The Supreme Court heard oral argument in Commonwealth v. Cartosia over whether the trial court erred by denying a jury instruction that would have allowed jurors to consider a defendant’s "claim of right" defense to a trespass charge.

The issue is central to whether a defendant must present more than a "scintilla" of evidence showing a good-faith belief and authorization to be on property before a judge may refuse the instruction, and, if the instruction was wrongfully denied, whether the error was harmless under statute 8.01-678.

William K. Hamilton, Senior Assistant Attorney General for the Commonwealth, told the court the trial court properly exercised its gatekeeping role and that Cartosia "did not show that he had good faith by more than a scintilla of evidence." Hamilton told justices that the uncontested record shows Cartosia arrived at Turnberry Tower around or after midnight, remained for more than 90 minutes, and repeatedly declined to have the resident contacted to authorize his presence. He said security personnel told Cartosia he could not remain unless the resident confirmed his presence and that Officer Reid later relayed the same requirement.

Hamilton argued that any implied invitation was revoked when property agents instructed Cartosia to leave and that the defendant therefore failed to meet the "authorization" element required for the claim-of-right instruction. He also urged the court to apply harmless-error review under 8.01-678 and said prior appellate precedent allows courts to determine whether a wrongly withheld instruction affected substantial justice.

Kevin N. Tamill, representing Cartosia, countered that the record contains more than a scintilla of evidence supporting Cartosia's claimed good-faith belief that he was permitted on the property. "I think it is clear that there is more than a scintilla of evidence to support mister Cortozzia's claim of right to be on the property," Tamill said, pointing to testimony that Cartosia had been admitted previously in various ways and to witness testimony about his visits.

Tamill told the court that authorization can be implied and that credibility questions about what Cartosia believed and how he had been treated in prior visits were matters for a jury. He argued the trial judge’s refusal to give the instruction deprived the jury of the legal framework necessary to evaluate Cartosia’s defense during closing argument.

Justices questioned both sides about whether an initial subjective belief could survive repeated directives from property representatives to leave, and about the correct standard of appellate review for a judge’s denial of a requested jury instruction. Counsel agreed the appellate standard for reviewing whether a trial court erred on an instruction generally is for abuse of discretion, while harmless-error review looks to whether any error influenced the verdict.

During argument the Commonwealth cited a published Court of Appeals opinion (Welch) and the Brandow line of authority addressing the scintilla standard; both parties also referenced other appellate decisions used to frame the standards for authorization, harmless error, and the appropriate evidentiary view on appeal. Neither side announced any additional factual evidence during oral argument.

The court did not announce a decision at argument. The case will be resolved by the justices after they consider briefs, oral argument, and applicable precedents.