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
Cite as 332 Or App 195 (2024) 197

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, 327 Or 

568, 570, 966 P2d 208 (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[.]”
Cite as 332 Or App 195 (2024) 199

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, 331 

Or App 69, 73, 545 P3d 203 (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, 298 Or App 227, 232, 445 P3d 928 (2019).

In the trial court, defendant cited and relied heavily on State v. Koenig, 238 Or App 297, 242 P3d 649 (2010), 

rev den, 349 Or 601 (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., 455 US 422, 428, 102 S Ct 

1148, 71 L Ed 2d 265 (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, 405 US 156, 

164, 92 S Ct 839, 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, 357 US 116, 126, 78 S Ct 

1113, 2 L Ed 2d 1204 (1958) (describing the “freedom of movement” as “deeply engrained in our history” and “basic in our 

scheme of values”); Williams v. Fears, 179 US 270, 274, 21 S Ct 

128, 45 L Ed 186 (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, 15 Or App 185, 196-97, 515 

P2d 431 (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, 527 US 41, 

53-54, 119 S Ct 1849, 144 L Ed 2d 67 (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.
Cite as 332 Or App 195 (2024) 201

The constitutional right to access public property, 

however, does not confer an unlimited right of access. City 

of Eugene v. Gannon, 294 Or App 819, 822-23, 432 P3d 1141 

(2018), rev den, 364 Or 535, cert den, ___ US ___, 140 S Ct 128 

(2019); see also, e.g., Vincent v. City of Sulphur, 805 F3d 543, 

548 (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, 658 F3d 1260, 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.” 294 Or App at 823 (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. Id.

at 820. He returned to campus in violation of that order on 

four separate occasions and received citations for criminal 

trespass. Id. at 821. 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.” Id. at 822. 

We explained that although the university is publicly owned, 

“the public does not have unlimited access to its campus.” Id.

at 822-23. 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. Id. at 823-24 

(discussing Souders v. Lucero, 196 F3d 1040, 1044 (9th Cir 

1999), cert den, 529 US 1067 (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.