In the Matter of the Welfare of: A. A. D., Jr., Child.

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1264

In the Matter of the Welfare of:
A. A. D., Jr., Child.

Filed June 13, 2022
Reversed
Ross, Judge

Hennepin County District Court
File No. 27-JV-20-3324

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant A. A. D., Jr.)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County At torney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Ross,
Judge.
SYLLABUS
1. A police officer’s oral declaration to a n unwelcome visitor on private
property, “You’re officially trespassed,” does not meet the trespass-notice requirement of
Minnesota Statutes section 609.605, subdivision 1(b)(8) (2020), which predicates a
trespass violation on the alleged trespasser’s having been previously “told to leave the
property and not to return.”
2. A police officer’s refused attempt to hand-deliver a written notice informing
an unwelcome visitor to leave a property and not return does not satisfy the trespass-notice
“told” requirement of Minnesota Statutes section 609.605, subdivision 1(b)(8).
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OPINION
ROSS, Judge
A teenaged boy returned to a Brooklyn Park grocery store two months after one
police officer told him that he was “officially trespassed” and another attempted but failed
to hand the teen a formal notice advising him not to return for a specific period. The state
charged him with and the district court found him guilty of criminal trespass and stayed
adjudication. The youth appeals from the finding, arguing that he had not effectively been
“told to leave the property and not to return,” which is the statutory prerequisite to a
trespass violation. Because neither orally informing an unwelcome visitor that he is
“officially trespassed” nor attempting but failing to hand-deliver the written notice meets
the notice required by the statute, we reverse.
FACTS
Police officers Jeremiah Carlson and Nicole Matthewman were on patrol in June
2020 when they were dispatched to the Fast & Fresh grocery in a Brooklyn Park strip mall
to investigate a report that unwelcome youth were refusing to leave the property. The
officers encountered the group, including fifteen-year -old A.A.D., and began dispers ing
them. Officer Matthewman tried to hand A.A.D. a written notice that stated, “[Y]ou are
hereby ordered to leave the property described below and not return.” A.A.D. said, “I don’t
want that, bro,” and turned away without taking the notice. Officer Carlson told A.A.D.,
“You’re officially trespassed from here now so now you need to go.” A.A.D. left the
property.
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Officer Brandon Schmitt encountered A.A.D. two months later inside the Fast &
Fresh store. A.A.D. attempted to hide from the officer behind merchandise racks. Officer
Schmitt arrested A.A.D., and the state filed a delinquency petition charging him with
criminal trespass. The district court conducted a bench trial, found that the state proved the
allegations against A.A.D., and stayed adjudication for 180 days. A.A.D. appeals.
ISSUE
Did the state prove that police “told [A.A.D.] to leave the property and not to return”
under Minnesota Statutes section 609.605, subdivision 1(b)(8) (2020)?
ANALYSIS
A.A.D. challenges the district court’s finding that he engaged in misdemeanor
trespass, arguing that the state failed to prove that he had been given the prior notice
required by statute. The parties do not dispute the material facts, and we review de novo
the district court’s application of a criminal statute. State v. Degroot, 946 N.W.2d 354, 360,
365 (Minn. 2020). We must decide only whether the officer’s actual delivery of the oral
notice or his partner’s attempted delivery of the written notice satisfies the statutory prior-
notice requirement. Based on a straightforward reading of the statute’s plain language, our
answer is no.
We focus on the operative word, “told.” Unless a person has a “claim of right to the
property [of another] or consent” to be there, he commits the crime of misdemeanor
trespass if he “intentionally . . . returns to the property . . . within one year after being told
to leave the property and not to return.” Minn. Stat. § 609.605, subd. 1(b)(8). The district
court determined A.A.D.’s guilt apparently on two grounds. It reasoned first that A.A.D.
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violated the trespass statute “when he returned to the Fast & Fresh property . . . after being
trespassed from the premises.” It reasoned next that A.A.D. “was responsible for adhering
to the conditions of the trespass notice that the officers attempted to give him, even though
he refused to accept [it].” We interpret the district court’s explanation as basing the guilt
determination on both grounds—the oral pronouncement that A.A.D. was “officially
trespassed” and the refused written notice that he must leave and not return. We consider
whether, as to either alternative, police “told” A.A.D. to leave and not return to the Fast &
Fresh.
Oral Advisory Did Not Satisfy Notice Requirement
The state argues that the statutory notice requirement was met here when “the
[o]fficer told A.A.D. that he was ‘officially trespassed’ from the property.” It bases this
argument on the officer’s testimony that, when a person is “officially trespassed,” it means
“they’re not welcome [at the property] for one year from the date of the issuance . . . unless
they get the owner to say that they’re allowed back in.” The state does not suggest that the
officer’s understanding of the term “officially trespassed” is shared by anyone outside of
those police, lawyers, and judges who are familiar with the statute. It identifies no statute,
common English dictionary, or even legal dictionary, that defines the verb “trespassed” in
the shorthand way the officer used it here. Our understanding of the basic term in its usual
setting informs us that “trespassed,” the past -tense construction of the verb “trespass,”
commonly indicates a previous unlawful intrusion onto property rather than a current
prohibition against future entry.
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We recognize that words evolve over time. We likewise know that a half dozen
unpublished opinions of this court have used the word “trespassed” to refer to a directive
not to return to land. See, e.g., Little Earth of United Tribes Hous. Corp. v. Rojas, No. A19-
0297, 2019 WL 6838488, at *5 (Minn. App. Dec. 16, 2019) (“Officer Schmitt’s narrative
stated that Stevens ‘was booked . . . for [t]respassing,’ but the officer acknowledged that it
was only his ‘understanding’ that Stevens had been trespassed.”). But a brief survey of
judicial opinions across the nation informs us that the officer’s very specific use here is at
most only developing in the law. That is, the term “officially trespassed” showed up in a
publicly accessible judicial-opinion database for the first time only ten years ago in a
nonprecedential Ohio Court of Appeals opinion, State v. Smith , No. 25048, 2012 WL
5076225, at *1 (Ohio Ct. App. Oct. 19, 2012) (“Officer Jezioro advised Defendant that he
was officially trespassed from Marvin Gardens.”), and it has appeared only once more, in
a nonprecedential Texas Court of Appeals opinion two years later, Yoc-H v. State, No. 07-
13-00222-CR, 2014 WL 1712625, at *1 (Tex. Ct. App. Apr. 28, 2014) (“On that same day,
Lieutenant Kenneth Adams, of the TWU patrol service, prepared and sent to appellant a
letter which apprised him of the fact that he had been officially ‘trespassed’ from TWU.”).
No Minnesota appellate opinion has ever used the phrase “officially trespassed” in any
context. And we have found no court anywhere that has treated the directive, “You’re
officially trespassed,” to mean specifically, you are hereby ordered to leave the property
and not reenter for one year. We have no reason to believe that the general public would
be certain enough of the officer’s meaning to precipitate delinquent or criminal liability.
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Most important to our analysis, the legislature has never expressly adopted the
meaning the officer and the district court ascribed to it here. We have emphasized that
“[t]he statutory requirements of a command both to leave the property and a command not
to return ensure clarity and notice of exactly what behavior is prohibited.” State v.
Kremmin, 889 N.W.2d 318, 321 (Minn. App. 2017), rev. denied (Minn. Mar. 28, 2017).
We need not decide whether a property owner or agent must use the precise statutory phrase
verbatim, and of course we are in no position to predict whether the officer’s phrase used
here will ever become so commonly understood in ordinary usage that imposing criminal
liability would be fair. We conclude only that one is not “told to leave the property and not
to return” with any terminology—including routine police jargon— that fails to inform the
visitor expressly of the duty to leave and the duty not to return. And we hold that the
officer’s declaration that A.A.D. was “officially trespassed” failed to meet the statutory
notice requirement and cannot support the finding of guilt.
Undelivered Writing Did Not Satisfy Notice Requirement
We next consider the district court’s conclusion that the officer told A.A.D. to leave
and not return by drafting the trespass notice and unsuccessfully attempting to deliver it to
him. The state points out that the officer’s attempted “trespass notice contained all of the
relevant information: the issuance date, that A.A.D. could not return, and the date that the
trespass notice expired (one year later).” It then cites an 1866 case for the proposition that
ignorance of the law cannot exc use a trespass, Merrit v. City of St. Paul, 11 Minn. 223,
231, 11 Gil. 145, 152 (1866), and it reasons that, by refusing to accept the notice that
Officer Matthewman attempted to hand him, A.A.D. engaged in “willful ignorance of the
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law.” We reject the state’s theory that one is “told” to leave property and not return when
he willfully refuses to be handed a written notice that would order him to leave and not
return.
Although the legislature did not define the term “told” in section 609.605, it
indirectly revealed the meaning, explaining generally that statutory “words and phrases are
construed according to rules of grammar and according to their common and approved
usage.” Minn. Stat. § 645.08 (2020). And dictionary definitions can inform us of a word’s
common usage. Getz v. Peace, 934 N.W.2d 347, 354 (Minn. 2019). The criminal trespass
statute uses “told” as the past participle of “tell,” which means: “To communicate by
speech or writing; express with words,” “To make known; disclose or reveal,” “To inform
(someone) positively; assure,” or “To give instructions to; direct.” Am. Heritage Dictionary
of the Eng. Language 1791, 1829 (5th ed. 2018). This comports with definitions of “tell”
in dictionaries published in the same era in which the legislature included the “told”
requirement in the 1994 trespass statute. See, e.g., The New Shorter Oxford Eng. Dictionary
3241 (4th ed. 1993).
Based on this common and continued meaning of the term, we are satisfied that the
“told” prerequisite means that A.A.D. cannot be found to have engaged in criminal trespass
unless he was actually informed of his leave-and-don’t-return obligation. A mere attempt
to perform an act is not performing the act. An attempt to communicate, or attempt to make
known, or attempt to give instructions, falls short of telling. It therefore was not enough
that the officers intended to so inform A.A.D. or even that they tried to so inform him. Our
rationale follows the self-evident legislative intent to criminalize the intrusions only of
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those who, by prior communication, possess actual knowledge rather than constructive
knowledge that they are unwelcome. And this understanding defeats the state’s theory that
we should apply the ignorance-of-the-law-is-no-excuse maxim to criminal trespass.
We add that we do not share the state’s concern that those who engage in “willful
ignorance” by refusing to accept a written trespass notice can immunize themselves from
criminal liability. First, an officer need not hand-deliver the notice; “telling” can be
accomplished, and could have been accomplished in this case, simply by announcing the
complete trespass notice orally. And second, any worr y that the statute excuses willful
ignorance is a concern only for the legislature because it is not our prerogative to look
beyond the plain words of a statute to effectuate some broader, supposed policy objective.
See Minn. Stat. § 645.16 (2020) (“When the words of a law in their application to an
existing situation are clear and free from all ambiguity, the letter of the law shall not be
disregarded under the pretext of pursuing the spirit.”). In sum, by merely attempting but
failing to deliver the notice, police did not tell A.A.D. that he could not return to the
property.
DECISION
The evidence does not establish that police told A.A.D. to leave and not return,
either by their oral directive or their undelivered writing. The evidence therefore does not
support the prior-notice element of A.A.D.’s alleged criminal-trespass violation.
Reversed.