State v. Stanko

• Decision Date: 20 December 2019
• Docket Number: No. S-18-543.,S-18-543.
• Citation: 304 Neb. 675,936 N.W.2d 353
• Parties: STATE of Nebraska, appellant, v. Rudy STANKO, appellee.
• Court: Nebraska Supreme Court

304 Neb. 675

936 N.W.2d 353

STATE of Nebraska, appellant,

v.Rudy STANKO, appellee.

No. S-18-543.

Supreme Court of Nebraska.

Filed December 20, 2019

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.

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 businesses owned by the parent company issuing the letter, including 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 affirmative 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 encompass 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 previously 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 separately secured or occupied portion thereof, (3) knowing that he 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 reasonably likely to come to the attention of intruders; or

(c) Fencing or other enclosure manifestly designed to exclude intruders except as otherwise provided in section 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 newspaper 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 newspaper, 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 customers 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:

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 specifically not welcome at the Bosselman property:

Pump & Pantry #34101 W Hwy 20Gordon, 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, including Subway. The district manager testified that the letter followed 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" blocking 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.

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 immediately 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 trespass, 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 telephoning 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 affirmative 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 question. 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 ....

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 affirmative 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 premises [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 instrument or element No. 6, and, therefore, a directed verdict would be proper.

Instruction No. 6 is not in the record. The court asked the parties 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 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...