O'Banion v. Commw.

• Court: Virginia Court of Appeals
• Writing for the Court: Carleton Penn; Benton
• Citation: O'Banion v. Commw., 531 S.E.2d 599 (Va. App. 2000)
• Decision Date: 25 July 2000
• Docket Number: No. 2698-97-4,2698-97-4
• Parties: (Va.App. 2000) WARFORD L. O'BANION, S/K/A WORFORD LEE O'BANNION v. COMMONWEALTH OF VIRGINIA Record

531 S.E.2d 599 (Va.App. 2000)

WARFORD L. O'BANION, S/K/A WORFORD LEE O'BANNION v. COMMONWEALTH OF VIRGINIA

Record No. 2698-97-4

COURT OF APPEALS OF VIRGINIA

JULY 25, 2000

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

Carleton Penn, Judge Designate

S. Jane Chittom, Appellate Counsel; Elwood Earl Sanders, Jr., Appellate Defender (Public Defender Commission, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder, Bray, Annunziata, Bumgardner, Frank and Humphreys

Argued at Richmond, Virginia

OPINION BY: JUDGE ROSEMARIE ANNUNZIATA

On October 19, 1999, a panel of this Court affirmed in part and reversed in part the convictions of Warford L. O'Banion ("appellant") for trespassing and possessing a concealed weapon, in contravention of Code 18.2-119 and 18.2-308.2, respectively. We granted appellant's petition for rehearing en banc to consider his contentions 1) that the trial court erred in refusing to give his proposed jury instruction on the claim of right defense to trespass; 2) that the trial court erred in denying his motion to strike the Commonwealth's evidence because a steak knife and box-cutter found in his possession are not "weapons" as defined by Code 18.2-308.2 and 18.2-308(A); 3) that the Leesburg Police Department lacked the authority to bar him from entering a private apartment complex; 4) that the process by which he was barred violated his constitutional rights under the Fifth and Fourteenth Amendments; and 5) that his arrest, resulting from the exercise of unfettered discretion by police, violated the Fourth Amendment. We affirm appellant's conviction for possession of a concealed weapon but reverse the conviction for trespass based on the trial court's erroneous denial of appellant's jury instruction.

FACTUAL BACKGROUND

On June 29, 1995, the management of Loudoun House, a privately-owned and federally-subsidized apartment complex, issued a limited power of attorney appointing "each and every sworn officer of the Leesburg Police Department as [its] true and lawful attorneys-in-fact." The power of attorney authorized Leesburg police officers to "serve trespass notices to any persons encountered on Loudoun House property who are not on a lease and cannot demonstrate a legitimate purpose for being on the premises." Additionally, the officers were authorized to file criminal complaints for trespass against persons who returned to the Loudoun House premises after being served with a notice.

In practice, decisions regarding whether to issue a trespass notice to an individual are left to the discretion of the officers of the Leesburg Police Department. Police are not required to consult the management of Loudoun House for prior approval. Two officers characterized the arrangement between Loudoun House and Leesburg police as a "partnership" for the purpose of providing security at the apartment complex; the police collect no fee for serving trespass notices on individuals. When serving a trespass notice police normally read and explain its terms to the barred individual but do not usually furnish a copy of the notice.

The notice consists of a one-page form, providing that the subject individual is no longer permitted to enter Loudoun House property "under any circumstances" and would be subject to arrest for trespassing if he or she did so. Once served with a trespass notice, individuals are barred from returning to Loudoun House indefinitely. The Leesburg Police Department has an unwritten policy governing how individuals may have their barment lifted. Under that policy, assuming compliance with the barment's terms and the absence of any involvement in any criminal activity around Loudoun House, an individual may request to meet with police to discuss terminating the barment three months after its issuance. This policy is usually explained orally by the barring officer at the time a notice is issued.

On April 29, 1996, Captain Christopher Jones of the Leesburg Police Department received a complaint that appellant had instigated a fight, using baseball bats, on the premises of Loudoun House. That evening, police confronted appellant on the premises. After interviewing his sister and checking a current roster of residents at Loudoun House, Jones determined that appellant was not a lessee in the building. Jones issued appellant a trespass notice and explained the procedure for requesting termination of the barment. Appellant refused to sign the trespass notice and was not given a copy.

On the night of January 18, 1997, police observed appellant enter the main entrance of Loudoun House. At that time, appellant lived with his girlfriend, off the premises of Loudoun House. When stopped by police, appellant indicated that he believed his barment had automatically expired after ninety days. Police arrested appellant for trespass in violation of Code 18.2-119, after verifying that appellant was still barred from Loudoun House property.¹ Police searched appellant incident to his arrest and found a steak knife with a six-inch blade and a silver, razor-bladed box-cutter on his person.

At trial, two witnesses, Gail O'Bannion-Green and Ami Dorsey, residents at Loudoun House, testified in appellant's defense. O'Bannion-Green is appellant's sister, and Dorsey is the mother of one of appellant's children. Both witnesses were present when Captain Jones barred appellant. Both witnesses testified that they heard Jones tell appellant he was barred for ninety days and that he could be barred for life if he returned to Loudoun House before then. Neither witness heard Jones tell appellant that he had to request permission from police to return to Loudoun House three months after the barment issuance.

At the close of evidence, appellant tendered the following jury instruction:

Criminal intent is an essential element of the statutory offense of trespass. One cannot be convicted of trespass when one enters or stays upon the land under a bona fide claim of right. A Bona Fide claim of right is a sincere, although perhaps mistaken, good faith belief that one has some legal right to be on the property. The claim need not be one of title or ownership, but it must rise to the level of authorization.

Stating that appellant "did not assert in his evidence any bona fide claim of right," the trial court found no justification for giving this instruction and refused it accordingly.

JURY INSTRUCTIONS

Appellant contends the trial court erred in refusing to grant his proposed jury instruction on the claim of right defense to trespass. We agree and reverse appellant's conviction for trespass on this ground.

Both the Commonwealth and the defendant are entitled to appropriate jury instructions on the law applicable to their version of the case. See Banner v. Commonwealth, 204 Va. 640, 645-46, 133 S.E.2d 305, 309 (1963). When evidence exists in the record to support the defendant's theory of defense, the trial judge may not refuse to grant a proper, proffered instruction. See Painter v. Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166, 170-71 (1969); Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 105 (1990). "A proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with model jury instructions." Code 19.2-263.2. "[W]here evidence tends to sustain both the prosecution's and the defense's theory of the case, the trial judge is required to give requested instructions covering both theories." Diffendal v. Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989).

Although Code 18.2-119 is silent as to intent, the case law in Virginia has uniformly construed the statutory offense of criminal trespass to require a willful trespass. See Campbell v. Commonwealth, 41 Va. (2 Rob.) 791 (1843); Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 278 (1988). As such, one who enters or stays upon another's land under a bona fide claim of right cannot be convicted of trespass. See Wise v. Commonwealth, 98 Va. 837, 837, 36 S.E. 479, 479 (1900); Reed, 6 Va. App. at 71, 366 S.E.2d at 278. "[A] bona fide claim of right is a sincere, although perhaps mistaken, good faith belief that one has some legal right to be on the property. The claim need not be one of title or ownership, but it must rise to the level of authorization." Reed, 6 Va. App. at 71, 366 S.E.2d at 278. To refuse an instruction propounding this legal principle, when there is evidence to support it, is error. See Wise, 98 Va. at 837, 36 S.E. at 479; see also McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) ("It is immaterial that the jury could have reached contrary conclusions. If a proffered instruction finds any support in credible evidence, its refusal is reversible error.").

In this case, appellant testified that he believed his barment lapsed ninety days after its issuance and that, after such time, he was legally authorized to return to the premises of Loudoun House. He based this belief on the information that Captain Jones allegedly provided to him at the time he was issued a trespass notice. The police provided no hard copy of the notice to appellant that would, by its terms, dispel or contradict this belief. Moreover, appellant provided the testimony of two witnesses who stated their understanding that, based on Captain Jones' explanation, the barment only lasted ninety days. Even if appellant and his corroborating witnesses were mistaken on this point, their testimony constitutes evidence of appellant's sincere belief that he was legally authorized to be present on the premises of Loudoun House at the time of his arrest for trespass. Based on this evidence, appellant proffered a jury instruction that accurately summarized the...