Jerry Andrew Lipscomb v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 8, 2001
• Docket: 1644002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Bray Argued at Richmond, Virginia

JERRY ANDREW LIPSCOMB MEMORANDUM OPINION * BY v. Record No. 1644-00-2 JUDGE LARRY G. ELDER MAY 8, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge

Gregory W. Franklin, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

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

Jerry Andrew Lipscomb (appellant) appeals from his bench

trial conviction for misdemeanor trespass pursuant to Code

§ 18.2-119. On appeal, he contends the evidence was

insufficient to prove he acted with the requisite intent. We

agree and reverse his conviction.

I.

BACKGROUND

On February 12, 2000, Richmond Police Officer Jerry Carter

observed a car driving into the front entrance of an apartment

complex posted with "No trespassing" signs. Appellant was a

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. passenger in the vehicle. The driver pulled into the complex,

parked and turned off the vehicle's lights. About two minutes

later, Carter observed the car back out and exit the apartments.

Carter stopped the vehicle to investigate the possible

trespass, although no evidence indicates Carter told the

occupants of the vehicle that the property was posted or that he

stopped them to determine whether they were trespassing. When

Carter asked appellant "what he was doing there," appellant

responded that "he was just riding, he had no control over where

the driver goes." 1

At trial, appellant moved to strike the Commonwealth's

evidence on the ground that it failed to prove appellant acted

with the requisite criminal intent. The Commonwealth argued

that the evidence was sufficient because appellant was on posted

property without authority and no evidence indicated he was

taken there by force or against his will. The trial court

denied the motion on the ground that appellant could have asked

to be let out of the car but that no evidence established he did

so. Appellant presented no evidence and renewed his motion.

The trial court again denied the motion, stating that appellant

1 Carter testified that the driver said he was on the premises because he had lost his wallet there two days earlier and had come back to look for it. Although the trial court initially admitted this testimony over appellant's hearsay objection, the court subsequently indicated it would disregard that evidence.

- 2 - "should have seen the no trespassing sign and said I'm not going

to trespass, let me out."

The court convicted appellant of misdemeanor trespass and

fined him $100.

II.

ANALYSIS

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). The judgment of a trial court, sitting

without a jury, is entitled to the same weight as a jury verdict

and will be disturbed only if plainly wrong or without evidence

to support it. See id. The credibility of a witness, the

weight accorded the testimony, and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination. See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989).

Code § 18.2-119 provides that "[i]f any person without

authority 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 by a sign or signs posted by [the

owner] . . . , he shall be guilty of a Class 1 misdemeanor."

This statute "has been uniformly construed to require a willful

trespass." Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d

- 3 - 274, 278 (1988). "'Willful' generally means an act done with a

bad purpose, without justifiable excuse, or without ground for

believing it is lawful. The term denotes '"an act which is

intentional, or knowing, or voluntary, as distinguished from

accidental."'" Ellis v. Commonwealth, 29 Va. App. 548, 554, 513

S.E.2d 453, 456 (1999) (quoting Snead v. Commonwealth, 11 Va.

App. 643, 646, 400 S.E.2d 806, 807 (1991) (quoting United States

v. Murdock, 290 U.S. 389, 394, 54 S. Ct. 223, 225, 78 L. Ed. 2d

381 (1933), overruled on other grounds, Murphy v. Waterfront

Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964))).

"'Criminal intent is an essential element of the statutory

offense of trespass, even though the statute is silent as to

intent . . . .'" Reed, 6 Va. App. at 71, 366 S.E.2d at 278

(quoting 75 Am.Jur.2d Trespass § 87 (1974)).

Intent, like any element of a crime, may be proved by

circumstantial evidence, see Servis v. Commonwealth, 6 Va. App.

507, 524, 371 S.E.2d 156, 165 (1988), such as a person's conduct

and statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476.

"Circumstantial evidence is as competent and is entitled to as

much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d

864, 876 (1983).

Here, the circumstantial evidence was insufficient to prove

intent. Although appellant was a passenger in a vehicle driven

- 4 - onto property clearly posted with "No trespassing" signs, no

evidence established that he saw those signs either as the car

entered the property or while it remained parked on the property

for no more than two minutes. Although the vehicle's driver may

have had a legal duty to keep a proper lookout, cf. Hogan v.

Carter, 226 Va. 361, 368-69, 310 S.E.2d 366, 370 (1983) (noting

statutory and common law duty to maintain reasonable lookout for

other drivers), the law imposed no such duty on appellant. It

would have been wise for appellant to have remained aware of his

surroundings as he traveled with the driver, but he had no legal

duty to do so. In the absence of such a duty, the trial court

erred in concluding that appellant "should have seen the no

trespassing sign" and asked the driver to let him out and that

his failure to do so was sufficient to support the conviction.

Further, appellant's statements to Officer Carter were

insufficient to establish intent. Although Officer Carter

testified that he stopped the vehicle to determine whether it

was trespassing, no evidence in the record indicates that he

communicated this purpose to appellant or the vehicle's driver.

Rather, he asked appellant "what he was doing there," to which

appellant responded that "he was just riding, he had no control

over where the driver goes." This evidence also fails to

establish that appellant saw the no trespassing signs or

intended to trespass by remaining in the car.

- 5 - Because the Commonwealth failed to exclude all reasonable

hypotheses of innocence flowing from the evidence, we reverse

and dismiss appellant's conviction.

Reversed and dismissed.

- 6 -