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State v. Merhege

Supreme Court of New Mexico

March 30, 2017

STATE OF NEW MEXICO, Plaintiff-Petitioner,
v.
TREVOR MERHEGE, Defendant-Respondent.

         ORIGINAL PROCEEDING ON CERTIORARI Drew D. Tatum, District Judge.

          Hector H. Balderas, Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM for Petitioner.

          Bennett Baur, Chief Public Defender C. David Henderson, Assistant Appellate Defender Santa Fe, NM for Respondent.

          OPINION

          EDWARD L. CHÁVEZ, Justice.

         {1} At approximately 3:40 a.m., with a police officer in pursuit, Defendant Trevor Merhege ran through the front yard of a private residence that was enclosed by a three foot high wall. He became entangled on a chain link fence as he attempted to jump over an adjoining fence into the back yard of the residence. He was convicted of criminal trespass. Because the property was not posted, the State was required to prove that Merhege knew that he was not permitted to enter the property. Merhege contended that there was insufficient evidence to support this knowledge requirement. The Court of Appeals agreed and reversed his conviction, concluding that because the property's driveway was not posted with a "no trespassing" sign and the property owner gave no other explicit warnings not to enter, Merhege and the public at large were presumptively granted permission to enter the property. State v. Merhege, 2016-NMCA-059, ¶¶ 12, 14-15, 376 P.3d 867. We reverse the Court of Appeals and reinstate Merhege's conviction for criminal trespass because the wall surrounding the property's front yard, the purpose of his entry, and the time of his entry provided sufficient circumstantial evidence for the jury to find that Merhege knew that he did not have consent to enter the property.

         BACKGROUND

         {2} On September 3, 2011, Portales Police Officer Adam Lem was patrolling in his vehicle at around 3:40 a.m. when he saw two individuals out walking. Officer Lem wished to speak with them, so he stepped out of his vehicle and "hollered at them." According to Officer Lem, the individuals looked back at him and then took off running. He pursued. They cut across the front yard of a residence at 901 South Main Street. One of the individuals then climbed onto a chain link fence and boosted himself over a wooden fence dividing the front yard from the back yard. Merhege, who was the second person, attempted the same maneuver but caught his shoelace on the chain link fence.

         {3} The residence at 901 South Main is located on the corner of Main Street and East 9th Street. Officer Lem testified that a three foot high brick wall ran along the border of the property on both streets and enclosed the front yard of the residence.[1]Officer Lem also noted that there was an area where the public could enter the front yard and access a sidewalk that went up to the front door. There were no signs or postings at the property that would indicate that trespassing was forbidden or that members of the public were not permitted to enter the property.

         {4} The other side of the front yard of 901 South Main was bordered by a chain link fence which met with a slightly higher wooden fence that divided the front yard from the back yard. Officer Lem testified that the chain link fence appeared to be a dividing fence between 901 South Main and a neighboring property and did not enclose anything. The chain link fence did not go all the way to the road or otherwise obstruct access from the street to the property. The area between the two fences was where Officer Lem arrested Merhege for resisting, evading, or obstructing an officer, a charge that was later amended to criminal trespass.

         {5} Gary Watkins lived at 901 South Main on the night of the incident. He was not aware that Merhege had entered his property until the police informed him around three weeks later. Watkins had never met Merhege.

         {6} The State chose to pursue a criminal trespass charge against Merhege, and a jury convicted him. The Court of Appeals reversed his conviction, reasoning that the evidence presented at trial was insufficient to establish the elements of criminal trespass. Merhege, 2016-NMCA-059, ¶¶ 9-16. The Court of Appeals stated that "[t]he determinative question is whether we can presume, as a legal matter, that the general public, including Defendant, had permission to enter upon Watkins' unposted land or whether such entry constitutes a violation of [the criminal trespass statute]." Id. ¶ 11. The Court of Appeals then opined that "[t]he fact that the statute specifically refers to the posting of the property at all vehicular access entry ways as being sufficient evidence that the public does not have consent to enter suggests that the lack of such posting reveals that the public does have consent to enter." Id. ¶ 15. We granted certiorari to resolve only the narrow issue of "[w]hether, as a matter of law, the general public is presumptively granted permission to enter upon unposted lands." State v. Merhege, 2016-NMCERT-___ (June 1, 2016). We conclude that as a matter of law the general public is not presumptively granted permission to enter upon unposted lands, but instead permission to enter unposted lands depends on the circumstances of the individual's entry.

         DISCUSSION

         {7} New Mexico law provides different standards for criminal trespass on private land depending on whether the land has been properly posted with "no trespassing" signs. To satisfy New Mexico's posting requirements, a person lawfully in possession of private property must post conspicuous notices (1) parallel to and along the exterior boundaries of the property; (2) at each access point, including roadways; and (3) every 500 feet along the exterior boundaries of the property if it is not fenced. NMSA 1978, § 30-14-6(A) (1979); see also § 30-14-6(B) (defining requirements for posted notices). If private land has been properly posted, a person commits criminal trespass when he or she enters or remains upon the property without written permission from an owner or person in control of the property. NMSA 1978, § 30-14-1(A) (1995); see also Holcomb v. Rodriguez, 2016-NMCA-075, ¶ 23, 387 P.3d 286 (holding "that Section 30-14-6 sets out a standard by which a property may be deemed 'posted' " for purposes of determining whether an intruder can be prosecuted under Section 30-14-1(A)). If private land is not properly posted under the statutory requirements (unposted land), as in this case, then a person can only commit criminal trespass by entering or remaining upon the property "knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof." Section 30-14-1(B). With respect to unposted land, New Mexico law also specifies that "[n]otice of no consent to enter shall be deemed sufficient notice to the public and evidence to the courts, by the posting of the property at all vehicular access entry ways." Id. Thus, we must determine whether posting at vehicular access entry ways is the only manner of providing constructive notice under the statute.

         {8} Current New Mexico criminal trespass standards evolved in a piecemeal fashion over several decades. However, it has been a longstanding requirement that a person know that consent to enter or remain has been denied or withdrawn for that person to be guilty of criminal trespass. See 1963 N.M. Laws, ch. 303, § 14-1 (setting forth the mens rea element). The knowledge requirement, and the statutory crime of criminal trespass more generally, predates the Property Posting Act, New Mexico's first posting statute. See 1969 N.M. Laws, ch. 195 (enacting Property Posting Act). In 1979, posting requirements were incorporated into the criminal trespass statute and the Property Posting Act ceased to exist as a separate provision. 1979 N.M. Laws, ch. 186, §§ 3-4. Early versions of New Mexico's criminal trespass statute also required that a defendant enter the property with "malicious intent, " a requirement that was removed in 1981, 1981 N.M. Laws, ch. 34, § 1, thereby expanding the conduct criminalized under the statute to include non-malicious entries. The requirement that an intruder on private posted land possess written permission was later added to the criminal trespass statute in 1991. 1991 N.M. Laws, ch. 58, § 1. The second sentence of Section 30-14-1(B), which asserts that posting at all vehicular access entry ways is sufficient notice of no consent to enter unposted land, was added to the provision in 1995. 1995 N.M. Laws, ch. 164, § 1. The intent of this added language was likely to provide some definitive method for possessors of smaller plots of land to "post" their property and warn the public against intrusions where the formalities of posting, such as posting every 500 feet along the boundary of the property, are impracticable. However, there is no indication that the Legislature intended that posting at all vehicular access entry ways be the exclusive method of providing notice to members of the general public that they are not ...


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