                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Annunziata, Bumgardner and Frank


GALEN L. BURKHOLDER
                                          MEMORANDUM OPINION * BY
v.   Record No. 0417-00-3             JUDGE RUDOLPH BUMGARDNER, III
                                             FEBRUARY 6, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                        Thomas H. Wood, Judge

           (William E. Bobbitt, Jr., Public Defender, on
           brief), for appellant. Appellant submitting
           on brief.

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


     A jury convicted Galen L. Burkholder of willfully failing

to file a 1998 state income tax return in violation of Code

§ 58.1-348 and of willfully filing a false 1999 withholding

exemption certificate in violation of Code § 58.1-471.     He

maintains his good faith belief that the tax laws did not apply

to him was a complete defense to the charges and argues the

trial court erred in refusing to instruct on his claim of right

defense.   Concluding the trial court did not err, we affirm.

     The defendant concedes he did not file a 1998 state income

tax return.   During 1998, the defendant earned $27,354 working


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
for North and South Lines, Inc.    The defendant also concedes he

filed a certificate claiming he was not subject to withholding

taxes.   In 1999, he worked for Target Corporation where he filed

a Certificate of Foreign Status in which he claimed to be "an

exempt foreign person" not subject to withholding taxes.      The

defendant does not dispute that he received money for work in

Virginia, was a Virginia resident, and was a United States

citizen by birth.    The defendant executed Virginia voter

registration applications in 1994 and 1999 that showed he was a

United States citizen by birth and qualified to vote in

Virginia.

     The defendant became convinced he was not a citizen of the

United States, but a citizen of "these United States," after he

read the book Vultures in Eagles Clothing.    He maintains he had

no income as defined in the Internal Revenue Code because he

bartered his work for money.    He claims he was not an employee

as defined in that Code because he was neither an elected

official of the United States nor someone who worked for an

elected official.    The defendant presented no evidence to

support his contention that he had exempt foreign status.

     The defendant tendered a separate instruction for each

charge that stated a good faith claim of right was a defense to

the charge. 1   The trial court refused both instructions.    The


     1
       Defense Instruction B stated: "If you believe the
defendant failed to file an income tax return because he

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claim of right defense negates the criminal intent required to

prove larceny, robbery, embezzlement, and trespass cases.

Bowles v. Nance, 236 Va. 310, 374 S.E.2d 19 (1988) (defendant

alleged attorney erred in recommending a guilty plea because he

had bona fide claim of right defense to grand larceny); Pierce

v. Commonwealth, 205 Va. 528, 138 S.E.2d 28 (1964) (trial court

believed claim of right defense to robbery was a mere pretext);

Whitlow v. Commonwealth, 184 Va. 910, 37 S.E.2d 18 (1946)

(embezzlement conviction reversed where defendant had bona fide

claim of right defense); Butts v. Commonwealth, 145 Va. 800, 133

S.E. 764 (1926) (intent needed for robbery lacking where taker

has good faith belief that property is his); O'Banion v.

Commonwealth, 33 Va. App. 47, 531 S.E.2d 599 (2000) (en banc)

(trespassing); Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d

274 (1988) (trespass).   See Warner v. Commonwealth, 30 Va. App.

141, 515 S.E.2d 803 (1999) (uttering conviction affirmed because

defendant not entitled to be paid prospectively and claim of

right defense cannot apply to innocent third party).



believed he had a good faith claim of right to not file such a
return, then, even though his belief was mistaken, you shall
find the defendant not guilty of failing to file an income tax
return."
     Defense Instruction C stated: "If you believe the
defendant filed a false or fraudulent withholding exemption
certificate with hie [sic] employer because he believed he had a
good faith claim of right to file such a withholding exemption
certificate, then, even though his belief was mistaken, you
shall find the defendant not guilty of filing a false or
fraudulent withholding exemption certificate with his employer."

                               - 3 -
     The cases applying the claim of right defense involved

crimes of trespassory taking or entering upon the property of

another.   If the defendant has a claim to the property upon

which he acts, he cannot have the intent necessary to make his

act a crime.   The defendant's good faith belief that he was

entitled to the money his employer owed him at the time of

discharge "negatived the idea of a felonious intent."    Butts,

145 Va. at 815, 133 S.E. at 768 (robbery conviction reversed).

     The defendant relies on Cheek v. United States, 498 U.S.

192 (1991).    In Cheek, the defendant appealed the trial court's

instruction to the jury to disregard his belief that he was not

required to file a federal income tax return or to pay income

taxes and that wages are not income.    The case did not hold that

the claim of right defense applied to the crime of not filing

federal income tax returns.   It held the district court erred by

instructing the jury to disregard the defendant's claim on the

issue of whether he "willfully" failed to file the return.

     In this case, the jury considered the defendant's argument

that he genuinely believed he was exempt from paying state taxes

because he was a citizen of "these United States," not the

United States.    His claim that he believed he was acting in

compliance with the tax laws went to the issue of whether he

acted "willfully."   His testimony was admitted, he argued it to

the jury, and the trial court fully instructed on the definition

of willfulness.   Their consideration of the assertion was proper

                                - 4 -
as it bore on whether the defendant "willfully" violated the

statutes.    However, it does not follow that the claim of right

defense applied to the case.

     We conclude the trial court did not err in refusing the

defendant's instructions that the claim of right defense applied

to tax matters.    The defendant is not charged with taking or

entering upon the property of another.     He did not claim a right

to the property; he claimed an exemption to the duty to comply

with tax statutes.    "[L]ike defendants in criminal cases in

other contexts who 'willfully' refuse to comply with the duties

placed upon them by the law, he must take the risk of being

wrong."     Cheek, 498 U.S. at 206.   Accordingly, we affirm.

                                                            Affirmed.




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