Smith v. United States, 5693.

• Decision Date: 28 September 1971
• Docket Number: No. 5693.,5693.
• Citation: 281 A.2d 438
• Parties: James Tyrone SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 438

281 A.2d 438

James Tyrone SMITH, Appellant, v. UNITED STATES, Appellee.

No. 5693.

District of Columbia Court of Appeals.

Argued July 12, 1971.

Decided September 28, 1971.

Caroline Nickerson, Washington, D. C., appointed by this court, for appellant.

John S. Ransom, Asst. U. S. Atty. with whom Thomas A. Flannery, U. S. Atty John A. Terry and Paul L. Friedman, Asst. U. S. Attys., were on the brief, for appellee.

Before HOOD, Chief Judge, and GALLAGHER and NEBEKER, Associate Judges.

HOOD, Chief Judge:

This appeal is from a conviction of unlawful entry in violation of D.C.Code 1967, § 22-3102.¹

Appellant was found near midnight by a police officer within a construction site completely enclosed by three locked gates and mesh chain link fence topped by barbed wire. The officer testified that, responding to a burglar alarm, he scaled the fence after seeing an individual inside and, following a chase, caught appellant in a hole with construction equipment in his hands and alongside him. It was later established that a trailer on the site had earlier been broken into and this same equipment removed.

In defense, appellant testified that he had been playing basketball and was merely in the process of taking a "shortcut" from the adjacent court to a bus stop,² which route encompassed slipping through a gate loosely chained, crossing the construction site, and crawling under a second gate leading to the public street. According to testimony produced in his behalf, appellant and others had used this same route in the daytime in the presence of construction workers without their objection. Appellant also denied being in a hole and in possession of the stolen construction equipment when apprehended.

On this appeal appellant urges that the trial court's instructions on the law of unlawful entry were erroneous and that the court further erred in denying certain instructions requested by appellant; the basic issue below, and here, was the defendant's repeated attempts to get the trial judge to include in his instructions on unlawful entry that a good faith belief by the defendant that he could enter the area was a defense to the charge of unlawful entry.³

Finding no error in the trial court's instructions, we affirm the conviction.

Where a person enters a place with a good purpose and with a bona fide belief of his right to enter, he lacks the element of criminal intent required by D.C. Code 1967, § 22-3102 and is not guilty of unlawful entry. And, where the existence of such a belief is genuinely questionable, an issue proper for the jury's determination arises and the accused is entitled to an instruction thereon. McGloin v. United States, D.C.App., 232 A.2d 90 (1967); Bowman v. United States, D.C.App., 212 A.2d 610 (1965). The contrary is also true, i. e., where there is no evidence supportive of the accused's claim of a bona fide belief of a right to enter, the court is under no duty to instruct that such belief constitutes a valid defense. To do so would only serve to confuse the jury on an issue not properly before it.

Review of the record does not reveal sufficient facts or circumstances evidencing a bona fide belief by appellant of a right to enter the construction site to warrant an instruction thereon; accordingly, we uphold the trial court's refusal to grant the requested instruction.

To warrant an instruction it is not sufficient that an accused merely claim a belief of a right to enter. A bona fide belief must have some justification — some reasonable basis. Such was not present here. Appellant's transgression of the lot in the daytime when construction activity was in progress...