COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia
CHARLES BERNARD CUSTALOW
OPINION BY
v. Record No. 2303-02-2 JUDGE ROBERT J. HUMPHREYS
MAY 18, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Thomas B. Hoover, Judge
Robert H. Smallenberg for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W.
Kilgore, Attorney General; Stephen R. McCullough, Assistant
Attorney General, on brief), for appellee.
Charles Bernard Custalow appeals his conviction for trespassing in violation of Code
§ 18.2-119. Appellant contends that the Mattaponi Indian Tribe improperly barred him from its
reservation. Thus, the Commonwealth failed to prove appellant was forbidden to “go[] upon or
remain upon” the reservation by the “person lawfully in charge thereof.” See Code § 18.2-119.
For the reasons that follow, we affirm his conviction.
I. Background
On appeal, we review the evidence and all reasonable inferences in the light most
favorable to the Commonwealth as the party prevailing below. Juares v. Commonwealth, 26
Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). That principle requires us to discard the
evidence of the defendant in conflict with the Commonwealth’s evidence and regard as true all
evidence favorable to the Commonwealth. See Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998).1 So viewed, the record shows that appellant trespassed upon
the Mattaponi Indian Reservation on February 23, 2002 after having been forbidden to do so.2
At trial, the Commonwealth presented one witness, Mark Custalow, a member of the
tribal council of the Mattaponi Indian tribe, who testified he saw appellant on the reservation on
February 23, 2002. He further testified that, after a tribal council meeting on November 3, 2000,
the council voted to expel appellant from the reservation for a period of two years. The council
subsequently extended the expulsion by one year because appellant violated the tribal council’s
ruling. Mark Custalow testified that the matter was also voted upon at a tribal meeting. He
stated that the tribal meeting was a regular meeting of the tribe and that “somewhere in the
neighborhood of less than one-half of tribal members show up at the regular meetings.”
The written statement of facts asserts that the trial court
took judicial notice that in a previous circuit court civil case an
appeal of the Tribal Council’s decision to bar [appellant] from the
reservation was dismissed on jurisdictional grounds and, therefore,
the council’s decision stood. The trial court noted that the prior
matter had collateral estoppel effect upon the issue of whether
[appellant] was barred from the reservation. [Appellant] argued
that a civil matter cannot have collateral estoppel effect upon a
criminal matter due to, among other things, the differing standards
of proof. The court overruled this argument and noted
[appellant’s] exception.
Appellant subsequently argued that he could not be convicted “unless there was . . . a
vote of a majority of the members of the tribe voting [in] favor of such a barring.”3 “The trial
court rejected this defense and [appellant] noted his exception.”
1
In lieu of a transcript, appellant has submitted a written statement of facts pursuant to
Rule 5A:8(c).
2
Appellant does not dispute that he was barred from the reservation in 2000, or that he
was present on the reservation on February 23, 2002, in violation of the expulsion.
3
The written statement of facts does not reflect that appellant submitted legal authority
for this proposition.
-2-
The trial court subsequently convicted appellant of trespassing and sentenced him to
serve six months in jail and to pay a $1,000 fine. The trial court suspended the jail term in its
entirety and suspended $800 of the $1,000 fine.
II. Analysis
On appeal, appellant contends that “the trial court err[ed] in finding [him] guilty of
trespassing upon the Mattaponi Indian Reservation [because] there was evidence that the tribal
council did not follow the proper procedure in barring [him] from the reservation[.]” Appellant
further claims that the trial court erred in finding that the “dismissal of [the] prior civil appeal of
[his] barring from the reservation on jurisdictional grounds had collateral estoppel [sic] in the
instant proceeding.”
Before reaching the merits of appellant’s arguments, we note two troubling
inconsistencies in the appellant’s written statement of facts. First, the record reflects that the
original written statement of facts, which was initially filed in this appeal, did not contain the
paragraph quoted above concerning the trial court “not[ing]” the “collateral estoppel effect” of
appellant’s expulsion and subsequent appeal. However, because the trial court failed to sign the
original written statement of facts, we remanded the matter for appropriate action pursuant to
Rules 5A:8(c)(2) or 5A:8(d). The written statement of facts that was subsequently filed was
signed by the trial court and contained this additional paragraph. Nevertheless, the trial court’s
handwritten notes on the “Misdemeanor/Traffic Order” for the trial of July 24, 2002, reflect only
that the court took “judicial notice” that appellant had “notice” of the expulsion, due to the
previous “court case.” The trial court’s notes make no mention of the words “collateral
estoppel” or “collateral attack.”
Second, although both written statements of fact reflect that appellant noted his
exceptions to the challenged rulings, the trial court’s handwritten notes do not reflect such
-3-
“exceptions.” In fact, the trial court’s notes specifically state that its conclusion that Custalow
was “properly excluded from [the] reservation” “came in without objection.”
Despite the above, because the trial court’s handwritten notes concerning the trial
proceedings do not take the form of an order, and because the final, typewritten “Misdemeanor
Trial Order” makes no reference to these matters, we assume without here deciding, that the
written statement of facts does not conflict with the trial court’s order and that appellant properly
preserved his appeal.4
Turning to the merits of appellant’s arguments, we first note that Code § 18.2-119
provides in relevant part:
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 . . . he shall be guilty of a Class 1 misdemeanor.
Appellant argues insufficient evidence existed to establish that those “lawfully in charge”
of the reservation forbade him from going on the reservation. Specifically, appellant claims the
tribal council did not follow the proper procedure in barring him. In support of his argument,
appellant cites to the Acts of the Assembly, 1896 Va. Acts ch. 843, which states:
1. Be it enacted by the general assembly of Virginia, That an act
entitled an act to appoint trustees for the Mattaponi tribe of Indians
of King William county, and to prescribe their duties as such
trustees, approved March eight, eighteen hundred and ninety-four,
be amended and re-enacted so as to read as follows:
§ 1. Be it enacted by the general assembly of Virginia, That
Doctor B. Richards, R.C. Hill, senior, L.D. Robinson, J.S.
4
See Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979)
(holding that, where an order conflicts with a transcript of a related proceeding, the order is
presumed to be an accurate reflection of what transpired); see also Anderson v. Commonwealth,
13 Va. App. 506, 509, 413 S.E.2d 75, 77 (1992) (observing that, because transcripts and written
statements of fact serve the same purpose on appeal, policies concerning them should be
reasonably analogous); Ange v. York/Poquoson Dep’t of Soc. Servs., 37 Va. App. 615, 623 n.7,
560 S.E.2d 474, 478 n.7 (2002).
-4-
Robinson and W.T. Neale be, and they are hereby, appointed
trustees for the Mattaponi Indian tribe, in King William county,
Virginia, formerly known as a branch of the Pamunkey Indian
tribe. Said trustees shall be governed by the laws now in force in
regard to Indians and their reservations in this state; and, further,
shall have the right upon the vote of the majority of the trustees,
and also a majority of the members of the tribe above twenty-one
years of age, to expel from their reservation, any person who has
no right upon said reservation, or any member of the tribe who
shall be guilty of any lawful offense: provided that any person
expelled from said reservation shall have the right of appeal to the
county court of King William from the decision of the trustees and
the members of the tribe.
2. This act shall be in force from its passage.
Based upon this legislation, appellant contends that the only manner in which he could have
been barred from the Mattaponi reservation was pursuant to a “vote of the majority of the
trustees), and also a majority of the members of the tribe above twenty-one years of age.” Id.
Because evidence in the record established that, after the tribal council voted to bar appellant
from the reservation, they finalized his expulsion after a tribal meeting, and because Mark
Custalow testified that “somewhere in the neighborhood of less than one-half of the tribal
members show up at the regular meetings,” appellant claims that the Commonwealth failed to
prove that he was barred from the reservation upon a vote of “a majority of the members of the
tribe above twenty-one years of age.” We disagree.
The Indian Treaty of 1677, between the King of England, acting through the Lieutenant
Governor of Virginia, and the Indian tribes constituting what is generally referred to by
historians as the Powhatan Confederacy including what is now known as the Mattaponi Indian
Tribe, specifically provided, in relevant part, that:
II. . . . [T]he said Indian Kings & Queens and their Subjects shall
hold their lands, and have the same confirmed to them and their
posterity by Patent under the Seale of this his Majesties Colony,
without any fee gratuity or Reward for ye same, in such sort, and
in as free and firme manner as other his Majesties Liege Subjects,
have and enjoye their Lands, and possessions . . . .
-5-
III. That all Indians who are in amity with us, & have not land
siffitient to plant up, be upon information forthwith provided for,
and laid out, and confirmed to them as affores’d never to be
disturbed therein, or taken from them, soe long as they owne keep
and maintaine the due obedience & Subjection to his Majestie his
Govern’r and Government; & amity & friendship towards the
English.
Treaty Between Virginia and the Indians (1677).
Pursuant to the Treaty, the Commonwealth has recognized that although it maintains a
fee simple interest in the reservation, that interest is “subject to the exclusive use and occupancy
of the [tribe] possessing Indian title to the land.” 2001 Va. Att’y Gen. 36. Nevertheless, over the
hundreds of years since the signing of the Treaty, the legislature has “frequently appointed
trustees to lease the surplus lands of the[] tribe[] and empowered the trustees to prosecute actions
against persons trespassing thereon.” 1917 Va. Att’y Gen. 160. It was exactly for that purpose
that 1894 Va. Acts ch. 845, and its amended version, 1896 Va. Acts ch. 843, was enacted. Id.;
see also 1917 Va. Att’y Gen. 161 (recognizing that the trustees were appointed to provide
“protection and assistance” to the Tribe “in carrying out their by-laws and in governing their
tribe and reservation,” including prosecuting actions at law (or “in tort”) against trespassers
(quoting 1894 Va. Acts ch. 845)). Appellant points to no authority for his supposition that the
Acts were intended to provide the sole method by which the Mattaponi could expel or forbid an
individual from “coming upon the reservation,” nor do we find any such authority. Cf.
Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 378, 541 S.E.2d 920, 926 (2001)
(recognizing that the Mattaponi Tribe “possesses[,] in its own right[,] justiciable interests”).5
5
The dissent asserts the Commonwealth failed to prove “those ‘lawfully in charge’ of the
reservation forbade Custalow from ‘going upon’ their land because it presented no evidence that
a majority of the tribal members over twenty-one years of age voted to expel him as required by
1896 Va. Acts ch. 843 (the Act).” This, of course, presupposes that the Mattaponi Tribe and its
elected leaders have no “lawful” authority or control over their own tribal lands. We disagree
with this supposition. Moreover, as implicitly noted in Mattaponi Indian Tribe, the 19th century
paternalistic approach toward the Commonwealth’s Native American citizens, as embodied in
-6-
Accordingly, because the evidence before the trial court established, without dispute, that
the Tribal Council6 at a regular tribal meeting voted to bar Custalow from the reservation, and,
because the Supreme Court of Virginia has specifically recognized that the Tribal Council is the
“governmental body” of the sovereign Mattaponi Tribe, we find the evidence was sufficient to
establish that Custalow was forbidden from entering the reservation by those “lawfully in charge
thereof.” Id.; see also Report of the Joint Subcommittee Studying Relationships Between the
Commonwealth and Native Indian Tribes to the Governor and the General Assembly of Virginia,
House Document No. 10, at 4 (1983) (recognizing that the treaty between the Commonwealth
and the Mattaponi included provisions for possession of tribal reservations and “the right of
internal tribal government”).
We likewise disagree with appellant’s claim that the trial court improperly attributed
“collateral estoppel” effect to the King William County Circuit Court’s dismissal of his appeal of
the expulsion. Indeed, the written statement of facts indicates only that the “trial court noted that
the prior matter had collateral estoppel effect upon the issue of whether defendant was barred
the Act, has evidently and appropriately evolved into a relationship that recognizes that they
have justiciable interests in their own right. 261 Va. at 378, 541 S.E.2d at 926.
6
The dissent states that “[b]oth parties treat the terms, ‘tribal council’ and ‘tribal
trustees,’ synonymously. There is no contention that the Commonwealth failed to prove that the
trustees acted properly; the issue on appeal is whether it proved that a majority of the tribal
members over the age of twenty-one voted to expel as required by the Act.” In asserting legal
insufficiency of the evidence, the appellant makes no such concession. Furthermore, the 1897
Act specifically named “Doctor B. Richards, R.C. Hill, senior, L.D. Robinson, J.S. Robinson and
W.T. Neale” as trustees and provided no mechanism for their replacement upon resignation or
death, nor does it appear that any subsequent statute provided such a mechanism or directly
appointed new trustees. Therefore, the logic of the dissent would necessarily dictate that the
exclusive “lawful authority” to bar individuals from the Mattaponi reservation is a majority of
those individuals named over a century ago, together with a majority of the tribal membership
over twenty-one.
-7-
from the reservation.” This language comports with the trial court’s handwritten notes,
indicating that it considered the prior adjudication only as evidence of “notice” to Custalow that
he had been barred from the reservation. It does not establish, as Custalow contends, that the
trial court considered that adjudication as preclusive with regard to whether Custalow was barred
from the reservation by someone “lawfully in charge thereof.” Indeed, the written statement of
facts proves that the trial court took evidence, from Mark Custalow, on that very issue - evidence
which appellant did not dispute - and found that appellant was “properly excluded from [the]
reservation.” We find no error in that determination and we, thus, affirm appellant’s conviction.
Affirmed.
-8-
Annunziata, J., dissenting.
I respectfully dissent because I would find that the Commonwealth failed to establish that
Charles Custalow (Charles) was expelled from the reservation by those “lawfully in charge” as
required by the criminal trespass statute, Code § 18.2-119.
It is well established that the Due Process Clause of the United States Constitution
“protects the accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970).
Here, the Commonwealth failed to prove beyond a reasonable doubt all the elements of
the criminal trespass statute. Specifically, the Commonwealth failed to prove that those
“lawfully in charge” of the reservation forbade Charles from “going upon” their land because it
presented no evidence that a majority of the tribal members over twenty-one years of age voted
to expel him as required by 1896 Va. Acts ch. 843 (the Act). The Act states that the trustees of
the tribe:
shall have the right upon the vote of the majority of the trustees,
and also a majority of the members of the tribe above twenty-one
years of age, to expel from their reservation, any person who has
no right upon said reservation, or any member of the tribe who
shall be guilty of any lawful offense[.]
1896 Va. Acts ch. 843. Contrary to the Commonwealth’s contention, the Act does not establish
“two ways to bar an individual from the reservation.”7 A plain reading reveals that the terms,
“majority of the trustees” and “majority of the members of the tribe over twenty-one years of
7
In its brief, the Commonwealth argued that “the plain reading of [1896 Va. Acts ch.
843] demonstrates that there are two ways to bar an individual from the reservation: (1) the vote
of the majority of the trustees ‘and also’ (2) a majority of the members of the tribe who are above
the age of 21.” It concluded that, because the record established that “a majority of the trustees
voted to bar the defendant,” the Commonwealth did not have to prove that a majority of tribal
members over the age of twenty-one voted to expel Charles.
-9-
age,” are stated in the conjunctive; in other words, both conditions must be satisfied for a proper
expulsion. A “plain, obvious, and rational meaning of a statute is always to be preferred to any
curious, narrow, or strained construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309
S.E.2d 337, 338 (1983).
Here, the Commonwealth failed to establish that a majority of the tribal members over
twenty-one years of age voted to expel Charles. Mark Custalow (Mark), the Commonwealth’s
main witness, testified that Charles was expelled by vote of the “tribal council.”8 He further
testified that the tribal council voted at a tribal meeting and that “somewhere in the neighborhood
of less than one-half of the tribal members show up at the regular meetings.” The meeting which
resulted in Charles’s expulsion was described as a “regular meeting.” In order to find
compliance with the Act, the trial court would have had to infer that, although fewer than a
majority of the members were present, a majority of those over twenty-one years of age, in fact,
were present and voted to expel Charles. Although we grant all reasonable inferences to the
Commonwealth, the inference must be a “logical deduction or conclusion from established fact.”
United States v. Grow, 394 F.2d 182, 199 (4th Cir. 1968). Neither Mark’s testimony
establishing that the “tribal council” voted to expel Charles or his testimony that “somewhere in
the neighborhood of less than one-half of the tribal members” were present at the meeting permit
the reasonable inference that a majority of tribal members over the age of twenty-one voted to
expel Charles.
The only evidence that persons “lawfully in charge” of the reservation expelled Charles is
Mark’s testimony that the “tribal council,” the entity which voted to expel Charles, “determines
8
Both parties treat the terms, “tribal council” and “tribal trustees,” synonymously. There
is no contention that the Commonwealth failed to prove that the trustees acted properly; the issue
on appeal is whether it proved that a majority of the tribal members over the age of twenty-one
voted to expel as required by the Act.
- 10 -
. . . who can be barred from the reservation.” His statement is patently inconsistent with the
voting requirements set forth by the Act and his testimony regarding a matter of law is not
binding on this Court. See Jones v. Commonwealth, 42 Va. App. 142, 147, 590 S.E.2d 572,
574-75 (2004) (en banc).
The majority affirms Charles’s conviction for trespassing, not on the ground that the
Commonwealth’s proof established he was expelled from the reservation by the vote mandated
by the Act, but rather on the ground that Charles failed to prove that the Act prescribes the
exclusive means of expulsion from the Mattaponi Indian Tribe’s reservation. Neither the
Commonwealth nor the majority points to any authority in support of the proposition that the Act
does not establish the only valid procedure for expelling a member from the reservation. Indeed,
the Commonwealth did not raise such an argument at trial or on appeal. Rather, its arguments
were, and continue to be, confined to whether its proof of the authority to expel met the
requirements of the Act, i.e. that the tribal council, acting alone, had the authority to expel and
that, in the alternative, the evidence established that a majority of tribal members over the age of
twenty-one voted to expel Charles from the reservation.
In summary, I would find that the Commonwealth failed to prove all elements of the
crime of trespass, as defined by Code § 18.2-119, because it presented no evidence that those
“lawfully in charge” of the reservation, as defined by the Act, voted to expel Charles.
Accordingly, I would reverse the decision of the trial court.
- 11 -