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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CM-746

KEITH A. WICKS, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CMD-10265-16)

(Hon. Anthony C. Epstein, Trial Judge)

(Argued March 10, 2020 Decided April 30, 2020)

Chantal Jean-Baptiste for appellant.

Edward G. Burley, Assistant United States Attorney, with whom Jessie K. 

Liu, United States Attorney, and Elizabeth Trosman and Chrisellen R. Kolb, 

Assistant United States Attorneys, were on the brief, for appellee. 

Before BECKWITH and EASTERLY, Associate Judges, and LONG, Senior Judge, 

Superior Court of the District of Columbia.

*

 

*

 Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
2

EASTERLY, Associate Judge: After Keith A. Wicks was observed reselling 

tickets outside its stadium, the Washington Nationals Baseball Club, LLC

(“Washington Nationals”), barred him from its “property and grounds” at “1500 S. 

Capitol Street SE.” A few weeks later, Mr. Wicks was arrested and charged with 

unlawful entry, D.C. Code § 22-3302(a)(1) (2012 Repl. & 2019 Supp.), when he 

walked onto a sidewalk running along the north side of the stadium’s structure. Mr. 

Wicks was found guilty after a bench trial. On appeal he argues that the 

government’s evidence was insufficient to establish either that the sidewalk was 

private property or that he had the requisite state of mind to enter it against the will 

of its owner. We agree and reverse his conviction. 

Recognizing that, generally, “sidewalk[s are] for the use of everyone alike,” 

Chvala v. District of Columbia Transit Sys., Inc., 306 F.2d 778, 781 (D.C. Cir. 1962), 

we are confronted with a situation where Mr. Wicks’s charged conduct—walking 

on a sidewalk—hardly looks like a crime; rather, it is an activity that law-abiding 

individuals engage in every day throughout the District. It was the government’s

burden to prove that Mr. Wicks in fact committed a crime, specifically the charged

crime of unlawful entry. We conclude the government failed to prove the elements 

of unlawful entry beyond a reasonable doubt. First, it did not prove that the sidewalk 

was actually private property. Although the government’s sole witness testified that 
3

this sidewalk belonged to the Washington Nationals, his testimony also revealed that 

he had no reliable foundation for that assertion. Indeed, the trial court acknowledged 

the “limits” to this witness’s knowledge. Second, the government did not prove that 

Mr. Wicks knew or even should have known his presence on the sidewalk was 

against the will of the Washington Nationals because it did not prove that Mr. Wicks 

was told, in any form or fashion, that what looked like a public thoroughfare was the 

private property of the Washington Nationals where he did not have permission to 

be.

I. Facts

The sole witness for the government at trial was Metropolitan Police 

Department Officer Nathan Clarke, who worked part-time for the Washington 

Nationals. Officer Clarke described his duties as: “handl[ing] disorderly[

attendees,] . . . facilitat[ing] the egress and ingress of patrons coming in to watch the 

ballgame[,] and whatever other assignments that the Washington Nationals have that 

are police related.” One game-day evening on June 14, 2016, while Officer Clarke 

was monitoring fans coming into the stadium, he saw Mr. Wicks selling tickets

“right outside the center field gate.” Officer Clark testified that the “sidewalk area” 

outside the center field gate on the south side of N Street, SE “is owned and operated 

by the Washington Nationals.” Officer Clarke explained that when he “initially”
4

saw Mr. Wicks, Mr. Wicks was “on the sidewalk”; Officer Clarke stated that Mr. 

Wicks “then” moved “onto the street on N Street itself on public space.” 

Officer Clarke testified that he “responded to that center field gate area . . . to 

assist” another officer, Detective Bemiller, “with his contact with Mr. Wicks.” They

“asked [him] to come to the Washington Nationals security office.” Inside the 

security office, Mr. Wicks was served with a copy of a one-page, form “Barring

Notice,”

1 which was read aloud to him and which stated:

The below named person was found on the premises 

owned, occupied or managed by Washington Nationals 

Baseball Club, LLC. This same person is hereby warned

to stay off the property and grounds thereof known as 

Washington Nationals Baseball Club, LLC, at (address) 

1500 S. Capitol Street SE . . . . There are no exceptions to 

this notice. Failure to heed this warning shall result in the 

prosecution for Unlawful Entry under D.C. Code § 22-

3302. 

Information identifying Mr. Wicks as the “Barred Individual” was added by hand in 

the spaces provided, as was the reason for issuing the notice: “scalping.” 

 

1

 Although the barring notice was admitted into evidence, the barring notice 

in our record on appeal is not marked as an exhibit. However, the government 

supplied this court with this copy of the barring notice as a supplement to the record, 

and Mr. Wicks has not argued that the copy admitted into evidence was materially 

different.
5

The remaining section of the form was devoted to signature lines, for the 

“Barred Individual” (this was left blank, and a check mark and notation by Officer 

Clarke indicated that Mr. Wicks had refused to sign), the “Authorized Agent or 

Owner” (signed by Lamar Graham2), and “Witness” (signed by both Detective 

Bemiller and Officer Clarke). The last line of the form stated: “Barring Notice is in 

effect for 5 years unless cancelled in writing[.] Attach Picture if Available.” No 

picture or other documentation was attached. 

Officer Clarke testified that he was working again at the Washington 

Nationals stadium a few weeks later, on July 1, 2016, when he saw Mr. Wicks on N 

Street SE,

3 which the officer acknowledged was “public space.” Using his cell 

phone, Officer Clarke recorded Mr. Wicks as he “walked onto the Washington 

Nationals’ property in front of the will call office, the sidewalk” and began selling 

tickets. Officer Clarke then left his post and arrested Mr. Wicks for unlawful entry.

 

2

 Officer Clarke identified this signature as that of “Captain Lamar Graham,” 

whom he clarified was the representative of the Nationals who read the barring 

notice to Mr. Wicks. 

3

 The officer explained that during the baseball game that block of N Street 

SE was closed to car traffic but open to pedestrians. 
6

On cross-examination, defense counsel probed the basis for Officer Clarke’s 

assertion that the “south side of N Street on the sidewalk” was Washington Nationals

property. When counsel asked if Officer Clarke had ever “seen any documents that 

depict[] what is the Washington Nationals’ property and what is not,” Officer Clarke 

specifically denied having seen any “official document” showing that the sidewalk 

belonged to the Washington Nationals, and he gave no other indication that he had 

received any training on this subject. He testified he had “only seen documents 

posted online,” but he could not immediately “recollect” what they were or where 

he had seen them. After requesting a moment to reflect, he replied, “I want to say 

DCRA,” apparently referring to the website for the Department of Consumer and 

Regulatory Affairs. He then asserted that “they have a diagram of the . . . 

Washington Nationals’ property posted online,” but when asked if this diagram 

“show[ed] how many feet from the abutment of the building belongs to the 

Washington Nationals,” he testified he could not “recall.”

4

 

4

 Also on cross-examination, counsel asked when exactly on June 14, 2016, 

Officer Clarke had advised Mr. Wicks that he would be barred from Washington 

Nationals property. Officer Clarke testified, “[t]hat was done when we made contact 

with him. We told him the reason why we [we]re making contact with him.” In 

response to defense counsel’s follow-up question asking what that reason was, 

Officer Clarke testified, “[b]ecause he was soliciting tickets”—“offering tickets for 

sale”—“at [the] center field gate right on the Washington Nationals’ property and 

sidewalk.”
7

Testifying in his own defense, Mr. Wicks stated that he was a Washington 

Nationals fan who frequently attended games. He denied ever being presented with 

the barring notice, though he agreed that it correctly stated his date of birth. He also 

testified that he believed that the sidewalk on the south side of N Street “next to the 

ballpark” was “public space to [his] awareness.” 

Crediting Officer Clarke’s testimony, the trial court found “the evidence 

established beyond a reasonable doubt that Mr. Wicks crossed the sidewalk and 

approached the will call window,” and thus that he had “entered unlawfully onto the 

private property of the Washington Nationals” and committed the crime of unlawful 

entry.

II. Analysis

Mr. Wicks argues that the evidence was insufficient to support his conviction

for unlawful entry under D.C. Code § 22-3302(a)(1) (making it a crime for “[a]ny 

person . . . without lawful authority [to] enter, or attempt to enter, any private 

dwelling, building, or other property, or part of such dwelling, building, or other 

property, against the will of the lawful occupant or of the person lawfully in charge 

thereof”). 
8

“We review challenges to the sufficiency of the evidence de novo . . . .”

Foster v. United States, 218 A.3d 1142, 1144 (D.C. 2019). In so doing, we

“consider[] all the evidence in the light most favorable to the verdict, . . . according

deference to the factfinder to weigh the evidence, determine credibility, and draw 

justifiable inferences of fact.” Id. Even so, it is our obligation to ensure that “the 

evidence in a criminal prosecution [is] strong enough that a [trier of fact] behaving 

rationally really could find it persuasive beyond a reasonable doubt.” Rivas v. United 

States, 783 A.2d 125, 134 (D.C. 2001) (en banc). “Slight evidence is not sufficient 

evidence,” id.; likewise, evidence that “establish[es no] more than the speculative

possibility that the elements are present” will not suffice, Grayton v. United States, 

50 A.3d 497, 503 (D.C. 2012) (internal quotation marks omitted); accord Slater-El 

v. United States, 142 A.3d 530, 538 (D.C. 2016) (“Although a fact-finder is entitled 

to draw a vast range of reasonable inferences from evidence, the fact-finder may not 

base a verdict on mere speculation.” (internal quotation marks omitted)). 

In Ortberg v. United States, 81 A.3d 303 (D.C. 2013), this court clarified that 

the elements of unlawful entry are (1) the defendant entered onto private property, 

id. at 307 & n.4; (2) “the physical act of entry [was] purposeful and voluntary—not 

accidental or mistaken,” id. at 308; (3) the entry was unauthorized, i.e., “without 
9

lawful authority and against the will of [the] owner or lawful occupant,” id. at 307 

(footnote omitted); and (4) the defendant “knew or should have known that his entry 

was unwanted,” id. at 308. Mr. Wicks claims that the evidence was insufficient as 

to the first and fourth elements.

A. Entry onto Private Property

In issuing its verdict, the trial court stated that it was “not prepared to assume 

that” the entirety of the sidewalk on the south side of N Street SE, including the brick 

border closest to the street, “is public property.”5Instead, it determined that when 

“Mr. Wicks crossed the sidewalk and approached the will call window” on July 1, 

2017, he “entered unlawfully onto the private property of the Washington 

Nationals.” Although the trial court was rightly skeptical that the entire width of this 

city sidewalk was “private property,”

6 we see no evidentiary basis for the court’s 

 

5

 This statement was consistent with the trial court’s earlier determination, 

when rejecting Mr. Wicks’s motion for a judgment of acquittal, that there was

“sufficient proof that even if the brick portion of the sidewalk [closest to the street]

is public property when he leaves the brick portion and crosses onto the concrete 

portion and then goes by the will call office he is on Nationals’ property.” 

6

 For many years, the general “rule in the District of Columbia” has been “that 

the sidewalks of the District of Columbia extend from the curb bounding the street 

to the building line . . . .” Gittleson v. Robinson, 61 A.2d 635, 637 (D.C. 1948) 

(emphasis added); cf. Morgan v. District of Columbia, 476 A.2d 1128, 1129–30 

(D.C. 1984) (demonstrators arrested for unlawful assembly after moving from public 

sidewalk to private driveway).
10

conclusion that a portion of the sidewalk by the will call office belonged to the 

Washington Nationals. Officer Clarke, the government’s only witness, never 

delineated only some portion of the sidewalk outside the stadium as belonging to the

Washington Nationals (and he never described the sidewalk as being made of two 

different materials). To the contrary, he testified that the entirety of the sidewalk on 

the south side of N Street SE was the “property of the Washington Nationals.” We 

thus evaluate whether this testimony can sustain the first element of the crime of 

unlawful entry. 

The court acknowledged that there was a question whether Officer Clarke was 

“competent to testify about the boundaries of Nationals Park.” Nevertheless, the 

court concluded that it could rely on Officer Clarke’s testimony about what 

constituted the property of the Washington Nationals by analogizing to a homeowner 

who, in lieu of presenting expert testimony, may testify about the valuation of their

property. We do not disagree with the general proposition that a property owner 

may testify about the boundaries of their property. But even the testimony of a 

property owner may not be relied upon to prove unlawful entry where, as here, that 

testimony fails to establish that the owner—or, as in this case, their employee—has 

an actual basis of knowledge. Cf. Joiner-Die v. United States, 899 A.2d 762, 765 

(D.C. 2006) (“A witness is competent to testify only about those matters of which 
11

he/she has personal knowledge.”); cf. also Harrison v. United States, 76 A.3d 826, 

841 n.19 (D.C. 2013) (acknowledging that “personal knowledge includes inferences 

and opinions, so long as they are grounded in personal observations and experience” 

(internal quotation marks omitted)).

The record contains no evidence that the Washington Nationals provided 

Officer Clarke with information about the boundaries of its property. Although the

trial court referred in passing to Officer Clarke’s “on the job training,” Officer Clarke 

did not testify that he had learned about the boundaries of the Washington Nationals 

property while working. He never indicated he had previously issued any barring 

notices or made any unlawful entry arrests, much less testified that his job regularly 

included “enforcing the boundaries of the park” as the government represents in its 

brief. Although Officer Clarke broadly described his job as performing 

“whatever . . . assignments the Washington Nationals have that are police related,” 

when he specified what those assignments were, he explained they largely related to 

crowd control—“handl[ing] disorderly[ attendees,] . . . facilitat[ing] the egress and 

ingress of patrons coming in to watch the ballgame.”

Further, Officer Clarke did not testify that he had a reliable, personal basis of 

knowledge that the sidewalk belonged to the Washington Nationals. He admitted 
12

that he had not seen any official surveys of the Washington Nationals property and 

that he had relied exclusively on some unidentified “documents posted online.” The

government represents in its brief that Officer Clarke “confirmed this property line 

on the DCRA website,” but his testimony about where online he had seen these 

documents was equivocal at best: after asking for a moment to “recollect” his source 

of information, he testified, “I want to say DCRA.” And when asked whether 

whatever he had seen online “show[ed] how many feet from the abutment of the 

building belong[] to the Washington Nationals,” he again testified he could not 

“recall.” The government did not seek to rehabilitate Officer Clarke on this point on 

redirect and did not seek to put any exhibits into evidence to substantiate the 

Washington Nationals’ ownership of the sidewalk.

7

 

 

7 At oral argument, the government directed attention away from the DCRA 

website, observing that “the DDOT [District Department of Transportation] website 

actually has a mapping tool which you can determine [property lines].” But the 

government never elicited evidence from Officer Clarke that he might have looked 

at the DDOT website, nor asked the trial court to judicially notice any information 

contained on the DDOT (or any other government) website. See Bostic v. District 

of Columbia, 906 A.2d 327, 332 (D.C. 2006) (“[W]e may take judicial notice of 

laws, statutes, and other matters of public record.”).

We note that, had the government asked the trial court to judicially notice the 

records generated by the DDOT mapping tool, it appears that the evidence would 

not have supported the government’s case. This tool, Atlas Plus, developed by the 

District’s Office of the Chief Technology Officer, indicates that the property line of 

the Washington Nationals stadium along N Street SE is coextensive with the 

footprint of the physical structure and does not extend into the sidewalk. See Atlas 

All-in-One, District Dep’t of Transp., https://ddot.dc.gov/page/atlas-all-one
13

In its verdict, the trial court commended Officer Clarke for “candidly . . . 

admit[ing] the limits of his knowledge.” But these “limits” revealed that Officer 

Clarke provided no reliable foundation for his assertion that the sidewalk on the 

south side of N Street SE, next to the stadium, was owned by the Washington 

Nationals. Accordingly, these “limits” rendered the government’s evidence 

insufficient as to the first element of unlawful entry—entry on to private property.

B. The Defendant’s Mental State Regarding Entry 

Against the Will of the Owner

Mr. Wicks argues that the evidence against him was insufficient for an 

additional reason: even if he entered private property owned by the Washington 

Nationals when he walked onto the sidewalk on the south side of N Street SE, the 

government did not show that he did so with the requisite state of mind with respect 

to the circumstance that his entry was against the will of the Washington Nationals.

8

In Ortberg, this court described this mens rea element as requiring the government 

 

https://perma.cc/TBQ4-NFDE (describing Atlas Plus); Atlas Plus, District of 

Columbia, http://atlasplus.dcgis.dc.gov/ http://perma.cc/6CXK-XDXH (link to 

tool). 

8

 See Carrell v. United States, 165 A.3d 314, 320 n.13 (D.C. 2017) (en banc) 

(adopting the Model Penal Code’s classification of “conduct, circumstance[], and 

result[]” elements of a crime (internal quotation marks omitted)).
14

to “establish that the defendant knew or should have known that his entry [on private 

property] was unwanted.” 81 A.3d at 308. Subsequent to Ortberg, this court sitting

en banc in Carrell v. United States, 165 A.3d 314 (D.C. 2017), announced a new 

approach for categorizing mens rea terminology and endorsed the “more 

particularized and standardized categorizations of mens rea” set out in the Model 

Penal Code. Id. at 324. As we noted in Carrell, when defining the elements of a 

crime without a specified mens rea, courts should “generally . . . infer that the 

government must prove at least that a defendant knows the facts that make his 

conduct fit the definition of the offense.”9Id. at 321 (footnote and internal quotation 

marks omitted). We further acknowledged “that merely inferring a negligence, i.e., 

should-have-known, standard is disfavored.”

10 Id. at 322 (footnote omitted). It is 

unclear whether Ortberg meant to endorse a negligence standard within the meaning 

 

9

 Model Penal Code § 2.02(2)(b) (Am. Law Inst. 1985) (“A person acts 

knowingly with respect to a material element of an offense when: (i) if the element 

involves the nature of his conduct or the attendant circumstances, he is aware that 

his conduct is of that nature or that such circumstances exist; and (ii) if the element 

involves a result of his conduct, he is aware that it is practically certain that his 

conduct will cause such a result.”).

10

 Model Penal Code § 2.02(2)(d) (“A person acts negligently with respect to 

a material element of an offense when he should be aware of a substantial and 

unjustifiable risk that the material element exists or will result from his conduct. The 

risk must be of such a nature and degree that the actor's failure to perceive it, 

considering the nature and purpose of his conduct and the circumstances known to 

him, involves a gross deviation from the standard of care that a reasonable person 

would observe in the actor’s situation.”).
15

of the Model Penal Code,

11 or, if it did, whether such a standard would survive our 

analysis in Carrell, but we need not resolve this issue here. Even assuming that the 

Model Penal Code negligence standard applies, we cannot say on this record that the 

government established that Mr. Wicks “should [have] be[en] aware of a substantial 

and unjustifiable risk that” he was on private property owned by the Washington 

Nationals. Model Penal Code § 2.02(2)(d) (Am. Law Inst. 1985).

First, the lack of evidence that the sidewalk belongs to the Washington 

Nationals, see supra Part II.A., itself raises doubt that Mr. Wicks should have been 

aware that it did. Second, there is no evidence that the Washington Nationals 

publicly held itself out as the owner of property beyond the stadium structure: there 

is no evidence in the record about signage, barriers, or other announcements outside 

the stadium that would have informed a reasonable person that stepping on to the 

sidewalk would put them on private property.12 Third, the barring notice is not 

 

11

 Ortberg did not cite to the Model Penal Code. Instead, it catalogued this 

jurisdiction’s prior unlawful entry cases. Although Ortberg understood these cases 

to collectively reflect that proof of “actual knowledge” was unnecessary, 81 A.3d at 

308, in all of the cases cited and indeed, in Ortberg itself, actual knowledge (which 

is rarely established by direct evidence, see Owens v. United States, 90 A.3d 1118, 

1122 (D.C. 2014)), could be inferred from the surrounding circumstances. See 

Ortberg, 81 A.3d at 308 nn.6–8, 310.

12 See, e.g., Ortberg, 81 A.3d at 305–06, 309 (event space in hotel that was 

restricted where registration desk was set up at entrance for guests to pick up 
16

specific as to what property is barred: it gives only a street address for a different 

street, South Capitol Street SE, and it did not append a map showing what property 

outside of the stadium structure, if any, was covered.

13

 Fourth, Mr. Wicks’s receipt 

of the barring notice on June 14, 2016, after being confronted by Officer Clarke and 

Detective Bemiller in one location—on the street, outside the center-field gate—did 

not put him on notice the location of his arrest on July 1, 2016—on the sidewalk 

outside the will call office—was Washington Nationals property.14 Indeed, the 

barring notice given to Mr. Wicks in the security office on June 14, 2016, specified 

that it was issued because Mr. Wicks was “scalping”—not because he was 

 

badges); Kozlovska v. United States, 30 A.3d 799, 800 & n.1 (D.C. 2011) (stairwell 

of apartment building that was restricted where access was controlled by security 

key); Artisst v. United States, 554 A.2d 327, 329 (D.C. 1989) (university residence 

facility that was restricted where university identification card was required for 

access); Culp v. United States, 486 A.2d 1174, 1175 (D.C. 1985) (vacant building 

that was restricted where windows and doors were boarded up and a “no trespassing 

sign” was posted); Bowman v. United States, 212 A.2d 610, 610–11 (D.C. 1965) 

(train platform that was restricted where passengers had to enter through gate bearing 

a “sign stating that only persons holding transportation (having tickets) were 

permitted through” and after “public announcement to the same effect”). 

13

 Cf. Vaas v. United States, 852 A.2d 44, 48 (D.C. 2004) (reversing contempt 

conviction based on violation of ambiguous stay-away order and “strongly 

suggest[ing] that in future orders trial courts endeavor to set more defined 

parameters, using maps, if practicable, that can be attached to the stay-away orders

to provide defendants with clear guidance about this important aspect of a release

order”).

14

 Accordingly, it is not particularly probative that the notice stated that Mr. 

Wicks “was found on the premises” on June 14, 2016.
17

trespassing.

15 Accordingly, the evidence was insufficient to establish that Mr. Wicks 

had the requisite mens rea regarding the circumstance element that his entry onto the 

sidewalk on the south side of N Street SE adjacent to the Washington Nationals’ 

stadium was “against the will” of the Washington Nationals. Ortberg, 81 A.3d at 

308. 

III. Conclusion

For the foregoing reasons, we reverse Mr. Wicks’s conviction for unlawful 

entry and remand to allow the trial court to enter a judgment of acquittal.

So ordered.

 

15

 Officer Clarke’s testimony that when he and Detective Bemiller “made 

contact with Mr. Wicks” on the street, they told him why they were approaching

him—because he had been “offering tickets for sale” “at [the] center field gate right 

on the Washington Nationals’ property and sidewalk,” see supra note 4—adds little 

to the evidentiary equation. The officers’ identification of “scalping” as the reason 

to approach Mr. Wicks was consistent with the barring notice, and their reference to 

the location of this activity was similarly vague.