State v. Murphy

No. 260                April 24, 2024                 195

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               DONALD LEROY MURPHY,
                  aka Donald L. Murphy,
                   Defendant-Appellant.
              Washington County Circuit Court
                   22CR05920; A178272

  Ricardo J. Menchaca, Judge.
  Submitted October 3, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
  MOONEY, J.
  Affirmed.
196   State v. Murphy
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         MOONEY, J.
         Defendant appeals a judgment of conviction for
four counts of criminal trespass in the second degree, ORS
164.245.1 He assigns error to the trial court’s denial of his
motion for a judgment of acquittal (MJOA) on each count.
Defendant argues that because the verbal order excluding
him from public property did not “provide any process to
challenge the exclusion order[,]” he was deprived of his “right
to procedural due process.” According to defendant, that
deprivation rendered the verbal exclusion order unlawful,
and as such, he argues that it cannot serve as the basis for
any of the trespassing charges. But defendant has failed to
identify a constitutionally protected interest that is affected
by his exclusion from the property. We, therefore, affirm.
         We review the denial of an MJOA to determine
whether, viewing the evidence in the light most favorable to
the state, “a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime
proved beyond a reasonable doubt.” State v. Hall, 

, 

 (1998). We state the pertinent facts
consistently with our standard of review.
         For about six months, the manager of a post office
branch received frequent complaints from customers that
defendant was sleeping in the lobby and blocking access to
their post office (P.O.) boxes. This particular post office branch
is open 24 hours a day for customers to check their P.O. boxes
and ship outgoing mail and packages after hours. In the
mornings, the manager would ask defendant to leave, and for
a time, defendant would peacefully comply. Eventually, defendant began refusing to leave, and, on one occasion, he lunged
at the manager and threatened to kill him.
         After defendant stopped peacefully leaving, the
manager contacted law enforcement and requested that
defendant be directed not to return to the property. On
January 31, 2022, a sheriff’s deputy responded to a call from
the post office branch advising that defendant had returned
   1
       ORS 164.245 provides, in part:
   “(1) A person commits the crime of criminal trespass in the second degree
   if the person enters or remains unlawfully in a motor vehicle or in or upon
   premises.”
198                                                     State v. Murphy

to the post office property despite having been verbally
directed not to return. The responding deputy confirmed
through the sheriff’s office “report systems” that two days
earlier defendant had been verbally directed by another
deputy not to return to the property. The responding deputy
then cited defendant for trespass. On February 1, 2, and 4,
defendant was again cited for trespassing at the same post
office branch.
         At trial, the responding deputy testified that a standard verbal exclusion order would include an explanation to
the individual that they are no longer allowed on the property and that if they return, they may be subjected to criminal citations and arrest. After the state rested, defendant
moved for a judgment of acquittal arguing that the state
had not carried its burden to prove that he had remained
on the property “unlawfully.”2 He argued that his exclusion
from that particular post office branch infringed on his
“fundamental liberty interest in traveling upon and accessing places that are open to the public.” According to defendant, before the state could lawfully deprive him of that
right, procedural due process entitled him to “some type of
adequate process by which to challenge” his exclusion from
that post office, and because the verbal order directing him
not to return did not describe an appeals process, it was not
a lawful order. The trial court denied defendant’s motion. A
jury found defendant guilty on all counts.
         On appeal, defendant asserts that the trial court
erred in denying his MJOA, arguing, as he did below, that
his exclusion from that particular post office branch violated
his liberty interest in accessing public property. The state
responds that defendant does not have “a protected liberty
interest in having unlimited access to public spaces.” In the
state’s view, because defendant “did not use the post office
for a legitimate purpose,” his exclusion from the property
did not infringe on any constitutionally protected interest.

   2
       ORS 164.205 provides, in part:
         “(3) ‘Enter or remain unlawfully’ means:
         “…
       “(c) To enter premises that are open to the public after being lawfully
   directed not to enter the premises[.]”
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Defendant adds, for the first time on appeal, that the exclusion infringed another fundamental liberty interest: the
right to petition the government for redress of grievances.
The state contends that defendant failed to preserve that
argument, and that even if he had, the exclusion did not
infringe his right to petition the government for redress
“because the evidence established that he had only an
‘abstract need or desire’ to enter the post office” to exercise
that right.
         We first address the issue of preservation and conclude that defendant did not preserve the argument that the
exclusion from that particular post office branch infringed
on his right to petition the government for redress. “In the
context of a motion for a judgment of acquittal, an objection as to the legal insufficiency of evidence to prove a claim
on one theory does not have the effect of preserving all
other possible theories of insufficiency; rather, parties must
explain to the court and opposing party a specific reason
for the asserted legal insufficiency.” State v. Cassidy, 

, 

 (2024) (internal quotation marks
omitted). Nevertheless,
      “The touchstone for determining whether a contention is
   adequately preserved is whether the policies that underlie
   the preservation requirement—giving the opposing party
   a fair opportunity to respond, fostering appellate review
   through full development of the record, and giving the trial
   court the opportunity to fully consider and rule in the first
   instance—have been served in a particular case.”
State v. Ames, 

, 

 (2019).
         In the trial court, defendant cited and relied heavily on State v. Koenig, 

, 

 (2010),
rev den, 

 (2011), to argue that a verbal exclusion
order that provides no appeals process cannot pass constitutional muster. Although we held that the exclusion order
in that case infringed on the defendant’s right to petition
the government for redress, id. at 310, that is not the reason
defendant gave the trial court for his reliance on that case.
Because defendant did not specifically assert the right to
petition the government for redress of grievances, neither
the trial court nor the prosecutor had the opportunity to
200                                                    State v. Murphy

consider, respond to, or rule on that contention. We reject
that argument as unpreserved.
          We next address defendant’s preserved argument
that the exclusion from the post office branch infringed on
his right to access public property.3 In determining whether
the state has violated an individual’s procedural due process rights, we engage in a two-part inquiry that asks
(1) whether state action deprived the individual of a protected
interest, and if so, (2) what process the individual was due.
Logan v. Zimmerman Brush Co., 

, 

, 

 (1982). As to part one of that inquiry,
the Fourteenth Amendment to the United States Constitution
protects the fundamental right to intra- and inter-state
travel. See Papachristou v. City of Jacksonville, 

, 

, 31 LEd 2d 110 (1972) (providing that walking, loitering, and wandering are unwritten rights that are
“historically part of the amenities of life as we have known
them” and which “giv[e] our people the feeling of independence
and self-confidence”); Kent v. Dulles, 

, 

, 

 (1958) (describing the “freedom of movement” as “deeply engrained in our history” and “basic in our
scheme of values”); Williams v. Fears, 

, 

, 

 (1900) (“[T]he right to remove from one place
to another according to inclination, is an attribute of personal
liberty, and the right, ordinarily, of free transit from or through
the territory of any State is a right secured by the Fourteenth
Amendment and by other provisions of the Constitution.”);
Josephine Co. Sch. Dist. v. OSAA, 

, 

 (1973) (recognizing that the Fourteenth Amendment
protects the right to intrastate travel). The liberty to travel is
also understood to protect the freedom to remain in a public
place for lawful purposes. See Chicago v. Morales, 

, 

, 

 (1999) (“[T]he freedom to
loiter for innocent purposes is part of the ‘liberty’ protected by
the Due Process Clause of the Fourteenth Amendment. …
Indeed, it is apparent that an individual’s decision to remain
in a public place of his choice is as much a part of his liberty
as the freedom of movement ….”).
    3
      Because defendant challenges the verbal exclusion order under the federal constitution, and not under the Oregon constitution, we limit our review
accordingly.
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         The constitutional right to access public property,
however, does not confer an unlimited right of access. City
of Eugene v. Gannon, 

, 

(2018), rev den, 

, cert den, ___ US ___, 

(2019); see also, e.g., Vincent v. City of Sulphur, 

 (5th Cir 2015) (explaining that although Supreme Court
precedents establish “a general right to go to or remain on
public property for lawful purposes,” none clearly establishes
that “a person under investigation for threatening deadly
violence against city officials has a right to notice and a
hearing before being banned from entering city buildings”);
Catron v. City of St. Petersburg, 

, 1267 n 5 (11th
Cir 2011) (holding that there is “a private liberty interest in
lawfully visiting city property that is open to the public” but
noting that the right to use city parks “is not absolute” and
applies “under the ordinary conditions in which these parks
are made available to the general public”).
         We held in Gannon that “while a university campus
may be open to the public, it does not follow that [a u]niversity must allow all members of the public onto its premises regardless of their conduct.” 

 (internal quotation marks omitted). In that case, the defendant
received a notice of trespass after he was found sleeping in
a locked building on the University of Oregon’s campus. 

. He returned to campus in violation of that order on
four separate occasions and received citations for criminal
trespass. 

. On appeal, we rejected the argument
that the notice violated his procedural due process rights
because the defendant failed to identify “a constitutionally
protected interest that is affected by the notice.” 

.
We explained that although the university is publicly owned,
“the public does not have unlimited access to its campus.” 

. Moreover, universities serve an educational mission and must foster an environment which furthers that
mission; accordingly, while universities by no means have
unlimited discretion to exclude, they may reasonably regulate the conduct of nonstudents on campus whose conduct
is not otherwise protected by the constitution. 

(discussing Souders v. Lucero, 

 (9th Cir
1999), cert den, 

 (2000)).
202                                         State v. Murphy

         Defendant contends that Gannon is distinguishable because in that case, the defendant was not a university student and he entered a locked building, while in his
case, defendant was excluded from a building “open to the
public with unlimited access to anyone who chose to enter.”
But the fact that the post office branch is open 24 hours a
day does not mean that access by members of the public is
unlimited. Twenty-four-hour access simply allows the public
to conduct certain postal business outside regular business
hours. The fact that the doors remain unlocked throughout
the night does not open the premises to the public for nonpostal purposes.
         Defendant was not in the post office lobby to transact postal business. He was sleeping in the lobby and blocking people’s access to their mailboxes. When asked to leave,
defendant became hostile and threatened harm. He does not
have a protected liberty interest that entitles him to enter
and remain on the premises of that post office branch under
those circumstances. Having thus failed to identify a fundamental liberty interest affected by the exclusion order, the
trial court did not err in denying defendant’s MJOA.
        Affirmed.