State v. Pentico

• Court: Idaho Court of Appeals
• Writing for the Court: MELANSON, Judge.
• Citation: State v. Pentico, 151 Idaho 906, 265 P.3d 519 (Idaho App. 2011)
• Decision Date: 17 October 2011
• Docket Number: No. 37834,37834
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Christopher A. PENTICO, Defendant–Appellant.

151 Idaho 906

265 P.3d 519

STATE of Idaho, Plaintiff–Respondent,

v.Christopher A. PENTICO, Defendant–Appellant.

No. 37834

Court of Appeals of Idaho.

Oct. 17, 2011.

Review Denied Jan. 5, 2012.

Gordon Law Offices, Boise, for appellant. Heidi M. Tolman and Bruce S. Bistline argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

MELANSON, Judge.

Christopher A. Pentico appeals from the district court's intermediate appellate decision affirming the magistrate's order withholding judgment for trespass. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Beginning in 2007, the Idaho Capitol closed to the public for renovation and the Governor's office was temporarily moved to the third floor of the nearby Borah Building. On March 25, 2008, an officer stopped Pentico on state property, in the vicinity of the Capitol Annex, and informed Pentico that he was no longer authorized to be at the Capitol Annex, the third and fourth floors of the Borah Building, and the department of education.¹ On April 2, 2008, Pentico visited the Governor's office on the third floor of the Borah Building. After Pentico left the Borah Building, he was cited for trespass in violation of I.C. § 18–7011.² Months later, the state filed an amended complaint charging Pentico with trespass in violation of I.C. § 18–7008. Pentico filed a motion to dismiss the amended complaint and a motion in limine.

At the hearing on Pentico's motion to dismiss, Pentico argued the amended complaint should be dismissed because it did not recite all of the elements of trespass required by I.C. § 18–7008(A)(8) because it alleged only that, on April 2, Pentico willfully trespassed upon the property of the State of Idaho by entering the Governor's office in the Borah Building. The state then moved to file a second amended complaint which provided that, on April 2, Pentico willfully trespassed upon the property of the State of Idaho by returning and entering the Governor's office in the Borah Building without permission or invitation, after being verbally notified within the previous year not to do so, by an authorized agent of the State. The magistrate granted the state's motion to amend and denied Pentico's motion to dismiss on that ground.

In further support of his motion to dismiss, however, Pentico cited to a recent Idaho Supreme Court decision for the proposition that I.C. § 18–7008(A)(8) could be challenged as being unconstitutional as applied to a person on public property who is exercising his or her free speech rights. See State v. Korsen, 138 Idaho 706, 715–16, 69 P.3d 126, 135–36 (2003). After hearing argument on the constitutional issue, the magistrate denied Pentico's motion to dismiss, holding that I.C. § 18–7008(A)(8) placed reasonable restrictions on the time, place, and manner in which constitutional rights could be exercised and Pentico was being prosecuted for his conduct and not the content of his communication. Following this determination, the magistrate addressed and granted Pentico's motion in limine which sought to limit any testimony regarding other crimes, wrongs, or acts of Pentico. Based on the foregoing, the magistrate determined that the content of the communication and prior dealings Pentico may have had with other government officials was not relevant to the case and limited testimony to what occurred on April 2 when Pentico was cited for trespass.³

The parties waived trial by a jury. At trial before the magistrate, in accordance with its previous ruling, Pentico was not allowed to present testimony regarding his communication and prior dealings with government officials or assert that his actions were justified under the First Amendment. At the conclusion of trial, the magistrate determined that the state proved all of the elements required by I.C. § 18–7008(A)(8) beyond a reasonable doubt—that Pentico was properly notified he could not be present at certain locations and that he was thereafter physically present at those locations within a year of such notice. The magistrate found Pentico guilty of trespass, entered a withheld judgment, and placed Pentico on probation for thirty days. Pentico appealed.

On appeal to the district court, Pentico argued that the state did not prove all of the elements of trespass required by the statute. Specifically, Pentico alleged that the state failed to prove that Pentico had not been invited to return to the Borah Building and also failed to prove that he had been asked specifically to leave the Borah Building. Pentico also argued that the statute was unconstitutional as applied to him. The district court concluded that the state proved all of the elements of trespass required by the statute. As to the constitutional challenges, the district court determined that the only issue preserved for appeal was whether Pentico engaged in constitutionally-protected activity on April 2 because Pentico did not argue before the magistrate that he was engaged in constitutionally-protected conduct that was infringed by the notice banning him from government property on March 25. The district court concluded that the statute was not unconstitutional as applied to Pentico on April 2 and affirmed the magistrate's order withholding judgment. Pentico again appeals, arguing that the state failed to prove all of the elements of trespass required by I.C. § 18–7008(A)(8), that the statute was unconstitutional as applied to him, and that that the magistrate erred by precluding evidence.

II.ANALYSIS

On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct.App.2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Id. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Id.

A. Statutory Interpretation

Pentico argues that he could not be convicted of trespass because the state did not prove all of the elements required by the statute. Idaho Code Section 18–7008(A) provides that every person is guilty of a misdemeanor who willfully commits any trespass by:

(8) ... being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified....

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.App.2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999) ; State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999) ; State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.App.2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history, or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction, it has the duty to ascertain the legislative intent and give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of the legislature, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute and its legislative history. Id. It is incumbent upon a court to give a statute an interpretation which will not render it a nullity. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001). Constructions of a statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004) ; State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).

Pentico first argues that the statute required the state to prove that he was not permitted or invited to return to the third floor of the Borah Building. Alternatively, Pentico argues that, even if such permission or invitation was not an element required by the statute, it was an affirmative defense and the magistrate erred by precluding him from presenting testimony about the alleged invitation. At the pretrial hearing, Pentico asserted that, by way of an offer of proof, on March 11, 2008, he asked the Governor for a meeting and the Governor responded that a meeting might be possible after the legislative session was over. It is not necessary to decide here whether permission or invitation was an element of the statute or a matter to be raised as an affirmative defense. Even if what the Governor allegedly said on March 11 could somehow be construed as permission or an invitation, such permission or invitation became irrelevant on March 25 when the officer notified Pentico that he was no longer authorized to be at the third floor of the Borah Building and thereby superseded any alleged permission or invitation by the Governor. Further, Pentico prevented presentation of evidence regarding communication and prior dealings he had with government officials when he filed, and the court granted, his motion in limine which sought to limit any testimony regarding Pentico's other crimes, wrongs, or acts. Therefore, the magistrate did not err by concluding that the state was not required to prove lack of permission or invitation as an element of trespass under these circumstances or by...