Opinion
Nos. 46495-7-I consolidated with 46496-5-I.
Filed: October 1, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 99-8-06434-0 Judgment or order under review Date filed: 03/23/2000.
Counsel for Appellant(s), Kathryn Y. Kim, W554, 516 3rd Ave, Seattle, WA 98104.
Counsel for Respondent(s), Russell J. Kurth, 110 Prefontaine Place S, Ste 200, Seattle, WA 98104-2677.
Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
James R. Dixon, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, 320 Central Building, Seattle, WA 98104.
Michael L. Mittlestat, Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Thomas M. Kummerow, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
The juvenile respondents were charged with criminal trespass in the second degree for being on the premises of the Delridge Community Center in Seattle after being told they were not allowed to be there. Under the Seattle Municipal Code (SMC), a community center is a park. An individual has a right to be in a Seattle park except during those hours that the park is closed to the public, or when that individual has been given a written exclusion notice pursuant to SMC § 18.12.278.
Because the respondents were on the grounds of the Delridge Community Center during the hours that it was open to the public, and because no exclusion notice had been issued to them, their presence at the community center was not unlawful. The State was thus unable to prove the criminal trespass charges as a matter of law. We therefore affirm the trial court's dismissal of the charges against the respondents. Prior to August 10, 1999, Clint Hooper, Coordinator of the Delridge Community Center, orally admonished the respondents that they were no longer permitted on the grounds of the Delridge Community Center because they had violated the center's rules. On August 10, 1999, Patti Maxwell, Assistant Coordinator of the Delridge Community Center, saw a boy in the kitchen of the center, and four other boys just outside the window. She saw the boy in the kitchen taking food out of the refrigerator and handing it out the window to one of the other boys. At trial, Ms. Maxwell could not remember who was in the kitchen, or to whom he was handing food, but she did know that the respondents were among the boys present. On that date, Mr. Hooper again told the three boys to leave the center. If told them that if they wished to return he would need to meet with their parents. On August 26, 1999, Ms. Maxwell saw the respondents riding their bikes through a crowd gathered watching a jazz concert just outside the center. She called police officers and explained that the boys had been told not to return to the park.
The State charged the respondents with criminal trespass in the first degree, third degree theft, and criminal trespass in the second degree. Following the close of evidence, the State moved to dismiss the criminal trespass in the first degree charges. The court found that the testimony regarding the August 10 incident was equivocal and therefore found that the State had failed to prove theft in the third degree charges. Based on the August 26 incident, the court found that the State had proven the elements of criminal trespass in the second degree beyond a reasonable doubt. The trial court nonetheless dismissed the charges on the basis that the State was required to charge the respondents with the 'special' offense of trespass in parks under SMC § 18.12.279 rather than the 'general' offense of criminal trespass in the second degree under RCW 9A.52.080.
The State appeals, arguing that the trial court erred in dismissing the charges on this basis. The respondents contend that dismissal was appropriate, arguing that the State failed to demonstrate that their presence was unlawful. We agree that the evidence against the respondents was insufficient as a matter of law and therefore affirm the dismissal of the charges. We therefore decline to address the general/special issue.
In order to prove that the respondents had committed criminal trespass in the second degree, the State was required to prove beyond a reasonable doubt that they knowingly entered or remained unlawfully. A person enters or remains unlawfully when he or she is not licensed, invited, or privileged to enter or remain. A community center is included in the SMC definition of a park. A city park is a public place. Unless otherwise specified, a Seattle park is open to the public except during the hours of 11:30 p.m. to 4 a.m. It is a statutory defense to the charge of trespass that the premises was open to the public, and the actor complied with all lawful conditions imposed on access to or remaining in the premises. It is the State's burden to disprove this defense beyond a reasonable doubt.
SMC § 18.12.030(A)(9).
SMC § 18.12.245.
State v. R.H., 86 Wn. App. 807, 939 P.2d 217 (1997).
The issue presented is whether the respondents' license to be on the grounds of the Delridge Community Center was revoked when they were verbally told not to return. We hold that delivery of an exclusionary notice pursuant to SMC § 18.12.278 is the exclusive means for revoking an individual's privilege to enter or remain in a park. To hold otherwise would render SMC § 18.12.278 a nullity.
SMC § 18.12.278 provides that the superintendent may, by delivering an exclusion notice in person to an offender, exclude from a city park zone anyone who violates any provision of the chapter, violates any park rule, or violates any provision of the SMC or RCW. It is clear that compliance with the provisions of SMC § 18.12.278 is mandatory for the effective issuance of an exclusionary notice. For example, SMC § 18.12.278(C) provides that the notice shall be in writing, shall contain the date of issuance, and shall specify the length and places of exclusion.
The State's claim that the Delridge Community Center does not meet the definition of a 'park zone' is wholly without merit. All city parks are included in the definition of a city park zone. SMC § 18.12.030(A)(5)(b). A community center is a park, as defined by SMC § 18.12.030(A)(9).
The terms of SMC § 18.12.278 also limit the maximum length of an exclusionary period based on the number of prior exclusionary notices issued in the past year, ranging from up to seven days for a first exclusion to up to a year. Clearly, then, Mr. Hooper's oral admonition to the respondents not to return, with no ending date on the period of exclusion, was not effective. Moreover, SMC § 18.12.278(E) gives a person who has been excluded from a park the right to a hearing if the exclusion notice is longer than seven days. At that hearing, the violation leading to the exclusionary notice must be proven by a preponderance of the evidence. An offender wishing to challenge the hearing examiner's ruling may do so by filing a writ of review in King County Superior Court within 14 days of the date of decision. By enacting SMC § 18.12.278, the City of Seattle established a mandatory procedure for excluding persons from city parks. These procedures were not followed here. The oral admonition to the respondents was ineffective to revoke their license to enter or remain in or around the Delridge Community Center. The State was unable as a matter of law to prove that the respondents' presence was unlawful. We therefore affirm the dismissal of the charges of criminal trespass in the second degree against the juvenile respondents.
SMC § 18.12.278(B).
SMC § 18.12.278(G).
SMC § 18.12.278(I).
WE CONCUR: APPELWICK, J., WEBSTER, J.