingly, the defendant must be aware of
what he or she is doing.18 In State v. Almasaudi, we held that
the phrase “receives, retains, or disposes of stolen movable
property of another knowing that it has been stolen”19 imposes
a subjective standard.20 We find that standard likewise appli-
cable to § 28-520(1)(a).
Section 28-520 is patterned after § 2.02 of the Model Penal
Code.21 The comments to the Model Penal Code explain that
the knowledge requirement excludes from criminal liability
both the inadvertent trespasser and the trespasser who believes
16
See Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370
(1982).
17
See Hancock v. State ex. rel. Real Estate Comm., 213 Neb. 807, 331
N.W.2d 526 (1983).
18
See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
19
Neb. Rev. Stat. § 28-517 (Reissue 2016) (emphasis supplied).
20
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).
21
Model Penal Code, § 2.02, 10A U.L.A. 94 (2001).
- 687 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
that he has received express or implied permission to enter or
remain on the premises.22 The majority of states have statu-
tory provisions adopting the “knowing” language of the Model
Penal Code or similar language, which is generally considered
to impose a subjective standard.23 Most courts with similar stat-
utes hold that “knowing that he [or she] is not licensed or privi-
leged” establishes a subjective standard knowledge of legal
authority or the consent of the person in lawful possession.24
Thus, it is not sufficient for the State to show that a defendant
should have known he was not licensed or privileged to enter
the dwelling;25 the fact finder must determine whether the facts
and circumstances would have caused the particular defendant
to “know” the requisite facts.26
[13,14] We agree with the majority of other jurisdictions
and find that the plain language of “knowing” in § 28-521(1),
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. That said, knowledge, like intent, may be inferred
from the circumstances surrounding the act.27 In fact, it is sel-
dom capable of direct proof.28
22
A.L.I., Model Penal Code and Commentaries § 2.02(2)(b)(i), comment 2
(1985).
23
See 3 Wayne R. LaFave, Substantive Criminal Law § 21.2(c) (3d ed. 2018).
24
See State v. Dansinger, 521 A.2d 685, 689 (Me. 1987). See, also, State v.
Santiago, 218 N.J. Super. 427, 527 A.2d 963 (1986); State v. Bertram, 708
N.W.2d 913 (N.D. 2006); Com. v. Namack, 444 Pa. Super. 9, 663 A.2d 191
(1995); State v. Cram, 184 Vt. 531, 955 A.2d 528 (2008).
25
See, Hancock v. State ex rel. Real Estate Comm., supra note 17; Model
Penal Code, supra note 21 § 2.02(7). See, also, State v. Dansinger, supra
note 24; State v. Santiago, supra note 24; State v. Bertram, supra note 24;
Com. v. Namack, supra note 24; State v. Fanger, 164 Vt. 48, 665 A.2d 36
(1995).
26
See State v. Bernstein, 697 N.W.2d 371 (N.D. App. 2005).
27
State v. Almasaudi, supra note 20.
28
See Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
- 688 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
The “stay away” letter listed Subway on its letterhead as
one of Bosselman’s businesses, and Bosselman’s attorney
requested in the letter that Stanko “not come onto any of
its properties.” The letter referred to the incident in which
Stanko was verbally told he was “not welcome” at the Pump
& Pantry, which shares the same address and is in the same
building as the Subway, with open access through a hallway
between the two businesses unless the Subway is closed.
Stanko acknowledged to the officer of the police department
that he had received the “stay away” letter. The State pre-
sented more than sufficient evidence for a trier of fact to find
that Stanko knew he was not licensed or privileged to enter
the Subway on the date in question. Thus, a directed verdict
for a failure of proof on the elements of the offense charged
was inappropriate.
[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 enti-
tled to a directed verdict on the affirmative defense set forth by
§ 28-522. 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.29
The propriety of a directed verdict on the affirmative defense
set forth by § 28-522(2) depends on statutory interpretation of
“complied with all lawful conditions imposed on access.” We
have never addressed the meaning of this phrase. The county
court appeared to conclude that such conditions encompassed
only those imposed upon the public at large to enter an open
area at a reasonable time and in a reasonable manner, and it
concluded that because the evidence was undisputed Stanko
entered the Subway during normal business hours and was not
acting in a disruptive manner, this affirmative defense could be
decided as a matter of law. The State asserts in this exception
29
See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007). See, also, Hill v.
State, 261 Ga. 377, 405 S.E.2d 258 (1991).
- 689 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
proceeding that “all lawful conditions imposed” includes the
condition that a particular person for whom implied consent
has been indefinitely and lawfully revoked cannot enter the
premises until consent to enter is reinstated. We agree with
the State.
The affirmative defense found in § 28-522, like § 28-520,
derives from the Model Penal Code. The comments to the
Model Penal Code explain that the “primary objective of the
defense is to exclude criminal prosecution for mere presence
of a person in a place where the public generally is invited,”
but the affirmative defense would not foreclose prosecution of
persons “who become undesirable due to disorderly conduct
or other misbehavior [which] itself amounts to another crimi-
nal offense.”30
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
30
A.L.I., Model Penal Code and Commentaries § 221.2, comment 2 at 90
(1980).
31
Conn. Gen. Stat. Ann. § 53a-110 (West 2012); § 28-522; N.J. Stat. Ann.
§ 2C:18-3 (West 2015); 18 Pa. Stat. Ann. § 3503 (West 2015); S.D.
Codified Laws § 22-35-7 (2017); Wash. Rev. Code Ann. § 9A.52.090
(West 2015).
32
State v. Morse, 276 N.J. Super. 129, 647 A.2d 495 (1994).
- 690 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
cannot be excluded, as he is not interfering with any legitimate
business interests.”33
But, in State v. Slobin,34 a case from the same jurisdic-
tion 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 disor-
derly 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 convic-
tions of criminal trespass when the defendants were law-
fully 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 § 28-522(2)
if he or she has been lawfully barred from the premises and the
business has not reinstated its implied consent to entry. While
a penal statute is to be construed strictly, it is to be given a
sensible construction in the context of the object sought to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served.37 And in the absence of
anything indicating otherwise, statutory language is to be given
its plain and ordinary meaning.38
33
Id. at 134, 647 A.2d at 497.
34
State v. Slobin, 294 N.J. Super. 154, 682 A.2d 1205 (1996).
35
Id.
36
See, Com. v. White, 342 Pa. Super. 1, 492 A.2d 32 (1985); State v. Finley,
97 Wash. App. 129, 982 P.2d 681 (1999). See, also, Alexis v. McDonald’s
Restaurants of Massachusetts, 67 F.3d 341 (1st Cir. 1995).
37
In re Interest of W.D., 232 Neb. 581, 441 N.W.2d 608 (1989).
38
Id.
- 691 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
Unlike that portion of § 28-522(2) describing the element
that “[t]he premises were at the time open to members of
the public,” § 28-522(2) does not limit “all lawful condi-
tions imposed” to those imposed on “members of the public.”
Rather, § 28-522(2) designates that “the actor complied with
all lawful conditions imposed on access to or remaining in the
premises.” (Emphasis supplied.)
Thus, the plain language of § 28-522(2) encompasses condi-
tions specific to a specific patron, and we will not read into the
statute “all lawful conditions imposed [on the general public].”
It is not sensible to conclude that the Legislature wished to
shield lawfully barred former business patrons from criminal
trespass liability so long as they comply with the conditions
of the limited privilege granted by the business to the public
at large.
The county court was correct that “one of the elements is
knowing that one is not licensed or privileged to do so pre-
supposes the defense,” inasmuch as the “open to the public”
affirmative defense is one of privilege and negates the unlaw-
ful 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 grant-
ing 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
§ 29-2315.01, but the State’s exception is sustained. When
the business revokes and has not reinstated its limited implied
privilege to enter at a reasonable time and in a reasonable
39
See State v. R.H., 86 Wash. App. 807, 939 P.2d 217 (1997).
- 692 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. STANKO
Cite as 304 Neb. 675
manner, the defendant has not complied with all lawful condi-
tions imposed on access to or remaining in the premises, for
purposes of the “open to the public” affirmative defense set
forth in § 28-522.
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.