Ousted artist found not guilty of trespassing

No one debated whether CP&L had asked David “Badger” Erickson to leave its property, which he had turned into an elaborate rock garden, as reported by Mountain Xpress July 29.

No one debated whether Badger’s garden and curious array of reclaimed junk was “art”: “I’m not an art critic, and I don’t think you are, either,” declared Erickson’s attorney, Sean Devereux, while questioning CP&L Supervisor James Baldwin during an Oct. 6 court hearing to determine whether Badger was guilty of criminal trespassing.

But when it came time to determine — in the eyes of the law — whether Badger had trespassed on the property, which he had called home, off and on, for the past three years, the judge found Badger innocent.

On July 16, Baldwin said he had visited Badger’s rock garden, which just happened to be on CP&L land adjacent to Jean Webb Park on the east bank of the French Broad River, off Lyman Street. “I told [Erickson] I’d give him two weeks to get his stuff together and move on,” Baldwin testified. “He was on company property [and] living on the property in a sort of lean-to.” Erickson, Baldwin noted, asked to remain on the property so he could continue working on the garden.

Two weeks later, when Baldwin returned, Erickson may still have been there, but Baldwin saw only the man’s dog on the property; he didn’t speak to Erickson. A few days later, on Aug. 4, CP&L investigator Christy Hicks also visited the site, reporting that she saw Erickson “working” on the property. She did not speak to him, either, and later swore out a trespassing warrant against him, Hicks told the court.

Implying a connection in the timing of Erickson’s arrest, Devereux pointed out that the warrant was issued just six days after Mountain Xpress published a cover story on Badger, his art and his plea that he be allowed to remain on the land long enough to turn it into a public art garden [“The Garden of Badger,” Sept. 29].

“I’m not sure [about that],” replied Baldwin, who said only that “someone” had shown him the article.

Devereux also mentioned that no fence, signs or other markers delineated the property from the adjacent public park at the time, and that other homeless people have stayed on the CP&L property “since time immemorial.”

“If we’d have known about [that], they would have been [asked to leave],” Baldwin responded.

And Hicks insisted, “Mr. Erickson was asked to leave, on July 16, and he did not. … It’s CP&L policy to ask whoever’s there to leave.”

Presiding Judge Earl Fowler didn’t question these statements. Nor did he take issue with the timing of the warrant. And he didn’t seem at all interested in Devereux’s attempt to ferret out whether Asheville City Council member Chuck Cloninger — CP&L’s attorney for the case — had had any influence in having the case prosecuted. (Hicks said she took her orders from CP&L’s legal department).

But Fowler said he doubted whether Erickson’s failure to leave the property could be construed as criminal trespassing: The land wasn’t posted; nor did anyone from CP&L explicitly warn Erickson that he was trespassing, and that he would be arrested if he remained on the land after the two-week deadline, Fowler observed. “I’m going to find that that’s not trespassing,” the judge concluded.

The property is now sealed off by a barbed-wire cyclone fence — and several signs warning trespassers away.