                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


JOHN DANIEL REYES AND
 PHILLIP LANGE BENHAM
                                          MEMORANDUM OPINION * BY
v.   Record No. 0480-98-3        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               APRIL 13, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Richard S. Miller, Judge

          Michael J. DePrimo (Brian Fahling; Thomas W.
          Current; American Family Association Law
          Center; Day & Current Law Firm, on briefs),
          for appellants.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Phillip Lange Benham (Benham) and John Daniel Reyes (Reyes)

were convicted in a bench trial of trespass upon school

property, in violation of Code § 18.2-128.   On appeal,

appellants contend that the trial court erred in rejecting their

defense of "good faith."    Finding no error, we affirm.

                                 I.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.    See Juares v.

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that at approximately

6:00 a.m. on November 10, 1997, appellants and an estimated 150

other demonstrators gathered at a drug store across the street

from E.C. Glass High School in the City of Lynchburg.    Shortly

thereafter, they moved onto school property to hand out

religious literature and display anti-abortion signs.

        At approximately 6:55 a.m., Susan Morrison, the principal,

arrived at the school.    She asked some of the demonstrators

whether they had permits or permission to be on school property

and, if they did not, she asked them to leave.    One member of

the group responded, "No ma'am, we will not leave."    Morrison

later told Benham that he was keeping students from entering the

school building and she asked Benham to leave.    He refused.

        James McCormick, Superintendent of Schools, arrived at the

school at approximately 7:08 a.m.    He identified himself to

Benham and asked Benham to leave the property.    Benham refused

and stated, "They weren't going anywhere."    McCormick could not

recall whether he specifically told Reyes to leave the school

property.    However, McCormick remembered telling a group of

demonstrators including Reyes to leave and the group did not

move.




                                 - 2 -
     Barry Campbell, Deputy Superintendent of Schools, also

arrived at the school between 7:00 and 7:15 a.m.   After

identifying himself as a school official, Campbell informed

Reyes that he was demonstrating on school property and asked

Reyes to leave.   Reyes stated that he would not leave.

     Lieutenant J.P. Stokes and Officer Steven Clark of the

Lynchburg Police Department arrived at the school at

approximately 7:16 a.m.   Stokes approached Benham and asked

whether the group had a permit.   When Benham indicated that they

did not have a permit, Stokes told Benham that he and the group

would have to leave.   Additionally, he told Benham that they

would be arrested if they didn't leave the school property.

Benham responded:   "Then you'll have to arrest us."

     After his encounters with McCormick and Lieutenant Stokes,

Benham spoke with Officer Clark, who again explained that the

demonstrators were on school property and that they had to

leave.   "[Benham] was very insistent, he wanted to have ten

minutes to address the group before they disbanded from there."

Clark and Benham finally agreed that Benham would lead the

demonstrators to a location further from the school to address

the students for ten minutes.   Appellants and the demonstrators

left the school property at approximately 8:30 a.m.

     At trial, Reyes initially testified, contrary to the

Commonwealth's witnesses, that he was not told by any school


                                - 3 -
administrator to leave the premises.    However, on

cross-examination he admitted that Deputy Superintendent

Campbell told him to leave, including the following:

          Q. And you do agree that [Campbell] asked
          you to leave?

          A.   Yes, sir.

          Q. And you agree that you did not in fact
          leave at that time?

          A.   I didn't leave at that time.

           *       *       *     *       *      *       *

          Q. But in fact, when Mr. Campbell asked you
          to leave, you didn't leave at that time?

          A.   No, I did not.

Nevertheless, Reyes testified that he remained on school grounds

because he was asked to assist Benham and Officer Clark in

moving the demonstrators off the property.

     Even though Benham was asked by school administrators to

leave, he testified at trial, "I didn't leave."     Benham

contended the demonstrators had a right to be on the property in

front of the school because it was a "public sidewalk."

According to Benham, it was not until Officer Clark talked to

him that he realized the demonstrators were on school property.

     Following closing arguments by the parties, the trial court

convicted Benham and Reyes of trespass upon a school property.




                                - 4 -
                                II.

     Code § 18.2-128, the trespass statute under which

appellants were convicted, provides in part:

          It shall be unlawful for any person, whether
          or not a church member or student, to enter
          upon or remain upon any church or school
          property in violation of (i) any direction
          to vacate the property by a person
          authorized to give such direction or (ii)
          any posted notice which contains such
          information, posted at a place where it
          reasonably may be seen.

(Emphasis added).   "Although the criminal trespass statute does

not contain an express requirement of intent, the statute has

been construed to require proof of a willful trespass."   Jones

v. Commonwealth, 18 Va. App. 229, 232, 443 S.E.2d 189, 191

(1994) (construing Code § 18.2-119).   "Moreover, a good faith

claim of right to be on the premises negates the requisite

intent to engage in a criminal trespass."   Id.

          Criminal intent is an essential element of
          the statutory offense of trespass, even
          though the statute is silent as to intent,
          and if the act prohibited is committed in
          good faith under claim of right . . .
          although the accused is mistaken as to his
          right, unless it is committed with force
          . . . no conviction will lie.

Reed v. Commonwealth, 6 Va. App. 65, 71, 366 S.E.2d 274, 278

(1988) (quoting 75 Am. Jur. 2d Trespass § 87 (1974)) (omission

in original).

     In the instant case, appellants contend that the trial

court erred in rejecting their defense of "good faith."

                               - 5 -
Specifically, Benham argues that the trial court should have

accepted his good faith belief that the sidewalk was public

property and, therefore, Benham acted under a claim of right to

conduct a demonstration on the property.    Reyes argues that the

trial court erred in rejecting his good faith belief that he was

authorized to remain on school grounds to help move the

demonstrators off the property.

     A claim of right is an affirmative defense for which the

accused has the burden of persuading the fact finder that he or

she acted in good faith in remaining on the property to the

degree necessary to raise a reasonable doubt as to his or her

guilt.   See id. at 70, 366 S.E.2d at 277; cf. Lynn v.

Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9 (1998),

aff'd, ___ Va. ___, ___ S.E.2d ___ (1999).    Although undisputed

facts may establish a claim of right as a matter of law, whether

the accused establishes that he or she acted under a claim of

right is generally a question of fact.     Cf. Lynn, 27 Va. App. at

353, 499 S.E.2d at 9.

     In the instant case, the Commonwealth established a prima

facie case of trespass upon school property by appellants.

Several people authorized to do so, including the school

principal, Superintendent and Deputy Superintendent of the

Lynchburg Schools, and the police, told the demonstrators to

leave the school property.   They refused to do so in violation


                               - 6 -
of several direct requests.   Indeed, upon learning from police

officers that the demonstrators would be arrested for failing to

leave the property, Benham responded, "Then you'll have to

arrest us."

     The trial court was not required to accept appellants'

testimony that they believed they were not on school property.

Credible evidence supports the trial court's finding that

appellants willfully remained on school property without

establishing a valid good faith claim of right to be there.     See

Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352,

353 (1980) (per curiam) ("[E]ven if the defendant's story was

not inherently incredible, the trier of fact need not have

believed the explanation."); Marable v. Commonwealth, 27 Va.

App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("In its role of

judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt.").    The

Commonwealth's evidence was competent, was not inherently

incredible and was sufficient to prove beyond a reasonable doubt




                               - 7 -
that appellants were guilty of trespassing.   Accordingly, we

affirm appellants' convictions. 1

                                                        Affirmed.




     1
      Reyes also argues on appeal that because the police worked
out an agreement with Benham to assist in removing the
demonstrators from school property, his conviction was in
violation of the Fifth and Fourteenth Amendments. Since Reyes
did not raise this issue before the trial court, it is
procedurally barred. See Rule 5A:18. See also Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)
(holding that a party is precluded from raising on appeal an
issue which was not raised at the trial level).
                              - 8 -
