John D. Reyes and Phillip L. Benham v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
JOHN DANIEL REYES AND
PHILLIP LANGE BENHAM
MEMORANDUM OPINION * BY
v. Record No. 0480-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Michael J. DePrimo (Brian Fahling; Thomas W.
Current; American Family Association Law
Center; Day & Current Law Firm, on briefs),
for appellants.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Phillip Lange Benham (Benham) and John Daniel Reyes (Reyes)
were convicted in a bench trial of trespass upon school
property, in violation of Code § 18.2-128. On appeal,
appellants contend that the trial court erred in rejecting their
defense of "good faith." Finding no error, we affirm.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that at approximately
6:00 a.m. on November 10, 1997, appellants and an estimated 150
other demonstrators gathered at a drug store across the street
from E.C. Glass High School in the City of Lynchburg. Shortly
thereafter, they moved onto school property to hand out
religious literature and display anti-abortion signs.
At approximately 6:55 a.m., Susan Morrison, the principal,
arrived at the school. She asked some of the demonstrators
whether they had permits or permission to be on school property
and, if they did not, she asked them to leave. One member of
the group responded, "No ma'am, we will not leave." Morrison
later told Benham that he was keeping students from entering the
school building and she asked Benham to leave. He refused.
James McCormick, Superintendent of Schools, arrived at the
school at approximately 7:08 a.m. He identified himself to
Benham and asked Benham to leave the property. Benham refused
and stated, "They weren't going anywhere." McCormick could not
recall whether he specifically told Reyes to leave the school
property. However, McCormick remembered telling a group of
demonstrators including Reyes to leave and the group did not
move.
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Barry Campbell, Deputy Superintendent of Schools, also
arrived at the school between 7:00 and 7:15 a.m. After
identifying himself as a school official, Campbell informed
Reyes that he was demonstrating on school property and asked
Reyes to leave. Reyes stated that he would not leave.
Lieutenant J.P. Stokes and Officer Steven Clark of the
Lynchburg Police Department arrived at the school at
approximately 7:16 a.m. Stokes approached Benham and asked
whether the group had a permit. When Benham indicated that they
did not have a permit, Stokes told Benham that he and the group
would have to leave. Additionally, he told Benham that they
would be arrested if they didn't leave the school property.
Benham responded: "Then you'll have to arrest us."
After his encounters with McCormick and Lieutenant Stokes,
Benham spoke with Officer Clark, who again explained that the
demonstrators were on school property and that they had to
leave. "[Benham] was very insistent, he wanted to have ten
minutes to address the group before they disbanded from there."
Clark and Benham finally agreed that Benham would lead the
demonstrators to a location further from the school to address
the students for ten minutes. Appellants and the demonstrators
left the school property at approximately 8:30 a.m.
At trial, Reyes initially testified, contrary to the
Commonwealth's witnesses, that he was not told by any school
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administrator to leave the premises. However, on
cross-examination he admitted that Deputy Superintendent
Campbell told him to leave, including the following:
Q. And you do agree that [Campbell] asked
you to leave?
A. Yes, sir.
Q. And you agree that you did not in fact
leave at that time?
A. I didn't leave at that time.
* * * * * * *
Q. But in fact, when Mr. Campbell asked you
to leave, you didn't leave at that time?
A. No, I did not.
Nevertheless, Reyes testified that he remained on school grounds
because he was asked to assist Benham and Officer Clark in
moving the demonstrators off the property.
Even though Benham was asked by school administrators to
leave, he testified at trial, "I didn't leave." Benham
contended the demonstrators had a right to be on the property in
front of the school because it was a "public sidewalk."
According to Benham, it was not until Officer Clark talked to
him that he realized the demonstrators were on school property.
Following closing arguments by the parties, the trial court
convicted Benham and Reyes of trespass upon a school property.
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II.
Code § 18.2-128, the trespass statute under which
appellants were convicted, provides in part:
It shall be unlawful for any person, whether
or not a church member or student, to enter
upon or remain upon any church or school
property in violation of (i) any direction
to vacate the property by a person
authorized to give such direction or (ii)
any posted notice which contains such
information, posted at a place where it
reasonably may be seen.
(Emphasis added). "Although the criminal trespass statute does
not contain an express requirement of intent, the statute has
been construed to require proof of a willful trespass." Jones
v. Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 191
(1994) (construing Code § 18.2-119). "Moreover, a good faith
claim of right to be on the premises negates the requisite
intent to engage in a criminal trespass." Id.
Criminal intent is an essential element of
the statutory offense of trespass, even
though the statute is silent as to intent,
and if the act prohibited is committed in
good faith under claim of right . . .
although the accused is mistaken as to his
right, unless it is committed with force
. . . no conviction will lie.
Reed v. Commonwealth, 6 Va. App. 65, 71, 366 S.E.2d 274, 278
(1988) (quoting 75 Am. Jur. 2d Trespass § 87 (1974)) (omission
in original).
In the instant case, appellants contend that the trial
court erred in rejecting their defense of "good faith."
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Specifically, Benham argues that the trial court should have
accepted his good faith belief that the sidewalk was public
property and, therefore, Benham acted under a claim of right to
conduct a demonstration on the property. Reyes argues that the
trial court erred in rejecting his good faith belief that he was
authorized to remain on school grounds to help move the
demonstrators off the property.
A claim of right is an affirmative defense for which the
accused has the burden of persuading the fact finder that he or
she acted in good faith in remaining on the property to the
degree necessary to raise a reasonable doubt as to his or her
guilt. See id. at 70, 366 S.E.2d at 277; cf. Lynn v.
Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998),
aff'd, ___ Va. ___, ___ S.E.2d ___ (1999). Although undisputed
facts may establish a claim of right as a matter of law, whether
the accused establishes that he or she acted under a claim of
right is generally a question of fact. Cf. Lynn, 27 Va. App. at
353, 499 S.E.2d at 9.
In the instant case, the Commonwealth established a prima
facie case of trespass upon school property by appellants.
Several people authorized to do so, including the school
principal, Superintendent and Deputy Superintendent of the
Lynchburg Schools, and the police, told the demonstrators to
leave the school property. They refused to do so in violation
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of several direct requests. Indeed, upon learning from police
officers that the demonstrators would be arrested for failing to
leave the property, Benham responded, "Then you'll have to
arrest us."
The trial court was not required to accept appellants'
testimony that they believed they were not on school property.
Credible evidence supports the trial court's finding that
appellants willfully remained on school property without
establishing a valid good faith claim of right to be there. See
Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352,
353 (1980) (per curiam) ("[E]ven if the defendant's story was
not inherently incredible, the trier of fact need not have
believed the explanation."); Marable v. Commonwealth, 27 Va.
App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("In its role of
judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."). The
Commonwealth's evidence was competent, was not inherently
incredible and was sufficient to prove beyond a reasonable doubt
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that appellants were guilty of trespassing. Accordingly, we
affirm appellants' convictions. 1
Affirmed.
1
Reyes also argues on appeal that because the police worked
out an agreement with Benham to assist in removing the
demonstrators from school property, his conviction was in
violation of the Fifth and Fourteenth Amendments. Since Reyes
did not raise this issue before the trial court, it is
procedurally barred. See Rule 5A:18. See also Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)
(holding that a party is precluded from raising on appeal an
issue which was not raised at the trial level).
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