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State v. Anthony
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MAINE SUPREME JUDICIAL COURT                                                                  Reporter of Decisions
Decision:	2002 ME 94
Docket: 	   Cum-01-522
Submitted
  on Briefs:	May 30, 2002
Decided:	June 12, 2002

Panel: 	SAUFLEY, C.J., CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.





                                                                       STATE OF MAINE
                                                                                     
                                                                                       v.

                                                                       MARK ANTHONY

CALKINS, J.

	[¶1]  Mark Anthony appeals from a judgment of conviction of criminal trespass (Class
E), 17-A M.R.S.A. § 402(1)(E) (Supp. 2001), entered after trial in the District Court (Portland,
Powers, J.).  Anthony was convicted of entering the University of New England campus after
having been ordered by the University not to do so.  We vacate the judgment because the
complaint was defective and the evidence was insufficient.

	[¶2]  The State charged Anthony with one count of criminal trespass, alleging that on or
about April 25, 2001, in Portland, Anthony entered the campus of the University of New
England "in defiance of a lawful order not to enter that was personally communicated to him by . . . 
Gloria Prokey."  At trial, Gloria Prokey, a police officer, testified that, in January 1999, she
served Anthony with a notice to cease harassment ordering him not to enter the University
property in Biddeford or Portland.  A University employee testified that on April 25, 2001,
Anthony entered the Portland campus art gallery.  The employee asked Anthony to sign the
guest book, but he declined, saying that he was not supposed to be there.  The assistant dean of
students testified that Anthony, accompanied by another University employee, came to his
office on the Portland campus on the same day.  Anthony waited in the hallway until the
assistant dean invited him into the office, where they discussed whether statements from
University staff and students would assist Anthony's efforts to be allowed to return to the
campus.  

	[¶3]  Anthony testified that in 1994 he was a member of the gym on the Biddeford
campus, and he attempted to get the University to install private showers in the men's locker
room.  At that time a dean told him he was not welcome on campus.  He acknowledged receipt of
the 1999 cease harassment notice, but he testified that he had believed the notice was only valid
for one year.  In his closing statement to the court, he argued that the University was a place of
public accommodation from which he could not be excluded without just cause.  The court found
Anthony guilty and sentenced him to thirty days in jail, all suspended, with one year of
probation with a condition that he not enter the University property or have any contact with
University staff or students.  In its findings the court stated: "I find that the State has proven
that the order was served on him back in 1999, . . . that he knew that he was not still allowed to
go to the campus, either in Biddeford or Portland, that he did go to the Portland campus on April
25 knowing that he wasn't licensed or privileged to do it at that time, although he had been
hoping otherwise."

	[¶4]  We must vacate Anthony's convictions for two reasons.  First, the complaint is
defective in that it fails to allege an element of criminal trespass, that is, that Anthony knew he
was not licensed or privileged to enter the premises.  The relevant portion of the criminal
trespass statute provides: "A person is guilty of criminal trespass if, knowing that that person is
not licensed or privileged to do so, that person . . . [e]nters any place in defiance of a lawful order
not to enter that was personally communicated to that person by the owner or another
authorized person . . . ."  17-A M.R.S.A. § 402(1)(E).  Because the complaint fails to allege an
element of the offense, the conviction must be vacated.  State v. Robinson, 403 A.2d 1201, 1202-
03 (Me. 1979).

	[¶5]  Secondly, the evidence was insufficient for a conviction because the State presented
no evidence at trial to prove that the not-to-enter order against Anthony was a lawful order.  The
portion of the criminal trespass statute that Anthony was charged with violating requires the
State to prove that he acted in defiance of a lawful order.   We have previously stated that the
term "lawful order" has independent meaning; not every order is a lawful order.  State v. Tauvar,
461 A.2d 1065, 1067 (Me. 1983).  In Tauvar we held that "[w]ith regard to property upon
which the general public is invited to enter, an order to leave the premises is lawful only when the
owner has some justification for requesting removal."  Id.{1}  The State is incorrect in its assertion
that Anthony had the burden to prove that the University was open to the public before the
State would be required to prove that the order was justified.  "Defiance of a lawful order" is an
element of the offense, and the State is required to prove each element of the offense.  17-A
M.R.S.A. § 32 (1983).

	[¶6]  There was no evidence as to why Anthony had been banned from the University's
campuses or the circumstances under which the cease harassment order was issued.  Proving a
not-to-enter order lawful is not a difficult burden on the State.  To prove the lawfulness of the
order the State must prove either (1) the premises were not open to the public, or (2) the order
was justified.  As we stated in Tauvar, a person's misconduct may constitute the basis for a
lawful order not to enter a place generally open to the public, and for private places to which the
public is not invited, a mere demand not to enter is sufficient.  461 A.2d at 1067.  In this case, the
State simply failed to generate any evidence as to the lawfulness of the order.

	The entry is:


Judgment vacated; case remanded to the District Court for an entry
of judgment of acquittal.


Attorneys for State:

Stephanie Anderson, District Attorney

Julia Sheridan, Asst. Dist. Atty.

142 Federal Street

Portland, ME 04101

 

For defendant:

Mark Anthony

60 Hill Street

Saco, ME 04072

 

FOOTNOTES******************************** {1} . See also State v. Dyer, 2001 ME 62, ¶ 8, 769 A.2d 873, 876 (noting that unlike a person invited to a public place, no reason for requesting the removal of a person from private place is required); Holland v. Sebunya, 2000 ME 160, ¶¶ 21, 22, 759 A.2d 205, 213 (holding, in malicious prosecution action, that defendant's order to plaintiff to leave public meeting was lawful because defendant had sufficient justification for order); State v. Armen, 537 A.2d 1143, 1145 (Me. 1988) (stating that order to leave property open to the public is lawful only if there is justification for requesting person to leave); State v. Chiapetta, 513 A.2d 831, 834 (Me. 1986) (applying Tauvar and finding defendant's disruptive behavior sufficient justification for order to leave town office).