Kevin T. Cheeks v. City of Alexandria ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia
KEVIN T. CHEEKS
MEMORANDUM OPINION* BY
v. Record No. 0285-06-4 JUDGE JEAN HARRISON CLEMENTS
JUNE 26, 2007
CITY OF ALEXANDRIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Joseph D. King, Assistant Public Defender, for appellant.
(S. Randolph Sengel, Commonwealth’s Attorney; Laura M. Greene,
Assistant Commonwealth’s Attorney, on brief), for appellee.
Appellee submitting on brief.
Kevin T. Cheeks (appellant) appeals his conviction in a bench trial of trespassing, in
violation of City of Alexandria Code § 13-1-33. He contends the trial court erred in admitting into
evidence an improperly authenticated document purportedly authorizing officers of the Alexandria
Police Department to bar persons from Alexandria Redevelopment Housing Authority (Housing
Authority) property. For the reasons that follow, we affirm appellant’s conviction.
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The facts relevant to this appeal are set forth in a written statement of facts, in lieu of a
transcript.
On October 26, 2005, officers of the Alexandria Police Department approached appellant on
Montgomery Street in the City of Alexandria. As the officers moved towards him, appellant turned
and began running down Montgomery Street. When appellant ignored their calls to halt, the
officers pursued him. During the pursuit, rather than continuing to run straight, appellant turned
right and ran into an alleyway on Housing Authority property. In doing so, appellant passed by “No
Trespassing” signs that were posted at the alleyway’s entrance. Appellant was eventually detained
and handcuffed in the alleyway and subsequently charged with trespassing on Housing Authority
property, in violation of City of Alexandria Code § 13-1-33.
At trial, Officer Jennifer Mogford testified that she had encountered appellant on Housing
Authority property in 2002 and, due to a “domestic incident,” had barred him from returning to the
property. Officer Mogford further testified she had appellant sign a barment notice at the time and
gave him a copy of it. A copy of the signed barment notice was admitted into evidence without
objection. The trial court also admitted into evidence, over appellant’s hearsay objection, a copy of
a document purportedly designating the Alexandria Police Department as “a person lawfully in
charge of” Housing Authority property and authorizing its officers to bar persons from entering
upon Housing Authority property (authorization document).
Testifying on his own behalf, appellant admitted on cross-examination that “he was barred
from [Housing Authority] property and had been charged and convicted of trespass on several
occasions since being barred.”
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At the conclusion of the trial, the trial court found appellant guilty as charged1 and sentenced
him to six months in jail, with all but sixty days suspended for one year upon certain conditions.
This appeal followed.
II. ANALYSIS
On appeal, appellant contends the trial court erred in admitting the authorization document
into evidence over his hearsay objection.
Assuming without deciding that the trial court erred in admitting the authorization
document, we hold that any such error was harmless because the record contains overwhelming
undisputed evidence of appellant’s guilt under City of Alexandria Code § 13-1-33(a).
“In Virginia, non-constitutional error is harmless ‘when it plainly appears from the record
and the evidence given at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached.’” Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06,
407 S.E.2d 910, 911 (1991) (en banc) (emphasis omitted) (quoting Code § 8.01-678).
In a criminal case, it is implicit that, in order to determine whether
there has been ‘a fair trial on the merits’ and whether ‘substantial
justice has been reached,’ a reviewing court must decide whether the
alleged error substantially influenced the [fact finder]. If it did not,
the error is harmless.
Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). Accordingly, “‘[i]f, when
all is said and done, [it is clear] that the error did not influence the [fact finder], or had but slight
effect, the verdict . . . should stand.’” Id. at 260, 546 S.E.2d at 731 (quoting Kotteakos v. United
States, 328 U.S. 750, 764 (1946)). “Under this standard, non-constitutional error is harmless if
other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison that we
can conclude the error ‘failed to have any “substantial influence” on the verdict.’” Schwartz v.
1
The record reveals neither the evidence nor the rationale relied on by the trial court in
finding appellant guilty of trespassing under City of Alexandria Code § 13-1-33.
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Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66 (2005) (quoting United States v. Lane, 474 U.S.
438, 450 (1986) (quoting Kotteakos, 328 U.S. at 765)). “Also relevant to the harmless error
analysis [under the Kotteakos standard] is whether the evidence admitted in error is merely
‘cumulative’ of other, undisputed evidence.” Id. at 160, 616 S.E.2d at 67 (citing Brecht v.
Abrahamson, 507 U.S. 619, 639 (1993)); cf. Woodward v. Commonwealth, 16 Va. App. 672,
675-76, 432 S.E.2d 510, 512-13 (1993) (holding that “erroneously admitted evidence [is]
harmless as a matter of law on the issue of guilt” if the record contains other, undisputed
evidence that independently proves the defendant committed the charged crime).
Substantially tracking the language of Code § 18.2-119,2 City of Alexandria Code
§ 13-1-33(a) provides, in pertinent part, as follows:
If any person shall, without authority of law, go upon or
remain upon the lands or premises of another, or any part, portion
or area thereof, after having been forbidden to do so, either orally
or in writing, by the owner, lessee, custodian, property manager or
other person lawfully in charge of the property (hereinafter in this
section referred to as the “owner” or “property owner”), or after
having been forbidden to do so by a sign or signs posted by such
owner . . . on such lands, structures, premises or part, portion or
area thereof at a place or places where it or they may be reasonably
seen, he shall be guilty of a class 1 misdemeanor.
Thus, like Code § 18.2-119, City of Alexandria Code § 13-1-33(a) contains two separate
and independent bases for conviction: A conviction will stand both (1) where an individual
2
Code § 18.2-119 provides:
If any person without authority of law goes upon or
remains upon the lands, buildings or premises of another, or any
portion or area thereof, after having been forbidden to do so, either
orally or in writing, by the owner, lessee, custodian or other person
lawfully in charge thereof, or after having been forbidden to do so
by a sign or signs posted by such persons . . . on such lands,
structures, premises or portion or area thereof at a place or places
where it or they may be reasonably seen . . . , he shall be guilty of a
Class 1 misdemeanor.
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enters upon property after having been forbidden, either orally or in writing, by a person lawfully
in charge of the property from doing so, cf. Commonwealth v. Hicks, 267 Va. 573, 581, 585, 596
S.E.2d 74, 78, 81 (2004) (upholding the defendant’s conviction under Code § 18.2-119 where the
defendant willfully entered upon Richmond Redevelopment and Housing Authority property
after receiving a letter from the manager of the property forbidding him from returning to the
property), and (2) where an individual enters upon property after having been forbidden to do so
by “No Trespassing” signs posted at the scene, cf. Miller v. Commonwealth, 10 Va. App. 472,
473, 393 S.E.2 431, 431 (1990) (affirming the defendant’s conviction under Code § 18.2-119
where the defendant willfully entered upon Housing Authority property that was posted with
“No Trespassing” signs). The facts need prove only one of these two independent bases for
conviction. In other words, where the facts prove the defendant entered upon property marked
with “No Trespassing” signs, the facts need not prove that the defendant was otherwise
forbidden, either orally or in writing, by a person lawfully in charge of the property from
entering upon the property.
Here, even without the authorization document, the evidence of appellant’s guilt under
City of Alexandria Code § 13-1-33(a) is overwhelming. Indeed, the undisputed evidence
establishes that, in attempting to flee from the police, appellant willfully changed his course and,
disregarding the “No Trespassing” signs posted at its entrance, entered an alleyway on Housing
Authority property. Moreover, appellant freely admitted that “he was barred from [Housing
Authority] property” at the time and, in fact, “had been charged and convicted of trespass on several
occasions since being barred.” There can be no question, therefore, that appellant knew the
Housing Authority was intent on enforcing its efforts to deter trespassing and that the “No
Trespassing” signs posted at the entrance of the alleyway were intended to prohibit his entry onto
Housing Authority property. Nonetheless, he trespassed on the property.
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Given the other, undisputed and overwhelming evidence in the record establishing
appellant’s guilt, we conclude that any error committed by the trial court in admitting the
authorization document into evidence did not substantially influence the court’s verdict.
Accordingly, any such error was harmless. See Clay, 262 Va. at 259, 546 S.E.2d at 731.
III. CONCLUSION
For these reasons, we affirm appellant’s conviction. See Purvis v. Commonwealth, 31
Va. App. 298, 307, 522 S.E.2d 898, 902 (2000) (noting that a harmless error does not require
reversal).
Affirmed.
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