State of Nebraska, appellant.
Rudy Stanko, appellee.
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
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.
Statutes. The interpretation of a statute
presents a question of law.
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
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
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.
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.
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.
Criminal Law: Proof. The burden is on the
State to prove all essential elements of the crime charged.
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.
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.
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.
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
Intent: Circumstantial Evidence. Knowledge,
like intent, may be inferred from the circumstances
surrounding the act.
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.
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.
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.
J. Conn, Sheridan County Attorney, for appellant.
M. Pope, of Crites, Shaffer, Connealy, Watson, Patras &
Watson, PC, L.L.O., for appellee.
Neb. 677] Miller-Lerman, Cassel, Stacy, Funke, Papik, and
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
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
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)
(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.
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[.]"
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.
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."
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
[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 ...