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Prosecutor: No charges will be filed in the SLC/Mormon kissing case
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Prosecutor: No charges will be filed in the SLC/Mormon kissing case

July 29, 2009

After a careful review of the current law and the underlying facts of the incident at the Main Street Plaza involving two alleged trespassers on July 9, 2009, the Salt Lake City Prosecutor's Office has decided not to prosecute this case.

The law requires before anyone can be charged with criminal trespass they be put on notice verbally or by appropriate and adequate signage. Whether the private property is not open to the public versus private property which is open to the public dictates the type of notice and which type of defenses are available to persons accused of criminal trespass.

This notice requirement is essential where there is room for confusion. That is where a member of the public may mistakenly believe they have a right to be on that property. Properties which are "open to the public" but nonetheless "private'" require a notice with sufficient clarity to avoid confusion before any criminal prosecution can be successful.

This notice requirement is fundamentally different from private, non-public property, such as a home, where a member of the public knows without any type of notice they are on private, non-public property. The public's entry on such private, non-public property is only at the pleasure of the private, non-public property owner.

It is legally settled the Church of Jesus Christ of Latter-day Saints (LDS) is the exclusive property owner of the Main Street Plaza walk through. There is no public easement. However, there continues to be a mistaken belief by many visitors that there is a public right of way. There is conflicting notice to those who walk onto and through this corridor that they do so with permission and exclusive pleasure of the property owner. There is no personal right to be there and no necessity for the property owner to explain if and why the property owner wishes to eject a visitor. Simply stated, the property owner does not have to give a reason. However, once a visitor is allowed to come upon or is invited upon the property, the property owner must provide some notice of the conditions under which the visitor received permission to enter the property subjecting the visitor to the discretion of the property owner.

This type of issue was anticipated by the Utah State Legislature under our trespassing statute specifically in those areas where access is "open to the public." For example, it is a defense to prosecution for criminal trespass that the "property was open to the public when the actor entered or remained; and the actor's conduct did not substantially interfere with the owner's use of the property." Our courts have adopted the position that "open to the public" does not mean only public property but rather can include private property as well. For example, the Utah Court of Appeals has ascribed to the following definition of "open to the public":

"Open to the public" means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe no permission to enter or remain is required.

Under the facts of this case there is a sufficient basis to believe a factual misunderstanding occurred. There would be a basis to conclude the alleged trespassers did not have the sufficient notice to form the necessary mental intent to commit criminal trespass. The Main Street Plaza walkway was perceived to be open to the public. There is a reasonable basis to believe the alleged trespassers did not think the LDS staff who confronted them could legally eject them from the property. Under this scenario, the alleged violators wanted law enforcement to be called because they believed they had a right to be there. There were no signs clearly indicating the "at will" capacity to eject - for any reason - persons who entered this private property. Under this statute when the property is "open to the public" Utah law provides that even if there is a violation of the statute there is still the affirmative defense for the defendant that such conduct did not "substantially interfere" with the owner's use of the property. Of course, we must recognize what may not be a substantial interference at 11:00 at night, may very well be an interference at noon during the day. Substantial interference is a fact specific analysis and thus limited to the facts of this particular case.

Thus, there are significant evidentiary issues in this matter. The burden of proof is always upon the government in criminal cases and must be satisfied beyond a reasonable doubt. The interests of justice require a likelihood of success at trial in order to file and prosecute charges. That likelihood of success is not present in the present case, in our assessment, and therefore charges will not be filed by the Prosecutor's Office.

This decision should not be viewed as to limit any rights of the property owner to enforce private property rights on this specific parcel of land in the future.

In fairness to both the property owner and any future users of the property, the Prosecutor's Office will communicate to the property owner and law enforcement the requirements which will allow enforcement of private property rights in the future (consistent with the law) and law enforcement protocol to assist in any future enforcement. Clarity of notice and protocol will assist in the protection and enforcement of private property rights.

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