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STATE v. STANKO

Cite as 304 Neb. 675

State of Nebraska, appellant, 

v. Rudy Stanko, appellee.

___ N.W.2d ___

Filed December 20, 2019. No. S-18-543.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/27/2019 12:05 AM CST
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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. Invitor-Invitee. 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. Exception 

sustained.

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

Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, 

Patras & Watson, P.C., L.L.O., for appellee.
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Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

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.

BACKGROUND

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 pre

viously 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 
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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[.]”

Trial

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:
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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 W Hwy 20

Gordon, NE 69343

Furthermore, you are prohibited from telephoning any 

Bosselman business including Pump & Pantry # 34, 101 

W Hwy 20, Gordon, Nebraska.

If you are found on this property or if you telephone 

this business or any Bosselman business, law enforcement 

will be called and you will be charged with trespassing 

and/or harassment.

A copy of this letter has been sent to the Gordon Police 

Department.

The letterhead listed all of the Bosselman businesses, including Subway. The district manager testified that the letter followed standard procedure for the company and that it could be 

rescinded under certain circumstances.

A copy of the letter was sent to the Gordon Police 

Department. Bosselman management verbally communicated 

to an officer of the police department that Stanko was not 

allowed on Bosselman’s property. The officer testified that 

Stanko later told him that he had received the letter.

The Pump & Pantry and the Subway each have their own 

signage and operating hours, but they share the same building 

with the same address. There are separate entries for the Pump 

& Pantry and the Subway. Once in the building, however, 

people can move freely between one side and the other, unless 

the Subway side is closed. When the Subway side is closed and 

the Pump & Pantry side is open, there is a “little gate” blocking internal access. The larger entry is on the Pump & Pantry 

side but opens into the hallway that adjoins the Pump & Pantry 

and the Subway. Stanko’s newspaper had been distributed in 

that hallway.
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On April 3, 2017, Stanko entered directly into the Subway 

side of the building in Gordon. It was undisputed that the 

Subway was open to the public at that time. Stanko was immediately informed by Subway staff that he was not allowed to be 

there. Stanko asked why he could not order a sandwich. The 

manager replied that Stanko was not allowed on the property. 

Stanko left the building without further incident.

At the close of the State’s case in chief, Stanko moved for 

a directed verdict. Stanko argued that the State had failed to 

prove the elements of first degree trespass because (1) first 

degree trespass involves a dwelling or other place designed 

for overnight accommodation; (2) unlike second degree trespass, notice is not an element of first degree trespass; and (3) 

the “stay away” letter warned that Stanko was not welcome 

at the Pump & Pantry and was prohibited from telephoning any Bosselman business, but merely “request[ed]” that 

Stanko not come onto any of Bosselman’s properties. Further, 

Stanko asserted that a directed verdict should be granted 

because the evidence was undisputed that under the affirmative defense set forth in § 28-522(2), the building was open 

to members of the public and Stanko had complied with all 

lawful conditions.

Before ruling on the motion, the court rejected from the 

bench Stanko’s argument that first degree trespass required a 

dwelling or overnight accommodation. But the court appeared 

to view Stanko’s other arguments favorably, focusing on the 

affirmative defense and the absence of any dispute concerning 

the facts that Stanko did not create a disturbance or otherwise 

violate any lawful condition imposed upon the public at large 

and that the Subway was open to the public at the time in question. The court articulated the following:

[I]t looks to me like, given the testimony that we have 

had thus far, Subsection 2, for example, the premises 

were at the time open to members of the public, and the 

actor, . . . Stanko, complied with all lawful conditions 

imposed upon access to or remaining in the premises . . . .
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So what I am thinking is the real issue is whether 

or not [the Subway staff member’s] testimony that . . . 

Stanko had come in through the entry door of Subway, 

walked around until she informed him he was to leave. 

The manager came and said . . . Stanko was to leave, and 

he left. And so it seems like her testimony — and she 

testified specifically that at the time Subway was open to 

members of the public. And when asked to leave, he left. 

He didn’t do anything, you know, unlawful as far as, you 

know, breaking anything or disturbing anyone coming in 

the door or leaving when he left.

So the issue is whether or not that affirmative defense, 

given all the evidence that we have, is sufficient to grant 

a directed verdict, or does that issue go to the jury for 

their decision? There isn’t any contrary evidence that . . . 

Stanko, you know, was unruly while he was in there or 

failed to comply with the request to leave.

The court continued with its discussion of the affirmative defense by focusing on which party has the burden of 

proof, stating:

[T]he burden of proof does not shift to the defendant. It 

stays with the prosecution to prove that either the premises [were] not open to members of the public, or that 

. . . Stanko failed to comply with all lawful conditions, et 

cetera, et cetera. And so given that, given what I believe 

the instruction would be, it seems as though the State has 

failed to prove what in the proposed instructions is instrument or element No. 6, and, therefore, a directed verdict 

would be proper.

Instruction No. 6 is not in the record. The court asked the parties whether they disagreed with “the proposition that it’s still 

the State’s burden.” The court elaborated:

The defendant has the burden to prove that it was open 

to members of the public and that he failed to — or, 

excuse me, abided by all lawful conditions imposed on 

access to or remaining on the premises and, therefore, the 
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defendant must put on evidence and then the jury would 

decide that issue.

The court later continued: “[O]ne of the elements is knowing 

that one is not licensed or privileged to do so presupposes the 

defense. So, in other words, there would be no affirmative 

defense if a person not given notice, not to come in, didn’t 

come in.” The court asked whether a person entering a business open to the public, by virtue of entering that business, is 

precluded from the affirmative defense that “it was open and I 

didn’t do anything wrong while I was in there.”

In response, the State argued that Stanko was not lawfully 

following the conditions imposed upon him because he failed 

to follow the “stay away” letter.

Stanko’s counsel argued that it was the State’s burden to 

show that the Subway was not open to members of the public 

and to put on some evidence suggesting that Stanko may have 

done “anything other than lawfully comply with all conditions 

that were imposed on him at that moment.”

After a short recess, the court granted Stanko’s motion for a 

directed verdict and dismissed the case. The court did not further articulate its reasons for reaching that conclusion.

Exception Proceeding

The State appealed the county court’s decision to the district 

court pursuant to Neb. Rev. Stat. § 29-2317 (Reissue 2016). 

The State alleged, among other things, that the county court 

had erred in directing a verdict in favor of Stanko.

The district court dismissed the appeal. Noting that jeopardy 

had already attached, the district court concluded that an opinion on appeal would result in an advisory opinion with at most 

“marginal precedential value” because the issues presented 

were limited to the unique facts of this particular case.

The State appealed to the Nebraska Court of Appeals pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 2016). The Court 

of Appeals granted leave to docket the appeal. Though the 

State had assigned several errors, the Court of Appeals granted 

leave to appeal only as to the error alleged regarding the 
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county court’s issuance of a directed verdict based on its interpretation of criminal trespass statutes and affirmative defenses. 

We subsequently moved the case to our docket.

ASSIGNMENTS OF ERROR

The State assigns that the district court erred in finding that 

the errors alleged by the county attorney in the appeal from the 

county court were limited to the facts of this particular case, 

that no issue of statutory interpretation was presented nor any 

other issue upon which a decision would be helpful in future 

cases, and that the application did not present an opportunity 

to provide an authoritative exposition of the law that would be 

sufficiently useful as precedent.

STANDARD OF REVIEW

[1-3] 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.1 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; we independently review questions of law.2

 The interpretation of a statute 

presents a question of law.3

ANALYSIS

[4-6] The purpose of a prosecutorial appeal brought under 

§ 29-2315.01 is to provide an authoritative exposition of the 

law to serve as precedent in future cases.4 Neb. Rev. Stat. 

§ 29-2316 (Reissue 2016) limits the relief we can afford, even 

if the exception taken by the State is sustained.5 A judgment 

1 See State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).

2 See id.

3 State v. Thalken, supra note 1.

4 State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008).

5 See State v. Thalken, supra note 1.
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of acquittal in the county court “shall not be reversed”6 by 

either the district court acting as an intermediate appellate 

court or upon further consideration in an appeal to this court 

or the Court of Appeals,7 since the defendant has been “placed 

legally in jeopardy”8 in the trial court. The relief in an appeal 

by the State under § 29-2316 in such circumstances is limited 

to determining the law to govern in any similar case that may 

be pending or that may thereafter arise.9

The Court of Appeals sustained the State’s application in 

this case as to the error alleged regarding the county court’s 

issuance of a directed verdict based on its interpretation of 

criminal trespass statutes and affirmative defenses. We agree 

that because these are issues of first impression concerning 

the meaning of §§ 28-520 and 28-522, an authoritative exposition of the law is needed. The district court erred in determining otherwise.

[7,8] This exception proceeding addresses the meaning of 

§§ 28-520 and 28-522 within the context of whether the 

county court erred by granting Stanko’s motion for a 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.10

In our 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.11

6 § 29-2316.

7 Id. See, also, State v. Thalken, supra note 1.

8 § 29-2316.

9 See id.

10 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

11 Id.
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In light of the county court’s comments from the bench 

before its ruling, the court appeared to grant Stanko’s motion 

for a directed verdict because it believed that under the affirm

ative defense to criminal trespass described by § 28-522(2), 

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 court also 

appeared to consider the affirmative defense and the element 

of “knowing that he or she is not licensed or privileged” to be 

interwoven. We will begin our analysis with the elements of 

the crime charged.

[9] The burden is on the State to prove all essential elements 

of the crime charged.12 In the charges against Stanko under 

§ 28-520(1)(a), it was the State’s burden to prove beyond a 

reasonable doubt that Stanko (1) entered or secretly remained 

in a building or occupied structure (2) with knowledge that he 

was not licensed or privileged to do so.13

The evidence demonstrated that the Subway was located in 

a building or occupied structure and that Stanko entered that 

building or occupied structure. Section 28-520 applies to “any 

building or occupied structure, or any separately secured or 

occupied portion thereof.” Section 28-520 is not specifically 

crafted for, but encompasses, buildings or structures hosting 

business operations open to the public.

[10,11] 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.14 Nevertheless, such implied consent can be 

revoked.15 Business property owners have a common-law right 

12 State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (1990).

13 See id.

14 87 C.J.S. Trespass § 151 (2018). See 75 Am. Jur. 2d Trespass § 40 (2018).

15 See id.
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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.16

Stanko has never contended that Bosselman did not properly exercise its right to exclude him; the evidence at trial was 

that the exclusion stemmed from an incident of disruptive and 

threatening behavior. Instead, Stanko asserted in his motion 

for a directed verdict that the State’s evidence was lacking in 

sufficient probative value to demonstrate that he entered the 

Subway “knowing” that the exclusion communicated to him by 

the “stay away” letter included the Subway.

[12] We have never before directly addressed the knowledge 

element of § 28-520(1)(a). We have said that the meaning of 

the word “know” or the word “knowingly” in a penal statute 

varies in the context in which it is used.17 In other contexts, we 

have synonymized “knowingly” with “willfully” and distinguished it from “accidentally” or “involuntarily,” stating that 

to commit an act knowingly, the defendant must be aware of 

what he or she is doing.18 In State v. Almasaudi, we held that 

the phrase “receives, retains, or disposes of stolen movable 

property of another knowing that it has been stolen”19 imposes 

a subjective standard.20 We find that standard likewise applicable to § 28-520(1)(a).

Section 28-520 is patterned after § 2.02 of the Model Penal 

Code.21 The comments to the Model Penal Code explain that 

the knowledge requirement excludes from criminal liability 

both the inadvertent trespasser and the trespasser who believes 

16 See Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370 

(1982).

17 See Hancock v. State ex. rel. Real Estate Comm., 213 Neb. 807, 331 

N.W.2d 526 (1983).

18 See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).

19 Neb. Rev. Stat. § 28-517 (Reissue 2016) (emphasis supplied).

20 State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

21 Model Penal Code, § 2.02, 10A U.L.A. 94 (2001).
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that he has received express or implied permission to enter or 

remain on the premises.22 The majority of states have statutory provisions adopting the “knowing” language of the Model 

Penal Code or similar language, which is generally considered 

to impose a subjective standard.23 Most courts with similar statutes hold that “knowing that he [or she] is not licensed or privileged” establishes a subjective standard knowledge of legal 

authority or the consent of the person in lawful possession.24

Thus, it is not sufficient for the State to show that a defendant 

should have known he was not licensed or privileged to enter 

the dwelling;25 the fact finder must determine whether the facts 

and circumstances would have caused the particular defendant 

to “know” the requisite facts.26

[13,14] We agree with the majority of other jurisdictions 

and find that the plain language of “knowing” in § 28-521(1), 

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. That said, knowledge, like intent, may be inferred 

from the circumstances surrounding the act.27 In fact, it is seldom capable of direct proof.28

22 A.L.I., Model Penal Code and Commentaries § 2.02(2)(b)(i), comment 2 

(1985).

23 See 3 Wayne R. LaFave, Substantive Criminal Law § 21.2(c) (3d ed. 2018).

24 See State v. Dansinger, 521 A.2d 685, 689 (Me. 1987). See, also, State v. 

Santiago, 218 N.J. Super. 427, 527 A.2d 963 (1986); State v. Bertram, 708 

N.W.2d 913 (N.D. 2006); Com. v. Namack, 444 Pa. Super. 9, 663 A.2d 191 

(1995); State v. Cram, 184 Vt. 531, 955 A.2d 528 (2008).

25 See, Hancock v. State ex rel. Real Estate Comm., supra note 17; Model 

Penal Code, supra note 21 § 2.02(7). See, also, State v. Dansinger, supra 

note 24; State v. Santiago, supra note 24; State v. Bertram, supra note 24; 

Com. v. Namack, supra note 24; State v. Fanger, 164 Vt. 48, 665 A.2d 36 

(1995).

26 See State v. Bernstein, 697 N.W.2d 371 (N.D. App. 2005).

27 State v. Almasaudi, supra note 20.

28 See Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
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The “stay away” letter listed Subway on its letterhead as 

one of Bosselman’s businesses, and Bosselman’s attorney 

requested in the letter that Stanko “not come onto any of 

its properties.” The letter referred to the incident in which 

Stanko was verbally told he was “not welcome” at the Pump 

& Pantry, which shares the same address and is in the same 

building as the Subway, with open access through a hallway 

between the two businesses unless the Subway is closed. 

Stanko acknowledged to the officer of the police department 

that he had received the “stay away” letter. The State presented more than sufficient evidence for a trier of fact to find 

that Stanko knew he was not licensed or privileged to enter 

the Subway on the date in question. Thus, a directed verdict 

for a failure of proof on the elements of the offense charged 

was inappropriate.

[15] Stanko’s motion for a directed verdict was also based 

on his contention that it was undisputed he had complied with 

“all lawful conditions imposed on access” and thus was entitled to a directed verdict on the affirmative defense set forth by 

§ 28-522. 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.29

The propriety of a directed verdict on the affirmative defense 

set forth by § 28-522(2) depends on statutory interpretation of 

“complied with all lawful conditions imposed on access.” We 

have never addressed the meaning of this phrase. The county 

court appeared to conclude that such conditions encompassed 

only those imposed upon the public at large to enter an open 

area at a reasonable time and in a reasonable manner, and it 

concluded that because the evidence was undisputed Stanko 

entered the Subway during normal business hours and was not 

acting in a disruptive manner, this affirmative defense could be 

decided as a matter of law. The State asserts in this exception 

29 See Davis v. State, 368 Ark. 401, 246 S.W.3d 862 (2007). See, also, Hill v. 

State, 261 Ga. 377, 405 S.E.2d 258 (1991).
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proceeding that “all lawful conditions imposed” includes the 

condition that a particular person for whom implied consent 

has been indefinitely and lawfully revoked cannot enter the 

premises until consent to enter is reinstated. We agree with 

the State.

The affirmative defense found in § 28-522, like § 28-520, 

derives from the Model Penal Code. The comments to the 

Model Penal Code explain that the “primary objective of the 

defense is to exclude criminal prosecution for mere presence 

of a person in a place where the public generally is invited,” 

but the affirmative defense would not foreclose prosecution of 

persons “who become undesirable due to disorderly conduct 

or other misbehavior [which] itself amounts to another criminal offense.”30

Only a few states have adopted this part of the Model Penal 

Code.31 One case from one of those states appears at first 

glance to support the county court’s reading of the statute. 

In State v. Morse,

32 the court held as a matter of law that the 

defendant should be acquitted of criminal trespass under the 

“open to the public” affirmative defense, despite the fact that 

the defendant had been indefinitely evicted from the casino 

in question for allegedly cheating at blackjack. The defendant 

had not exhibited cheating or disorderly conduct on the date 

he was alleged to have trespassed. The court reasoned that, as 

a place of public business, the casino could lawfully exclude 

patrons for cause only, and it stated that “fairness mandates 

that when the patron attempts to return to the casino and acts 

in accordance with all lawful conditions imposed, the patron 

30 A.L.I., Model Penal Code and Commentaries § 221.2, comment 2 at 90 

(1980).

31 Conn. Gen. Stat. Ann. § 53a-110 (West 2012); § 28-522; N.J. Stat. Ann. 

§ 2C:18-3 (West 2015); 18 Pa. Stat. Ann. § 3503 (West 2015); S.D. 

Codified Laws § 22-35-7 (2017); Wash. Rev. Code Ann. § 9A.52.090 

(West 2015).

32 State v. Morse, 276 N.J. Super. 129, 647 A.2d 495 (1994).
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cannot be excluded, as he is not interfering with any legitimate 

business interests.”33

But, in State v. Slobin,

34 a case from the same jurisdiction also involving blackjack at a casino, the court rejected 

as dicta any contention that an exclusion by a business open 

to the public can last for no more than 24 hours. The court 

then affirmed criminal trespass convictions of patrons who 

were indefinitely barred from the blackjack table for repeated 

disorderly conduct, despite the fact that they were not disorderly on the date they were alleged to have trespassed.35 Other 

courts in jurisdictions with statutes adopting the language 

of the Model Penal Code have similarly affirmed convictions of criminal trespass when the defendants were lawfully barred from the business premises, despite otherwise 

behaving reasonably at the time for which they were charged 

for trespassing.36

[16] We hold that 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 § 28-522(2) 

if he or she has been lawfully barred from the premises and the 

business has not reinstated its implied consent to entry. While 

a penal statute is to be construed strictly, it is to be given a 

sensible construction in the context of the object sought to be 

accomplished, the evils and mischiefs sought to be remedied, 

and the purpose sought to be served.37 And in the absence of 

anything indicating otherwise, statutory language is to be given 

its plain and ordinary meaning.38

33 Id. at 134, 647 A.2d at 497.

34 State v. Slobin, 294 N.J. Super. 154, 682 A.2d 1205 (1996).

35 Id.

36 See, Com. v. White, 342 Pa. Super. 1, 492 A.2d 32 (1985); State v. Finley, 

97 Wash. App. 129, 982 P.2d 681 (1999). See, also, Alexis v. McDonald’s 

Restaurants of Massachusetts, 67 F.3d 341 (1st Cir. 1995).

37 In re Interest of W.D., 232 Neb. 581, 441 N.W.2d 608 (1989).

38 Id.
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Unlike that portion of § 28-522(2) describing the element 

that “[t]he premises were at the time open to members of 

the public,” § 28-522(2) does not limit “all lawful conditions imposed” to those imposed on “members of the public.” 

Rather, § 28-522(2) designates that “the actor complied with 

all lawful conditions imposed on access to or remaining in the 

premises.” (Emphasis supplied.)

Thus, the plain language of § 28-522(2) encompasses conditions specific to a specific patron, and we will not read into the 

statute “all lawful conditions imposed [on the general public].” 

It is not sensible to conclude that the Legislature wished to 

shield lawfully barred former business patrons from criminal 

trespass liability so long as they comply with the conditions 

of the limited privilege granted by the business to the public 

at large.

The county court was correct that “one of the elements is 

knowing that one is not licensed or privileged to do so presupposes the defense,” inasmuch as the “open to the public” 

affirmative defense is one of privilege and negates the unlawful entry element of criminal trespass.39 The county court 

was incorrect, however, in its understanding of what “all 

lawful conditions” under the “open to the public” affirmative 

defense entails.

Under the facts presented, there was no legal basis for granting a directed verdict in Stanko’s favor. The State presented 

evidence from which the trier of fact could have determined 

that Stanko was lawfully barred from the Subway, knew he 

was barred from the Subway, and did not comply with the 

condition that he not enter the Subway until his privilege was 

reinstated. Stanko’s acquittal stands, pursuant to the limits of 

relief we can afford under a prosecutorial appeal brought under 

§ 29-2315.01, but the State’s exception is sustained. When 

the business revokes and has not reinstated its limited implied 

privilege to enter at a reasonable time and in a reasonable 

39 See State v. R.H., 86 Wash. App. 807, 939 P.2d 217 (1997).
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manner, the defendant has not complied with all lawful conditions imposed on access to or remaining in the premises, for 

purposes of the “open to the public” affirmative defense set 

forth in § 28-522.

CONCLUSION

For the foregoing reasons, we sustain the State’s exception 

to the district court’s order, which should have sustained the 

exception to the county court’s judgment.

Exception sustained.

Heavican, C.J., not participating.