MEMORANDUM

To: Professor Elizabeth Keith

From: [AGN]

Date: October 2, 2019

Re: Blake Edward (# 516-02-2019); first-degree criminal trespass charge for entering
the house of an acquaintance

QUESTION PRESENTED

Under the Colorado Revised Statute for first-degree criminal trespass, is Blake Edward

guilty of first-degree criminal trespass when she entered the house of her acquaintance, Sharon

Silver, through the unlocked front door that contained a note stating, “Come in; we’re out back in

the pool,” and while she had a prior invitation and had possession of Silver’s house key with

knowledge of where this spare key was always supposed to be located?

BRIEF ANSWER

Probably not. According to the Colorado Revised Statutes, a person commits first-degree

criminal trespass only if she knowingly and unlawfully enters the premises of another. The week

prior to the incident, Edward attended a party at Silver’s residence where Silver invited everyone

present to return anytime. Additionally, on the day of the incident, Silver’s front door was

unlocked and contained a note on which was written, “Come in; we’re out back in the pool.”

Lastly, Edward had Silver’s house key at the time of the incident, and Silver had given Edward

knowledge of where this spare key was always kept. These facts combined likely gave Edward

an invitation to enter Silver’s premises. To Edward’s knowledge, this invitation had not been

revoked at any point. If Edward had an unrevoked invitation to enter, she entered lawfully. These

circumstances likely create enough reasonable doubt for Edward not to be convicted of first-

degree criminal trespass.

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 FACTS

Blake Edward came to us because she was charged with first-degree criminal trespass

and does not want this felony on her record. On July 20, 2019, Edward attended a pool party at

Sharon Silver’s residence in Colorado Springs, Colorado. Molly Mancini, Edward’s roommate,

had invited Edward to the pool party. Mancini and Silver had been sorority sisters at the

University of Colorado Boulder; however, Silver and Edward had never met. Mancini and

Edward arrived together at 5:30 p.m., after the party had begun. Mancini introduced Edward and

Silver, and Silver welcomed them both with “no issue.” There were about fifty people at the

party.

Around 1:45 a.m. on July 21, Silver started asking people to leave. She stood on a chair

and told her guests, “I consider all of you my dearest friends,” and, “you’re welcome at my pool

any time.” Silver asked Mancini and Edward to “lock up after the last guest has left” because “I

am wiped out.” Silver laid the key on a nearby table, instructed Mancini and Edward to leave the

key under the door mat where she always kept her spare key, and retired to sleep. Edward then

took the key off the table, locked the house, but put the key in her pocket.

On July 27, a particularly hot day one week later, Edward decided to return to Silver’s

house to “hang out” at her pool. Edward interpreted Silver’s remarks at the close of the prior

pool party as an invitation to use the pool, and Edward still had Silver’s spare house key. Edward

decided she would use Silver’s pool, return Silver’s spare house key, and surprise Silver with

Silver’s favorite hard seltzer. Edward had learned about Silver’s favorite hard seltzer during a

conversation she had with Silver at the previous party. Silver had not contacted Edward about

the key, and Silver and Edward had not communicated since the prior party. When Edward

arrived at Silver’s residence, she heard people in the back using the pool. The front door was

unlocked
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and contained a note on which was written, “Come in; we’re out back in the pool.” Edward

entered the house through the unlocked front door and walked into the kitchen.

At this point, Silver saw Edward in the house and became visibly upset. Silver began to

yell and called the Colorado Springs Police Department. Edward was confused and “felt bad,”

so she placed the key on the kitchen counter and left immediately. Edward and Silver have had

no contact since this incident and the trespass charge.

DISCUSSION

I. Under the Colorado Revised Statute for first-degree criminal trespass, Edward is likely
not guilty of first-degree criminal trespass.

Our client, Blake Edward, likely entered Sharon Silver’s dwelling lawfully when Edward

used the unlocked front door to enter Silver’s kitchen while in possession of a key to the

dwelling and a prior invitation from Silver. If so, Edward will not be found guilty of first-degree

criminal trespass. The Colorado Revised Statutes hold a person guilty of first-degree criminal

trespass when she (1) knowingly and (2) unlawfully (3) enters or remains in (4) the dwelling of

another or enters any motor vehicle with “intent to commit a crime therein.” Colo. Rev. Stat. §

18-4-502 (2018). The “intent to commit a crime therein” applies only to motor vehicles. People

v. Rodriguez, 43 P.3d 641, 643 (Colo. App. 2001). Because this case does not involve motor

vehicles, the latter portion of element four does not apply. Furthermore, the first, third, and

relevant portion of the fourth elements of this statute are met. Edward knew that she was entering

Silver’s house, walked into Silver’s kitchen after entering the house through the front door, and

knew that the house belonged to Silver. The issue is whether Edward’s entry was unlawful.

A. Edward likely did not enter Silver’s residence unlawfully because Edward had an
unrevoked invitation to use Silver’s pool, and Edward entered the premises
through an unlocked door while in possession of a working key with knowledge
of where that key was always kept.

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 According to the Colorado Revised Statutes, unlawful entry is “when the person is not

licensed, invited, or otherwise privileged” to enter a premises. Colo. Rev. Stat. § 18-4-201(3)

(2018). In the absence of a possessory right or a right to enter in the form of an invitation,

license, or privilege, entry is unlawful. People v. Johnson, 906 P.2d 122, 124, 126 (Colo. 1995).

However, entry is lawful when the evidence establishes a reasonable expectation that entry will

be granted. People v. Hanna, 981 P.2d 627, 629 (Colo. App. 1998). Entry to a premises is also

lawful when a person has express or implied permission and enters using a key or through an

unlocked door where prior permission has been neither revoked nor restricted and no unmet

conditions exist. People v. Carstensen, 420 P.2d 820, 821 (Colo. 1966); People In re D.G.P. v.

D.E.P. (In re D.G.P.), 570 P.2d 1293, 1295 (Colo. 1977); People v. Barefield, 804 P.2d 1342,

1345 (Colo. App. 1990); Hanna, 981 P.2d at 629. Persuasively, the Fifth District Court of Appeal

of Florida holds that invited entry is an affirmative defense, and, if there is any evidence for such

consensual entry, upon request, the court must instruct the jury accordingly. Pilafjian v. Florida,

210 So. 3d 738, 740 (Fla. Dist. Ct. App. 2017).

For a person lawfully to enter the premises of another, that person must have a possessory

right, an invitation, a license, or a privilege specifically to enter. Johnson, 906 P.2d at 124–25.

Even though the defendant in Johnson had a potential ownership right to the property of his

estranged wife, that ownership right alone was not enough to provide an invitation, license, or

privilege to enter the property. Id. at 126. Because the defendant did not have a possessory right,

or an invitation, license, or privilege specifically to enter the premises, the court held that the

defendant had not entered lawfully. Id.

Similarly, when someone does not have a possessory right to a dwelling and her entry is

contingent upon a condition, entry is unlawful when no evidence exists to establish a reasonable

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expectation that the condition will be met. Hanna 981 P.2d at 629. The defendant in Hanna had a

history of permissible entry to the plaintiff’s residence that was conditioned upon someone

being present to open a door and grant her access. Id. The defendant neither had access to a key

nor

permission to enter, unless someone granted her entry. Id. Though the defendant had a history of

permissive entry, she did not meet the requirements for lawful entry at the moment of incidence

because the conditions for permissive entry had not been met. Id.

Where a person has a history of invitation and enters through an unlocked door or

through the use of a working key, implied consent can be inferred and entry is lawful.

Carstensen, 420 P.2d at 821; In re D.G.P., 570 P.2d at 1295. In In re D.G.P., the court held that

there was not sufficient evidence to prove unlawful entry because the defendant had a prior

unrevoked invitation to enter an apartment, and he used a working key to access the apartment.

570 P.2d at 1294–95. The defendant’s history of invitation and his use of the key gave him

implied permission to enter the apartment and provided enough evidence for lawful entry. Id. at

1295. Similarly, the court in Carstensen held that the defendant had not entered an apartment

unlawfully because the apartment’s occupant unlocked the door for the defendant, and the

defendant had an unrevoked invitation to enter. 420 P.2d at 821.

Implied consent is enough to provide evidence for lawful entry unless permission has

been expressly revoked or restricted. Barefield, 804 P.2d at 1344-45. When the defendant in

Barefield, who had been warned by his superior to obey signs on office doors that instructed him

not to enter, chose to enter an office with a no-entry sign, the court held that his entrance was

unlawful. Id. Though the defendant used a working key and had prior consent, his consent had

been revoked, and his entrance was unlawful. Id.

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 Florida persuasively holds that evidence of consensual entry is an affirmative defense that

entitles the defendant to jury instructions. Pilafjian, 210 So. 3d at 740. More specifically, in

Pilafjian, the Fifth District Court of Appeal of Florida held that whether the circumstances of the

defendant’s standing invitation indicated lawful entry depended upon the evidence and was a

matter for the finder of fact. Id. The trial court had failed to instruct the jury that they must find

the defendant did not have a standing invitation or license to enter the premises in order to

convict. Id. Therefore, because the trial court failed to instruct the jury on the possible

affirmative defense, the defendant’s case was remanded for a new trial. Id. at 741.

Our client, Blake Edward, is guilty of first-degree criminal trespass only if there is not

enough evidence for the court to find her entry to Silver’s premises lawful. Because Edward had

an unrevoked invitation specifically to enter Silver’s dwelling, had unconditional access to

Silver’s residence through access to a working key, and entered the residence through an

unlocked front door which contained an invitational note, a jury will likely find that Edward’s

entry was lawful. Therefore, she is probably not guilty of first-degree criminal trespass.

On July 21, Silver issued an invitation for Edward to use Silver’s pool in the future. This

gave Edward an invitation specifically to enter Silver’s premises. When Silver stood on a chair

the night of her pool party, and, addressing everyone at her party, exclaimed, “I consider you all

my dearest friends,” and, “You’re welcome at my pool anytime,” she issued an invitation for

everyone present to return. Edward was at this party and, based on conversations she had with

Silver, operated under the assumption that Silver knew she was at the party. Because Edward

believed that Silver knew Edward was at this party when Silver gave the invitation, Edward

assumed that Silver’s invitation to return applied to Edward. Unlike the defendant of Johnson,

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who lacked permission to enter a dwelling to which he had no possessory right, Edward arguably

did have an invitation specifically to enter a dwelling to which she had no possessory right.

Although Edward did not have a possessory right to Silver’s dwelling, her entry was not

contingent upon a condition which must be met. Rather, Silver had given Edward information

about how to access the house through a working key. During the night of the pool party, Silver

had asked Edward and Mancini to lock the house for her because she was tired. Silver produced

her spare key and informed Edward and Mancini where her spare key was always supposed to be

kept. This key, combined with the knowledge of its whereabouts, meant Edward could access

Silver’s residence without any known conditions. Edward did not need to rely on someone to

grant her access to Silver’s residence, as the defendant in Hanna needed someone to unlock a

door to grant her entry. Therefore, Edward’s entry to Silver’s residence was not contingent upon

any condition that had not been met.

Because Edward had an invitation from Silver and access to Silver’s spare house key,

Edward likely has sufficient evidence to show that implied consent to enter Silver’s dwelling

could be inferred. Like the defendant in In re D.G.P., Edward had a history of invitation

combined with access to a working key. Moreover, as in Carstensen, where the defendant

entered through an unlocked door, Edward entered Silver’s residence through the unlocked front

door at the time of the incident. The invitation, access to the spare house key, and unlocked front

door likely gave Edward implied permission to enter Silver’s residence.

While revocation or restriction of permission invalidates implied consent, no evidence

supports that Silver revoked or restricted the implied permission she had given Edward. Between

the pool party ending on July 21 and the day of the incident, Silver and Edward did not have any

contact. Furthermore, at the time of the incident, Silver’s front door contained a note on which

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was written, “Come in; we’re out back in the pool.” This is very different from Barefield, where

the defendant ignored a sign expressly instructing him not to enter. Based on Silver’s invitation

at the pool party and the access Edward had to Silver’s house, Edward assumed this note of

invitation applied to Edward. Silver took no action to indicate that Edward’s implied permission

had been revoked or restricted.

Persuasively, according to the Fifth District Court of Appeal of Florida, Edward’s

evidence of implied consensual entry to Silver’s residence should be instructed to the jury as a

possible affirmative defense. Like the defendant in Pilafjian, whether Edward’s invitation and

access to Silver’s dwelling indicate lawful entry depends upon the evidence. Thus, according

to Florida authority, this evidence is a matter for the jury to weigh to determine whether

Edward’s implied permission constituted an affirmative defense, and, therefore, lawful entry.

Edward is guilty of first-degree criminal trespass only if the court finds her entrance into

Silver’s premises unlawful. Edward had access to a key and entered through the unlocked front

door with an unrevoked invitation to enter the premises, likely making her entrance to Silver’s

dwelling lawful. A jury will likely find that Edward had an invitation to enter Silver’s premises.

Therefore, it is unlikely that she will be found guilty of first-degree criminal trespass.

CONCLUSION

Under the Colorado Revised Statutes for first-degree criminal trespass, Blake Edward will

likely not be convicted of first-degree criminal trespass. According to the Colorado Revised

Statutes, a person commits first-degree criminal trespass only if she knowingly and unlawfully

enters the premises of another. The week prior to the incident in question, Edward had attended a

party at Silver’s residence where Silver invited everyone present “back anytime.” Additionally, on

the day of the incident, Silver’s front door was unlocked and contained a note on which was

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written, “Come in; we’re out back in the pool.” Edward also had a working key, and Silver had

given Edward knowledge of where the key was always kept. The note on the unlocked door, the

key, the knowledge of where the key was always kept, and Silver’s prior unrevoked invitation

likely provide enough evidence to show that Edward had implied permission to enter the

property. If Edward had permission to enter, she did not enter unlawfully and likely will not be

convicted of first-degree criminal trespass.