October 17, 1997

Help for the guilty minded

BY ANDREW BERGH
Special to the Journal

People usually know when they've broken the law. For example, when's the last time you truly had no idea why that traffic cop pulled you over?

But every rule has its exceptions. In State v. R.H., for instance, a youth who thought he was guilty of trespassing ultimately learned that his guilty mind was irrelevant.

The scene of the alleged trespass was a fast food restaurant in King County. The owner of the restaurant, Rick Corbitt, graciously allowed his customers to skateboard to and from the business. Taboo on the premises, however, were recreational skateboarding and loitering.

The evening of July 7, 1995, several teenagers were skateboarding and loitering in the parking lot of the restaurant. The night manager, Tom Herzog, twice asked them to leave, presumably because the loiterers' presence was considered bad for business. When the youths refused, Herzog, who was authorized by Corbitt to evict individuals from the property, summoned the police.

Before the police could respond, a juvenile named R.H. arrived at the restaurant via skateboard. (As in most juvenile cases, the appeals court only used R.H.'s initials to protect his right to confidentiality.) Not affiliated with the other teenagers, R.H. planned to eat at the restaurant with a friend. The first to arrive, R.H. opted to wait for his friend in the parking lot.

When the police got there, Herzog didn't specifically identify R.H. as someone he wanted to evict. Instead, he just made a blanket request that every youth be removed. One of the officers then brought the group together, including R.H., and told them they'd be arrested for criminal trespass if they refused to leave.

When R.H. told the officer he was waiting for a friend and intended to eat at the restaurant, his words fell on deaf ears. After being warned several times to leave, the youth finally complied.

A short time later, R.H. again rode his skateboard through the parking lot to look for his friend. The teenager did so even though he knew he'd been ordered off the property and, at least in his mind, had no right to return.

Not seeing his friend, R.H. skateboarded to an adjacent business.

But the harm was already done, as the police, who apparently stuck around to see if any of the teenagers would return, arrested him on the spot. Not long thereafter, R.H. was charged with second degree criminal trespass in the juvenile branch of King County Superior Court.

As the complaining witness, Herzog testified at R.H.'s trial in early 1996. The manager admitted that if R.H. had been a "legitimate customer," he would have been allowed to remain at the restaurant. Moreover, after hearing all the evidence, the trial judge agreed that R.H. wasn't part of the loitering group, and that he'd innocently gone to the restaurant to eat there with his friend.

Even so, R.H. was found guilty. His brief reentry onto the property was unlawful, the judge reasoned, because R.H. knew he'd been ordered to leave and, by his own admission, thought he had no right to return.

But R.H. fared better in his appeal. Under Washington law, it is a defense to criminal trespass if the premises were open to the public and the actor complied with "all lawful conditions of access." In that situation, the actor's entry is deemed privileged and lawful. R.H. thus argued that since the restaurant owner had only imposed two such conditions (i.e., no recreational skateboarding and no loitering), and since there was no evidence he'd engaged in either activity, his conviction should be reversed.

By a 3-0 margin, our state appeals court agreed. The court essentially ruled that by focusing on R.H.'s state of mind at the time he returned to the restaurant, the trial judge had missed the boat. The critical issue, the court said, was whether the teenager's initial entry was lawful. And since the unchallenged evidence showed that R.H. was merely another customer intending to patronize the restaurant with a friend, the court ultimately concluded that his entry was privileged -- whatever his subsequent state of mind may have been.

Previous columns:

• The visitation of meanness, 10-09-1997
• Unwarranted searches, 09-18-1997
• LA law: Golden State sees some unique suits, 09-04-1997
• In Seattle, sitting is still a crime, 08-07-1997
• Your duty to a Witness, 07-10-1997
• The court of fist resort, 04-24-1997
• An oblivious proclivity, 04-10-1997
• EMPLOYERS SHOULDN'T LET EMPLOYEES DRIVE DRUNK, 03-13-1997