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State v. Stanko

Supreme Court of Nebraska

December 20, 2019

State of Nebraska, appellant.
Rudy Stanko, appellee.

         1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.

         2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable; an appellate court independently reviews questions of law.

         3. Statutes. The interpretation of a statute presents a question of law.

         4. Criminal Law: Intent: Appeal and Error. The purpose of a prosecutorial appeal brought under Neb. Rev. Stat. § 29-2315.01 (Reissue 2016) is to provide an authoritative exposition of the law to serve as precedent in future cases.

         5. Appeal and Error. Neb. Rev. Stat. § 29-2316 (Reissue 2016) limits the relief an appellate court can afford, even if the exception taken by the State is sustained.

         6. Criminal Law: Courts: Judgments: Appeal and Error. A judgment of acquittal in the county court shall not be reversed by either the district court acting as an intermediate appellate court or upon further consideration in an appeal to the Nebraska Supreme Court or the Nebraska Court of Appeals, since the defendant has been placed legally in jeopardy in the trial court.

         7. Criminal Law: Directed Verdict. In a criminal case, the court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged or (2) evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.

          [304 Neb. 676] 8. Criminal Law: Directed Verdict: Appeal and Error. In an appellate court's consideration of a criminal defendant's motion for a directed verdict, the State is entitled to have all its relevant evidence accepted as true, every controverted fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence.

         9. Criminal Law: Proof. The burden is on the State to prove all essential elements of the crime charged.

         10. InvitorInvitee. As a general matter, when a business holds a portion of its property open to the public, a person who enters the open area at a reasonable time and in a reasonable manner has the implied consent of the owner to enter the premises under a limited privilege.

         11.__. Business property owners have a common-law right to exclude from their premises those whose actions disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants.

         12. Criminal Law: Statutes: Words and Phrases. The meaning of the word "know" or the word "knowingly" in a penal statute varies in the context in which it is used.

         13. Trespass: Words and Phrases. The plain language of "knowing" in Neb. Rev. Stat. § 28-521(1) (Reissue 2016), in the context of entering any building or occupied structure "knowing that he or she is not licensed or privileged to do so," imposes a subjective standard focused on the accused's actual knowledge.

         14. Intent: Circumstantial Evidence. Knowledge, like intent, may be inferred from the circumstances surrounding the act.

         15. Trial. An affirmative defense is established as a matter of law only if there are no factual issues remaining to be resolved by the trier of fact.

         16. Trespass. A person entering premises open to the public has not "complied with all lawful conditions imposed on access to or remaining in the premises" pursuant to Neb. Rev. Stat. § 28-522(2) (Reissue 2016) if he or she has been lawfully barred from the premises and the business has not reinstated its implied consent to entry.

          Appeal from the District Court for Sheridan County, Travis P. O'Gorman, Judge, on appeal thereto from the County Court for Sheridan County, Paul G. Wess, Judge.

          Aaron J. Conn, Sheridan County Attorney, for appellant.

          Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, Patras & Watson, PC, L.L.O., for appellee.

         [304 Neb. 677] Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.


         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.


         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 [304 Neb. 678] 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[.]"


         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:

[304 Neb. 679] 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 #34
101 WHwy 20
Gordon, NE ...

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