WHAT IS NECESSARY TO PROVE CRIMINAL TRESPASS?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Williams, 556 P.2d 184 (Kan. 1976).
This case addresses the following issue:
What is necessary to prove criminal trespass?
This case explored the issue of what elements were necessary to prove criminal trespass. In exploring this issue, the court held that something more must be proven to establish criminal trespass than just a knowing and unauthorized entry or remaining within the subject property. Id. at 187. According to the court, criminal trespass additionally required a notice requirement. Id. at 188.
In this case, the defendant and his ex-wife had been divorced for two years and were the parents of a two-year-old child. Id. at 186. Prior to the incident in question, the defendant had assaulted the ex-wife and had threatened bodily harm to her and any of her gentlemen friends. Id. On the night of the incident, the ex-wife and two male friends were seated at a table in her front room planning a party. Id. The defendant appeared at the front door and knocked on the window. Id. Upon opening the door, the ex-wife saw the defendant on the porch with a gun in his hand. Id. The ex-wife then retreated upstairs with her two friends and obtained a gun from her bedroom. Id. She then heard the glass break from the front of the house and went to the top of the stairs to peak downward. Id. Once the ex-wife was at the top of the stairs, she heard gun shots coming from the downstairs. Id. She then shot the defendant in his arm and he retreated to his car. Id. At trial, the defendant was found guilty of aggravated assault and aggravated burglary. Id. at 185. Upon being found guilty, the defendant appealed the decision arguing that the court erred in refusing to instruct the jury on the lesser crime of criminal trespass. Id. at 187.
In order to address the defendant’s argument, the Supreme Court of Kansas first looked to the Kansas statue on criminal trespass (the following statute is from 1976 but it is very similar to the statute today). Id. The statute read, “Criminal trespass is entering or remaining upon or in any land . . . by one who knows he is not authorized or privileged to do so, and, (a) he enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to him by the owner . . . or (b) such premises or property are reasonably likely to come to the attention of intruders, are fenced or otherwise enclosed.” Id. With this statute in mind, the court noted that something more must be proven to establish criminal trespass than just knowing and unauthorized entry or remaining within the subject property (as indicated in the first part of the statute). Id. This “something more,” as noted by the court, was found in subsections (a) and (b) of the statute and included “actual or constructive notice.” Id. According to the court, actual notice occurred when an individual was advised that he or she was entering or was within another person’s property where he or she had no right to be without permission. Id. Furthermore, constructive notice occurred when an individual should have realized that he or she was entering another person’s property where he or she had no right to be without permission. Id.
In conclusion, since actual or constructive notice was a requirement outlined by the Kansas criminal trespass statute, the court held that criminal trespass was not a lesser included offense of aggravated burglary. Id.