State v. Riddell

• Citation: 21 P.3d 128,172 Or. App. 675
• Parties: STATE of Oregon, Respondent, v. Scott Lee RIDDELL, aka Calvin Kenneth Carpenter, Appellant.
• Decision Date: 28 February 2001
• Court: Court of Appeals of Oregon

21 P.3d 128

172 Or. App. 675

STATE of Oregon, Respondent, v. Scott Lee RIDDELL, aka Calvin Kenneth Carpenter, Appellant.

(9904-42781; CA A106786)

Court of Appeals of Oregon.

Argued and Submitted June 12, 2000.

Decided February 28, 2001.

Edward Johnson argued the cause for appellant. With him on the brief were Hannah Callaghan and Legal Aid Services of Oregon.

Laura S. Anderson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

HASELTON, P.J.

Defendant appeals from his conviction for criminal trespass in the second degree. ORS 164.245. He argues that the trial court erred in refusing to permit him to challenge the validity of an exclusion order, issued several weeks before his arrest, that the state used to establish that defendant failed to leave premises open to the public "after being¹ lawfully directed to do so by the person in charge." ORS 164.205; ORS 164.245.² We reverse and remand for a new trial.

We state the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). On March 2, 1999, defendant was "freeze modeling" on top of a newspaper box on Pioneer Courthouse Square (the Square) when Jerry Dorie, a park officer for the City of Portland, issued him a 30 day exclusion order. The officer described the events as follows:

"[Defendant] was standing on top of a newspaper dispenser box. We call him Statue Man downtown. He stands at one particular pose for quite a long time. He had a hat down in front of him. I seen people come along and put money into the hat. I made contact with him, told him he couldn't do that. We had a conversation about city ordinance regarding stuff on the Square.³ And I excluded him from Pioneer Square for that city ordinance of soliciting funds without a permit."

The exclusion order specified that defendant was prohibited from entering or remaining in the Square for 30 days, and further provided:

"To enter or remain in or on the above noted property during the indicated period of exclusion may result in your arrest for Criminal Trespass in the Second Degree, ORS 164.245.

"You may appeal your exclusion, in writing, to the Codes Hearing Officer, Room 1017, Portland Building, 1120 SW Fifth, Portland, Oregon, 97204. To be honored, your written appeal request must be filed within 5 days of receipt of this exclusion notice, and must be accompanied by a copy of this notice.

"Unless you request the presence of the issuing person at the appeal hearing, the Hearings Officer will use the issuing person's sworn statement as evidence at the hearing in lieu of that person's testimony."

Defendant did not appeal the exclusion order. On March 7, 1999, Dorie saw defendant enter Pioneer Courthouse Square. On March 9, 1999, Dorie again saw defendant on the Square. Defendant saw Dorie and approached him and started talking. Dorie warned defendant that he was excluded from the Square. Defendant said, "Oh, it's not over yet?" Dorie replied that defendant was excluded until April 1, 1999. Defendant left the Square. Again on March 18, 1999, Dorie saw defendant on the Square. At that point, Dorie called a police officer, who issued defendant a citation for second-degree trespass. On March 22, 1999, Carroll Hyer, a park officer for the City of Portland, saw defendant walking through the Square, and wrote a report on a trespass. Hyer had a police officer again cite defendant for second-degree trespass.⁴

Defendant was charged by information with four counts of second-degree trespass based on the above-described events. At trial, defendant moved for dismissal on the ground that the city ordinance that served as a basis for the exclusion order was unconstitutional as applied to him. Alternatively, he argued that he should be permitted to present evidence that he was engaged in constitutionally protected activity when the exclusion order was issued in support of his argument that the exclusion order was unconstitutional. He argued that the activity for which he was excluded, freeze modeling, constituted expressive activity, and that he had a constitutional right to engage in such activity in a public forum such as the Square. The trial court, citing State v. Marbet, 32 Or.App. 67, 573 P.2d 736 (1978), held that defendant was not permitted to mount a collateral attack on the constitutional validity of the exclusion order, given that he had had an opportunity to appeal that order to the city and raise his constitutional arguments before a hearings officer. Defendant was found guilty on all four charges and fined $50.

Defendant appeals his convictions, arguing that the trial court erred in refusing to permit him to raise a constitutional defense to the trespass charges. Defendant argues that he may challenge the validity of the exclusion order in this proceeding because the state must demonstrate in a second-degree trespass case that an order that a person leave premises open to the public is "lawful." In support of his position, defendant relies on State v. Cargill, 100 Or.App. 336, 786 P.2d 208 (1990), aff'd by an equally divided court 316 Or. 492, 851 P.2d 1141 (1993), overruled on other grounds by Stranahan v. Fred Meyer, 331 Or. 38, 11 P.3d 228 (2000),

and State v. Dameron, 316 Or. 448, 853 P.2d 1285 (1993),

overruled on other grounds by Stranahan v. Fred Meyer, 331 Or. 38, 11 P.3d 228 (2000).

In both Cargill and Dameron the defendants appealed convictions for second-degree trespass. In both cases, the state alleged that the defendants had remained unlawfully on premises open to the public after being lawfully directed to leave by the person in charge, and the defendants asserted that they had a constitutional right to remain on the premises. Cargill, 100 Or.App. at 339, 786 P.2d 208; Dameron, 316 Or. at 454, 853 P.2d 1285. The key language from the Dameron plurality on which defendant relies is:

"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." 316 Or. at 457, 853 P.2d 1285.

See also Cargill, 100 Or.App. at 340-41,

786 P.2d 208 (state has the burden of disproving defense that an order to leave premises open to the public was not lawful).

The state does not seriously dispute that it had the burden of proving every element the crime of second-degree trespass and of disproving a defense that the order for defendant to leave premises open to the public was not lawful because defendant was engaged in constitutionally protected activity. Rather, the essential question is whether the state can prove the lawfulness of the order to leave premises that are open to the public, i.e., the exclusion order, by establishing (1) that the order was issued pursuant to city ordinance, and (2) that defendant did not challenge its lawfulness in the forum provided through the city's ordinances for challenges to the lawfulness of its exclusion orders.

The state argues-and the trial court agreed—that Marbet is controlling. In particular, the state contends that, under Marbet, a defendant who fails to follow available appeal procedures waives any right to contest the lawfulness of an exclusion order.

The circumstances in Marbet were convoluted and unfortunately require an protracted description. In Marbet, the defendant was charged with second-degree trespass when he refused to leave a hearing of the Public Utility Commission after being ordered to do so by the hearing officer. 32 Or.App. at 69, 573 P.2d 736. The defendant had asserted to the hearing officer that he was a representative of one of the parties and thus entitled to cross-examine a witness, but the hearing officer had refused to permit him to do so. Id. at 70, 573 P.2d 736. The defendant then became disruptive. The hearing officer "told defendant he would be asked to leave if he did not cease his disruptive behavior." Id. The defendant persisted, was asked to leave by the hearing officer, and, when he refused to leave, was arrested and charged with second-degree trespass. Id. In his ensuing trespass trial, the defendant sought to introduce evidence that the hearing officer's ruling that the defendant was not entitled to cross-examine a witness at the hearing was erroneous and that he therefore was not "lawfully directed" to leave the premises pursuant to the trespass statute. Id. at 71, 573 P.2d 736. The trial court rejected defendant's argument.

On appeal, we noted that an order to leave premises open to the public may "be limited or circumscribed by statutory or constitutional provisions." Id. at 72, 573 P.2d 736. For example, if a disabled person were asked to leave a restaurant because of the person's disability and refused to do so on the ground that the order to leave was unlawful under state discrimination statutes, "[t]hat the discrimination statute may have been violated by the order to leave is a proper inquiry in a criminal trespass trial." Id. at 73, 573 P.2d 736. We concluded that the same principle applies if a person has a constitutional right to remain on premises open to the public after being ordered to leave by the person in charge: "Whether a person has a constitutional right to remain as an incident to the proper exercise of a constitutionally protected right may be inquired into in contesting the lawfulness of the direction to leave the premises." Id.

If, however, "the authority of the person in charge to expel an individual from the premises is not limited by a constitutional or statutory right of the individual to remain, the order must be obeyed at the risk of a conviction for trespass."Id. (emphasis added). Applying those principles, we concluded that the "unlawful exclusion" defense in Marbet...