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State of Idaho v. Christopher A. Pentico

October 17, 2011

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER A. PENTICO, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge. Hon. Kevin Swain, Magistrate.

The opinion of the court was delivered by: Melanson, Judge

2011 Opinion No. 60

Stephen W. Kenyon, Clerk

Order of the district court, on appeal from the magistrate, affirming order withholding judgment for trespass, affirmed.

Christopher A. Pentico appeals from the district court's intermediate appellate decision affirming the magistrate's order withholding judgment for trespass. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Beginning in 2007, the Idaho Capitol closed to the public for renovation and the Governor's office was temporarily moved to the third floor of the nearby Borah Building. On March 25, 2008, an officer stopped Pentico on state property, in the vicinity of the Capitol Annex, and informed Pentico that he was no longer authorized to be at the Capitol Annex, the third and fourth floors of the Borah Building, and the department of education.*fn1 On April 2, 2008, Pentico visited the Governor's office on the third floor of the Borah Building. After Pentico left the Borah Building, he was cited for trespass in violation of I.C. § 18-7011.*fn2 Months later, the state filed an amended complaint charging Pentico with trespass in violation of I.C. § 18-7008. Pentico filed a motion to dismiss the amended complaint and a motion in limine.

At the hearing on Pentico's motion to dismiss, Pentico argued the amended complaint should be dismissed because it did not recite all of the elements of trespass required by I.C. § 18- 7008(A)(8) because it alleged only that, on April 2, Pentico willfully trespassed upon the property of the State of Idaho by entering the Governor's office in the Borah Building. The state then moved to file a second amended complaint which provided that, on April 2, Pentico willfully trespassed upon the property of the State of Idaho by returning and entering the Governor's office in the Borah Building without permission or invitation, after being verbally notified within the previous year not to do so, by an authorized agent of the State. The magistrate granted the state's motion to amend and denied Pentico's motion to dismiss on that ground.

In further support of his motion to dismiss, however, Pentico cited to a recent Idaho Supreme Court decision for the proposition that I.C. § 18-7008(A)(8) could be challenged as being unconstitutional as applied to a person on public property who is exercising his or her free speech rights. See State v. Korsen, 138 Idaho 706, 715-16, 69 P.3d 126, 135-36 (2003). After hearing argument on the constitutional issue, the magistrate denied Pentico's motion to dismiss, holding that I.C. § 18-7008(A)(8) placed reasonable restrictions on the time, place, and manner in which constitutional rights could be exercised and Pentico was being prosecuted for his conduct and not the content of his communication. Following this determination, the magistrate addressed and granted Pentico's motion in limine which sought to limit any testimony regarding other crimes, wrongs, or acts of Pentico. Based on the foregoing, the magistrate determined that the content of the communication and prior dealings Pentico may have had with other government officials was not relevant to the case and limited testimony to what occurred on April 2 when Pentico was cited for trespass.*fn3

The parties waived trial by a jury. At trial before the magistrate, in accordance with its previous ruling, Pentico was not allowed to present testimony regarding his communication and prior dealings with government officials or assert that his actions were justified under the First Amendment. At the conclusion of trial, the magistrate determined that the state proved all of the elements required by I.C. § 18-7008(A)(8) beyond a reasonable doubt--that Pentico was properly notified he could not be present at certain locations and that he was thereafter physically present at those locations within a year of such notice. The magistrate found Pentico guilty of trespass, entered a withheld judgment, and placed Pentico on probation for thirty days. Pentico appealed.

On appeal to the district court, Pentico argued that the state did not prove all of the elements of trespass required by the statute. Specifically, Pentico alleged that the state failed to prove that Pentico had not been invited to return to the Borah Building and also failed to prove that he had been asked specifically to leave the Borah Building. Pentico also argued that the statute was unconstitutional as applied to him. The district court concluded that the state proved all of the elements of trespass required by the statute. As to the constitutional challenges, the district court determined that the only issue preserved for appeal was whether Pentico engaged in constitutionally-protected activity on April 2 because Pentico did not argue before the magistrate that he was engaged in constitutionally-protected conduct that was infringed by the notice banning him from government property on March 25. The district court concluded that the statute was not unconstitutional as applied to Pentico on April 2 and affirmed the magistrate's order withholding judgment. Pentico again appeals, arguing that the state failed to prove all of the elements of trespass required by I.C. § 18-7008(A)(8), that the statute was unconstitutional as applied to him, and that that the magistrate erred by precluding evidence.

II.

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