Adam Jaramillo Ortberg v. United States , 81 A.3d 303 ( 2013 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 11-CM-1154 & 12-CO-874
ADAM JARAMILLO ORTBERG, APPELLANT
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia
(CMD-3865-11)
(Hon. Marisa J. Demeo, Trial Judge)
(Argued October 16, 2013 Decided December 17, 2013)
William Francis Xavier Becker, for appellant.
Sharon Sprague, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States
Attorney at the time the brief was filed, and Brandon Long and Ephraim (Fry)
Wernick, Assistant United States Attorneys, were on the brief for appellee.
Jeffrey L. Light, for amicus curiae Defending Animal Rights Today &
Tomorrow, in support of appellant.
Before BECKWITH and EASTERLY, Associate Judges, and PRYOR, Senior
Judge.
EASTERLY, Associate Judge: Adam Jaramillo Ortberg challenges the
sufficiency of the evidence to sustain his conviction under D.C. Code § 22-33022
(a) (2012 Repl.) for unlawful entry of “any private dwelling, building, or other
property” or part thereof. Mr. Ortberg admits he entered a room at the W Hotel,
“Studio One,” that was being used for an invitation-only fundraiser for a member
of the United States House of Representatives, and he admits that he did so to
engage in protest activity. But, Mr. Ortberg asserts, his entry was at most
“opportunistic” and was not “clearly „unlawful,‟” because Studio One was not
clearly closed off to members of the public who might be in the lobby of the W
Hotel. Thus, he appears to argue that the government failed either to prove that he
had the requisite mental state to commit unlawful entry or to disprove his bona fide
belief in the lawfulness of his actions.
The District‟s crime of unlawful entry, D.C. Code § 22-3302 (a)(1),
“prohibits the act of entering or remaining upon any property when such conduct is
both without legal authority and against the expressed will of the person lawfully
in charge of the premises.” Leiss v. United States, 364 A.2d 803, 806 (D.C. 1976).
For the crime of unlawful entry based on the entry (as distinct from the refusal to
leave), we have repeatedly said that only general intent is required. Instead of
looking to our case law, however, the trial court looked to the current jury
instruction to frame the elements and to determine that the government had met its
burden of proof. See Criminal Jury Instructions for the District of Columbia, No.
3
5.401 (5th ed. rev. 2013). This instruction does not include any reference to
“general intent.” Instead it more precisely identifies the culpable mental states for
the elements that comprise unlawful entry: With respect to the element of entry,
the government must prove that a defendant purposefully and voluntarily entered
the property or private space. But with respect to the element that the entry be
against the will of the lawful occupant, the government need only prove that the
defendant “knew or should have known” that his entry was unwanted. In other
words, the government need not, as Mr. Ortberg suggests, prove that a defendant
purposefully sought to defy the will of the lawful occupant or to violate the law.
With this opinion, we endorse this jury instruction, and applying its framework in
this case, we hold that there was ample evidence to support Mr. Ortberg‟s guilt.
I. Facts
The relevant facts are quickly summarized. On March 2, 2011, appellant
Adam Jaramillo Ortberg walked into a fundraising event for a United States
Congressman which was being held inside of an event space at the W Hotel called
“Studio One.” Mr. Ortberg entered Studio One through an exit or service door,
having “walked right by” a registration desk manned by as many as three people
4
handing out badges for the event.1 A sign outside of Studio One identified the
event. Once inside the reception, Mr. Ortberg was approached by Kyung Quinn, a
banquet server at the W Hotel, who noticed that Mr. Ortberg was not wearing a
name tag. Ms. Quinn asked Mr. Ortberg whether he had a badge. Mr. Ortberg,
who testified in his own defense, admitted that he told an untruth in response and
that he represented to Ms. Quinn that he did have a badge “somewhere,” but he
“needed to look for it.” Mr. Ortberg also asked Ms. Quinn whether he was in the
correct room for the fundraiser. Ms. Quinn ultimately requested that Mr. Ortberg
sign in at the registration desk or, as Mr. Ortberg characterized it in his testimony,
“[s]he asked me to go talk to the badge checker.” Mr. Ortberg then began his
planned protest. He held up a sign that he had hidden under his suit jacket, tried to
distribute flyers, and yelled an educational message about his cause.2 When
security asked Mr. Ortberg to leave, he complied, although he continued his verbal
protest as he left the building.
1
The director of banquets at the hotel, Deacon Colarusso, testified that the
three gentlemen at the registration table appeared to be “on a bit of a rotation” and
that at times one or two of them “were kind of mingling in through the party,” but
he never saw the table unattended.
2
Mr. Ortberg testified that he was “part of a grassroots protest organization
in the District of Columbia” called “Defending Animal Rights Today and
Tomorrow.”
5
II. Analysis
A. Elements of Unlawful Entry
We review a challenge to the sufficiency of the evidence de novo. Nero v.
United States, 73 A.3d 153, 157 (D.C. 2013). But before we can assess whether
the government presented sufficient evidence to sustain Mr. Ortberg‟s conviction
for unlawful entry in this case, we must understand the elements of the offense.
Mr. Ortberg argues that the government failed to “establish the requisite criminal
intent as to his initial entry” into Studio One because it failed to prove that he knew
he was prohibited from moving from the publicly accessible lobby of the W Hotel
into the restricted event space of Studio One. His attack on the sufficiency of the
evidence in this case thus appears to turn on whether the government proved that
he knowingly or deliberately defied the wishes of the organizers of the event in
Studio One or willfully violated the law. The preliminary question before us is
whether the law requires the government to present such proof. We conclude it
does not.
D.C. Code § 22-3302 (a)(1) provides, in relevant part:
Any person who, without lawful authority, shall enter, or
attempt to enter, any private dwelling, building, or other
6
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, . . . shall be deemed
guilty of a misdemeanor.[3]
Our case law distilling the elements of this crime has set them out in a variety of
ways,4 but it is clear at the least that the government must prove (1) entry that is (2)
3
The relevant language of the statute setting forth the elements of the crime
reads much as it did when it was first enacted in 1901. Recent changes have no
bearing on this case. In 2009, § 22-3302 was divided into two subsections,
distinguishing between unlawful entry of a public building and unlawful entry of a
private building. See Omnibus Public Safety and Justice Amendment Act of 2009,
D.C. Law 18-88, § 215, 56 D.C. Reg. 7413 (Dec. 10, 2009). In doing so, the
Omnibus Public Safety and Justice Amendment Act of 2009 made unlawful entry
of a private building a non-jury demandable offense (by decreasing the potential
term of imprisonment for 180 days) while unlawful entry of a public building
remained jury demandable (the potential prison term was maintained at 6 months).
The Comment to the jury instruction on unlawful entry contemplates a scenario in
which the nature of the building is contested. Criminal Jury Instructions, No.
5.401 cmt (“If the nature of the building is in issue, the instruction may need to be
modified.”). However, the private nature of the W Hotel is not contested.
In 2013, this statute was amended to clarify the amount a defendant could be
fined at sentencing. See Criminal Fine Proportionality Amendment Act of 2012,
D.C. Law 19-317, § 201 (h), 60 D.C. Reg. 2064 (February 22, 2013). But this
amendment likewise does not affect our analysis.
4
See, e.g., Shelton v. United States, 505 A.2d 767, 769 (D.C. 1986) (“The
offense of unlawful entry, on the other hand, is committed when a person invades
property without lawful authority and against the will of the occupant.”); Culp v.
United States, 486 A.2d 1174, 1176 (D.C. 1985) (“In prosecuting a charge of
unlawful entry, the government must prove that: (1) the accused entered or
attempted to enter public or private premises or property; (2) he did so without
lawful authority; (3) he did so against the express will of the lawful occupant or
owner; and (4) general intent to enter.” (citing Criminal Jury Instructions for the
District of Columbia, No. 4.44)); Carson v. United States, 419 A.2d 996, 998 (D.C.
1980) (noting that “„[the statute] prohibits the act of entering or remaining upon
(continued…)
7
unauthorized — because it is without lawful authority5 and against the will of
owner or lawful occupant.
What is less clear is the mental state or culpable state of mind that must be
proved. The statute does not expressly address this subject. But “where „a
criminal statute is silent on the question of mens rea, it is ordinarily subject to a
presumption requiring a culpable mental state unless it is clear the legislature
intended to create a strict liability offense.” Conley v. United States, No. 11-CF-
589, slip op. at 43 n.91 (D.C. Sept. 26, 2013) (quoting Santos v. District of
Columbia, 940 A.2d 113, 116-17 (D.C. 2007)). The legislature has not signaled its
intent to impose strict liability for the offense of unlawful entry. And while we
have no legislative history on this provision, we have decades of case law
interpreting this provision.
(…continued)
any property when such conduct is both without legal authority and against the
expressed will of the person lawfully in charge of the premises‟” (quoting Leiss,
364 A.2d at 806), and referring to “both elements of the crime”).
5
Although there is little case law addressing the meaning of “without lawful
authority,” see, e.g., United States v. Thomas, 444 F.2d 919, 926 (D.C. Cir. 1971),
it appears this element would protect from prosecution for unlawful entry
emergency responders, members of the law enforcement community entering
pursuant to a warrant, or individuals otherwise authorized by law to enter certain
properties. Mr. Ortberg has never asserted that he had some official authority to
enter Studio One, and thus this element requires little discussion in this case.
8
Turning to this case law, it has been long understood that the “only state of
mind that the government must prove is appellant‟s general intent to be on the
premises contrary to the will of the lawful owner.” Artisst v. United States, 554
A.2d 327, 330 (D.C. 1989); see also Culp v. United States, 486 A.2d 1174, 1176
(D.C. 1985) (explaining that the government need only establish “general intent” to
enter). But what is meant by this “venerable” common law classification “has
been the source of a good deal of confusion.” United States v. Bailey, 444 U.S.
394, 403 (1980); see also Perry v. United States, 36 A.3d 799, 809 n. 18 (D.C.
2011) (noting that categorizations of general and specific intent “can be too vague
or misleading to be dispositive or even helpful”). Moreover, the statement that a
crime as a whole requires proof of “general intent” fails to distinguish between
elements of the crime, to which different mental states may apply. “[C]lear
analysis requires that the question of the kind of culpability required to establish
the commission of an offense be faced separately with respect to each material
element of the crime[.]” Bailey, 444 U.S. at 406 (citation omitted).
Even though our prior discussions of mental state have lacked some
precision, we are nonetheless able to look to our precedent to determine that the
mental states for entry and for doing so “against the will” of the lawful occupant
are both clearly discernible and distinct. To begin with, our cases make clear that
9
the physical act of entry must be purposeful and voluntary — not accidental or
mistaken. See Kozlovska v. United States, 30 A.3d 799, 801 (D.C. 2011) (noting
that the trial court found, inter alia, that “appellant entered the property voluntarily
and on purpose, not by mistake or accident”); Culp, 486 A.2d at 1176 (observing
that the government must prove a “general intent to enter”); see also Dauphine v.
United States, 73 A.3d 1029, 1032 (D.C. 2013) (“It is well settled that the general
intent to commit a crime means the intent to do the act that constitutes the crime.”).
Furthermore, our cases make clear that the mental state with respect to
acting against the will of the owner or lawful occupant is not one of purpose or
actual knowledge. Rather, it is sufficient for the government to establish that the
defendant knew or should have known that his entry was unwanted. Thus, we
have held that the government need only prove that the “will” of a lawful occupant
was objectively manifest through either express6 or implied7 means, not that the
6
See Artisst, 554 A.2d at 330 (evidence sufficient to demonstrate entry was
against the will of the lawful occupant where entry to a dormitory was “in
contravention of a prominently posted warning”); Smith v. United States, 281 A.2d
438, 440 (D.C. 1971) (evidence sufficient to demonstrate entry was against the will
of the lawful occupant where a construction company occupying a lot “posted
signs indicating its rightful control of the site”); Bowman v. United States, 212
A.2d 610, 611 (D.C. 1965) (will of the lawful occupant expressed “by sign and by
public announcement”).
10
will was subjectively understood by the defendant. Likewise we have rejected the
argument that the government must establish that the defendant was personally
advised that he did not have permission to enter.8
That the government need only prove that a defendant knew or should have
known that his entry was unwanted is additionally apparent from our prior
recognition that a defendant “lacks the requisite criminal intent for unlawful entry”
“[w]hen a person enters a place with a good purpose and a bona fide belief in his or
her right to enter.” Darab v. United States, 623 A.2d 127, 136 (D.C. 1993)
(…continued)
7
See Culp, 486 A.2d at 1177 (where “at least some of the windows” of a
home were “boarded over” but there may not have been a sign forbidding entry,
evidence was sufficient to demonstrate entry was against the will of the lawful
occupant); Smith, 281 A.2d at 440 (no need to post “keep out” sign where access to
property was restricted by locked gates and mesh chain link fence topped by
barbed wire); Bond v. United States, 233 A.2d 506, 514 (D.C. 1967) (even where
there were no signs or warnings forbidding entry, conviction for unlawful entry
upheld where appellant was found in areas of an office “which were not open to
the public”); McGloin v. United States, 232 A.2d 90, 91 (D.C. 1967) (noting that
“no one would contend that one may lawfully enter a private dwelling house
simply because there is no sign or warning forbidding entry”).
8
McGloin, 232 A.2d at 91 (rejecting appellant‟s argument that he could not
be convicted of unlawful entry because he “was not warned verbally or by sign to
refrain from entering the premises” and holding instead that “it is more than plain
that wandering through [a four-unit apartment] building, climbing on the roof or
perching on the fire escape would be against the will of the owner”); Bowman, 212
A.2d at 611 (rejecting appellant‟s contention “that there can be no unlawful entry
under the statute unless such entry is contrary to a personal warning or instruction
not to enter.”).
11
(quoting Smith, 281 A.2d at 439).9 This “bona fide belief” is generally discussed
as a defense that the government must disprove beyond a reasonable doubt if it is
fairly raised by the evidence,10 but it nonetheless informs what the government
must prove when it pursues a conviction for unlawful entry. Such a bona fide
belief not only “must be based in the pure indicia of innocence,”11 but also must be
reasonably held.12 In other words, the existence of a reasonable, good faith belief
is a valid defense precisely because it precludes the government from proving what
it must — that a defendant knew or should have known that his entry was against
the will of the lawful occupant.
9
See also McGloin, 232 A.2d at 91 (“[O]ne who enters for a good purpose
and with a bona fide belief of his right to enter is not guilty of unlawful entry.”).
10
See Darab, 623 A.2d at 136 (government must disprove bona fide belief
beyond a reasonable doubt); see also Smith, 281 A.2d at 439 (bona fide belief
instruction only given to the jury if fairly raised by the evidence).
11
Gaetano v. United States, 406 A.2d 1291, 1294 (D.C. 1979); see also
Darab, 623 A.2d at 136 (same).
12
Culp, 486 A.2d at 1176 (“innocent entry upon unmarked or ambiguously
marked premises may constitute a defense to a charge of unlawful entry” so long
as it has “some reasonable basis” (citations omitted)); Smith, 281 A.2d at 439 (“A
bona fide belief must have some justification — some reasonable basis.”); accord
Darab, 623 A.2d at 136; Gaetano, 406 A.2d at 1293. Thus, “to warrant an
instruction it is not sufficient that an accused merely claim a belief of a right to
enter.” Gaetano, 406 A.2d at 1293 (quoting Smith, 281 A.2d at 439).
12
This understanding of the law aligns with the current jury instruction for
unlawful entry, to which the trial court in this case looked to discern the elements
of the crime. The instruction identifies five elements, the second and fifth of
which explicitly define the distinct mental states required: (1) The defendant
“entered, or attempted to enter,” a private dwelling or part thereof; (2) The
defendant “entered, or attempted to enter the property voluntarily, on purpose, and
not by mistake or accident”; (3) The defendant “did so without lawful authority”;
(4) “The entry or attempt to enter was against the will” of “the person lawfully in
charge of the premises”; and (5) The defendant “knew or should have known that
s/he was entering against that person‟s will.” Criminal Jury Instructions, No. 5.401
(emphasis added). This instruction is relatively new, dating back to 2009, and the
commentary does not indicate the impetus for clarification of the requisite mental
states nor the sources on which the committee relied. Its lack of annotations
notwithstanding, we conclude that this instruction articulates the elements of
unlawful entry with accuracy and helpful precision.
B. Sufficiency of the Evidence
Having clarified the elements of unlawful entry, we examine the evidence in
this case to determine if it was sufficient to sustain Mr. Ortberg‟s conviction.
13
Viewed in the light most favorable to the government, Hemmati v. United States,
564 A.2d 739, 746 n.14 (D.C. 1989), we hold that it was.
As to the first two elements of unlawful entry, it is uncontested that Mr.
Ortberg entered Studio One and that he did so purposefully. Mr. Ortberg likewise
never contested the third element, that he was without “lawful authority” to enter
Studio One. And as to the fourth element, we conclude that there was ample
evidence to establish that his entry was against the will of the lawful occupant of
Studio One. This event space inside the W Hotel was rented out for a private
fundraising event. The group renting this space had set up a registration table at
the entrance to the room and required name tags for event guests. Indeed, Mr.
Ortberg acknowledges in his brief that “[i]t may be inferred from the facts
developed that the reception within this interior room of the hotel was intended to
be „admission by name badge only.‟”13
13
We acknowledge Mr. Ortberg‟s and amicus‟s argument that hotels, or at
least certain areas of hotels (e.g., the lobby), are “semi-public” spaces and that their
status as such should have some relevance to the unlawful entry conviction. Such
a designation might impact a First Amendment analysis, but it does not figure in a
case where the only issue is whether the defendant was properly convicted of
unlawful entry. This case simply involves a privately rented banquet hall which
under no definition could be considered a semi-public space.
14
This leaves us to examine whether the evidence was sufficient to establish
that Mr. Ortberg knew or should have known that his entry was unwanted — or
whether, as the trial court considered sua sponte, there was sufficient evidence to
disprove that Mr. Ortberg had a reasonable bona fide belief in his right to enter
Studio One. We agree with the trial court that here, too, the evidence was clearly
sufficient to establish Mr. Ortberg‟s guilt of unlawful entry.
Under the circumstances, Mr. Ortberg should have known that he did not
have permission to enter Studio One. He testified at trial that he knew from an
internet search that the event was a fundraiser and he did not have an invitation.
His argument on appeal seems to be that he did not know an invitation was
required — that he did not know he could not walk from the lobby area of the hotel
into the event space. But he also testified that he knew there was a manned
registration desk just by the entrance to Studio One where name tags, or badges,
were being handed out. The registration desk and distribution of name tags
reasonably should have communicated to Mr. Ortberg that he could not walk in an
exit or service door and join the party without an invitation.
The unreasonableness of Mr. Ortberg‟s actions likewise defeated any bona
fide belief defense. Moreover, the evidence clearly disproved such a defense
15
because Mr. Ortberg‟s actions were not innocent. Mr. Ortberg indicated that he
understood full well the function of the individuals he saw at the registration table
by describing them as the “badge checker[s].” And the fact that, when asked by
the banquet server if he had a badge, he responded untruthfully to “stall” his
ejection from the event space demonstrated that he actually knew he was not
permitted to be in the room.14 Mr. Ortberg argues that the trial court‟s
consideration of his stalling tactic was improper because it was not equivalent to
“full knowledge of even a general criminal intent to violate the unlawful entry
statute at the time of entry.” However, the question is not whether he intended to
violate the statute but rather whether he reasonably and actually believed he was
permitted to enter the room. As the trial court correctly determined, his
dissembling is evidence that he did not.
Finally, we address Mr. Ortberg‟s assertion that his entry into Studio One
and the “brief disruption” he caused there was to be “endured” because he was
engaging in protest activity. This argument is without merit. “It is no defense to a
charge of unlawful entry . . . that the crime was committed out of a sincere
14
As noted supra, the government had no obligation to prove this
knowledge, but the evidence of such knowledge unquestionably defeats the bona
fide belief defense.
16
personal or political belief, however genuine, in the rightness of one‟s actions.”
Hemmati, 564 A.2d at 745. And the bona fide belief defense “was not meant to,
and does not, exonerate individuals who believe they have a right, or even a duty,
to violate the law in order to effect a moral, social, or political purpose, regardless
of the genuineness of the belief or the popularity of the purpose.” Gaetano, 406
A.2d at 1294. Simply stated, an individual does not have the right to enter private
property against the will of the lawful occupant in order to exercise First
Amendment rights.
C. Probation
Mr. Ortberg‟s second argument on appeal — that the trial court abused its
discretion in denying him a hearing on his request to extend his probationary
period — is moot. Mr. Ortberg‟s period of probation expired on May 18, 2012.
He filed two motions, one prior to the end of the probationary period, on May 15,
2012, and one after, June 2, 2012, seeking to extend his probationary period to
allow him to complete the requisite community service. However, the government
never moved to revoke probation nor did the court set a show cause hearing based
on Mr. Ortberg‟s failure to complete community service. Indeed, the government
did not reply to either of his motions and the period of probation ended
17
uneventfully. Thus, Mr. Ortberg was not harmed by the trial court‟s failure to hold
a hearing, nor has he suffered any collateral consequences. As the trial court
correctly noted, it had no jurisdiction to consider Mr. Ortberg‟s motions once the
probationary term expired. See D.C. Code § 24-304 (a) (2012 Repl.). And he had
no reason to seek relief because his probation had not been revoked prior to
expiring.
For the reasons set forth above, Mr. Ortberg‟s conviction for unlawful entry
is
Affirmed.
ENTERED BY DIRECTION OF THE COURT:
JULIO A. CASTILLO
Clerk of the Court