State v. Dameron

• Decision Date: 28 May 1993
• Citation: 316 Or. 448,853 P.2d 1285
• Parties: STATE of Oregon, Petitioner on Review, v. William C. DAMERON, Respondent on Review. DC D881992M; CA A60258; SC S37145.
• Court: Oregon Supreme Court

Page 1285

853 P.2d 1285

316 Or. 448

STATE of Oregon, Petitioner on Review, v. William C. DAMERON, Respondent on Review.

DC D881992M; CA A60258; SC S37145.

Supreme Court of Oregon.

Argued and Submitted March 6, 1992.

Reassigned Feb. 4, 1993.

Reassigned April 8, 1993.

Decided May 28, 1993.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause and filed the petition for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. General, Salem.

Steven L. Price, Hillsboro, argued the cause for respondent on review.

Charles F. Hinkle, of Stoel Rives Boley Jones & Grey, Portland, filed a brief for amicus curiae Fred Meyer, Inc.

Gile R. Downes, of Schulte, Anderson, DeFrancq, Downes & Carter, P.C., Portland, filed a brief for amicus curiae International Council of Shopping Centers, Inc.

Before CARSON, C.J., PETERSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ., and TONGUE, retired Justice Pro Tem.

VAN HOOMISSEN, Justice.

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 P.2d 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 P.2d 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 P.2d 446 (1993) (Whiffen II ) (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 1, OF THE OREGON CONSTITUTION⁴, and the Court of Appeals' decision in Lloyd Corporation v. Whiffen, 89 Or.App. 629, 750 P.2d 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 P.2d 341 (1979), aff'd sub nom., PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

The trial court found in part:

1. "[D]efendant 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 v.] 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 P.2d 208 (1990), aff'd by an equally divided court 316 Or. 492, 851 P.2d 1141...