White v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: MARY BENNETT MALVEAUX, JUDGE
• Docket Number: 1341-23-4
• Decision Date: 03 September 2024
• Citation: White v. Commonwealth, 1341-23-4 (Va. App. Sep 03, 2024)
• Parties: DAVID MARSHALL WHITE v. COMMONWEALTH OF VIRGINIA

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DAVID MARSHALL WHITE v. COMMONWEALTH OF VIRGINIA

No. 1341-23-4

Court of Appeals of Virginia

September 3, 2024

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA James C. Clark Judge

Gary H. Smith for appellant.

Timothy J. Huffstutter, Assistant Attorney General (Jason S Miyares, Attorney General; Collin Chayce Crookenden Assistant Attorney General, on brief), for appellee.

Present: Judges Malveaux, Raphael and Frucci Argued by videoconference

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE

A jury convicted David Marshall White ("appellant") of trespassing after having been forbidden to do so, in violation of Code § 18.2-119. Appellant argues that the Commonwealth failed to prove that his brother had, or asserted, the authority to bar appellant from their mother's house. Finding no error, we affirm the trial court's judgment.

BACKGROUND

We recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Appellant and Jeffrey White, his older brother, are both sons of Lillian White, who was 82 years old at the time of trial in May 2023. Lillian lived at her house in Alexandria while Jeffrey split his time between New York City and Alexandria. In fall 2019, Jeffrey learned that Lillian was having significant memory loss, needed more help making decisions, and struggled to take care of herself or maintain the house.

In July 2019, Lillian executed a durable financial power of attorney giving Jeffrey the "full power to handle and manage [her] affairs." The powers granted included, "without limitation," the power to "[p]erform all acts related to [her] property and affairs as [she] could if acting personally." The document also specifically granted Jeffrey the authority to manage Lillian's "real property."

Jeffrey viewed the power of attorney document, and based on this document, Jeffrey began exercising his authority under the document in fall 2019. He first acquired her key to the house. He then "de-hoard[ed] the house," replaced the toilets and fixed the shower, installed a security camera on the front door, and put combination locks on doors to two of the rooms, one of which was Jeffrey's bedroom. He filed property tax abatement paperwork, paid property taxes and bills, connected a phone, and placed his own name on the house's utility accounts.

In December 2021, Jeffrey gave appellant a set of keys, and let him visit Lillian at the house. But in March 2022, because of appellant's "behavior and habits," ^[1] Jeffrey told appellant that he was no longer allowed to visit Lillian without Jeffrey being present. According to Jeffrey, appellant "understood completely," "was aware that trust had been lost," and agreed to Jeffrey's parameters. That same day, Jeffrey asked appellant to return the keys, and appellant did so.

On March 12, 2022, appellant told Jeffrey that he intended to go to Alexandria. Jeffrey told appellant "that he's not to go to mom's house." Appellant responded that he had "another place to stay" and was "not going to stay there." Later that day, the security camera on the front door showed appellant carrying his daughter inside the house. Lillian could be heard saying, "You can't . . . I'll call the police." Appellant responded, "Okay, you do it . . . you call the cops on your son."

Later that evening, Lillian called Jeffrey and told him that appellant was at the house and needed access to one of the bedrooms. In the background, Jeffrey heard appellant "screaming very loudly at" Lillian that he had told her "not to tell [Jeffrey] anything." Jeffrey also heard appellant yelling, "it's her fault" and "you don't know what's going on." Jeffrey told Lillian to ask appellant to leave because he was not supposed to be there.

After trying to resolve the situation via text and attempting to get a protective order, Jeffrey researched how he could have appellant arrested for trespass. He "figured out that perhaps [his] power of attorney would allow [him] to call the cops on behalf of" Lillian. He contacted the police in June 2022 and obtained criminal warrants against appellant. Jeffrey had not realized that he had the ability to have appellant "arrest[e]d for trespass in this case" until June 2022.

At trial, appellant stipulated that he was at the house on March 12, 2022, even though Jeffrey had "told [him] to stay away from the house," because he "d[id]n't really care what [Jeffrey] says." Appellant stated that Jeffrey never mentioned the power of attorney or otherwise stated that he had the authority to ban appellant from the house. When asked whether he complied with Jeffrey's request to return the keys, appellant clarified that he "did not give [Jeffrey] the keys per his request," but returned them because he was "tired of hearing [Jeffrey's] mouth." Appellant maintained that on the night of March 12, 2022, Lillian let appellant and his daughter into the house and that it was Lillian's idea to unlock one of the bedrooms.

The jury convicted appellant of trespassing. This appeal followed.

ANALYSIS

"On review of the sufficiency of the evidence, 'the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" Ingram v. Commonwealth, 74 Va.App. 59, 76 (2021) (quoting Smith v Commonwealth, 296 Va. 450, 460 (2018)). "The question on appeal, is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va.App. 273, 288 (2017)).

A. Authority to Ban

Appellant argues that there was insufficient evidence to establish that Jeffrey had the authority to ban appellant from the house.

An individual violates Code § 18.2-119 when he "without authority of law goes upon or remains upon the lands, buildings or premises of another . . . after having been forbidden to do so . . . by the [property's] owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof." In forbidding appellant from going to the house, Jeffrey was acting as Lillian's agent under her durable power of attorney.^[2] Powers of attorney are strictly construed in Virginia. Jones v. Brandt, 274 Va. 131, 137 (2007). "[I]f a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in [Code] § 64.2-124 and §§ 64.2-1625 through 64.2-1637." Code § 64.2-1622(C). In turn, Code § 64.2-1625(A)(5) allows an agent acting under of "a power of attorney granting general authority with respect to real property" to "[m]anage or conserve an interest in real property or a right incident to real property." And "[t]he right to exclude others is generally 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573, 581 (2017) (alteration in original) (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011 (1984)).

Lillian's durable power of attorney appointed Jeffrey to act as her agent and gave him the power to "[p]erform all acts related to [her] property and affairs as [she] could if acting personally." As owner of the house,^[3] Lillian had the right to exclude others from entering. Accordingly, acting as her agent, Jeffrey had this same power. Thus, there was sufficient evidence that as Lillian's agent, Jeffrey had the authority to exclude appellant from the house under the durable power of attorney.

B. Intent

Appellant also contends that the evidence was insufficient to show that Jeffrey asserted any authority to bar appellant from the house and that as a result, the Commonwealth failed to establish that appellant had the requisite criminal intent because he did not know that Jeffrey had such authority.

"Intent . . . is a state of mind which may be shown by a person's conduct or by his statements." Austin v Commonwealth, 60 Va.App. 60, 66 (2012) (quoting Vincent v. Commonwealth, 276 Va. 648, 652 (2008)). "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." O'Banion v. Commonwealth, 33 Va.App. 47, 56 (2000), overruled in part on other grounds by Harris v. Commonwealth, 274 Va. 409, 415 (2007). "'Willful' . . . denotes 'an act which is intentional, or knowing, or voluntary, as distinguished from accidental.'" Ellis v. Commonwealth, 29 Va.App. 548, 554 (1999) (citation omitted) (quoting Snead v. Commonwealth, 11 Va.App. 643, 646 (1991)). "Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact." Austin, 60 Va.App. at 66 (quoting Fleming v. Commonwealth, 13 Va.App. 349, 353 (1991)). "[O]ne who enters or stays upon another's land under a bona fide claim of right cannot be convicted of trespass," O'Banion, 33 Va.App. at 56, but such a claim "must...