O'Banion v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Elder, Bray, Annunziata, Bumgardner, Frank and
Humphreys
Argued at Richmond, Virginia

WARFORD L. O'BANION, S/K/A
WORFORD LEE O'BANNION
OPINION BY
v. Record No. 2698-97-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 25, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate

S. Jane Chittom, Appellate Counsel; Elwood
Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs), for
appellant.

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

On October 19, 1999, a panel of this Court affirmed in part

and reversed in part the convictions of Warford L. O'Banion

("appellant") for trespassing and possessing a concealed weapon,

in contravention of Code §§ 18.2-119 and 18.2-308.2,

respectively. We granted appellant's petition for rehearing en

banc to consider his contentions 1) that the trial court erred

in refusing to give his proposed jury instruction on the claim

of right defense to trespass; 2) that the trial court erred in

denying his motion to strike the Commonwealth's evidence because
a steak knife and box-cutter found in his possession are not

"weapons" as defined by Code §§ 18.2-308.2 and 18.2-308(A);

3) that the Leesburg Police Department lacked the authority to

bar him from entering a private apartment complex; 4) that the

process by which he was barred violated his constitutional

rights under the Fifth and Fourteenth Amendments; and 5) that

his arrest, resulting from the exercise of unfettered discretion

by police, violated the Fourth Amendment. We affirm appellant's

conviction for possession of a concealed weapon but reverse the

conviction for trespass based on the trial court's erroneous

denial of appellant's jury instruction.

FACTUAL BACKGROUND

On June 29, 1995, the management of Loudoun House, a

privately-owned and federally-subsidized apartment complex,

issued a limited power of attorney appointing "each and every

sworn officer of the Leesburg Police Department as [its] true

and lawful attorneys-in-fact." The power of attorney authorized

Leesburg police officers to "serve trespass notices to any

persons encountered on Loudoun House property who are not on a

lease and cannot demonstrate a legitimate purpose for being on

the premises." Additionally, the officers were authorized to

file criminal complaints for trespass against persons who

returned to the Loudoun House premises after being served with a

notice.

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 In practice, decisions regarding whether to issue a

trespass notice to an individual are left to the discretion of

the officers of the Leesburg Police Department. Police are not

required to consult the management of Loudoun House for prior

approval. Two officers characterized the arrangement between

Loudoun House and Leesburg police as a "partnership" for the

purpose of providing security at the apartment complex; the

police collect no fee for serving trespass notices on

individuals. When serving a trespass notice police normally

read and explain its terms to the barred individual but do not

usually furnish a copy of the notice.

The notice consists of a one-page form, providing that the

subject individual is no longer permitted to enter Loudoun House

property "under any circumstances" and would be subject to

arrest for trespassing if he or she did so. Once served with a

trespass notice, individuals are barred from returning to

Loudoun House indefinitely. The Leesburg Police Department has

an unwritten policy governing how individuals may have their

barment lifted. Under that policy, assuming compliance with the

barment's terms and the absence of any involvement in any

criminal activity around Loudoun House, an individual may

request to meet with police to discuss terminating the barment

three months after its issuance. This policy is usually

explained orally by the barring officer at the time a notice is

issued.

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 On April 29, 1996, Captain Christopher Jones of the

Leesburg Police Department received a complaint that appellant

had instigated a fight, using baseball bats, on the premises of

Loudoun House. That evening, police confronted appellant on the

premises. After interviewing his sister and checking a current

roster of residents at Loudoun House, Jones determined that

appellant was not a lessee in the building. Jones issued

appellant a trespass notice and explained the procedure for

requesting termination of the barment. Appellant refused to

sign the trespass notice and was not given a copy.

On the night of January 18, 1997, police observed appellant

enter the main entrance of Loudoun House. At that time,

appellant lived with his girlfriend, off the premises of Loudoun

House. When stopped by police, appellant indicated that he

believed his barment had automatically expired after ninety

days. Police arrested appellant for trespass in violation of

Code § 18.2-119, after verifying that appellant was still barred

from Loudoun House property. 1 Police searched appellant incident

1
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 . . . he shall be
guilty of a Class 1 misdemeanor.

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to his arrest and found a steak knife with a six-inch blade and

a silver, razor-bladed box-cutter on his person.

At trial, two witnesses, Gail O'Bannion-Green and Ami

Dorsey, residents at Loudoun House, testified in appellant's

defense. O'Bannion-Green is appellant's sister, and Dorsey is

the mother of one of appellant's children. Both witnesses were

present when Captain Jones barred appellant. Both witnesses

testified that they heard Jones tell appellant he was barred for

ninety days and that he could be barred for life if he returned

to Loudoun House before then. Neither witness heard Jones tell

appellant that he had to request permission from police to

return to Loudoun House three months after the barment issuance.

At the close of evidence, appellant tendered the following

jury instruction:

Criminal intent is an essential element of
the statutory offense of trespass. One
cannot be convicted of trespass when one
enters or stays upon the land under a bona
fide claim of right. A Bona Fide claim of
right is a sincere, although perhaps
mistaken, good faith belief that one has
some legal right to be on the property. The
claim need not be one of title or ownership,
but it must rise to the level of
authorization.

Stating that appellant "did not assert in his evidence any bona

fide claim of right," the trial court found no justification for

giving this instruction and refused it accordingly.

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 JURY INSTRUCTIONS

Appellant contends the trial court erred in refusing to

grant his proposed jury instruction on the claim of right

defense to trespass. We agree and reverse appellant's

conviction for trespass on this ground.

Both the Commonwealth and the defendant are entitled to

appropriate jury instructions on the law applicable to their

version of the case. See Banner v. Commonwealth, 204 Va. 640,

645-46, 133 S.E.2d 305, 309 (1963). When evidence exists in the

record to support the defendant's theory of defense, the trial

judge may not refuse to grant a proper, proffered instruction.

See Painter v. Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166,

170-71 (1969); Delacruz v. Commonwealth, 11 Va. App. 335, 338,

398 S.E.2d 103, 105 (1990). "A proposed jury instruction

submitted by a party, which constitutes an accurate statement of

the law applicable to the case, shall not be withheld from the

jury solely for its nonconformance with model jury

instructions." Code § 19.2-263.2. "[W]here evidence tends to

sustain both the prosecution's and the defense's theory of the

case, the trial judge is required to give requested instructions

covering both theories." Diffendal v. Commonwealth, 8 Va. App.

417, 422, 382 S.E.2d 24, 26 (1989).

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. See Campbell

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v. Commonwealth, 41 Va. (2 Rob.) 791 (1843); Reed v.

Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 278 (1988). As

such, one who enters or stays upon another's land under a bona

fide claim of right cannot be convicted of trespass. See Wise

v. Commonwealth, 98 Va. 837, 837, 36 S.E. 479, 479 (1900); Reed,

6 Va. App. at 71, 366 S.E.2d at 278. "[A] bona fide claim of

right is a sincere, although perhaps mistaken, good faith belief

that one has some legal right to be on the property. The claim

need not be one of title or ownership, but it must rise to the

level of authorization." Reed, 6 Va. App. at 71, 366 S.E.2d at

278. To refuse an instruction propounding this legal principle,

when there is evidence to support it, is error. See Wise, 98

Va. at 837, 36 S.E. at 479; see also McClung v. Commonwealth,

215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) ("It is immaterial

that the jury could have reached contrary conclusions. If a

proffered instruction finds any support in credible evidence,

its refusal is reversible error.").

In this case, appellant testified that he believed his

barment lapsed ninety days after its issuance and that, after

such time, he was legally authorized to return to the premises

of Loudoun House. He based this belief on the information that

Captain Jones allegedly provided to him at the time he was

issued a trespass notice. The police provided no hard copy of

the notice to appellant that would, by its terms, dispel or

contradict this belief. Moreover, appellant provided the

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testimony of two witnesses who stated their understanding that,

based on Captain Jones' explanation, the barment only lasted

ninety days. Even if appellant and his corroborating witnesses

were mistaken on this point, their testimony constitutes

evidence of appellant's sincere belief that he was legally

authorized to be present on the premises of Loudoun House at the

time of his arrest for trespass. Based on this evidence,

appellant proffered a jury instruction that accurately

summarized the applicable law regarding the claim of right

defense to criminal trespass in Virginia. Notwithstanding the

fact that the jury may well have discounted the probative value

of appellant's evidence, to refuse the proffered instruction was

reversible error. Accordingly, we reverse appellant's

conviction for trespass and remand for a new trial, if the

Commonwealth be so advised.

POSSESSION OF A CONCEALED WEAPON

Appellant next contends that his conviction for possession

of a concealed weapon should be reversed as the steak knife and

box-cutter found on his person are not "weapons" within the

meaning of Code §§ 18.2-308.2 and 18.2-308(A). We disagree.

In the absence of legislative history to the contrary,

penal statutes are to be strictly construed against the

Commonwealth and in favor of the citizen's liberty. See Cox v.

Commonwealth, 220 Va. 22, 25, 255 S.E.2d 462, 464 (1979). "Such

statutes cannot be extended by implication or construction, or

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be made to embrace cases which are not within their letter and

spirit." Berry v. City of Chesapeake, 209 Va. 525, 526, 165

S.E.2d 291, 292 (1969); Price v. Commonwealth, 209 Va. 383,

385-86, 164 S.E.2d 676, 678 (1968). Although any ambiguity or

reasonable doubt as to the proper construction of a penal

statute must be resolved in favor of the accused, a defendant is

not entitled to benefit from an "'unreasonably restrictive

interpretation of the statute.'" Holloman v. Commonwealth, 221

Va. 196, 198, 269 S.E.2d 356, 357 (1980) (quoting Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

The Code provides that it is unlawful for any person who

has been convicted of a felony to knowingly and intentionally

carry about his person, hidden from common observation, "any

dirk, bowie knife, switchblade knife, ballistic knife, razor,

slingshot, spring stick, metal knucks, blackjack, or . . . any

weapon of like kind." Code §§ 18.2-308(A), 18.2-308.2. The

Code does not absolutely prohibit a felon from carrying a knife,

but proscribes specific kinds of knives and those of like kind.

See Ricks v. Commonwealth, 27 Va. App. 442, 444, 499 S.E.2d 575,

576 (1998). The proscribed knives have been given their

ordinary meanings by this Court or by the statute itself. 2

2
"A 'dirk' or weapon of like kind is any stabbing weapon
having two sharp edges and a point, including daggers, short
swords and stilettos." Richards v. Commonwealth, 18 Va. App. 242,
246 n.2, 443 S.E.2d 177, 179 n.2 (1994). A "bowie knife" is
defined as "a large hunting knife adapted [especially] for
knife-fighting and common in western frontier regions and having a

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 The Supreme Court of Virginia has held that, when

determining whether an object falls within the definition of a

"weapon" as it is used in Code § 18.2-308(A), the statutory

construction rules of ejusdem generis and noscitur a sociis

should be applied. See Wood v. Henry County Public Schools, 255

Va. 85, 94, 495 S.E.2d 255, 260-61 (1998). According to the

rule of ejusdem generis, "'when a particular class of persons or

things is enumerated in a statute and general words follow, the

general words are to be restricted in their meaning to a sense

analogous to the less general, particular words.'" Id. at 94,

495 S.E.2d at 260 (quoting Martin v. Commonwealth, 224 Va. 298,

301-02, 295 S.E.2d 890, 892-93 (1982)). The rule of noscitur a

sociis dictates "'when general and specific words are grouped,

the general words are limited by the specific and will be

construed to embrace only objects similar in nature to those

things identified by the specific words.'" Id. at 94, 495

S.E.2d at 260-61 (quoting Martin, 224 Va. at 301-02, 295 S.E.2d

at 892-93 (holding that a pocket-knife is neither a dirk, bowie

guarded handle and a strong single-edge blade typically 10 to 15
inches long with its back straight for most of its length and then
curving concavely and sometimes in a sharpened edge to the point."
Wood v. Henry County Public Schools, 255 Va. 85, 95 n.6, 495
S.E.2d 255, 261 n.6 (1998) (citing Webster's Third New
International Dictionary 262 (1981)). A switchblade knife is
defined as "a pocketknife having the blade spring-operated so that
pressure on a release catch causes it to fly open." Id. (citing
Webster's at 2314). "'Ballistic knife' means any knife with a
detachable blade that is propelled by a spring-operated
mechanism." Code § 18.2-308(N).

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knife, switchblade knife, ballistic knife, nor a weapon of like

kind within the meaning of Code § 18.2-308(A))).

Based on the rules of ejusdem generis and noscitur a

sociis, we conclude that the box-cutter possessed by appellant

is a weapon within the proscriptive reach of Code § 18.2-308.2.

The available evidence shows that the box-cutter found on

appellant's person is a cutting instrument that holds a razor

blade. By its terms, the Code prohibits the carrying of a

concealed razor or any weapon of like kind. See Code

§§ 18.2-308(A), 18.2-308.2. "Razor" has neither been defined by

statute nor case law in Virginia. Whether a term undefined by

statute should be given its traditional meaning or a more

expansive meaning "depends upon the purpose and policy

underlying the particular statute." Jones v. Commonwealth, 16

Va. App. 354, 357, 429 S.E.2d 615, 616 (1993). When a statute

is designed to deter a broad range of conduct that produces

apprehension of physical harm in others, a more expansive

definition of undefined statutory terms is appropriate in order

to effectuate that purpose. See Holloman, 221 Va. at 198, 269

S.E.2d at 357 (holding that the definition of "firearm" includes

BB guns when the purpose of the statute is to deter people from

using firearms in the commission of a felony). Conversely,

"when a statute is designed only to proscribe the act of

possessing a firearm or the conduct of a felon in order to

reduce a real threat of harm to the public, a narrower, more

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traditional definition" is required. Jones, 16 Va. App. at 357,

429 S.E.2d at 616. See Timmons v. Commonwealth, 15 Va. App.

196, 200-01, 421 S.E.2d 894, 897 (1992) (stating that a statute

which proscribes the possession of a "firearm" while in

possession of cocaine does not include objects that merely

appear to have the capability of firing when, in fact, they do

not). We apply the latter principle to define the instrument at

issue.

Under its traditional dictionary definition, a razor is "a

keen-edged cutting instrument made with the cutting blade and

handle in one (as a straight razor) or with the cutting blade

inserted into a holder (as a safety razor or electric razor) and

used chiefly for shaving or cutting the hair." Webster's Third

New International Dictionary 1888 (1981). The box-cutter at

issue is plainly "a keen-edged cutting instrument."

Furthermore, this "keen-edged cutting instrument" is not

materially different from a locked-blade knife, in that it has a

retractable blade that can be locked into place. As such, by

incorporating a razor blade, the box-cutter combines the

fine-edged sharpness of a straight razor with the retracting

capacity of a locked-blade knife. Those characteristics bring

the box-cutter squarely within the definitions of "razor" under

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Code § 18.2-308(A). Accordingly, we affirm appellant's

conviction of possessing a concealed weapon. 3

VALIDITY OF THE TRESPASS NOTICE

Appellant further asserts, on several grounds, that the

trespass notice issued by Leesburg police was void. We disagree

with each of appellant's contentions.

A. AUTHORITY TO BAR

Appellant first contends the police did not have the

authority to issue trespass notices on behalf of a private

entity based on Dillon's Rule. At the time of appellant's

arrest, Code § 15.1-138 provided:

The officers and privates constituting the
police force of counties, cities and towns
of the Commonwealth are hereby invested with
all the power and authority which formerly
belonged to the office of constable at
common law in taking cognizance of, and in
enforcing the criminal laws of the
Commonwealth and the ordinances and
regulations of the county, city or town,
respectively, for which they are appointed
or elected. Each policeman shall endeavor
to prevent the commission within the county,
city or town of offenses against the law of
the Commonwealth and against the ordinances
and regulations of the county, city or town;
shall observe and enforce all such laws,
ordinances and regulations; shall detect and
arrest offenders against the same; and shall
secure the inhabitants thereof from violence
and the property therein from injury.

3
Because we find that the box-cutter is a weapon proscribed
by Code § 18.2-308.2, we need not address whether the steak
knife found on appellant's person is also proscribed.

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 Such policemen shall have no power or
authority in civil matters . . . . 4

The issue raised by appellant has been settled by our

decision in Holland v. Commonwealth, 28 Va. App. 67, 502 S.E.2d

145 (1998). We accordingly decline to reverse the trial court

on this ground.

B. DUE PROCESS CLAIM

Appellant next contends that his trespass notice was issued

in violation of the United States Constitution and, therefore,

cannot support his conviction under Code § 18.2-119. More

specifically, appellant contends that, by issuing his trespass

notice without providing a meaningful opportunity to be heard on

the validity of such notice, Leesburg police officers violated

his constitutional right to due process.

"The Fourteenth Amendment to the United States Constitution

provides that no person shall be deprived of life, liberty or

property without due process of law." Jackson v. W., 14 Va.

App. 391, 405, 419 S.E.2d 385, 393 (1992). "Procedural due

process rules are meant to protect persons not from the

deprivation, but from the mistaken or unjustified deprivation of

life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259

(1978). Due process analysis consists of two steps. See Klimko

v. Virginia Employment Comm'n, 216 Va. 750, 754, 222 S.E.2d 559,

4
Although this section has been repealed, it was still in
effect at the time of appellant's arrest.

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563, cert. denied, 429 U.S. 849 (1976). First, a deprivation of

a liberty or property interest must be demonstrated. See J.P.

v. Carter, 24 Va. App. 707, 715, 485 S.E.2d 162, 167 (1997).

Then, "'[o]nce it is determined that due process applies, the

question remains what process is due.'" Id. (quoting Jackson,

14 Va. App. at 406, 419 S.E.2d at 393-94). "The requirements of

procedural due process apply only to the deprivation of

interests encompassed by the Fourteenth Amendment's protection

of liberty and property. . . . [T]he range of interests

protected by procedural due process is not infinite." Board of

Regents v. Roth, 408 U.S. 564, 569-70 (1972).

Thus, appellant must first establish a deprivation of

either a liberty or property interest in order to invoke the

protection of the Due Process Clause of the Fourteenth

Amendment. Appellant has identified neither and, on that basis,

we find his constitutional claim to be without merit.

C. FOURTH AMENDMENT CLAIM

Appellant also contends that his arrest violated the

Constitution because it resulted from the exercise of unfettered

discretion of police officers to bar individuals from Loudoun

House.

While it is true that searches and seizures conducted at

the unfettered discretion of the police violate the Fourth

Amendment's proscription of "unreasonable" searches and

seizures, Simmons v. Commonwealth, 238 Va. 200, 202-03, 380

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S.E.2d 656, 658 (1989); Hall v. Commonwealth, 12 Va. App. 972,

973, 406 S.E.2d 674, 675 (1991), in this case, the police acted

within constitutionally established parameters in stopping

appellant on April 29, 1996. A police officer may detain an

individual to conduct a brief investigation without violating

the Fourth Amendment when the officer has a reasonable,

articulable suspicion that a person is engaging in, or is about

to engage in criminal activity. See Terry v. Ohio, 392 U.S. 1,

27 (1968). The officer's justification for stopping the

individual need not rise to the level of probable cause, but

must be based on more than an "inchoate and unparticularized

suspicion or 'hunch.'" Id.

On April 29, 1996, the police received a complaint that

appellant instigated a fight on the premises of Loudoun House

earlier that evening. Subsequently, police found appellant on

the premises of Loudoun House and stopped him to investigate.

Based on these facts, we find that the police had a reasonable

and articulable suspicion that appellant was engaging in

criminal activity. An investigatory stop on such grounds fully

comports with constitutional requirements.

Based on the foregoing we affirm appellant's conviction for

possession of a concealed weapon and reverse his conviction for

trespass.

Affirmed in part,
reversed and remanded
in part.

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Benton, J., concurring, in part, and dissenting, in part.

I concur in the parts of the opinion styled FACTUAL

BACKGROUND and JURY INSTRUCTIONS and in the holding that the

trial judge committed reversible error in refusing the

instruction. I dissent from the other holdings and would

reverse the convictions and dismiss the indictments.

I.

In pertinent part, Code § 18.2-308(A) provides as follows:

If any person carries about his person,
hidden from common observation, . . . any
dirk, bowie knife, switchblade knife,
ballistic knife, razor, slingshot, spring
stick, metal knucks, or blackjack . . . or
. . . any weapon of like kind as those
enumerated in this subsection, he shall be
guilty of a Class 1 misdemeanor.

"[B]ecause the statute . . . is penal in nature, it must be

strictly construed against the state and limited in application

to cases falling clearly within the language of the statute."

Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338

(1983). Furthermore, an accused person "is entitled to the

benefit of any reasonable doubt about the construction of a

penal statute." Martin v. Commonwealth, 224 Va. 298, 300-01,

295 S.E.2d 890, 892 (1982).

In Richards v. Commonwealth, 18 Va. App. 242, 246 n.2, 443

S.E.2d 177, 179 n.2 (1994), we noted that "[i]t is generally

agreed that in using such terms, [the General Assembly]

intend[ed] to exclude from concealed weapons statutes innocuous

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household and industrial knives." The implement that O'Banion

had in his pocket is a common industrial tool. Although it

contains a razor blade as a part of its design, the industrial

tool is not a "razor" or weapon of like kind prohibited by the

statute. Likewise, a common kitchen steak knife is not within

the scope of items prohibited by this statute. See Ricks v.

Commonwealth, 27 Va. App. 442, 445, 499 S.E.2d 575, 576 (1998).

II.

In determining powers of local municipalities, "Virginia

follows the Dillon Rule of strict construction." City of

Richmond v. Confrere Club, 239 Va. 77, 79, 387 S.E.2d 471, 473

(1990). In applying the Dillon Rule, if there is a reasonable

doubt whether the power exists, that doubt must be resolved

against the municipality. See id.

Without any statutory authority, the Town of Leesburg and

its police department entered into an agreement with the

management of Loudoun House to act as a private security service

and to decide, at the unfettered discretion of the police, who

would and would not be allowed to enter private premises. In so

doing, the Leesburg Police Department did not simply enforce the

law against trespass; it took upon itself the property owner's

right to distinguish between welcome and unwelcome visitors to

the apartment complex. When this case was decided, Code

§ 15.1-138 provided, with exceptions not applicable to this

case, that police departments "shall have no power or authority

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in civil matters." This type of barment was at the outset a

civil matter.

As the majority recognizes, the evidence established that

the decision whether to bar a person from the Loudoun House

premises was left to the sole discretion of any police officer

employed by the Leesburg Police Department. That unfettered

discretion to bar individuals resulted in the officers on the

street deciding which persons could later be stopped and charged

criminally. The Supreme Court has consistently overturned this

kind of practice because it "'necessarily entrusts lawmaking to

the moment-to-moment judgment of the policeman on his beat.'"

City of Chicago v. Morales, 527 U.S. 41, 60 (1999) (quoting

Kolendar v. Lawson, 461 U.S. 352, 359 (1983)); see also Smith v.

Goguen, 415 U.S. 566, 575 (1974) (holding that "such a

standardless sweep allows policemen . . . to pursue their

personal predilections"). When conduct can be made criminal "at

the whim of any police officer," that delegation of authority to

the officer is unconstitutional. Shuttlesworth v. Birmingham,

382 U.S. 87, 90 (1965). Thus, stops and arrests by the police

of persons who are barred by the exercise of this unfettered

discretion are unreasonable under the Fourth Amendment and are

an arbitrary deprivation of liberty by police, in violation of

the Due Process clause.

For these reasons, I would reverse the convictions and

dismiss the indictments.

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