Bountiful City v. Sisch

2023 UT App 141

THE UTAH COURT OF APPEALS

BOUNTIFUL CITY,
Appellee,
v.
PETER ALEXANDER SISCH,
Appellant.

Opinion
No. 20220599-CA
Filed November 24, 2023

Second District Court, Bountiful Department
The Honorable David J. Williams
No. 211800281

Peter Daines, Attorney for Appellant
Heather Waite-Grover, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 The manager of a Smith’s Marketplace store asked Peter
Alexander Sisch to leave the parking lot next to the store. Sisch
ignored the request and refused to leave the parking lot; a few
minutes later, police officers arrived and removed Sisch from the
premises. Sisch was later charged with various misdemeanor and
infraction crimes, including criminal trespass, and was convicted
after a bench trial. He appeals his conviction for criminal trespass,
asserting that the prosecution did not elicit sufficient evidence
that the “owner” of the property asked him to leave. We reject
Sisch’s arguments and affirm his conviction.
Bountiful City v. Sisch

BACKGROUND 1

¶2 One summer day, Sisch entered a Smith’s Marketplace
store (Smith’s) in Bountiful, Utah. While inside, he purchased a
pair of shoes at the self-checkout area, briefly interacted with a
Smith’s employee (Employee) there, and left. About an hour later,
Sisch returned to the store to exchange the shoes for a different
size; during this second visit, he again encountered Employee,
who directed him to the customer service counter, where all
returns and exchanges take place. After successfully making the
exchange, Sisch left the store, but he then tarried in the parking
lot on the northeast side of the building. In this area, there is a
“kind of a cage” located outside the building that contains a
number of “propane canisters.” It is also an area in which Smith’s
“baggers” retrieve shopping carts used by customers. And this
part of the parking lot is primarily used for employee parking,
though there is no signage indicating that only employees may
park there. The parking lot in general, and this area in particular,
is open to members of the public.

¶3 Sometime after Sisch left the store, the manager of the store
(Manager), wearing a Smith’s shirt and name badge, exited the
building and noticed that Sisch was “pacing back and forth next
to the employees’ cars” and looked “lost or upset.” Manager
approached Sisch and asked him “to leave the premises.” Sisch
refused, “started getting pretty excited,” and asked Manager if he
“wanted to fight.” Sisch also asked Manager if he was affiliated
with “the store,” to which Manager answered affirmatively.

¶4 Manager called a co-worker (Co-worker), who was then
inside the store, informed her of the situation and asked her to call

1. “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we present
additional evidence only as necessary to understand the issues on
appeal.” State v. Jack, 2018 UT App 18, n.2, 414 P.3d 1063.

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911. As Co-worker called 911, she walked outside with Employee,
approaching Sisch. At that point, Sisch was “throwing his hands
in the air . . . screaming vulgarity” and engaging in “very loud,
aggressive yelling.”

¶5 A police officer (Officer) arrived “between two to three
minutes” after Co-worker’s 911 call. Prior to identifying himself
as a police officer, and before Sisch noticed him, Officer observed
Sisch’s behavior. He witnessed Sisch yelling profanities and
acting in an agitated manner. Officer then identified himself to
Sisch and asked him about the situation. Sisch told Officer, “[T]he
employees are saying that I’m loitering, but I’m not loitering
because I just spent $100 in there at their business, so I can go
wherever I want.”

¶6 Further, Sisch was “rambling” and going from “topic to
topic,” which concerned Officer and prompted him to ask Sisch
for identification. Sisch refused, the situation escalated, and
Officer placed handcuffs on him. However, once Officer removed
the cuffs a few minutes later, Sisch calmed down and began
offering information. During the conversation, Sisch “indicated
that he talked to [a] guy in the back parking lot,” and he
acknowledged that a Smith’s employee had “asked him to leave.”

¶7 Later, Bountiful City (the City) charged Sisch with criminal
trespass, disorderly conduct, and failure to disclose his identity.
The case proceeded to a bench trial, where the City called four
witnesses in its case-in-chief: Employee, Manager, Co-worker,
and Officer. Each gave testimony regarding the events described
above. Sisch defended the trespass charge largely on two
grounds: first, that the property was open to the public and that
he had a right to be there as a Smith’s customer and, second, that
Sisch was not in a position to know that Manager—the person
who asked him to leave—had the authority to act on behalf of
Smith’s. Sisch did not argue, at trial, that Smith’s was not the
owner of the parking lot.

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¶8 On that latter point—perhaps because it was not
perceptibly contested at trial—the City did not offer a great deal
of direct evidence. Manager testified that he was the “[s]tore
manager” and that, in that capacity, he “ha[d] the authority to ask
people . . . to leave the premises,” and that he told Sisch “to leave
the premises.” Officer testified that the scene to which he
responded was “a private parking lot owned and operated by
Smith’s.” Co-worker testified that she called 911 to have the police
“remove [Sisch] from our property.” And in closing argument,
based on this evidence, the City argued that, while Sisch had
“lawfully entered” Smith’s property, he had “refused to leave”
that property “after he was directed to do [so] by an employee.”

¶9 At the conclusion of the trial, the court found Sisch guilty
of all three charges. In an oral ruling, the court stated that Sisch
lawfully entered “an area of the [Smith’s] parking lot that was
open to the public,” but found that Sisch was “asked to leave by
somebody”—Manager—who had “authority to act for the
owner.” The court specifically noted that Manager “was wearing
his name badge that identified him as a manager” and that
Manager “identified himself [to Sisch] as the store manager,” and
the court found that Sisch “certainly knew that [Manager] was a
store manager.” The court also found that, after being asked, Sisch
“refused to leave.” Accordingly, the court found “that the City
ha[d] met [its] burden of proof with regard to proving beyond a
reasonable doubt the elements of criminal trespass.”

ISSUE AND STANDARD OF REVIEW

¶10 Sisch now appeals, challenging the sufficiency of the
evidence supporting his criminal trespass conviction. 2 “In the
context of a bench trial, when a defendant contends the evidence
was insufficient to support a conviction, we review the court’s

2. Sisch does not appeal any of his other convictions.

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Bountiful City v. Sisch

findings for clear error.” State v. Ayala, 2022 UT App 1, ¶ 18, 504
P.3d 755. And in such situations, “we must sustain the trial court’s
judgment unless it is against the clear weight of the evidence, or
if we otherwise reach a definite and firm conviction that a mistake
has been made.” Id. ¶ 15 (quotation simplified).

ANALYSIS

¶11 Sisch contends that the City failed to introduce evidence
sufficient to satisfy one of the required elements of criminal
trespass: that Smith’s was the “owner” of the parking lot Sisch
was asked to vacate. While we acknowledge that this specific
issue was hardly the focal point of the City’s evidentiary
presentation, in our view the City submitted enough evidence in
this regard to support a conviction. 3

¶12 Utah’s criminal trespass statute provides, in relevant part,
that “[a]n actor commits criminal trespass if, . . . knowing the
actor’s . . . presence is unlawful, the actor enters or remains on . . .
property to which notice against entering is given by . . . personal
communication to the actor by the owner or someone with
apparent authority to act for the owner.” Utah Code § 76-6-

3. As noted, at trial Sisch never asserted that Smith’s was not the
owner of the parking lot, and he never argued that the City had
failed to present sufficient evidence on that point. But this
oversight does not present a preservation problem for Sisch,
because a defendant in a criminal bench trial is “not required to
take any action to preserve a challenge to the sufficiency of the
evidence with regard to the statutory elements of the crime.” See
State v. Charles, 2020 UT App 154, ¶ 20 & n.4, 477 P.3d 492; see also
State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (stating that
“challenges to sufficiency need not be expressly preserved in a
bench trial context because the trial court necessarily determines
sufficiency in making its conclusion as to guilt”).

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206(2)(b)(i). Here on appeal—as contrasted from the arguments
he made before the trial court—Sisch does not assert that Manager
lacked authority to act for Smith’s; instead, he argues that the City
failed to conclusively prove that Smith’s was the “owner” of the
parking lot. See id. As Sisch sees it, even if Manager had authority
to act on Smith’s behalf, the City failed to demonstrate that
Manager had the necessary authority “to act for the owner” in
telling him to leave the parking lot. See id.

¶13 There is no statutory definition of “owner” in the criminal
trespass statute or in any of the statutory “definitions” sections
that are directly applicable to that statute. See id. §§ 76-1-101.5, 76-
6-101, -201, -206. In a situation like this, “where no specialized
statutory definition is provided,” we usually arrive at a definition
by “interpret[ing] statutory language according to the plain
meaning of its text.” See Vineyard Props. of Utah LLC v. RLS Constr.
LLC, 2021 UT App 144, ¶ 25, 505 P.3d 65 (quotation simplified),
cert. denied, 509 P.3d 767 (Utah 2022). But here, the parties are in
apparent agreement about what “owner” means in this context,
and therefore we apply their agreed-upon definition to the facts
of this case, without rendering any conclusive opinion as to the
meaning of “owner” as used in Utah’s criminal trespass statute.

¶14 In this case, Sisch posited in his opening brief that “‘owner’
includes not just the title holder” of the property but also “any
tenant or other occupant with an exclusive or other possessory
interest in the parking lot sufficient to exercise dominion over it.”
In response, the City did not take issue with this definition. We
therefore proceed to evaluate the merits of Sisch’s appeal using
this working definition of the term “owner.”

¶15 Under this definition, the City can meet its burden of proof
in one of two ways. First, it can present evidence (for instance,
from county land records or other similar sources) indicating that
Smith’s either owns record title to the real property upon which
the parking lot is located, or that it possesses authority from the

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record title holder to ask people to leave the property. Sisch
correctly points out that the City made no effort to present any
evidence regarding the identity of the record title holder of the
land underneath the parking lot. 4

¶16 Alternatively, the City can present evidence that Smith’s is
a “tenant or occupant” of the parking lot “with an exclusive or
other possessory interest” in it “sufficient to exercise dominion
over it.” On this point, Sisch correctly points out that the City did
not place into evidence any lease agreement or other document
indicating that Smith’s has a leasehold (or other tenancy) interest
in the parking lot property. And Sisch contends that the evidence
that does exist in the record on this point is insufficient to support
the trial court’s finding that Manager had authority to act for the
“owner” of the parking lot. On this point, we disagree.

¶17 When judges sit as factfinders in bench trials, they may not
base their verdicts on speculation, but they “are permitted to
draw reasonable inferences from the evidence presented.” State v.
Charles, 2020 UT App 154, ¶ 21, 477 P.3d 492. “To be sure, the line
separating ‘speculation’ from ‘reasonable inference’ can at times

4. Indeed, on appeal Sisch asks us to take judicial notice of the fact
that a “publicly-accessible and self-authenticating title search of
the Davis County official recorder demonstrates that Smith’s does
not in fact own the parking lot.” Sisch did not attempt to introduce
any such evidence at trial, and we decline Sisch’s invitation to take
judicial notice of it now. Cf. Finlayson v. Finlayson, 874 P.2d 843,
847 (Utah Ct. App. 1994) (“Judicial notice is taken on appeal only
where there is a compelling countervailing principle to be served.
With very limited exceptions, judicial notice should not be used
to get around the rule precluding raising issues for the first time
on appeal.” (quotation simplified)). But even if we were to take
judicial notice of the fact that Smith’s is apparently not the record
title owner of the parking lot, under Sisch’s own definition of
“owner” that would not resolve the relevant question.

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be faint.” State v. Prisbrey, 2020 UT App 172, ¶ 23, 479 P.3d 1126,
cert. denied, 485 P.3d 946 (Utah 2021). An “inference” is “a
conclusion reached by considering other facts and deducing a
logical consequence from them.” Salt Lake City v. Carrera, 2015 UT
73, ¶ 12, 358 P.3d 1067 (quotation simplified). “On the other hand,
‘speculation’ is the act or practice of theorizing about matters over
which there is no certain knowledge at hand.” Id. (quotation
simplified). As our supreme court has explained, “the difference
between an inference and speculation depends on whether the
underlying facts support the conclusion.” Id.; see also Salt Lake City
v. Gallegos, 2015 UT App 78, ¶ 10, 347 P.3d 842 (stating that
“inferences drawn from facts in evidence are appropriate,” but
“inferences drawn from inferences are not” (quotation
simplified)), cert. denied, 362 P.3d 1255 (Utah 2015). Moreover, “in
criminal cases, proof must be beyond a reasonable doubt, and any
inferences drawn from the evidence must comport with this
stringent burden of proof.” Charles, 2020 UT App 154, ¶ 21; see also
State v. Workman, 852 P.2d 981, 985 (Utah 1993) (“A guilty verdict
is not legally valid if it is based solely on inferences that give rise
to only remote or speculative possibilities of guilt.”).

¶18 In this case, the evidence introduced at trial was sufficient
to support a finding, arrived at beyond a reasonable doubt, that
Smith’s had a possessory interest in the parking lot sufficient to
exercise dominion over it. Perhaps most significantly, Officer
testified—quite directly—that the parking lot was “owned and
operated by Smith’s.” On appeal, Sisch criticizes Officer’s
statement as “unsupported” and “lacking in foundation,” but he
lodged no objection to the admissibility of Officer’s statement at
trial. Accordingly, Sisch has not preserved for appellate review
any objection to that statement, and he does not ask us to evaluate
the court’s admission of this statement for plain error or assert
that Sisch’s trial counsel was ineffective for failing to lodge an
objection. Under these circumstances, Officer’s statement
constituted evidence that the trial court was allowed to consider.

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¶19 In addition to Officer’s statement, the trial court heard
Manager testify that he had authority to remove people “from the
premises” and that he asked Sisch to leave those premises. In
context, Manager’s use of the term “premises” indicates that the
relevant “premises” included the parking lot. Moreover, the court
also heard Co-worker’s testimony that she called 911 to have the
police remove Sisch “from our property”; in context, “our” refers
to Smith’s and “property” refers to the parking lot.

¶20 Even aside from this direct testimony, there existed
additional circumstantial evidence indicating that Smith’s was the
owner of the parking lot. The part of the lot in which Sisch was
found was a section in which employees parked their cars and in
which Smith’s baggers retrieved shopping carts. That section also
included an outdoor “cage” where Smith’s kept propane canisters
related to its business. And the trial court might also have drawn
on its own common-sense understanding of how big-box retailers
operate and inferred—especially in the absence of any contest on
the point—that it would be extremely unlikely for a retailer like
Smith’s to operate a large grocery store in Utah without rights to
the parking lot next to the store. Indeed, even Sisch thought he
had a right to be in the lot simply because he made a purchase at
Smith’s, telling Officer that he couldn’t be loitering because he
had “just spent $100 in” the store, a fact he thought gave him the
right to “go wherever [he] want[ed]” in the parking lot.

¶21 All of this evidence regarding Smith’s relationship with the
parking lot was unrebutted and unchallenged by Sisch during
trial. In our view, the evidence the City presented—including
both the direct evidence as well as reasonable non-speculative
inferences drawn from the circumstantial evidence—was
sufficient to support a determination, arrived at beyond any
reasonable doubt, that Smith’s maintained a possessory interest
in the parking lot sufficient to exercise dominion over it.

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CONCLUSION

¶22 The City provided sufficient evidence to support the trial
court’s determination that Manager had authority to act for the
“owner” of the parking lot. We therefore reject Sisch’s arguments
and affirm his criminal trespass conviction.

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