                  IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 44123

STATE OF IDAHO,                         )
                                        )
                                                             Boise, November 2016 Term
    Plaintiff-Respondent,               )
                                        )
                                                             2016 Opinion No. 151
v.                                      )
                                        )
                                                             Filed: December 21, 2016
JAMES W. CLARK,                         )
                                        )
                                                             Stephen W. Kenyon, Clerk
    Defendant-Appellant.                )
_______________________________________ )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Ada County. Hon. Gerald Schroeder, Senior District Judge; Hon. Kevin
        Swain, Magistrate Judge.

        The decision of the district court is affirmed.

        Alan Trimming, Ada County Public Defender, Boise, for appellant. Adam C.
        Kimball argued.

        Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Ted
        S. Tollefson argued.

                                     _____________________

PER CURIAM
        This case comes to the Idaho Supreme Court on a petition for review of an Idaho Court of
Appeals decision. James Clark was charged with misdemeanor trespass in the Idaho Industrial
Commission office in Boise. At the close of the State’s evidence at trial, Clark moved for a
judgment of acquittal, which the court denied. The jury found Clark guilty and he appealed to the
district court. The district court affirmed the denial of the acquittal motion and upheld the jury
verdict. The Court of Appeals reversed, finding that the judgment of acquittal should have been
granted. The State sought, and we granted, review.
                                           I.
                           FACTUAL AND PROCEDURAL BACKGROUND
        In August 2012, Mindy Montgomery, the director of the Industrial Commission, sent a
letter to Clark stating:


                                                  1
       In light of the repeated disruptive arguments and confrontations you have
       exhibited toward employees of the Idaho Industrial Commission while on
       Commission property, you are hereby notified that you are, effective immediately,
       barred from entering into or upon property occupied by the Idaho Industrial
       Commission.

       Unless this bar is lifted earlier, your entry upon Commission property or into
       facilities occupied by the Commission at any time during the next twelve (12)
       months will constitute a trespass under the provisions of Idaho Code § 18-7008,
       paragraph 8.
Clark admitted receiving the letter. Montgomery testified she was authorized to send trespass
letters and supported this claim by describing her position, responsibilities, and experience.
       Montgomery sent an identical letter to Clark in August 2013, barring Clark from entering
Industrial Commission properties for one year, until August 2014. Montgomery sent this letter to
Clark using the facsimile number and mailing address on file for him. A fax confirmation sheet
indicated that the letter went through to the facsimile number. With regard to the posted letter,
the Industrial Commission did not receive any “return to sender” or other correspondence
indicating that the mailing address was incorrect or that the letter had not been received by the
addressee. While Clark denies receiving the second letter, a video posted to YouTube on
September 25, 2013, nearly a month after the 2013 letter was sent, shows Clark holding up a
letter from the Industrial Commission while saying, “I just received another one, also.”
       On April 4, 2014, Clark entered the Industrial Commission’s office in Boise and
approached the front reception desk. At the time, Barbara Fox was working at the front reception
desk as a customer service representative. She testified that she was authorized to ask people to
leave the Industrial Commission premises. When approached by Clark, Fox reminded Clark he
was banned from the property and directed him to leave. Fox showed Clark both the 2012 and
2013 letters barring him from Industrial Commission property. When Clark refused to leave, Fox
told Clark she would push the police button located under her desk if he did not leave. Clark told
Fox to push the button, which she did, activating the emergency alarm. Boise police officers
were dispatched to the Industrial Commission to respond to the alarm. Clark remained in the
building in the reception area for approximately five minutes until police officers arrived and
then left the Industrial Commission to speak with the officers. Clark was charged with
misdemeanor trespass pursuant to Idaho Code section 18-7008(8).




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          At the close of the State’s case at trial, Clark made a motion for a judgment of acquittal
pursuant to Idaho Criminal Rule 29 (“Rule 29 Motion”), arguing the State failed to prove the
trespass orders were made by an authorized agent and that Clark had been deprived of his due
process right to petition the government for redress of grievances. The magistrate disagreed,
finding there was sufficient evidence for a reasonable jury to find the Industrial Commission
employees were authorized agents. The jury found Clark guilty of misdemeanor trespass. Clark
appealed to the district court, which affirmed his conviction. Upon further appeal, the Court of
Appeals reversed. The State timely petitioned this Court for review.
                                                II.
                                         ISSUES ON APPEAL
          1.     Whether the district court erred in affirming the denial of Clark’s motion for a
judgment of acquittal.
          2.     Whether Clark’s due process rights were violated.
                                              III.
                                       STANDARD OF REVIEW
          “When reviewing a case on petition for review from the Court of Appeals this Court
gives due consideration to the decision reached by the Court of Appeals, but directly reviews the
decision of the trial court.” State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011). When
reviewing a decision of a district court sitting in its appellate capacity, we do not review the
decision of the magistrate court. “Rather, we are procedurally bound to affirm or reverse the
decisions of the district court.” Bailey v. Bailey, 153 Idaho 526, 529, 282 P.3d 970, 973 (2012).
          The trial court may enter a judgment of acquittal pursuant to Idaho Criminal Rule 29 only
if the court finds the evidence “insufficient to sustain a conviction of such offense or offenses.”
I.C.R. 29(a). “In reviewing the denial of a motion for judgment of acquittal, the appellate court
must independently consider the evidence in the record and determine whether a reasonable
mind could conclude that the defendant’s guilt as to such material evidence of the offense was
proven beyond a reasonable doubt.” State v. Mercer, 143 Idaho 108, 109, 138 P.3d 308, 309
(2006).
          The relevant inquiry is not whether this Court would find the defendant to be
          guilty beyond a reasonable doubt, but whether “after viewing the evidence in the
          light most favorable to the prosecution, any rational trier of fact could have found
          the essential elements of the crime beyond a reasonable doubt.”




                                                   3
State v. Adamcik, 152 Idaho 445, 460, 272 P.3d 417, 432 (2010) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
                                                         IV.
                                                       ANALYSIS
A.       The district court did not err in affirming the denial of Clark’s motion for judgment
         of acquittal.
         It is a misdemeanor offense for a person “who, being first notified in writing, or verbally
by the owner or authorized agent of the owner of real property, to immediately depart from the
same and who refuses to so depart, or who, without permission or invitation, returns and enters
said property within a year, after being so notified.” I.C. § 18-7008(8). Clark focuses his
argument on the “authorized agent” language in the statute, claiming that neither Fox nor
Montgomery was authorized to provide the notification barring him from the premises. However,
both Montgomery and Fox testified that they were authorized to ask people to leave the
Industrial Commission building. It does not stretch credibility to think that the director of a state
agency and the front desk receptionist of the agency would be endowed with such authority.
Clark presented no evidence to show that neither had such authority.
         Clark testified that he received the August 2012 trespass letter but denied receiving the
August 2013 letter. Montgomery testified that she sent the August 2013 letter to Clark both by
fax and regular mail. The State introduced video evidence of Clark holding up a letter from the
Industrial Commission while saying, “I just received another one, also.” Although there was
conflicting evidence on this point, a reasonable mind could certainly have determined that Clark
received the August 2013 letter. But, whether Clark received the August 13 letter is not
particularly relevant to the Rule 29 Motion or the guilty verdict because the jury found that Clark
violated the statute by “refusing to leave immediately when told to depart.”1
         The State presented competent evidence that Clark refused to depart from the Industrial
Commission building after first being notified verbally by an authorized agent of the owner of
the Industrial Commission building to immediately depart from the building. The State was not
required to prove, as an element of the offense, that Clark’s constitutional rights were not


1
  The verdict form gave the jury three options for a guilty finding: (1) “entering property within one year of being
notified he was banned,” (2) “refusing to leave immediately when told to depart,” or (3) both grounds. The jury
selected the “refusing to leave” option. In light of the jury’s finding, the only relevance of the two trespass letters is
that they put Clark on notice prior to April 4, 2014, that he was barred from entering Industrial Commission property
because of his past confrontations with Commission employees.


                                                            4
violated. A rational jury could certainly have found the essential elements of the crime beyond a
reasonable doubt. Therefore, the district court properly affirmed the denial of Clark’s Rule 29
Motion.
B.     Clark failed to show a violation of his due process rights.
       Clark contends that his due process rights were violated in two respects. First, he claims
that the Industrial Commission’s agents, Montgomery and Fox, were not authorized to issue
trespass orders and, therefore, their orders were not valid. Second, he contends the trespass
orders infringed on his fundamental right to petition the government for redress of grievances
without affording him due process.
       In support of his first argument, Clark cites a decision of the Oregon Court of Appeals,
State v. Koenig, 242 P.3d 649 (Or. App. 2010). In Koenig, the defendant was arrested when he
entered a county public services building after he had received an order excluding him from the
building. Id. at 653–54. The Oregon trespass statute requires that in order for a defendant to
unlawfully trespass on “premises that are open to the public,” the defendant must be “lawfully
directed not to enter the premises.” Id. at 655. The Oregon court concluded, based on Oregon
precedent, that the “lawfully directed” phrase “contemplates inquiries into the lawfulness of the
direction that go beyond the delegated authority of the person to issue the direction. Id. at 656.
Those inquiries may include whether the order complied with particular constitutional
provisions.” Id. The court concluded the state was required to prove that the notice of exclusion
did not run afoul of the defendant’s right to a process through which he could challenge it. Id.
Clark contends that the Oregon “lawfully directed” language is similar enough to Idaho’s
“authorized agent” language to require that he be afforded the same due process right.
       There are substantial differences between the Oregon and Idaho statutes. The Idaho
statute does not contain a separate provision pertaining to trespass on premises that are open to
the public, nor does it contemplate inquiries into the lawfulness of the exclusion order that go
beyond the delegated authority of the persons who can issue such an order. More importantly,
because Idaho has case law directly on point, there is no need to consider out-of-state decisions.
       The State asserts it was not required to prove that Clark was given due process to
challenge the trespass orders. The State contends that this Court’s decision in State v. Korsen,
138 Idaho 706, 69 P.3d 126 (2003), is controlling. In that case, Korsen entered a regional office
of the Idaho Department of Health and Welfare to discuss his child support obligations. Id. at



                                                 5
710, 69 P.3d at 130. When the discussion grew loud, the regional director of the department
asked Korsen to leave. Korsen refused to leave, the police were called, and Korsen was arrested
on a charge of trespass under Idaho Code section 18-7008(8). Id. At the close of the State’s
evidence at trial, the magistrate dismissed the charge, finding the statute void for vagueness as
applied to public property. Id. The magistrate ultimately granted Korsen’s Rule 29 Motion,
concluding that the state failed to prove Korsen did or said anything to justify the request to
leave the premises. Id. On appeal, the district court affirmed on void-for-vagueness grounds and
on the alternate ground that “the statute constituted a power of censorship and prior restraint of
First Amendment activities and impermissibly allows individuals to be ordered off public
premises merely because they express opinions of which those in charge of the property
disapprove.” Id.
         On appeal to this Court, we reversed the district court’s holding and vacated the
magistrate’s order dismissing the charge. Id. at 718, 69 P.3d at 138. The Court observed:
         [Idaho Code section 18-7008(8)] makes no distinction between private and public
         property. Furthermore, the statute informs the public of the prohibited conduct,
         that is, remaining willfully on property belonging to another after having been
         asked to leave. Therefore, the statute gives fair notice of the conduct that is made
         criminal by the statute.
Id. at 713, 69 P.3d at 133. Therefore, we concluded that the statute is not unconstitutionally
vague.
         The Court then addressed the First Amendment claims raised by Korsen, stating:
“[a]ssuming that a criminal trespass prosecution is filed pursuant to I.C. § 18-7008(8) against a
person on public property who is exercising his or her free speech rights, the statute could be
attacked as applied to that constitutionally-protected conduct.” Id. at 715–16, 69 P.3d at 135–36.
However, the Court found that the facts of Korsen’s case did not provide a situation where the
exercise of free speech was impinged:
         Rather, Korsen showed up at the Health and Welfare office to conduct legitimate
         business, i.e., to discuss his child support obligation with the agency charged with
         overseeing collection of child support. When it appeared that his desire to obtain
         modification of the obligation could not be obtained at that office but, as he was
         informed, was a matter that properly should be addressed to the court where the
         obligation was established, the purpose of his visit to the Health and Welfare
         office came to an end.
Id. at 715, 69 P.3d at 135.



                                                  6
        Clark’s situation is almost identical to that of Korsen. During his trial, Clark testified that
he went to the Industrial Commission “based upon an opinion of the Supreme Court.” The
following exchange then occurred:
        Q.     [Prosecutor] And you wanted them to know about that opinion; is that
        right?
        A.     [Clark] No, I wanted to go and have him correct it—correct the wrongs
        based upon the Supreme Court’s opinion.
        Q.   And you wanted them to correct those wrongs by going into the Industrial
        Commission on April 4th, 2014; is that correct?
        A.     Correct, because it’s the only place that you can have those—have it fixed
        because that’s where the records are held because it’s been as a court from my
        understanding.
        Q.     And you were going to do anything to make sure those corrections were
        made; is that correct?
        A.      No, I wasn’t just going to do anything. No, I went there to have it done
        with documents. I had documents in my possession to have them removed
        because I could show it, that those—you know, that those statements needed to be
        removed because of the documents that I have shows that those documents—
        those statements are lies.
        Q.      Okay. And you wanted the Industrial Commission to know that; is that
        correct?
        A.       Right. When you put my—when my family members are involved here.
Thus, Clark, like Korsen, entered the governmental office to seek corrections based on a
Supreme Court opinion and not to exercise First Amendment rights, such as redressing a
grievance with the Industrial Commission. Like Korsen, he was seeking relief that could only be
provided through the courts. There is no evidence in the trial court record showing that the
purpose of Clark’s visit to the Industrial Commission on April 4, 2014, was to exercise any First
Amendment right.2




2
  Fox indicated in her trial testimony that Clark was at the Industrial Commission to deliver a letter. She responded
“yes” when asked on cross-examination: “When Mr. Clark came to the Industrial Commission on April 4th, did he
have a letter he wanted to submit to the commission?” The contents of that letter were not disclosed at trial. The
focus of the trial was whether or not Clark received the 2013 trespass order. Other than the testimony identified in
this opinion, Clark’s counsel failed to present any evidence as to what constitutional right, if any, Clark may have
been trying to exercise when he entered the Industrial Commission building. In counsel’s closing argument to the
jury, there was no mention of Clark seeking to vindicate a constitutional right. The argument was directed toward
the issue of whether Clark received notice of the trespass order.


                                                         7
         The Korsen Court further found that the magistrate judge erred in granting Korsen’s Rule
29 Motion.3 Id. at 716, 69 P.3d at 136. The Court observed that the magistrate had granted the
motion based on the State’s failure to prove that the director gave Korsen a reason for asking him
to leave the premises. Id. The Court stated that the magistrate “as a result of legal error,
determined that the government could not prove a fact that is not necessary to support a
conviction.” Id. In this case, Clark contends that his Rule 29 Motion should have been granted
because the State failed to prove that the request for Clark to leave the premises did not violate
his constitutional rights. That is not an element of the offense so the State had no obligation to
address the issue.
         Subsequent to this Court’s decision in Korsen, the Court of Appeals had an opportunity
to address a similar fact situation in two cases involving Christopher Pentico. In the first case,
State v. Pentico, 151 Idaho 906, 265 P.3d 519 (Ct. App. 2011) (Pentico I), Pentico was convicted
of trespass pursuant to Idaho Code section 18-7008(8) for visiting the Governor’s temporary
office in the Borah Building on April 2, 2008, after having been notified the week before that he
was no longer authorized to be at that location. Id. at 909, 265 P.3d at 522. Pentico claimed that
the statute impinged on his constitutionally protected conduct. Id. at 914, 265 P.3d at 527. The
Court of Appeals responded:
         In Korsen, the Idaho Supreme Court concluded that Idaho’s trespass statute is not
         aimed at regulating speech or communication in any form. Korsen, 138 Idaho at
         715, 69 P.3d at 135. Further, the as-applied analysis requires an examination of
         the statute as it applied to Pentico’s particular conduct on April 2 and the facts of
         this case do not provide a situation where the exercise of free speech was
         impinged. On April 2, Pentico went to the Governor’s office on the third floor of
         the Borah Building to deliver a letter. After Pentico delivered the letter, the
         purpose of his visit to the Governor’s office came to an end. After leaving the
         Borah Building, Pentico was cited with trespass for his conduct of visiting the
         building, not for the content of any communication. Additionally, physical
         presence, even in a public building dedicated to public uses for the purpose of
         communicating ideas, is not “pure speech” and may not be protected by the First
         Amendment. Korsen, 138 Idaho at 715, 69 P.3d at 135. Accordingly, because the
         statute, as applied, did not regulate constitutionally-protected conduct and Pentico
         was cited for trespass because of his conduct of visiting a public building on April
         2 in violation of the notice banning him from that building and not the content of


3
  The Korsen Court went on to hold that the magistrate’s dismissal pursuant to Rule 29 “did not constitute an
‘acquittal’ necessary to trigger the double jeopardy prohibition,” so that retrial was not barred. Id. at 718, 69 P.3d at
138. However, this holding was subsequently abrogated by the U.S. Supreme Court’s opinion in Evans v. Michigan,
133 S. Ct. 1069 (2013). The Evans decision did not affect any aspect of the Korsen case that is applicable here.


                                                           8
        any communication, the statute was not unconstitutionally overbroad as applied to
        Pentico on April 2.
Id. The Court of Appeals’ analysis is correct and it applies equally here. Clark had no
constitutional right to remain on the Industrial Commission premises after he was asked to
depart, and the request to depart was not made for the purpose of limiting his right to speak or to
seek redress of his grievance with the Supreme Court’s opinion.
        Pentico II—Pentico v. State, 159 Idaho 350, 360 P.3d 359 (Ct. App. 2015)—was a post-
conviction case involving the same fact situation as Pentico I. Again, Pentico claimed that his
First Amendment rights were impinged when he was arrested for attempting to obtain redress for
his grievances against the government. The Court of Appeals held
        that it was Pentico’s nonexpressive conduct—his entry into the third floor of the
        Borah Building after receiving notice that he was no longer authorized to be
        there—not his speech, for which he was punished as a trespasser. Accordingly,
        Pentico’s First Amendment rights were not infringed when he was charged with
        trespass for entering the third floor of the Borah Building to petition the
        government for redress of his grievances.
Id. at 355, 360 P.3d at 464. Again, the Court of Appeals correctly analyzed the issue in Pentico II
and the same reasoning applies with respect to Clark’s First Amendment claim.
        The State finally argues that Clark’s argument can be distilled down to a claim that the
State was required to prove his constitutional rights were not violated in order to sustain the
conviction for trespass. However, “[t]o prove a statute is unconstitutional ‘as applied,’ the party
challenging the constitutionality of the statute must demonstrate that the statute, as applied to the
defendant’s conduct, is unconstitutional.” State v. Cook, 146 Idaho 261, 262, 192 P.3d 1085,
1086 (Ct. App. 2008) (citing Korsen, 138 Idaho at 712, 69 P.3d at 132). Clark has failed to do so
in this case.
                                                V.
                                            CONCLUSION
        We affirm the decision of the district court.




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