COURT OF APPEALS OF VIRGINIA


Present:  	Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia


CHARLES BERNARD CUSTALOW
			OPINION BY
v.	Record No. 2303-02-2	JUDGE ROBERT J. HUMPHREYS
	MAY 18, 2004
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Thomas B. Hoover, Judge

		Robert H. Smallenberg for appellant.

		Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. 
Kilgore, Attorney General; Stephen R. McCullough, Assistant 
Attorney General, on brief), for appellee.


	Charles Bernard Custalow appeals his conviction for trespassing in violation of Code 
 18.2-119.  Appellant contends that the Mattaponi Indian Tribe improperly barred him from its 
reservation.  Thus, the Commonwealth failed to prove appellant was forbidden to "go[] upon or 
remain upon" the reservation by the "person lawfully in charge thereof."  See Code  18.2-119.  
For the reasons that follow, we affirm his conviction.
I.  Background
	On appeal, we review the evidence and all reasonable inferences in the light most 
favorable to the Commonwealth as the party prevailing below.  Juares v. Commonwealth, 26 
Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).  That principle requires us to discard the 
evidence of the defendant in conflict with the Commonwealth's evidence and regard as true all 
evidence favorable to the Commonwealth.  See Watkins v. Commonwealth, 26 Va. App. 335, 
348, 494 S.E.2d 859, 866 (1998).   So viewed, the record shows that appellant trespassed upon 
the Mattaponi Indian Reservation on February 23, 2002 after having been forbidden to do so.   
	At trial, the Commonwealth presented one witness, Mark Custalow, a member of the 
tribal council of the Mattaponi Indian tribe, who testified he saw appellant on the reservation on 
February 23, 2002.  He further testified that, after a tribal council meeting on November 3, 2000, 
the council voted to expel appellant from the reservation for a period of two years.  The council 
subsequently extended the expulsion by one year because appellant violated the tribal council's 
ruling.  Mark Custalow testified that the matter was also voted upon at a tribal meeting.  He 
stated that the tribal meeting was a regular meeting of the tribe and that "somewhere in the 
neighborhood of less than one-half of tribal members show up at the regular meetings."  
	The written statement of facts asserts that the trial court 
took judicial notice that in a previous circuit court civil case an 
appeal of the Tribal Council's decision to bar [appellant] from the 
reservation was dismissed on jurisdictional grounds and, therefore, 
the council's decision stood.  The trial court noted that the prior 
matter had collateral estoppel effect upon the issue of whether 
[appellant] was barred from the reservation.  [Appellant] argued 
that a civil matter cannot have collateral estoppel effect upon a 
criminal matter due to, among other things, the differing standards 
of proof.  The court overruled this argument and noted 
[appellant's] exception.
Appellant subsequently argued that he could not be convicted "unless there was . . . a 
vote of a majority of the members of the tribe voting [in] favor of such a barring."   "The trial 
court rejected this defense and [appellant] noted his exception."
The trial court subsequently convicted appellant of trespassing and sentenced him to 
serve six months in jail and to pay a $1,000 fine.  The trial court suspended the jail term in its 
entirety and suspended $800 of the $1,000 fine.
II.  Analysis
On appeal, appellant contends that "the trial court err[ed] in finding [him] guilty of 
trespassing upon the Mattaponi Indian Reservation [because] there was evidence that the tribal 
council did not follow the proper procedure in barring [him] from the reservation[.]"  Appellant 
further claims that the trial court erred in finding that the "dismissal of [the] prior civil appeal of 
[his] barring from the reservation on jurisdictional grounds had collateral estoppel [sic] in the 
instant proceeding."
Before reaching the merits of appellant's arguments, we note two troubling 
inconsistencies in the appellant's written statement of facts.  First, the record reflects that the 
original written statement of facts, which was initially filed in this appeal, did not contain the 
paragraph quoted above concerning the trial court "not[ing]" the "collateral estoppel effect" of 
appellant's expulsion and subsequent appeal.  However, because the trial court failed to sign the 
original written statement of facts, we remanded the matter for appropriate action pursuant to 
Rules 5A:8(c)(2) or 5A:8(d).  The written statement of facts that was subsequently filed was 
signed by the trial court and contained this additional paragraph.  Nevertheless, the trial court's 
handwritten notes on the "Misdemeanor/Traffic Order" for the trial of July 24, 2002, reflect only 
that the court took "judicial notice" that appellant had "notice" of the expulsion, due to the 
previous "court case."  The trial court's notes make no mention of the words "collateral 
estoppel" or "collateral attack."
Second, although both written statements of fact reflect that appellant noted his 
exceptions to the challenged rulings, the trial court's handwritten notes do not reflect such 
"exceptions."  In fact, the trial court's notes specifically state that its conclusion that Custalow 
was "properly excluded from [the] reservation" "came in without objection."
Despite the above, because the trial court's handwritten notes concerning the trial 
proceedings do not take the form of an order, and because the final, typewritten "Misdemeanor 
Trial Order" makes no reference to these matters, we assume without here deciding, that the 
written statement of facts does not conflict with the trial court's order and that appellant properly 
preserved his appeal. 
	Turning to the merits of appellant's arguments, we first note that Code  18.2-119 
provides in relevant part:
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.

	Appellant argues insufficient evidence existed to establish that those "lawfully in charge" 
of the reservation forbade him from going on the reservation.  Specifically, appellant claims the 
tribal council did not follow the proper procedure in barring him.  In support of his argument, 
appellant cites to the Acts of the Assembly, 1896 Va. Acts ch. 843, which states:
1.  Be it enacted by the general assembly of Virginia, That an act 
entitled an act to appoint trustees for the Mattaponi tribe of Indians 
of King William county, and to prescribe their duties as such 
trustees, approved March eight, eighteen hundred and ninety-four, 
be amended and re-enacted so as to read as follows:

 1.  Be it enacted by the general assembly of Virginia, That 
Doctor B. Richards, R.C. Hill, senior, L.D. Robinson, J.S. 
Robinson and W.T. Neale be, and they are hereby, appointed 
trustees for the Mattaponi Indian tribe, in King William county, 
Virginia, formerly known as a branch of the Pamunkey Indian 
tribe.  Said trustees shall be governed by the laws now in force in 
regard to Indians and their reservations in this state; and, further, 
shall have the right upon the vote of the majority of the trustees, 
and also a majority of the members of the tribe above twenty-one 
years of age, to expel from their reservation, any person who has 
no right upon said reservation, or any member of the tribe who 
shall be guilty of any lawful offense:  provided that any person 
expelled from said reservation shall have the right of appeal to the 
county court of King William from the decision of the trustees and 
the members of the tribe.

2.  This act shall be in force from its passage.

Based upon this legislation, appellant contends that the only manner in which he could have 
been barred from the Mattaponi reservation was pursuant to a "vote of the majority of the 
trustees), and also a majority of the members of the tribe above twenty-one years of age."  Id.  
Because evidence in the record established that, after the tribal council voted to bar appellant 
from the reservation, they finalized his expulsion after a tribal meeting, and because Mark 
Custalow testified that "somewhere in the neighborhood of less than one-half of the tribal 
members show up at the regular meetings," appellant claims that the Commonwealth failed to 
prove that he was barred from the reservation upon a vote of "a majority of the members of the 
tribe above twenty-one years of age."  We disagree.
	The Indian Treaty of 1677, between the King of England, acting through the Lieutenant 
Governor of Virginia, and the Indian tribes constituting what is generally referred to by 
historians as the Powhatan Confederacy including what is now known as the Mattaponi Indian 
Tribe, specifically provided, in relevant part, that:
II.   . . . [T]he said Indian Kings & Queens and their Subjects shall 
hold their lands, and have the same confirmed to them and their 
posterity by Patent under the Seale of this his Majesties Colony, 
without any fee gratuity or Reward for ye same, in such sort, and 
in as free and firme manner as other his Majesties Liege Subjects, 
have and enjoye their Lands, and possessions . . . .
III.  That all Indians who are in amity with us, & have not land 
siffitient to plant up, be upon information forthwith provided for, 
and laid out, and confirmed to them as affores'd never to be 
disturbed therein, or taken from them, soe long as they owne keep 
and maintaine the due obedience & Subjection to his Majestie his 
Govern'r and Government; & amity & friendship towards the 
English.
Treaty Between Virginia and the Indians (1677).  
Pursuant to the Treaty, the Commonwealth has recognized that although it maintains a 
fee simple interest in the reservation, that interest is "subject to the exclusive use and occupancy 
of the [tribe] possessing Indian title to the land."  2001 Va. Att'y Gen. 36.  Nevertheless, over the 
hundreds of years since the signing of the Treaty, the legislature has "frequently appointed 
trustees to lease the surplus lands of the[] tribe[] and empowered the trustees to prosecute actions 
against persons trespassing thereon."  1917 Va. Att'y Gen. 160.  It was exactly for that purpose 
that 1894 Va. Acts ch. 845, and its amended version, 1896 Va. Acts ch. 843, was enacted.  Id.; 
see also 1917 Va. Att'y Gen. 161 (recognizing that the trustees were appointed to provide 
"protection and assistance" to the Tribe "in carrying out their by-laws and in governing their 
tribe and reservation," including prosecuting actions at law (or "in tort") against trespassers 
(quoting 1894 Va. Acts ch. 845)).  Appellant points to no authority for his supposition that the 
Acts were intended to provide the sole method by which the Mattaponi could expel or forbid an 
individual from "coming upon the reservation," nor do we find any such authority.  Cf. 
Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 378, 541 S.E.2d 920, 926 (2001) 
(recognizing that the Mattaponi Tribe "possesses[,] in its own right[,] justiciable interests"). 
Accordingly, because the evidence before the trial court established, without dispute, that 
the Tribal Council  at a regular tribal meeting voted to bar Custalow from the reservation, and, 
because the Supreme Court of Virginia has specifically recognized that the Tribal Council is the 
"governmental body" of the sovereign Mattaponi Tribe, we find the evidence was sufficient to 
establish that Custalow was forbidden from entering the reservation by those "lawfully in charge 
thereof."  Id.; see also Report of the Joint Subcommittee Studying Relationships Between the 
Commonwealth and Native Indian Tribes to the Governor and the General Assembly of Virginia, 
House Document No. 10, at 4 (1983) (recognizing that the treaty between the Commonwealth 
and the Mattaponi included provisions for possession of tribal reservations and "the right of 
internal tribal government").
We likewise disagree with appellant's claim that the trial court improperly attributed 
"collateral estoppel" effect to the King William County Circuit Court's dismissal of his appeal of 
the expulsion.  Indeed, the written statement of facts indicates only that the "trial court noted that 
the prior matter had collateral estoppel effect upon the issue of whether defendant was barred 


from the reservation."  This language comports with the trial court's handwritten notes, 
indicating that it considered the prior adjudication only as evidence of "notice" to Custalow that 
he had been barred from the reservation.  It does not establish, as Custalow contends, that the 
trial court considered that adjudication as preclusive with regard to whether Custalow was barred 
from the reservation by someone "lawfully in charge thereof."  Indeed, the written statement of 
facts proves that the trial court took evidence, from Mark Custalow, on that very issue - evidence 
which appellant did not dispute - and found that appellant was "properly excluded from [the] 
reservation."  We find no error in that determination and we, thus, affirm appellant's conviction.
Affirmed.


Annunziata, J., dissenting.

	I respectfully dissent because I would find that the Commonwealth failed to establish that 
Charles Custalow (Charles) was expelled from the reservation by those "lawfully in charge" as 
required by the criminal trespass statute, Code  18.2-119.
	It is well established that the Due Process Clause of the United States Constitution 
"protects the accused against conviction except upon proof beyond a reasonable doubt of every 
fact necessary to constitute the crime with which he is charged."  In re Winship, 397 U.S. 358, 
364 (1970).
	Here, the Commonwealth failed to prove beyond a reasonable doubt all the elements of 
the criminal trespass statute.  Specifically, the Commonwealth failed to prove that those 
"lawfully in charge" of the reservation forbade Charles from "going upon" their land because it 
presented no evidence that a majority of the tribal members over twenty-one years of age voted 
to expel him as required by 1896 Va. Acts ch. 843 (the Act).  The Act states that the trustees of 
the tribe:
shall have the right upon the vote of the majority of the trustees, 
and also a majority of the members of the tribe above twenty-one 
years of age, to expel from their reservation, any person who has 
no right upon said reservation, or any member of the tribe who 
shall be guilty of any lawful offense[.]
1896 Va. Acts ch. 843.  Contrary to the Commonwealth's contention, the Act does not establish 
"two ways to bar an individual from the reservation."   A plain reading reveals that the terms, 
"majority of the trustees" and "majority of the members of the tribe over twenty-one years of 


age," are stated in the conjunctive; in other words, both conditions must be satisfied for a proper 
expulsion.  A "plain, obvious, and rational meaning of a statute is always to be preferred to any 
curious, narrow, or strained construction."  Turner v. Commonwealth, 226 Va. 456, 459, 309 
S.E.2d 337, 338 (1983).
	Here, the Commonwealth failed to establish that a majority of the tribal members over 
twenty-one years of age voted to expel Charles.  Mark Custalow (Mark), the Commonwealth's 
main witness, testified that Charles was expelled by vote of the "tribal council."   He further 
testified that the tribal council voted at a tribal meeting and that "somewhere in the neighborhood 
of less than one-half of the tribal members show up at the regular meetings."  The meeting which 
resulted in Charles's expulsion was described as a "regular meeting."  In order to find 
compliance with the Act, the trial court would have had to infer that, although fewer than a 
majority of the members were present, a majority of those over twenty-one years of age, in fact, 
were present and voted to expel Charles.  Although we grant all reasonable inferences to the 
Commonwealth, the inference must be a "logical deduction or conclusion from established fact."  
United States v. Grow, 394 F.2d 182, 199 (4th Cir. 1968).  Neither Mark's testimony 
establishing that the "tribal council" voted to expel Charles or his testimony that "somewhere in 
the neighborhood of less than one-half of the tribal members" were present at the meeting permit 
the reasonable inference that a majority of tribal members over the age of twenty-one voted to 
expel Charles.
The only evidence that persons "lawfully in charge" of the reservation expelled Charles is 
Mark's testimony that the "tribal council," the entity which voted to expel Charles, "determines 


. . . who can be barred from the reservation."  His statement is patently inconsistent with the 
voting requirements set forth by the Act and his testimony regarding a matter of law is not 
binding on this Court.  See Jones v. Commonwealth, 42 Va. App. 142, 147, 590 S.E.2d 572,   
574-75 (2004) (en banc).
	The majority affirms Charles's conviction for trespassing, not on the ground that the 
Commonwealth's proof established he was expelled from the reservation by the vote mandated 
by the Act, but rather on the ground that Charles failed to prove that the Act prescribes the 
exclusive means of expulsion from the Mattaponi Indian Tribe's reservation.  Neither the 
Commonwealth nor the majority points to any authority in support of the proposition that the Act 
does not establish the only valid procedure for expelling a member from the reservation.  Indeed, 
the Commonwealth did not raise such an argument at trial or on appeal.  Rather, its arguments 
were, and continue to be, confined to whether its proof of the authority to expel met the 
requirements of the Act, i.e. that the tribal council, acting alone, had the authority to expel and 
that, in the alternative, the evidence established that a majority of tribal members over the age of 
twenty-one voted to expel Charles from the reservation.
In summary, I would find that the Commonwealth failed to prove all elements of the 
crime of trespass, as defined by Code  18.2-119, because it presented no evidence that those 
"lawfully in charge" of the reservation, as defined by the Act, voted to expel Charles.  
Accordingly, I would reverse the decision of the trial court.
  In lieu of a transcript, appellant has submitted a written statement of facts pursuant to 
Rule 5A:8(c).
  Appellant does not dispute that he was barred from the reservation in 2000, or that he 
was present on the reservation on February 23, 2002, in violation of the expulsion.
  The written statement of facts does not reflect that appellant submitted legal authority 
for this proposition.
  See Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979) 
(holding that, where an order conflicts with a transcript of a related proceeding, the order is 
presumed to be an accurate reflection of what transpired); see also Anderson v. Commonwealth, 
13 Va. App. 506, 509, 413 S.E.2d 75, 77 (1992) (observing that, because transcripts and written 
statements of fact serve the same purpose on appeal, policies concerning them should be 
reasonably analogous); Ange v. York/Poquoson Dep't of Soc. Servs., 37 Va. App. 615, 623 n.7, 
560 S.E.2d 474, 478 n.7 (2002).
  The dissent asserts the Commonwealth failed to prove "those 'lawfully in charge' of the 
reservation forbade Custalow from 'going upon' their land because it presented no evidence that 
a majority of the tribal members over twenty-one years of age voted to expel him as required by 
1896 Va. Acts ch. 843 (the Act)."  This, of course, presupposes that the Mattaponi Tribe and its 
elected leaders have no "lawful" authority or control over their own tribal lands.  We disagree 
with this supposition.  Moreover, as implicitly noted in Mattaponi Indian Tribe, the 19th century 
paternalistic approach toward the Commonwealth's Native American citizens, as embodied in 
the Act, has evidently and appropriately evolved into a relationship that recognizes that they 
have justiciable interests in their own right.  261 Va. at 378, 541 S.E.2d at 926.
  The dissent states that "[b]oth parties treat the terms, 'tribal council' and 'tribal 
trustees,' synonymously.  There is no contention that the Commonwealth failed to prove that the 
trustees acted properly; the issue on appeal is whether it proved that a majority of the tribal 
members over the age of twenty-one voted to expel as required by the Act."  In asserting legal 
insufficiency of the evidence, the appellant makes no such concession.  Furthermore, the 1897 
Act specifically named "Doctor B. Richards, R.C. Hill, senior, L.D. Robinson, J.S. Robinson and 
W.T. Neale" as trustees and provided no mechanism for their replacement upon resignation or 
death, nor does it appear that any subsequent statute provided such a mechanism or directly 
appointed new trustees.  Therefore, the logic of the dissent would necessarily dictate that the 
exclusive "lawful authority" to bar individuals from the Mattaponi reservation is a majority of 
those individuals named over a century ago, together with a majority of the tribal membership 
over twenty-one.  
  In its brief, the Commonwealth argued that "the plain reading of [1896 Va. Acts ch. 
843] demonstrates that there are two ways to bar an individual from the reservation:  (1) the vote 
of the majority of the trustees 'and also' (2) a majority of the members of the tribe who are above 
the age of 21."  It concluded that, because the record established that "a majority of the trustees 
voted to bar the defendant," the Commonwealth did not have to prove that a majority of tribal 
members over the age of twenty-one voted to expel Charles.
  Both parties treat the terms, "tribal council" and "tribal trustees," synonymously.  There 
is no contention that the Commonwealth failed to prove that the trustees acted properly; the issue 
on appeal is whether it proved that a majority of the tribal members over the age of twenty-one 
voted to expel as required by the Act.
 
 

 
 
	- 11 -