28-522. Criminal trespass; affirmative defenses.

268 words·~1 min read·/ne/chapter-28/28-522

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

It is an affirmative defense to prosecution under sections 28-520 and 28-521 that:

(1)A building or occupied structure involved in an offense under section 28-520 was abandoned; or

(2)The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3)The actor reasonably believed that the owner of the premises or other person empowered to license access thereto would have licensed him to enter or remain; or

(4)The actor was in the process of navigating or attempting to navigate with a nonpowered vessel any stream or river in this state and found it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river.

A person entering premises open to the public has the premises and the business has not reinstated its implied consent to entry. State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).

A valid license from any owner or other person empowered to license access to a property is sufficient to show that a defendant reasonably believed that he or she was licensed to be on the premises. A defendant need not show that every owner licensed his or her presence. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).

An ownership interest is not an affirmative defense to the charge of criminal trespass. State v. Anderson, 14 Neb. App. 253, 706 N.W.2d 564 (2005).