PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette, 

JJ., and Lacy, S.J. 

ERNEST BAKER 

 OPINION BY 

v. Record No. 081715 JUSTICE LEROY F. MILLETTE, JR. 

 November 5, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether the Commonwealth is 

required to establish as an element of the offense of 

trespassing that a “no trespassing” sign on private property 

was posted by a person authorized by the statute to exclude 

entry upon the property. 

Ernest Baker was convicted at a bench trial in the Circuit 

Court of the City of Petersburg of trespassing in violation of 

Code § 18.2-119.1 Baker appealed his conviction to the Court of 

Appeals, which affirmed his conviction in an unpublished 

opinion. Baker v. Commonwealth, Record No. 0220-07-2 (August 

5, 2008). We awarded Baker this appeal in which he challenges 

the Court of Appeals’ decision to uphold his conviction. 

Baker presents three grounds upon which he contends the 

Court of Appeals erred in its ruling: (1) the Commonwealth 

failed to prove that the subject property was posted by the 

true owner, (2) the circuit court violated his due process 

 1

 Baker was also convicted of possession of cocaine, in 

violation of Code § 18.2-250, but that conviction was later 

dismissed and is not relevant to this appeal. 
rights by allowing an inference that either the true owner had 

posted the property or the property was posted to shift an 

evidentiary burden to him, and (3) the evidence was 

insufficient to prove that he was legally excluded from the 

property. 

BACKGROUND

Corporal Buffkin of the City of Petersburg Bureau of 

Police was dispatched to the 700 block of Mount Airy Street in 

Petersburg to investigate a report of gunshots. Corporal 

Buffkin was providing field training to a recruit officer, John 

H. Vasquez, and both were in uniform with their police badges 

displayed. The police officers saw Baker walking on Mount Airy 

Street. As the police officers started getting out of their 

police car in order to talk to Baker, Baker immediately began 

running away from the officers through the yards of houses on 

Mount Airy Street. When Baker reached a residence at 717 Mount 

Airy Street (the property), he cut through the yard alongside 

the residence and ran through a hole in a wooden fence, where 

Corporal Buffkin tackled him. 

While pursuing Baker, Corporal Buffkin observed a “no 

trespassing” sign posted on the front of the property. Officer 

Vasquez saw a “no trespassing” sign on the side of the property 

while walking Baker back to the police car. Following his 

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arrest, Baker told the police officers that his cousin owned 

the property. 

Baker entered a plea of not guilty to the trespassing 

charge, which specifically alleged that he “did go upon or 

remain upon the posted property at 717 Mt. Airy Street after 

having been forbidden to do so, in violation of § 18.2-119 of 

the Code of Virginia.” At the conclusion of the Commonwealth’s 

evidence, Baker moved to strike the trespass charge. Baker 

argued that Code § 18.2-119 requires evidence that he was 

banned from the property or the property was posted by the 

owner and that Baker was a person not allowed to be on the 

property. Baker contended that there was no proof that he is 

not allowed to be on the property, no proof that the true owner 

posted the property, and no proof that even if it is so posted 

that he is not allowed to be on the property. 

The circuit court acknowledged that there was no evidence 

Baker had been forbidden to be on the property in the past: 

“Certainly there is no evidence as to the latter point he has 

. . . been forbidden to be on that property . . . . The 

indictment charges he has been forbidden to trespass. There is 

no proof of that.” However, the Commonwealth responded that 

Baker “is forbidden by the sign.” The circuit court held that 

there is a presumption that the property was posted by a person 

authorized to do so. 

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The circuit court denied Baker’s motion to strike, 

determining: “I think the State has reached its burden . . . 

and shows the property was in fact proper[l]y posted. The 

person entered on that property. I think the burden shifts.” 

Baker presented no evidence and renewed his motion to strike, 

which the circuit court again denied. The circuit court found 

Baker guilty and sentenced him to twelve months’ incarceration. 

Baker appealed to the Court of Appeals. 

In affirming the circuit court’s judgment, the Court of 

Appeals held that because it was undisputed that Baker went 

upon property owned by another person and the property was 

posted with a “no trespassing” sign, the circuit court made the 

reasonable inference that the owner or someone lawfully in 

charge of the property posted the sign. The Court of Appeals 

declined to address Baker’s argument that the circuit court 

violated his due process rights by shifting the burden of 

proof, as Baker failed to make this argument to the circuit 

court.2 Baker’s appeal to this Court followed. 

 2

 We likewise decline to address Baker’s due process 

argument, as Baker’s counsel conceded at oral argument that 

this argument was made for the first time on appeal. Rule 

5:25. Rule 5:25 is not limited in application to nonconstitutional issues. Cherrix v. Commonwealth, 257 Va. 292, 

308 n.3, 513 S.E.2d 642, 652 n.3 (1999). 

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DISCUSSION

In order to determine whether the Commonwealth must 

establish as an element of the offense of trespassing that a 

“no trespassing” sign was posted by an authorized person, we 

must interpret Code § 18.2-119.3 The interpretation of a 

statute is a question of law, which is reviewed de novo on 

appeal. Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 

S.E.2d 227, 229 (2007). 

In reviewing the language of Code § 18.2-119, we apply the 

following principles of statutory interpretation: 

[U]nder basic rules of statutory construction, 

we determine the General Assembly’s intent from 

the words contained in the statute. Alger v. 

Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 

565 (2004). When the language of a statute is 

unambiguous, courts are bound by the plain 

meaning of that language and may not assign a 

construction that amounts to holding that the 

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 According to the relevant portion of Code § 18.2-119, 

[i]f 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, or after having been forbidden 

to do so by a sign or signs posted by such 

persons or by the holder of any easement or 

other right-of-way authorized by the instrument 

creating such interest to post such signs on 

such lands, structures, premises or portion or 

area thereof at a place or places where it or 

they may be reasonably seen, . . . he shall be 

guilty of a Class 1 misdemeanor. 

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General Assembly did not mean what it actually 

has stated. Id.

Elliott v. Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 

(2009). 

Additionally, 

[i]n accordance with the principles of statutory 

construction of penal statutes, a court must not 

add to the words of the statute nor ignore the 

words of the statute and must strictly construe 

the statute and limit its application to cases 

falling clearly within the statute. Turner v. 

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

338 (1983). Additionally, it is a “settled 

principle of statutory construction that every 

part of a statute is presumed to have some 

effect and no part will be considered 

meaningless unless absolutely necessary.” 

Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 

340, 497 S.E.2d 335, 338 (1998). 

Farrakhan, 273 Va. at 181-82, 639 S.E.2d at 230. 

On appeal, Baker argues that although he was present on 

the property, the evidence was insufficient to prove he had 

been banned from the property in the manner set forth in Code 

§ 18.2-119. Baker maintains that any reasonable interpretation 

of Code § 18.2-119 requires the Commonwealth to present 

evidence that the property was posted by one of the enumerated 

parties in order to make out a prima facie case and to prove 

guilt beyond a reasonable doubt. According to Baker, such 

evidence is an element of trespass as defined by the statute, 

and the Commonwealth failed to establish this element through 

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proof that the property was posted by one of the specifically 

enumerated persons. 

Additionally, Baker asserts that the General Assembly, by 

enacting Code § 18.2-119.1, which makes it a Class 3 

misdemeanor to knowingly and intentionally post a “no 

trespassing” sign on the land of another without permission 

from a person authorized to do so, intended the crime of 

trespass on posted property to be premised upon proof of the 

authority to post the property. 

Baker argues that the only testimony, other than that he 

was on posted property, was Baker’s unchallenged statement that 

his cousin owned the property. Baker contends that despite the 

presence of the “no trespassing” signs on the property, the 

Commonwealth did not prove he was a person intended to be 

excluded from the property, because the circuit court 

determined there was no evidence that Baker had been forbidden 

to be on the property in the past. Baker notes that “no 

trespassing” signs often make no distinction between invitees, 

residents, or other persons such as a licensee. Baker asserts 

that the statute clarifies the need for a witness with 

authority under the statute to exclude others in order to 

establish that the defendant was a trespasser. 

The Commonwealth maintains that the circuit court’s 

statement that the Commonwealth had “reached its burden” was 

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simply an observation that Baker’s burden was to produce 

credible evidence to overcome the reasonable inferences that 

arose from the evidence. The Commonwealth argues that the 

record shows that in convicting Baker of trespass, the circuit 

court drew the reasonable inference that the “no trespassing” 

sign was properly posted by a homeowner or resident of the 

property and that Baker was not authorized to enter the yard. 

According to the Commonwealth, the circuit court also drew the 

reasonable inference that the property owner had the right to 

forbid access to the yard. 

The Commonwealth contends that the trial judge was free to 

disregard Baker’s self-serving assertion to police that the 

property belonged to his cousin. Furthermore, the Commonwealth 

argues that at the close of its case the burden of going 

forward with credible evidence to overcome the reasonable 

inference of guilt shifted to Baker and he failed to meet that 

burden. 

Applying the principles of statutory construction set 

forth above, we hold that the plain language of Code § 18.2-119 

requires proof, as an element of the crime of trespass, that 

oral or written notice of the proscription against entry be 

given or a “no trespassing” sign be posted by the owner, 

lessee, custodian, or other person lawfully in charge of the 

property, or by the holder of an easement or other right-of-way 

8
who was authorized to post such a sign by the instrument 

creating that person’s interest in the property. 

Because there was no evidence that any oral or written 

prohibition against entry was given to Baker, the issue in this 

case is whether the “no trespassing” sign on the property was 

properly posted by a person authorized by the statute. The 

Commonwealth has the burden to prove every essential element of 

the charged crime beyond a reasonable doubt. Hubbard v. 

Commonwealth, 276 Va. 292, 295, 661 S.E.2d 464, 466 (2008); 

Washington v. Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485, 

487 (2007). Therefore, the Commonwealth was required to prove 

beyond a reasonable doubt that the property was posted by one 

of the enumerated parties having authority to do so. 

Having construed Code § 18.2-119 in accordance with its 

plain meaning, we now consider whether the evidence was 

sufficient to support Baker’s conviction for trespass. 

When analyzing a challenge to the sufficiency of 

the evidence, this Court reviews the evidence in 

the light most favorable to the prevailing party 

at trial and considers any reasonable inferences 

from the facts proved. The judgment of the 

trial court will only be reversed upon a showing 

that it is plainly wrong or without evidence to 

support it. 

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 

(2006) (internal citations and quotation marks omitted). We 

hold that the evidence was insufficient to prove Baker 

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committed trespass in violation of the statute. The 

Commonwealth presented no evidence regarding who posted the “no 

trespassing” signs observed by the police officers. The record 

therefore contains no indication whether that person or persons 

had authority to post the property under Code § 18.2-119. 

Because we conclude that the Commonwealth has failed to satisfy 

one of the elements of the offense, we need not address Baker’s 

argument that the Commonwealth failed to establish that he was 

a person intended to be excluded by the “no trespassing” signs. 

CONCLUSION

Proof of the existence of the “no trespassing” signs on 

the property alone is insufficient to satisfy the elements of 

trespass set forth in Code § 18.2-119. Without evidence that a 

“no trespassing” sign was posted by one of the enumerated 

persons authorized by the statute to prohibit entry upon the 

property, the Commonwealth failed to put on sufficient evidence 

of Baker’s guilt. For the reasons set forth above, we 

therefore reverse the judgment of the Court of Appeals, vacate 

Baker’s conviction under Code § 18.2-119, and dismiss the 

indictment. 

Reversed, vacated, and dismissed.

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