29
Submitted September 9, 2020, affirmed July 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
KANDYCE ARLENE CERVANTES,
Defendant-Appellant.
Coos County Circuit Court
18CR53840; A170214
493 P3d 1106
After being trespassed from the property of a coffee stand located in a parking lot, defendant returned to the property and parked within 25 feet of the
stand. At her trial for second-degree criminal trespass, ORS 164.245, tried as a
violation rather than a misdemeanor, defendant argued that the state’s evidence
was insufficient to prove that she was notified that she was not allowed to be in
the parking lot near the coffee stand. The trial court found her guilty. On appeal,
defendant assigns error to that judgment, arguing that the state was required
to prove that defendant had been directed with clarity as to the contours of the
premises that she was excluded from entering. Held: The trial court did not err.
ORS 164.245 did not require that defendant be supplied with a more specific
description of the property from which she was trespassed in order to support a
conviction for trespass.
Affirmed.
Brett A. Pruess, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Affirmed.
30 State v. Cervantes
LAGESEN, P. J.
Defendant appeals a general judgment finding her
guilty of one count of second-degree criminal trespass, ORS
164.245, as a Class A violation pursuant to ORS 161.566(1).
The issue is the sufficiency of the evidence to support the
finding of guilt and, as we understand it, specifically the
sufficiency of the evidence to support the finding that defendant had been “lawfully directed” not to enter the property
on which she trespassed.1 We affirm.
Because the trial court found defendant guilty, we
state the facts underlying the finding of guilt in the light
most favorable to the state. State v. Mead, 310 Or App 57, 58,
484 P3d 366 (2021).
Defendant was charged with trespassing onto the
property of a coffee stand on Ocean Boulevard in Coos Bay.
Jeffers operates the coffee stand in the corner of the API
Paints parking lot. She leases the corner from API Paints.
The coffee stand structure, which is about 200 square feet,
occupies a portion of the land that Jeffers leases.
After a conflict arose between Jeffers and defendant, and defendant kept showing up at the coffee stand,
Jeffers asked that police trespass defendant from her coffee
stand property. Officer Gaither, of the City of North Bend
police department, delivered the news of the exclusion to
defendant, telling her that she had been trespassed from
the Ocean Boulevard coffee stand property and that “she
couldn’t go back onto the property until she was invited back
or given a letter by the owners of the property.” Apart from
telling defendant that she was not permitted to enter the
coffee stand property, Gaither did not further describe the
property.
Notwithstanding the trespass order, defendant
returned to the coffee stand property, pulling into the
1
A violation is tried to the court. In a bench trial, an argument to the court
at the close of the evidence that the evidence is not sufficient is the functional
equivalent of a motion for judgment of acquittal, and we treat it as such. State
v. Gonzalez-Valenzuela, 358 Or 451, 454,
365 P3d 116 (2015) (agreeing “with the
long-standing case law from the Court of Appeals that, under the circumstances,
defendant’s closing argument was the equivalent of a motion for judgment of
acquittal and, therefore, preserved the issue that defendant presents”).
Cite as
313 Or App 29 (2021) 31
parking lot and parking within 20 to 25 feet of the stand.
In so doing, defendant entered the portion of the parking
lot leased by Jeffers for her coffee stand. Jeffers saw defendant and, in her words, “told her exactly what I was going to
do about the situation,” which was to contact police. Officer
Wetmore of the City of Coos Bay police department responded
to Jeffers’s complaint and, upon locating defendant, cited her
for second-degree trespass. At the time, defendant admitted
both that she had been on the property, and that she was
aware of the trespass order, but had thought that it meant
only that she could not go into the coffee stand.
As allowed by ORS 161.566(1), the state elected to
treat the second-degree trespass as a Class A violation, a
choice that meant the state did not need to prove a culpable
mental state, ORS 161.105(1)(a). The case was tried to the
court. At the close of the state’s case, defendant argued that
the state’s “evidence is insufficient to prove that there was
a Criminal Trespass that excluded her from the parking lot
that she was notified of.” The trial court rejected that argument and found defendant guilty. It explained:
“And I am going to find the Defendant guilty of the
Criminal Trespass based largely on the fact that she was
trespassed from the property and that’s how she was notified of it and she returned to said property. And by her own
admission, she was on that property.”
Defendant appealed. On appeal, she assigns error
to the trial court’s finding of guilt and its entry of judgment
on that finding of guilt. She contends that the state failed
to prove that she “enter[ed] or remain[ed] unlawfully” on
the coffee stand property for purposes of ORS 164.245(1)
because, in her view, the state was required to prove that
defendant had been directed with clarity as to the contours of the premises that she was excluded from entering. In particular, defendant notes that the state’s theory
that she “enter[ed] or remain[ed] unlawfully” for purposes
of ORS 164.245 was that she “enter[ed] premises that are
open to the public after being lawfully directed not to enter
the premises.” ORS 164.205(3)(c). She asserts that, to prove
that she was “directed” not to enter the premises, the state
had to prove that the “direction or notice” was “specific
enough to inform [her] of the location … she is excluded
32 State v. Cervantes
from.” Applying that standard, defendant contends that
the evidence would not support a finding that she had been
directed—with adequate specificity—that she had been
excluded from the portion of the premises in the parking lot
20 to 25 feet from the coffee stand.
The state responds that ORS 164.245 does not contain the clarity requirement for which defendant advocates.
Observing that defendant’s arguments suggest that the
state was required to prove that she knew that the portion
of the property on which she entered was part of the coffee
stand’s property, the state notes additionally that, because
it treated the charge as a violation, it was not required to
prove that defendant had a culpable mental state when she
entered the property from which she had been excluded.
ORS 161.105(1)(a).
We agree with the state that the evidence is sufficient to support the finding that defendant trespassed on
the coffee stand property. To prove that defendant committed second-degree trespass, the state had to prove that she
“enter[ed] or remain[ed] unlawfully … in or upon premises.” ORS 164.245. As relevant here, “enter or remain
unlawfully” means “[t]o enter premises that are open to the
public after being lawfully directed not to enter the premises.” ORS 164.205(3)(c). “Premises” means “any building
and any real property, whether privately or publicly owned.”
ORS 164.205(6).
Here, the state proved that (1) Jeffers, the operator of the Ocean Boulevard coffee stand and lessee of the
property on which it stood, trespassed defendant from her
property; (2) Gaither told defendant that she was trespassed
from the coffee stand “property”; and (3) defendant, so notified, entered onto the coffee stand property. That is all that
is required by the terms of the statute. Contrary to defendant’s arguments, nothing in them suggests that the legislature intended that a directive excluding someone from
particular premises contain greater detail than that supplied here. In particular, nothing in the text or the context
indicates the legislature intended that to “direct” a person
to leave a specific, privately owned premises open to the
public, a person must convey something along the lines of
Cite as 313 Or App 29 (2021) 33
a metes-and-bounds description of the property, or clarify
further that an exclusion from the “property” means exclusion from the entire property, not just the buildings or some
other smaller portion of the entire property. A directive to
leave a particular business premises puts a person on notice
that they may not enter onto any portion of the business
property at all and, more to the point, puts the person on
notice of the need to determine the boundaries of the property if those boundaries are unclear.
Finally, to the extent that defendant’s arguments
suggest that the state was required to prove that she knowingly entered the coffee stand property and that, in this
case, the state failed to prove that mental state, that argument is foreclosed by the state’s election to try the case as a
violation, which eliminated the state’s obligation to prove a
particular culpable mental state under these circumstances.
ORS 161.105(1)(a).
Affirmed.
