State v. Dameron , 316 Or. 448 ( 1993 )

VAN HOOMISSEN, J.

The state appeals a Court of Appeals decision that reversed defendant’s conviction for criminal trespass in the second degree. ORS 164.245. The dispositive issue is whether defendant remained unlawfully on the premises. The Court of Appeals held that defendant established at trial that he was engaged in a constitutionally protected activity and, therefore, the trial court erred in ruling that the order for defendant to leave the premises was lawful. State v. Dameron, 101 Or App 237, 238, 789 P2d 707 (1990). Because defendant was convicted at trial, we view the evidence in the light most favorable to the state. State v. Harris, 288 Or 703, 721, 609 P2d 798 (1980). We hold as a matter of law that on the record presented in this case no rational trier of fact could have found beyond a reasonable doubt that defendant remained unlawfully on the premises. Accordingly, we affirm the decision of the Court of Appeals on different grounds.

Most of the facts are undisputed. In July 1988, defendant was gathering signatures for an initiative petition on the privately owned sidewalk outside an entrance to a Fred Meyer store. That store is located entirely inside a 16-acre tract of private property in suburban Washington County commonly known as the Raleigh Hills Shopping Center (Center). Defendant was directed to leave the sidewalk by the person in charge of the Fred Meyer store. When he refused to do so, he was arrested for trespassing.

A description of the place where defendant was seeking signatures is necessary to put this case in context.¹ The 16-acre Center property is bordered on the east and west by private property and on the north and south by major arterial streets and public sidewalks. Several privately owned businesses, including both of the Center’s automotive service stations, open directly onto or within a few feet of the streets. There are public bus stops on the streets adjacent to the public sidewalks bordering the Center. All entrances to and exits from the Center cross public sidewalks. Access to the major arterial streets bordering the Center on the north and south may be gained by use of several entrances to and exits from the Center, using private roads running through it.

A large, billboard-sized signpost positioned at the north entrance to the Center reads: “FRED MEYER RALEIGH HILLS.” The Fred Meyer store, located inside the Center, unquestionably is the Center’s anchor store. It is several times larger than any other business in the Center. Fred Meyer advertises its stores to be “one-stop shopping centers.” The Fred Meyer store is a very large, free-standing building that is completely surrounded by parking lots that are available for use by anyone visiting the Center for any lawful purpose, e.g., to shop, eat, bank, browse, visit a barber shop, beauty salon, professional offices, day care facility, stroll through the garden center, etc. At trial, the state offered no evidence of the specific numbers of the public who gather either at the Fred Meyer store or at the Center. See Lloyd Corporation v. Whiffen, 315 Or 500, 512, 849 P2d 446 (1993) CWhiffen IT) (discussing this point). Fred Meyer security officer McLellan testified that “it is a popular shopping center,” but he had “no idea” how many people visited the shopping center on a daily basis.

Several other privately owned businesses, including a golf store, a china, crystal, and silver store, a pizza parlor, and a store that sells telephones, sub-lease space inside the Fred Meyer store (Tenant Building 1). Each of those businesses opens onto the sidewalk outside of the Fred Meyer store where defendant was arrested. People also may enter some of those businesses from inside the Fred Meyer store. At trial, Fred Meyer security officer Philbrick testified that there were “a couple of banks” in the area. It is not clear, however, whether those banks are inside the Fred Meyer store, or outside the store but inside the Center. A public telephone booth is located outside the entrance to the Fred Meyer store.

Located on the same 16-acre Center tract, across a parking lot to the south from the Fred Meyer store, is Fred Meyer’s Home Improvement and Garden Center. Patrons and window shoppers wishing to go from the Fred Meyer store to the Home Improvement and Garden Center naturally and normally use the sidewalk outside the Fred Meyer store to reach the parking lot that they then must cross in order to get to the Home Improvement and Garden Center.

Directly to the east of the Home Improvement and Garden Center is a detached building (Tenant Building 4) that houses several other privately-owned businesses, including a bakery and pastry shop, a womens’ clothing store, a nutrition center, a travel agency, a beauty salon, and other retail shops. Patrons and window shoppers who enter those privately owned businesses from the large privately owned parking lot east of the Fred Meyer store or from the public sidewalk adjacent to Southwest Beaverton-Hillsdale Highway naturally and normally use the sidewalk outside the Fred Meyer store.

To the west and southwest of the Fred Meyer store, across parking lots, are several detached buildings (Tenant Building 2, veterinary clinic and day care and professional buildings) that house several more privately owned businesses, including a locksmith, a framing shop, a barber shop, a restaurant, a vacuum cleaner store, a veterinary clinic, a day care center and playground, professional offices, and one of the center’s automotive service stations. Patrons and window shoppers who enter those privately owned businesses and professional offices from the Fred Meyer store or from the parking lot to the east of the Fred Meyer store naturally and normally use the sidewalk outside the Fred Meyer store.

To the east of the Fred Meyer store, across a parking lot, are several detached buildings (Tenant Building 3, service station, and bank) that house several more privately owned businesses, including a fabric shop, a printing shop, a ski shop, a video rental shop, a branch of a savings and loan, a branch of a large commercial bank, and a service station. Patrons and window shoppers going from or past the Fred Meyer store to those businesses would naturally and normally use the Fred Meyer sidewalk outside the Fred Meyer store.

At trial, the state contended that defendant had remained unlawfully on Fred Meyer’s premises after being lawfully directed to leave by the person in charge. The state argued that defendant had no legal right to ignore the direction from the person in charge of the store that he leave the premises.²

Defendant did not dispute that the Fred Meyer store and its adjacent sidewalks are premises open to the public, that the person in charge of the Fred Meyer store directed him to leave, or that he refused to do so. Defendant argued only that he had a constitutional right to remain on the sidewalk outside the Fred Meyer store and, therefore, that he did not remain on the sidewalk unlawfully within the meaning of ORS 164.245(1) and ORS 164.205(3)(b). He relied primarily on Article I, section 8,³ and Article IV, section l,⁴ of the Oregon Constitution, and the Court of Appeals’ decision in Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988), and the decisions of the Supreme Court of California and the Supreme Court of the United States in Robins v. PruneYard Shopping Center, 23 Cal 3d 899, 153 Cal Rptr 854, 592 P2d 341 (1979), aff’d sub nom PruneYard Shopping Center v. Robins, 447 US 74, 100 S Ct 2035, 64 L Ed 2d 741 (1980).

The trial court found in part:

1. “[Defendant sought signatures of patrons of Fred Meyer on the sidewalk immediately outside one of the entrances to Fred Meyer within feet of the entrance.”

2. “There is no evidence that anyone was dissuaded from shopping at Fred Meyer * * *.”⁵

3. “There are also significant factual differences between the place this exercise of speech and petition occurred [than] the ones in [Lloyd Corporation u.] Whiffen[, supra,] and [PruneYard Shopping Center v.] Robins, [supra]. This was not a mall with large common areas, there were no benches, fewer establishments, no gardens or other [non-commercial] facilities that would encourage people to congregate for non-shopping purposes.”

The court concluded:

“[T]he state has proven beyond a reasonable doubt that the defendant entered and remained on premises owned by Fred Meyer Inc., on July 6, 1988, in Washington County, after having been asked to leave the premises by a person in charge. The sole issue is whether the defendant was ‘lawfully directed’ to leave the premises.

# $ * *

“Defendant had no constitutional right to remain and therefore is guilty of Criminal Trespass II.”⁶

On defendant’s appeal, the Court of Appeals reversed, explaining:

“This case is not distinguishable from State v. Cargill, [100 Or App 336, 786 P2d 208 (1990), aff’d by an equally divided court, 316 Or 492, 851 P2d 1141 (1993)].^[7] Defendant established that he was engaged in a constitutionally protected activity, and the [trial] court erred in ruling that the order for defendant to leave the premises was lawful.” State v. Dameron, supra, 101 Or App at 238.

We allowed the state’s petition for review.

On review, the state contends that the Court of Appeals erred in holding that the trial court erred in ruling that the order for defendant to leave the premises was lawful. 101 Or App at 238. The state argues that neither Article I, section 8, nor Article IV, section 1, creates a right to collect initiative signatures on private property over the owner’s objection. ⁸ Defendant argues that he had a legal right to ignore the direction to leave the Fred Meyer sidewalk and, therefore, that he was not lawfully directed to leave and, thus, that he did not remain unlawfully on the premises.

ORS 164.245(1) provides:

“A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in or upon premises.” (Emphasis added.)

ORS 164.205 provides in part:

“As used in ORS 164.205 to 164.270, except as the context requires otherwise:

“(3) ‘Enter or remain unlawfully’ means:

* * * #

"(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge.

“ (4) ‘ Open to the public’ means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.

“(5) ‘Person in charge’ means a person, a representative or employee of the person who has lawful control of premises by ownership, tenancy, official position or other legal relationship. * * *

“ (6) ‘Premises’ includes any building and any real property, whether privately or publicly owned.” (Emphasis added.)

No statute requires that the owner of private premises must provide entry to the premises to other persons for the purpose of gathering signatures on an initiative petition. However, a person may have a legal right to remain on premises after having been directed to leave by the person in charge. See Whiffen II, supra, 315 Or at 51 (Article IV, section 1, grants right to gather signatures on initiative petitions in the common areas of large privately owned shopping centers open to the public for commercial purposes); Lloyd Corporation v. Whiffen, 307 Or 674, 684, 773 P2d 1294 (1989) {Whiffen I) (injunction against trespass at Lloyd Center will not issue if it would cause serious injury to public interest).

If a person has a state constitutional right to remain on premises, that right may be raised as a defense to a charge of criminal trespass. In that case, the burden to prove that the order to leave was lawful rests on the state. ORS 161.055.⁹

The state must prove every material element of the crime charged beyond a reasonable doubt. ORS 10.095(6); State v. Rainey, 298 Or 459, 465, 693 P2d 635 (1985). Beyond a reasonable doubt means that the facts asserted are almost certainly true. Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 402, 787 P2d 595 (1987). See State v. Williams, 313 Or 19, 34-42, 828 P2d 1006 (1992) (discussingmeaning of reasonable doubt). Thus, if defendant had a legal right to remain on the premises at the time he was directed to leave by the person in charge, he was not lawfully directed to leave within the meaning of ORS 164.245 and 164.205(3)(b) and, therefore, he did not remain unlawfully on the premises.

In Whiffen I, supra, 307 Or at 680, an action for an injunction against the defendants for unreasonably interfering with the plaintiffs use of its private property, this court concluded on a subconstitutional level that the defendants in that case had a right to petition on the plaintiffs property subject to reasonable time, place, and manner restrictions. In Whiffen I, the premises were described as “a privately owned shopping center open to the public for commercial purposes. ’ ’ Id. at 677. In Whiffen I, this court noted that that case did not present a simple private nuisance or trespass issue but, rather, a situation in which a public interest was at stake. While the public interest in allowing the collection of signatures for ballot measures, under Article IV, section 1, of the Oregon Constitution, does not create an unqualified right to enter a privately owned shopping center open to the public for commercial purposes to gather signatures, neither is such activity entirely barred on all private premises. Id.

In Whiffen I, this court held that, because the nature of the Lloyd Center was the antithesis of a private place and because of the large number of the public who gathered there, to exclude persons engaged in signature-gathering activity would not serve the public interest. Id. at 685. This court held that the signature-gathers “cannot be enjoined from entering the Center to express their opinion, so long as they do so reasonably and without interfering with plaintiffs commercial enterprise.” Id. at 687. “Clearly they can if they do so reasonably, quietly, and peaceably.” Id. Under the facts presented in Whiffen I, however, the court noted that some of the signature-gathering activities did interfere with commercial enterprise and, therefore, that intrusive activity could be enjoined. Id.

In Whiffen II, supra, 315 Or at 515, this court held that ‘ ‘persons seeking signatures on initiative petitions in the common areas of the Lloyd Center have a constitutional right to do so under Article IV, section 1, of the Oregon Constitution, subject to reasonable time, place, and manner restrictions.” This case does not involve reasonable time, place, and manner restrictions. Indeed, Fred Meyer, Inc., claims an absolute right to prohibit anyone from seeking initiative petition signatures on its property. At tried, the state argued only that defendant had no right whatsoever to remain on Fred Meyer’s private property.

In Whiffen II, the premises where people could exercise their Article IV, section 1, rights to gather signatures on initiative petitions were described as “large shopping centers], such as the Lloyd Center.” 315 Or at 503. See Clackamas Town Center Assoc. v. Wolf, 315 Or 557, 560, 849 P2d 477 (1993) (same). In Whiffen II, this court concluded that “access to people is the lifeblood of the initiative power” and that some minimal intrusion on the rights of the mall owner is justified in view of the importance of the power of initiative reserved to the people. Id. at 511. This court held that where persons may seek signatures on initiative petitions is essential to the purposes of Article IV, section 1, of the Oregon Constitution, and is of vital importance in making effective the purpose of Article IV, section 1. Id. at 511-12. We agreed with the following language in the Court of Appeals opinion in State v. Cargill, supra:

“It is implicit in Article IV, section 1, that the people must have adequate opportunities to sign the [initiative] petitions that are necessary for them to act as legislators. ” 100 Or App at 343.

In Whiffen II, this court interpreted Article IV, section 1, liberally in favor of the peoples’ right peaceably to gather signatures for initiative petitions. This court then held:

“[T]o prohibit the gathering of signatures on initiative petitions in the common areas of large shopping centers such as the Lloyd Center would ‘impinge on constitutional rights’ conferred on the citizens of this state by the provisions of

Article IV, section 1, of the Oregon Constitution. Such rights, however, are subject to reasonable time, place, and manner restrictions * * Whiffen II, 315 Or at 514.

In State ex rel Gladden v. Lonergan, 201 Or 163, 177, 269 P2d 491 (1954) quoting 11 Am Jur 704, Constitutional Law, this court stated:

“It is a fundamental canon of construction that a Constitution should receive a liberal interpretation in favor of a citizen, especially with respect to those provisions which were designed to safeguard the liberty and security of the citizen in regard to both person and property.” (Emphasis added.)

During oral argument in this court, the state’s appellate counsel stated: “This case arises on a very meager record.” We agree. Although the parties in this case refer to evidence in other cases involving different Fred Meyer stores, we emphasize that this case involves only the Fred Meyer store that is located within the Raleigh Hills Shopping Center. Our analysis here is based solely on the record in this case.

In most cases, the state would meet its burden to prove that the defendant remained unlawfully on private property by showing that the defendant failed to leave the premises that are open to the public after being directed to do so by the person in charge. ORS 164.205(3)(b). However, ORS 164.245(1) also requires the state to prove beyond a reasonable doubt that the defendant remained unlawfully on the premises. The legal authority of a person in charge of a large privately owned shopping center open to the public for commercial purposes to direct a person to leave the premises, however, does not necessarily determine whether the person directed to leave was lawfully directed to do so. ORS 164.205(3)(b). In other words, in a criminal prosecution under ORS 164.245, the state must prove, not only that the person in charge directed the defendant to leave the premises, but also that the direction to leave the premises was lawful, i.e., that the defendant had no legal right to ignore the direction to leave. See ORS 161.055(1) (“When a ‘defense,’ other than an ‘affirmative defense’ as defined in subsection (2) of this section, is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt”).

The trial court found in part:

“There are also significant factual differences between the place this exercise of speech and petition occurred [than] the ones in Whiffen and Robins, supra. This was not a mall with large common areas, there were no benches, fewer establishments, no gardens or other [non-commercial] facilities that would encourage people to congregate for non-shopping purposes.”¹⁰

Although there are some differences between the premises here and those in Whiffen I and Robins, the sum total of the evidence in this case presents a picture of premises that are not materially different from those involved in Whiffen I and Robins.¹¹ The premises here are a large privately owned shopping center open to the public for commercial purposes. Whiffen I, supra, 307 Or at 677. Moreover, the state offered no evidence, about the numbers of the public who gather at the Fred Meyer store or at the Center, other than the observation of a Fred Meyer security officer that “it is a popular shopping center.”

We conclude that the mere fact that there may be some differences between the large privately owned shopping centers open to the public for commercial purposes in Whiffen II and Clackamas Town Center and the large privately owned shopping center open to the public for commercial purposes in this case, is not dispositive of defendant’s state constitutional defense here. Rather, it was incumbent on the state to prove beyond a reasonable doubt at trial that the Fred Meyer “one-stop shopping center” within the Center in this case was not analogous to the shopping center in Whiff en. See ORS 161.055 (burden of disproving defense beyond a reasonable doubt rests on the state). This the state utterly failed to do and, as noted, supra note 1, it is not even clear from the record what premises the parties and the court thought were the subject of this prosecution.

On this record, we do not believe that a rational trier of fact could have found beyond any reasonable doubt that the state proved that the subject premises here, whatever those premises may be, were not a large privately owned shopping center open to the public for commercial purposes where defendant had a right under Article IV, section 1, to peaceably seek petition signatures. It follows, therefore, as a matter of law that the state failed to prove beyond a reasonable doubt that defendant was “lawfully directed” to leave or that he “remained unlawfully” on the premises.

Because we decide this case on a narrow and sub-constitutional ground, it is not necessary for this court to draw the line for all time and for all future cases involving claims of constitutional rights to seek signatures on initiative petitions on private property. Rather, it is sufficient for us to conclude here that the state failed to prove that it is “almost certainly true,” Riley Hill General Contractor v. Tandy Corp., supra, 303 Or at 402, that defendant was “lawfully directed” to leave the premises and, therefore, that he “remained unlawfully” on the premises within the meaning of ORS 164.245(1) and 164.205(3)(b). We hold as a matter of law that on the record presented in this case no rational trier of fact could have found beyond a reasonable doubt that defendant remained unlawfully on the premises. Accordingly, we reverse defendant’s conviction for failure of proof and we affirm the decision of the Court of Appeals on different grounds.

The dissent argues that there is no state constitutional right to gather petition signatures on private property. The dissent is wrong. Whiffen II, supra; Clackamas Town Center Assoc, v. Wolf, supra.

The decision of the Court of Appeals is affirmed on different grounds. The judgment of the district court is reversed.

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1 See Appendix, infra.

It is not clear from the record whether the “premises” in this case are the entire 16-acre Center or only the Fred Meyer store. The complaint charges that defendant “did unlawfully and knowingly enter and remain in the premises located at 7700 S.W. Hwy 10.” The state’s evidence focuses on the Fred Meyer store and its adjacent sidewalks and defendant does not appear to argue that that focus is too narrow, i.e., defendant does not argue specifically that the entire 16-acre Center constitutes the “premises.”

2 The state also argued at trial that defendant had remained on Fred Meyer’s premises at a time when there allegedly was a court order in existence restraining people from gathering signatures on Fred Meyer’s property. The state’s witnesses, however, were vague about the alleged order; they did not know who had been restrained, the scope of the order, what “premises” the order covered, what court had entered the order, or in what county it had been entered. The state did not offer any restraining order in evidence, and the prosecutor told the trial court that he could not even identify the court that allegedly had issued the order. There was no evidence that the alleged restraining order was directed at defendant himself, that he had any personal knowledge of any such order, or that its provisions covered the Fred Meyer Raleigh Hills store. Nothingin the record here remotely suggests that the trial court found defendant guilty because he violated any court order.

3 Article I, section 8, of the Oregon Constitution, provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

4 Article IV, section 1, of the Oregon Constitution, provides in part:

“(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.

“(b) An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

“(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.”

5 The state made no claim in this case that defendant’s conduct interfered with Fred Meyer’s commercial enterprise.

6 In fairness to counsel and the trial court, we note that the judgment in this case was entered before this court’s decisions in Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (Whiffen I), and Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II), and the Court of Appeals’ decision in State v. Cargill, 100 Or App 336, 786 P2d 208 (1990), aff’d by an equally divided court, 316 Or 492, 851 P2d 1141 (1993).

[7] 7 State v. Cargill, supra, involved signature-gathering at a Fred Meyer store located at 3805 S.E. Hawthorne Boulevard in Portland. Although Cargill could be read expansively to apply to every Fred Meyer store in Oregon and, by inference, to every comparable retail store, the Court of Appeals since has made it clear that an expansive reading of Cargill was not intended. See Fred Meyer, Inc. v. McDonald, 112 Or App 321, 322, 828 P2d 1054 (1992) (each property must lie considered on its own facts) rev den 3Í6 Or 382 (1993).

8 The state also argues for the first time in this court that, to the extent that either Article I, section 8, or Article IV, section 1, of the Oregon Constitution, creates any right to use private property for the purpose of signature-gathering for initiative petitions or other speech-related conduct, defendant here exceeded the scope of such right, because he interfered with a customer after she had left Fred Meyer’s property and entered the adjacent parking lot. See Whiffen I, supra, 307 Or at 687 (“buttonholing” prohibited). The state did not make that argument at trial or on appeal, and we therefore decline to consider it on review. Moreover, nothing in the record remotely suggests that the trial court found defendant guilty because he followed anyone into the parking lot, which was not Fred Meyer’s property.

9 ORS 161.055 provides:

“(1) When a ‘defense,’ other than an ‘affirmative defense’ as defined in subsection (2) of this section, is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt.

“(2) When a defense, declared to be an ‘affirmative defense’ by chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

“(3) The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. ‘Raised by the defendant’ means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief.”

The state does not argue that defendant’s state constitutional defense is an affirmative defense, or that the defense was not properly raised before trial.

10 For example, the trial court found that “there were no benches” for the public to use. The testimony of Fred Meyer’s security officers, however, shows that benches had been provided in the past, but that the benches were removed because they were being monopolized by “transients.”

The question whether a large privately owned shopping center open to the public for commercial purposes is the kind of premises where petitioning activity is protected under Article IV, section 1, is not answered by counting the number of “gardens, flower beds, statuary, murals, various other works of art, benches, escalators, stairways and bridges, * * * directories and information booths” in the shopping center. See Whiffen II, supra, 315 Or at 530 (Gillette, J., dissenting). Moreover, it is common that shopping centers have “walkways that are bordered by storefronts.” Id. at 529-30. Rather, it is clear from Whiffen II that the focus of any inquiry must be directed on whether a shopping center open to the public for commercial purposes is “large,” and whether “large numbers of people” gather there. Id. at 512.

11 The exhibits received in evidence include 11 photographs of the Fred Meyer store and the Center, and 2 large diagrams of those properties.