City of Great Bend v. Nelson

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NOT DESIGNATED FOR PUBLICATION

No. 120,561

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF GREAT BEND, KANSAS,
Appellee,

v.

EDWIN LOUIS NELSON JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; SCOTT E. MCPHERSON, judge. Opinion filed October 25,
2019. Affirmed.

Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.

Robert G. Suelter, city attorney, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: The City of Great Bend has a 13-mile levee that protects it from
flooding. The City has fenced the entire levee system but included several gates for
pedestrians as well as one gate for authorized vehicles. At each gate, the City posted a
sign—reading "Authorized Vehicles Only"—to protect against damage to the levee.
Despite this signage and other warnings, Edwin Louis Nelson Jr. was seen riding a
custom-built vehicle on the levee. After being convicted in municipal court of criminal
trespass in violation of a municipal ordinance, Nelson appealed to the district court. At
the conclusion of a bench trial, the district court also found Nelson guilty of criminal
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trespass in violation of the municipal ordinance. Finding sufficient evidence to support
the conviction, we affirm.

On appeal, Nelson contends that his conviction is not supported by substantial
evidence. In particular, Nelson argues that the district court failed to give any
consideration to his assertion that City police officers had given him permission to bring
what he described as a custom-built "machine" or "tractor" onto the levee. When a
defendant challenges the sufficiency of the evidence in a criminal case, we review the
evidence in a light most favorable to the prosecution to determine whether a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. State v.
Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018); see City of Arkansas v. Sybrant, 44
Kan. App. 2d 891, 900, 241 P.3d 581 (2010). In reviewing the record, we are not to
reweigh the evidence, resolve evidentiary conflicts, or assess the credibility of witnesses.
State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).

Here, the district court convicted Nelson of violating Section 6.7 of the Uniform
Public Offense Code for Kansas Cities, which had been adopted by the City of Great
Bend. Section 6.7 provides, in relevant part, as follows:

"(a) Criminal trespass is,

(1) Entering or remaining upon or in any land . . . by a person who knows such
person is not authorized or privileged to do so, and:

. . . .

(B) such . . . property [is] posted in a manner reasonably likely to come to the
attention of intruders, or is locked or fenced or otherwise enclosed, or shut or secured
against passage or entry."

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A review of the record reveals that Nelson admitted at the bench trial that he took
his custom-built machine or tractor on the levee on December 6, 2017. In addition, the
City of Great Bend presented evidence that the City had marked the levee with signs
stating that only authorized vehicles were permitted on the property. Likewise, the City
presented evidence that Nelson had been previously warned to stay off the levee with his
vehicle.

Regarding the charged trespass violation, the City's street department supervisor
testified that he observed Nelson riding on the levee, dismount his vehicle, push it
through the gate, and walk to a nearby house. He also testified regarding the placement of
fencing along the levee and the signs posted at the gates to protect the levee from damage
that could potentially endanger City residents during a flood. According to the supervisor,
he had previously explained to Nelson that the City's intent was not to restrict public
access to the Arkansas River but was, instead, to protect the levee from damage caused
by unauthorized vehicles.

During his testimony, Nelson candidly admitted that, on December 6, 2017, he
took, what he referred to as, a custom-built machine or tractor onto the levee. Nelson
described the machine as a 540-pound "two wheel-tractor" that he had built to "cut trail"
and "skid logs" by the river. Nelson testified that he had frequently taken his machine
onto the levee and claimed that he had been given permission to do so by police officers.
However, he did not identify the officer or officers who allegedly gave him permission to
take his machine on the levee nor did he identify the date on which the conversation
occurred. Moreover, Nelson did not call any officers or other witnesses to corroborate his
story.

As indicated above, our role is not to reweigh the evidence or to replace our
judgment for that of the district court regarding the credibility of witnesses. Rather, our
role is to determine if there is sufficient evidence in the record—viewed in the light most
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favorable to the City—upon which a reasonable fact-finder could conclude that Nelson
was guilty of criminal trespass beyond a reasonable doubt. Here, the City presented
evidence at the bench trial to establish that it had marked the levee with signs limiting
access to authorized vehicles, that it had previously warned Nelson about taking his
machine or tractor onto the level, and that he was seen riding the machine or tractor on
the levee. Furthermore, Nelson admitted taking his machine or tractor on the levee.
Although Nelson alone claimed that he had been given permission to do so, the district
court weighed the evidence and concluded that Nelson was guilty of criminal trespass in
violation of the municipal ordinance.

In summary, viewing the evidence—as well as the reasonable inferences to be
drawn therefrom—in the light most favorable to the City, we find that there was
sufficient evidence presented at trial to establish beyond a reasonable doubt that Nelson
was guilty of criminal trespass, in violation of Section 6.7 of the Uniform Public Offense
Code. In particular, we find that there is sufficient evidence in the record to establish
beyond a reasonable doubt that Nelson took his machine or tractor onto the levee
knowing that he was not authorized to do so. Likewise, we find that there is sufficient
evidence in the record to establish beyond a reasonable doubt that the City had fenced the
levee and had posted signs at the gates to advise members of the public that they should
not enter the property with an unauthorized vehicle.

Affirmed.