Establishing a Claim-of-Right Defense in Criminal Trespass: The Objective Evidence Threshold

Introduction

In Commonwealth v. Kartozia, the Supreme Court of Virginia addressed whether a defendant charged with criminal trespass is entitled to a jury instruction on a “good-faith claim-of-right” defense when the only evidence of authorization consists of the defendant’s own mistaken belief. The case arises from Luka Kartozia’s refusal to leave the private grounds of Turnberry Tower condominium after being asked to do so by security and police officers. Kartozia claimed he believed in good faith that he was authorized to remain because he intended to visit a resident, Phil Yang, but presented no objective evidence that any person in authority had, in fact, granted him entry or stay. The trial court denied his proposed instruction; the Court of Appeals reversed; and the Supreme Court of Virginia granted review to clarify the threshold of evidence required to support a claim-of-right jury instruction in trespass prosecutions.

Summary of the Judgment

On June 5, 2025, Chief Justice S. Bernard Goodwyn delivered the opinion of the Court. The Supreme Court held:

The trial court did not abuse its discretion in refusing Kartozia’s proposed jury instruction on a good-faith claim-of-right defense because there was no more than a scintilla of credible evidence that he possessed an objectively reasonable belief of authorization to remain on the premises after multiple directives to leave.
A bona fide claim-of-right requires not only sincere belief but also some factual basis that, if true, would amount to legal authorization by the owner or authorized agent.
Absent any evidence that Kartozia asked the concierge, notified the resident, or obtained permission from anyone with power to authorize his presence, the instruction would have confused the jury and was not supported by the record.
The Court of Appeals therefore erred in reversing the circuit court; accordingly, the Supreme Court reversed the Court of Appeals and reinstated the circuit court’s judgment.

Analysis

1. Precedents Cited

Reed v. Commonwealth, 6 Va. App. 65 (1988): Recognized that one cannot be convicted of trespass under Code § 18.2-119 when entry or stay is under a bona fide claim of right. Defined a bona fide claim of right as a “sincere, although perhaps mistaken, good-faith belief” of legal entitlement.
Wise v. Commonwealth, 98 Va. 837 (1900): Early authority confirming that mistaken but sincere belief in authorization negates criminal intent for trespass.
Hicks, 267 Va. 573 (2004): Reiterated that criminal trespass requires proof of criminal intent, of which a good-faith claim of right is a defense.
Jury-instruction standards:
- Howsare v. Commonwealth, 293 Va. 439 (2017): Trial courts must give instructions supported by “more than a scintilla” of credible evidence; refusal is reversible if no reasonable disagreement exists.
- McClung v. Commonwealth, 215 Va. 654 (1975) and Justus v. Commonwealth, 222 Va. 667 (1981): Defined the “scintilla” threshold for evidentiary support of instructions.
- Schlimmer v. Poverty Hunt Club, 268 Va. 74 (2004): Emphasized that jury instructions must fully and fairly inform jurors of the law as applied to the facts.

2. Legal Reasoning

The Supreme Court applied a two-step framework when reviewing the denial of a jury instruction:

Gatekeeping Function: The trial court must refuse an instruction unsupported by more than a scintilla of credible evidence. The evidence must be viewed in the light most favorable to the party requesting the instruction.
Substantive Standard: Under Code § 18.2-119, criminal trespass requires “without authority” staying on another’s property. A bona fide claim of right defense requires not only subjective sincerity but also a factual predicate that objectively rises to legal authorization by the owner or agent of the property.

Applying these principles, the Court found:

Kartozia presented no evidence that anyone with power to authorize entry—whether the concierge, a resident, or security—had actually granted him permission to stay on site.
His testimony that he “knew” a resident but would not contact him (even after charging his phone for over an hour) did not constitute an objective fact rising to authorization.
Repeated, unambiguous directives by security and police officers to leave extinguished any conceivable belief of lawful entitlement to remain.

3. Impact on Future Cases

Commonwealth v. Kartozia clarifies the evidentiary threshold for claim-of-right instructions in trespass prosecutions:

Defendants must introduce more than their own mistaken belief; they must show objective facts that, if credited, would amount to actual or apparent authority to enter or remain.
Trial courts have clear guidance to refuse instructions lacking any credible evidence of authorization, thereby avoiding juror confusion.
Prosecutors and defense attorneys in property-related cases will need to focus on the factual basis for alleged authorizations, especially in “loitering” or late-night contexts.

Complex Concepts Simplified

Scintilla of Evidence: A very small amount of evidence. More than a scintilla means “enough that reasonable jurists could disagree about its weight.”

Bona Fide Claim of Right: A defense to trespass where a person honestly—but perhaps mistakenly—believes they have a legal right to be on property. This belief must be backed by objective facts suggesting authority from the property’s owner or agent.

Gatekeeping Function: The trial judge’s role in screening jury instructions to ensure each instruction is supported by sufficient evidence and correctly states the law.

Harmless Error: Even if a court erroneously gives or refuses an instruction, the error may be excused if the verdict would have been the same regardless. The Supreme Court did not reach harmless-error analysis here because it affirmed that no instruction was warranted.

Conclusion

Commonwealth v. Kartozia establishes that, in trespass cases under Code § 18.2-119, a defendant who seeks a jury instruction on a claim-of-right defense must present more than a mere assertion of good faith. There must be credible, objective evidence that someone authorized the defendant’s entry or continued presence. Trial courts have discretion to refuse instructions unsupported by such evidence, and appellate courts should not overturn those decisions unless no reasonable jurist could agree. This decision sharpens the boundary between legitimate claims of mistaken entitlement and willful trespass, ensuring that juries are not misled by defenses lacking factual foundation.