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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CM-746


                            KEITH A. WICKS, APPELLANT,

                                         V.

                             UNITED STATES, APPELLEE.


                           Appeal from the Superior Court
                            of the District of Columbia
                                 (CMD-10265-16)

                       (Hon. Anthony C. Epstein, Trial Judge)


(Argued March 10, 2020                                      Decided April 30, 2020)

      Chantal Jean-Baptiste for appellant.

      Edward G. Burley, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman and Chrisellen R. Kolb,
Assistant United States Attorneys, were on the brief, for appellee.

      Before BECKWITH and EASTERLY, Associate Judges, and LONG, Senior Judge,
Superior Court of the District of Columbia.*




      *
          Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
                                              2

      EASTERLY, Associate Judge: After Keith A. Wicks was observed reselling

tickets outside its stadium, the Washington Nationals Baseball Club, LLC

(“Washington Nationals”), barred him from its “property and grounds” at “1500 S.

Capitol Street SE.” A few weeks later, Mr. Wicks was arrested and charged with

unlawful entry, D.C. Code § 22-3302(a)(1) (2012 Repl. & 2019 Supp.), when he

walked onto a sidewalk running along the north side of the stadium’s structure. Mr.

Wicks was found guilty after a bench trial.          On appeal he argues that the

government’s evidence was insufficient to establish either that the sidewalk was

private property or that he had the requisite state of mind to enter it against the will

of its owner. We agree and reverse his conviction.



      Recognizing that, generally, “sidewalk[s are] for the use of everyone alike,”

Chvala v. District of Columbia Transit Sys., Inc., 306 F.2d 778, 781 (D.C. Cir. 1962),

we are confronted with a situation where Mr. Wicks’s charged conduct—walking

on a sidewalk—hardly looks like a crime; rather, it is an activity that law-abiding

individuals engage in every day throughout the District. It was the government’s

burden to prove that Mr. Wicks in fact committed a crime, specifically the charged

crime of unlawful entry. We conclude the government failed to prove the elements

of unlawful entry beyond a reasonable doubt. First, it did not prove that the sidewalk

was actually private property. Although the government’s sole witness testified that
                                               3

this sidewalk belonged to the Washington Nationals, his testimony also revealed that

he had no reliable foundation for that assertion. Indeed, the trial court acknowledged

the “limits” to this witness’s knowledge. Second, the government did not prove that

Mr. Wicks knew or even should have known his presence on the sidewalk was

against the will of the Washington Nationals because it did not prove that Mr. Wicks

was told, in any form or fashion, that what looked like a public thoroughfare was the

private property of the Washington Nationals where he did not have permission to

be.



                                       I. Facts


      The sole witness for the government at trial was Metropolitan Police

Department Officer Nathan Clarke, who worked part-time for the Washington

Nationals.    Officer Clarke described his duties as:          “handl[ing] disorderly[

attendees,] . . . facilitat[ing] the egress and ingress of patrons coming in to watch the

ballgame[,] and whatever other assignments that the Washington Nationals have that

are police related.” One game-day evening on June 14, 2016, while Officer Clarke

was monitoring fans coming into the stadium, he saw Mr. Wicks selling tickets

“right outside the center field gate.” Officer Clark testified that the “sidewalk area”

outside the center field gate on the south side of N Street, SE “is owned and operated

by the Washington Nationals.” Officer Clarke explained that when he “initially”
                                              4

saw Mr. Wicks, Mr. Wicks was “on the sidewalk”; Officer Clarke stated that Mr.

Wicks “then” moved “onto the street on N Street itself on public space.”



      Officer Clarke testified that he “responded to that center field gate area . . . to

assist” another officer, Detective Bemiller, “with his contact with Mr. Wicks.” They

“asked [him] to come to the Washington Nationals security office.” Inside the

security office, Mr. Wicks was served with a copy of a one-page, form “Barring

Notice,”1 which was read aloud to him and which stated:

             The below named person was found on the premises
             owned, occupied or managed by Washington Nationals
             Baseball Club, LLC. This same person is hereby warned
             to stay off the property and grounds thereof known as
             Washington Nationals Baseball Club, LLC, at (address)
             1500 S. Capitol Street SE . . . . There are no exceptions to
             this notice. Failure to heed this warning shall result in the
             prosecution for Unlawful Entry under D.C. Code § 22-
             3302.

Information identifying Mr. Wicks as the “Barred Individual” was added by hand in

the spaces provided, as was the reason for issuing the notice: “scalping.”




      1
         Although the barring notice was admitted into evidence, the barring notice
in our record on appeal is not marked as an exhibit. However, the government
supplied this court with this copy of the barring notice as a supplement to the record,
and Mr. Wicks has not argued that the copy admitted into evidence was materially
different.
                                             5

      The remaining section of the form was devoted to signature lines, for the

“Barred Individual” (this was left blank, and a check mark and notation by Officer

Clarke indicated that Mr. Wicks had refused to sign), the “Authorized Agent or

Owner” (signed by Lamar Graham2), and “Witness” (signed by both Detective

Bemiller and Officer Clarke). The last line of the form stated: “Barring Notice is in

effect for 5 years unless cancelled in writing[.] Attach Picture if Available.” No

picture or other documentation was attached.



      Officer Clarke testified that he was working again at the Washington

Nationals stadium a few weeks later, on July 1, 2016, when he saw Mr. Wicks on N

Street SE,3 which the officer acknowledged was “public space.” Using his cell

phone, Officer Clarke recorded Mr. Wicks as he “walked onto the Washington

Nationals’ property in front of the will call office, the sidewalk” and began selling

tickets. Officer Clarke then left his post and arrested Mr. Wicks for unlawful entry.




      2
         Officer Clarke identified this signature as that of “Captain Lamar Graham,”
whom he clarified was the representative of the Nationals who read the barring
notice to Mr. Wicks.
      3
        The officer explained that during the baseball game that block of N Street
SE was closed to car traffic but open to pedestrians.
                                             6

      On cross-examination, defense counsel probed the basis for Officer Clarke’s

assertion that the “south side of N Street on the sidewalk” was Washington Nationals

property. When counsel asked if Officer Clarke had ever “seen any documents that

depict[] what is the Washington Nationals’ property and what is not,” Officer Clarke

specifically denied having seen any “official document” showing that the sidewalk

belonged to the Washington Nationals, and he gave no other indication that he had

received any training on this subject. He testified he had “only seen documents

posted online,” but he could not immediately “recollect” what they were or where

he had seen them. After requesting a moment to reflect, he replied, “I want to say

DCRA,” apparently referring to the website for the Department of Consumer and

Regulatory Affairs.    He then asserted that “they have a diagram of the . . .

Washington Nationals’ property posted online,” but when asked if this diagram

“show[ed] how many feet from the abutment of the building belongs to the

Washington Nationals,” he testified he could not “recall.”4




      4
        Also on cross-examination, counsel asked when exactly on June 14, 2016,
Officer Clarke had advised Mr. Wicks that he would be barred from Washington
Nationals property. Officer Clarke testified, “[t]hat was done when we made contact
with him. We told him the reason why we [we]re making contact with him.” In
response to defense counsel’s follow-up question asking what that reason was,
Officer Clarke testified, “[b]ecause he was soliciting tickets”—“offering tickets for
sale”—“at [the] center field gate right on the Washington Nationals’ property and
sidewalk.”
                                              7

         Testifying in his own defense, Mr. Wicks stated that he was a Washington

Nationals fan who frequently attended games. He denied ever being presented with

the barring notice, though he agreed that it correctly stated his date of birth. He also

testified that he believed that the sidewalk on the south side of N Street “next to the

ballpark” was “public space to [his] awareness.”



         Crediting Officer Clarke’s testimony, the trial court found “the evidence

established beyond a reasonable doubt that Mr. Wicks crossed the sidewalk and

approached the will call window,” and thus that he had “entered unlawfully onto the

private property of the Washington Nationals” and committed the crime of unlawful

entry.



                                     II. Analysis



         Mr. Wicks argues that the evidence was insufficient to support his conviction

for unlawful entry under D.C. Code § 22-3302(a)(1) (making it a crime for “[a]ny

person . . . without lawful authority [to] enter, or attempt to enter, any private

dwelling, building, or other property, or part of such dwelling, building, or other

property, against the will of the lawful occupant or of the person lawfully in charge

thereof”).
                                              8



      “We review challenges to the sufficiency of the evidence de novo . . . .”

Foster v. United States, 218 A.3d 1142, 1144 (D.C. 2019). In so doing, we

“consider[] all the evidence in the light most favorable to the verdict, . . . according

deference to the factfinder to weigh the evidence, determine credibility, and draw

justifiable inferences of fact.” Id. Even so, it is our obligation to ensure that “the

evidence in a criminal prosecution [is] strong enough that a [trier of fact] behaving

rationally really could find it persuasive beyond a reasonable doubt.” Rivas v. United

States, 783 A.2d 125, 134 (D.C. 2001) (en banc). “Slight evidence is not sufficient

evidence,” id.; likewise, evidence that “establish[es no] more than the speculative

possibility that the elements are present” will not suffice, Grayton v. United States,

50 A.3d 497, 503 (D.C. 2012) (internal quotation marks omitted); accord Slater-El

v. United States, 142 A.3d 530, 538 (D.C. 2016) (“Although a fact-finder is entitled

to draw a vast range of reasonable inferences from evidence, the fact-finder may not

base a verdict on mere speculation.” (internal quotation marks omitted)).



      In Ortberg v. United States, 81 A.3d 303 (D.C. 2013), this court clarified that

the elements of unlawful entry are (1) the defendant entered onto private property,

id. at 307 & n.4; (2) “the physical act of entry [was] purposeful and voluntary—not

accidental or mistaken,” id. at 308; (3) the entry was unauthorized, i.e., “without
                                              9

lawful authority and against the will of [the] owner or lawful occupant,” id. at 307

(footnote omitted); and (4) the defendant “knew or should have known that his entry

was unwanted,” id. at 308. Mr. Wicks claims that the evidence was insufficient as

to the first and fourth elements.



                          A. Entry onto Private Property


      In issuing its verdict, the trial court stated that it was “not prepared to assume

that” the entirety of the sidewalk on the south side of N Street SE, including the brick

border closest to the street, “is public property.”5 Instead, it determined that when

“Mr. Wicks crossed the sidewalk and approached the will call window” on July 1,

2017, he “entered unlawfully onto the private property of the Washington

Nationals.” Although the trial court was rightly skeptical that the entire width of this

city sidewalk was “private property,”6 we see no evidentiary basis for the court’s


      5
         This statement was consistent with the trial court’s earlier determination,
when rejecting Mr. Wicks’s motion for a judgment of acquittal, that there was
“sufficient proof that even if the brick portion of the sidewalk [closest to the street]
is public property when he leaves the brick portion and crosses onto the concrete
portion and then goes by the will call office he is on Nationals’ property.”
      6
        For many years, the general “rule in the District of Columbia” has been “that
the sidewalks of the District of Columbia extend from the curb bounding the street
to the building line . . . .” Gittleson v. Robinson, 61 A.2d 635, 637 (D.C. 1948)
(emphasis added); cf. Morgan v. District of Columbia, 476 A.2d 1128, 1129–30
(D.C. 1984) (demonstrators arrested for unlawful assembly after moving from public
sidewalk to private driveway).
                                              10

conclusion that a portion of the sidewalk by the will call office belonged to the

Washington Nationals.      Officer Clarke, the government’s only witness, never

delineated only some portion of the sidewalk outside the stadium as belonging to the

Washington Nationals (and he never described the sidewalk as being made of two

different materials). To the contrary, he testified that the entirety of the sidewalk on

the south side of N Street SE was the “property of the Washington Nationals.” We

thus evaluate whether this testimony can sustain the first element of the crime of

unlawful entry.



      The court acknowledged that there was a question whether Officer Clarke was

“competent to testify about the boundaries of Nationals Park.” Nevertheless, the

court concluded that it could rely on Officer Clarke’s testimony about what

constituted the property of the Washington Nationals by analogizing to a homeowner

who, in lieu of presenting expert testimony, may testify about the valuation of their

property. We do not disagree with the general proposition that a property owner

may testify about the boundaries of their property. But even the testimony of a

property owner may not be relied upon to prove unlawful entry where, as here, that

testimony fails to establish that the owner—or, as in this case, their employee—has

an actual basis of knowledge. Cf. Joiner-Die v. United States, 899 A.2d 762, 765

(D.C. 2006) (“A witness is competent to testify only about those matters of which
                                                11

he/she has personal knowledge.”); cf. also Harrison v. United States, 76 A.3d 826,

841 n.19 (D.C. 2013) (acknowledging that “personal knowledge includes inferences

and opinions, so long as they are grounded in personal observations and experience”

(internal quotation marks omitted)).



         The record contains no evidence that the Washington Nationals provided

Officer Clarke with information about the boundaries of its property. Although the

trial court referred in passing to Officer Clarke’s “on the job training,” Officer Clarke

did not testify that he had learned about the boundaries of the Washington Nationals

property while working. He never indicated he had previously issued any barring

notices or made any unlawful entry arrests, much less testified that his job regularly

included “enforcing the boundaries of the park” as the government represents in its

brief.     Although Officer Clarke broadly described his job as performing

“whatever . . . assignments the Washington Nationals have that are police related,”

when he specified what those assignments were, he explained they largely related to

crowd control—“handl[ing] disorderly[ attendees,] . . . facilitat[ing] the egress and

ingress of patrons coming in to watch the ballgame.”



         Further, Officer Clarke did not testify that he had a reliable, personal basis of

knowledge that the sidewalk belonged to the Washington Nationals. He admitted
                                            12

that he had not seen any official surveys of the Washington Nationals property and

that he had relied exclusively on some unidentified “documents posted online.” The

government represents in its brief that Officer Clarke “confirmed this property line

on the DCRA website,” but his testimony about where online he had seen these

documents was equivocal at best: after asking for a moment to “recollect” his source

of information, he testified, “I want to say DCRA.” And when asked whether

whatever he had seen online “show[ed] how many feet from the abutment of the

building belong[] to the Washington Nationals,” he again testified he could not

“recall.” The government did not seek to rehabilitate Officer Clarke on this point on

redirect and did not seek to put any exhibits into evidence to substantiate the

Washington Nationals’ ownership of the sidewalk.7



      7
         At oral argument, the government directed attention away from the DCRA
website, observing that “the DDOT [District Department of Transportation] website
actually has a mapping tool which you can determine [property lines].” But the
government never elicited evidence from Officer Clarke that he might have looked
at the DDOT website, nor asked the trial court to judicially notice any information
contained on the DDOT (or any other government) website. See Bostic v. District
of Columbia, 906 A.2d 327, 332 (D.C. 2006) (“[W]e may take judicial notice of
laws, statutes, and other matters of public record.”).
       We note that, had the government asked the trial court to judicially notice the
records generated by the DDOT mapping tool, it appears that the evidence would
not have supported the government’s case. This tool, Atlas Plus, developed by the
District’s Office of the Chief Technology Officer, indicates that the property line of
the Washington Nationals stadium along N Street SE is coextensive with the
footprint of the physical structure and does not extend into the sidewalk. See Atlas
All-in-One, District Dep’t of Transp., https://ddot.dc.gov/page/atlas-all-one
                                            13



      In its verdict, the trial court commended Officer Clarke for “candidly . . .

admit[ing] the limits of his knowledge.” But these “limits” revealed that Officer

Clarke provided no reliable foundation for his assertion that the sidewalk on the

south side of N Street SE, next to the stadium, was owned by the Washington

Nationals.   Accordingly, these “limits” rendered the government’s evidence

insufficient as to the first element of unlawful entry—entry on to private property.



              B. The Defendant’s Mental State Regarding Entry
                       Against the Will of the Owner


      Mr. Wicks argues that the evidence against him was insufficient for an

additional reason: even if he entered private property owned by the Washington

Nationals when he walked onto the sidewalk on the south side of N Street SE, the

government did not show that he did so with the requisite state of mind with respect

to the circumstance that his entry was against the will of the Washington Nationals.8

In Ortberg, this court described this mens rea element as requiring the government



https://perma.cc/TBQ4-NFDE (describing Atlas Plus); Atlas Plus, District of
Columbia, http://atlasplus.dcgis.dc.gov/ http://perma.cc/6CXK-XDXH (link to
tool).
      8
         See Carrell v. United States, 165 A.3d 314, 320 n.13 (D.C. 2017) (en banc)
(adopting the Model Penal Code’s classification of “conduct, circumstance[], and
result[]” elements of a crime (internal quotation marks omitted)).
                                              14

to “establish that the defendant knew or should have known that his entry [on private

property] was unwanted.” 81 A.3d at 308. Subsequent to Ortberg, this court sitting

en banc in Carrell v. United States, 165 A.3d 314 (D.C. 2017), announced a new

approach for categorizing mens rea terminology and endorsed the “more

particularized and standardized categorizations of mens rea” set out in the Model

Penal Code. Id. at 324. As we noted in Carrell, when defining the elements of a

crime without a specified mens rea, courts should “generally . . . infer that the

government must prove at least that a defendant knows the facts that make his

conduct fit the definition of the offense.”9 Id. at 321 (footnote and internal quotation

marks omitted). We further acknowledged “that merely inferring a negligence, i.e.,

should-have-known, standard is disfavored.”10 Id. at 322 (footnote omitted). It is

unclear whether Ortberg meant to endorse a negligence standard within the meaning


      9
         Model Penal Code § 2.02(2)(b) (Am. Law Inst. 1985) (“A person acts
knowingly with respect to a material element of an offense when: (i) if the element
involves the nature of his conduct or the attendant circumstances, he is aware that
his conduct is of that nature or that such circumstances exist; and (ii) if the element
involves a result of his conduct, he is aware that it is practically certain that his
conduct will cause such a result.”).
      10
          Model Penal Code § 2.02(2)(d) (“A person acts negligently with respect to
a material element of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to
him, involves a gross deviation from the standard of care that a reasonable person
would observe in the actor’s situation.”).
                                            15

of the Model Penal Code,11 or, if it did, whether such a standard would survive our

analysis in Carrell, but we need not resolve this issue here. Even assuming that the

Model Penal Code negligence standard applies, we cannot say on this record that the

government established that Mr. Wicks “should [have] be[en] aware of a substantial

and unjustifiable risk that” he was on private property owned by the Washington

Nationals. Model Penal Code § 2.02(2)(d) (Am. Law Inst. 1985).



      First, the lack of evidence that the sidewalk belongs to the Washington

Nationals, see supra Part II.A., itself raises doubt that Mr. Wicks should have been

aware that it did. Second, there is no evidence that the Washington Nationals

publicly held itself out as the owner of property beyond the stadium structure: there

is no evidence in the record about signage, barriers, or other announcements outside

the stadium that would have informed a reasonable person that stepping on to the

sidewalk would put them on private property.12 Third, the barring notice is not



      11
           Ortberg did not cite to the Model Penal Code. Instead, it catalogued this
jurisdiction’s prior unlawful entry cases. Although Ortberg understood these cases
to collectively reflect that proof of “actual knowledge” was unnecessary, 81 A.3d at
308, in all of the cases cited and indeed, in Ortberg itself, actual knowledge (which
is rarely established by direct evidence, see Owens v. United States, 90 A.3d 1118,
1122 (D.C. 2014)), could be inferred from the surrounding circumstances. See
Ortberg, 81 A.3d at 308 nn.6–8, 310.
      12
          See, e.g., Ortberg, 81 A.3d at 305–06, 309 (event space in hotel that was
restricted where registration desk was set up at entrance for guests to pick up
                                             16

specific as to what property is barred: it gives only a street address for a different

street, South Capitol Street SE, and it did not append a map showing what property

outside of the stadium structure, if any, was covered.13 Fourth, Mr. Wicks’s receipt

of the barring notice on June 14, 2016, after being confronted by Officer Clarke and

Detective Bemiller in one location—on the street, outside the center-field gate—did

not put him on notice the location of his arrest on July 1, 2016—on the sidewalk

outside the will call office—was Washington Nationals property.14 Indeed, the

barring notice given to Mr. Wicks in the security office on June 14, 2016, specified

that it was issued because Mr. Wicks was “scalping”—not because he was



badges); Kozlovska v. United States, 30 A.3d 799, 800 & n.1 (D.C. 2011) (stairwell
of apartment building that was restricted where access was controlled by security
key); Artisst v. United States, 554 A.2d 327, 329 (D.C. 1989) (university residence
facility that was restricted where university identification card was required for
access); Culp v. United States, 486 A.2d 1174, 1175 (D.C. 1985) (vacant building
that was restricted where windows and doors were boarded up and a “no trespassing
sign” was posted); Bowman v. United States, 212 A.2d 610, 610–11 (D.C. 1965)
(train platform that was restricted where passengers had to enter through gate bearing
a “sign stating that only persons holding transportation (having tickets) were
permitted through” and after “public announcement to the same effect”).
      13
         Cf. Vaas v. United States, 852 A.2d 44, 48 (D.C. 2004) (reversing contempt
conviction based on violation of ambiguous stay-away order and “strongly
suggest[ing] that in future orders trial courts endeavor to set more defined
parameters, using maps, if practicable, that can be attached to the stay-away orders
to provide defendants with clear guidance about this important aspect of a release
order”).
      14
        Accordingly, it is not particularly probative that the notice stated that Mr.
Wicks “was found on the premises” on June 14, 2016.
                                            17

trespassing.15 Accordingly, the evidence was insufficient to establish that Mr. Wicks

had the requisite mens rea regarding the circumstance element that his entry onto the

sidewalk on the south side of N Street SE adjacent to the Washington Nationals’

stadium was “against the will” of the Washington Nationals. Ortberg, 81 A.3d at

308.



                                  III. Conclusion


       For the foregoing reasons, we reverse Mr. Wicks’s conviction for unlawful

entry and remand to allow the trial court to enter a judgment of acquittal.



                                                           So ordered.




       15
          Officer Clarke’s testimony that when he and Detective Bemiller “made
contact with Mr. Wicks” on the street, they told him why they were approaching
him—because he had been “offering tickets for sale” “at [the] center field gate right
on the Washington Nationals’ property and sidewalk,” see supra note 4—adds little
to the evidentiary equation. The officers’ identification of “scalping” as the reason
to approach Mr. Wicks was consistent with the barring notice, and their reference to
the location of this activity was similarly vague.
