Georgia Code, Volume 14A, 2015 Supplement

2015·20.1 MB·English

by  State of Georgia

CODE OF GEORGIA
OFFICIAL
ANNOTATED
2015 Supplement
Including Acts of the 2015 Regular Session of the General Assembly
Prepared by
The Code Revision Commission
The Office of Legislative Counsel
and
The Editorial Staff of LexisNexis®
Published Under Authority of the State of Georgia
Volume 14A
2011 Edition
—
Title 16. Crimes and Offenses (Chapters 7- 11)
Including Annotations to the Georgia Reports
and the Georgia Appeals Reports
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—
©
Copyright 2012 2015
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ISBN 978-1-4224-9385-4
5018233
(Pub.41805)
THIS SUPPLEMENT CONTAINS
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Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
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Corpus Juris Secundum.
Uniform Laws Annotated.
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Tables:
A
In Volume 41, a Table Eleven- comparing provisions of the 1976
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Eleven-B comparing provisions of the 1983 Constitution of Georgia to
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IV
TITLE
16
CRIMES AND OFFENSES
VOLUME
14
Chap.
1 General Provisions, 16-1-1 through 16-1-12.
.
3. Defenses to Criminal Prosecutions, 16-3-1 through 16-3-40.
5. Crimes Against the Person, 16-5-1 through 16-5-110.
6 Sexual Offenses, 16-6-1 through 16-6-25.
.
VOLUME
14A
7. Damage to and Intrusion upon Property, 16-7-1 through
16-7-97.
8 Offenses Involving Theft, 16-8-1 through 16-8-106.
.
9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157.
10 Offenses Against Public Administration, 16-10-1 through
.
16-10-98.
11 Offenses Against Public Order and Safety, 16-11-1 through
.
16-11-203.
VOLUME
14B
12 Offenses Against Public Health and Morals, 16-12-1
.
through 16-12-191.
13. Controlled Substances, 16-13-1 through 16-13-114.
14. Racketeer Influenced and Corrupt Organizations, 16-14-1
through 16-14-15.
15. Street Gang Terrorism and Prevention, 16-15-1 through
16-15-11.
16. Civil forfeiture of Property Used in Burglary, Armed Rob-
bery, or Home Invasion, 16-16-1 through 16-16-2.
—
Law
reviews. For note, “Seen But ibility of Recanted Testimony,” see 46 Ga.
Not Heard: An Argument for Granting L. Rev. 213 (2011).
Evidentiary Hearings to Weigh the Cred-
2015 Supp. 1
T.16, C.7 CRIMES AND OFFENSES 16-7-1
CHAPTER
7
DAMAGE TO AND INTRUSION UPON PROPERTY
Article 1 Article 4
Burglary
Bombs, Explosives, and Chemical
Sec. and Biological Weapons
16-7-1. Burglary.
Sec.
Article 1A
16-7-95. Civil forfeiture for violations of
Home
Invasion article; special provisions for
16-7-5. Home invasion in the first and destructive material.
second degree.
ARTICLE
1
BURGLARY
16-7-1. Burglary.
(a) As used in this Code section, the term:
“Dwelling” means any building, structure, or portion thereof
(1)
which is designed or intended for occupancy for residential use.
(2) “Railroad car” shall also include trailers on flatcars, containers
on flatcars, trailers on railroad property, or containers on railroad
property.
A
(b) person commits the offense ofburglary in the first degree when,
without authority and with the intent to commit a felony or theft
therein, he or she enters or remains within an occupied, unoccupied, or
vacant dwelling house of another or any building, vehicle, railroad car,
watercraft, aircraft, or other such structure designed for use as the
A
dwelling of another. person who commits the offense ofburglary in the
first degree shall be guilty of a felony and, upon conviction thereof, shall
be punished by imprisonment for not less than one nor more than 20
Upon
years. the second conviction for burglary in the first degree, the
defendant shall be guilty of a felony and shall be punished by impris-
onment for not less than two nor more than 20 years. Upon the third
and all subsequent convictions for burglary in the first degree, the
defendant shall be guilty of a felony and shall be punished by impris-
onment for not less than five nor more than 25 years.
A
(c) person commits the offense of burglary in the second degree
when, without authority and with the intent to commit a felony or theft
therein, he or she enters or remains within an occupied, unoccupied, or
vacant building, structure, vehicle, railroad car, watercraft, or aircraft.
A
person who commits the offense ofburglary in the second degree shall
2 2015 Supp.
16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1
be guilty of a felony and, upon conviction thereof, shall be punished by
imprisonment for not less than one nor more than five years. Upon the
second and all subsequent convictions for burglary in the second degree,
the defendant shall be guilty of a felony and shall be punished by
imprisonment for not less than one nor more than eight years.
(d) Upon a fourth and all subsequent convictions for a crime of
burglary in any degree, adjudication of guilt or imposition of sentence
shall not be suspended, probated, deferred, or withheld. (Laws 1833,
Cobb’s 1851 Digest, p. 790; Ga. L. 1858, p. 98, § 1; Code 1863, §§ 4283,
4285; Ga. L. 1865-66, p. 232, § 2; Ga. L. 1866, p. 151, § 1; Ga. L. 1868,
p. 16, § 1; Code 1868, §§ 4320, 4322; Code 1873, §§ 4386, 4388; Ga. L.
1878-79, p. 65, §§ 1, 2; Code 1882, §§ 4386, 4388; Penal Code 1895,
§§ 149, 150; Penal Code 1910, §§ 146, 147; Code 1933, §§ 26-2401,
26-2402; Code 1933, § 26-1601, enacted by Ga. L. 1968, p. 1249, § 1;
Ga. L. 1977, p. 895, § 1; Ga. L. 1978, p. 236, § 1; Ga. L. 1980, p. 770,
§ 1; Ga. L. 2012, p. 899, § 3-1/HB 1176.)
The 2012 amendment, effective July punished by imprisonment for not less
1, 2012, rewrote this Code section, which than five nor more than 20 years. Adjudi-
A
read: “(a) person commits the offense of cation of guilt or imposition of sentence
burglary when, without authority and shall not be suspended, probated, de-
with the intent to commit a felony or theft ferred, or withheld for any offense punish-
therein, he enters or remains within the able under this subsection.” See editor’s
dwelling house of another or any building, note for applicability.
—
vehicle, railroad car, watercraft, or other Code Commission notes. Pursuant
such structure designed for use as the to Code Section 28-9-5, in 2012, “more
dwelling of another or enters or remains than” was substituted for “more that” in
within any other building, railroad car, the next-to-last sen—tence of subsection (b).
A
aircraft, or any room or any part thereof. Editor’s notes. Ga. L. 2012, p. 899,
person convicted ofthe offense ofburglary, 9-l(a)/HB 1176, not codified by the Gen-
§
for the first such offense, shall be pun- eral Assembly, provides: “This Act shall
ished by imprisonment for not less than become effective on July 2012, and shall
1,
one nor more than 20 years. For the pur- apply to offenses which occur on or after
poses of this Code section, the term ‘rail- that date. Any offense occurring before
road car’ shall also include trailers on July 1, 2012, shall be governed by the
flatcars, containers on flatcars, trailers on statute in effect at the time ofsuch offense
railroad property, or containers on rail- and shall be considered a prior conviction
road property. for the purpose of imposing a sentence
“(b) Upon a second conviction for a that provides for a different penalty for a
crime of burglary occurring after the first subsequent conviction for the same type of
conviction, a person shall be punished by offense, of whatever degree or level, pur-
imprisonment for not less than two nor suant to this Act.” —
more than 20 years. Upon a third convic- Law reviews. For article on the
tion for the crime of burglary occurring 2012 amendment of this Code section, see
after the first conviction, a person shall be 29 Ga. St. U.L. Rev. 290 (2012).
JUDICIAL DECISIONS
Analysis
General Consideration
Elements of Burglary
2015 Supp. 3
16-7-1 CRIMES AND OFFENSES 16-7-1
Unauthorized Entry
2.
3. Intent
Indictments
Jury Instructions
Inferences and Sufficiency and Admissibility of Evidence
Sentencing
General Consideration arrestee for burglary; an eyewitness ob-
— served the arrestee and another person
Identification of defendant. With
entering a vacant home, officers found
regard to the defendant’s convictions for
that the home’s back door appeared to
armed robbery, aggravated assault, bur-
have been damaged, and the arrestee and
glary, and false imprisonment, the trial
the other person admitted that they did
court did not err by denying the motion to
not have permission to enter. Gray v.
suppress the out-of-court identifications of
Ector, No. 12-11323, 2013 U.S. App.
the defendant because the court found LEXIS 19261 (11th Cir. Sept. 18, 2013)
that the simultaneous lineup was not im-
(Unpublished).
permissibly suggestive as a matter of law Cited in Martinez v. State, 318 Ga. App.
based on the testimony of the officer who 254, 735 S.E.2d 785 (2012); Coleman v.
prepared and presented the lineup that State, 318 Ga. App. 478, 735 S.E.2d 788
the victims were admonished that the (2012); Ware v. State, 321 Ga. App. 640,
suspect may not be in the array McCowan 742 S.E.2d 156 (2013); Avila v. State, 322
v. State, 325 Ga. App. 509, 753 S.E.2d 775 Ga. App. 225, 744 S.E.2d 405 (2013); Wil-
(2014). liams v. State, 326 Ga. App. 784, 757
Evidence sufficient for delinquency S.E.2d 448 (2014); Easter v. State, 327 Ga.
adjudication. App. 754, 761 S.E.2d 149 (2014); Turner v.
Evidence was sufficient to adjudicate a State, 331 Ga. App. 78, 769 S.E.2d 785
child delinquent for the adult crime of (2015).
burglary under O.C.G.A. 16-7-1 based
§
on a neighbor’s testimony that the neigh- Elements of Burglary
bor saw the child tampering with and
Unauthorized Entry
opening the victim’s back door and the 2.
child’s admission that the child “cracked” Affirmative defenses.
the door. That day, it was discovered that Because a defendant’s evidence that the
money and video games were taken from defendant acted under a misapprehension
the victim. In the Interest of R. H., 313 of fact in entering a house would have
Ga. App. 416, 721 S.E.2d 628 (2011). authorized the jury to acquit the defen-
Sufficient evi—dence to prove iden- dant of burglary under O.C.G.A.
tity and intent. Evidence in support of § 16-7-1(a), and because the charge that
the burglary charge was sufficient to was given did not properly inform thejury
prove identity and intent as the victim about the true nature of the defendant’s
identified the defendants as the individu- affirmative defense, the defendant was
als who had been in the victim’s house entitled to a charge on mistake of fact
when the officers drove to the victim’s under O.C.G.A. § 16-3-5. Price v. State,
house with the defendants. In addition, 289 Ga. 459, 712 S.E.2d 828 (2011).
the jury was authorized to find that the Entry gained—by fraud, deceit, or
defendants intended to commit a theft false pretense. Appellate court erred
when the defendants entered the house by reversing appellee’s conviction for bur-
without permission, looked behind and glary because a person enters a home
inside the victim’s furniture, and left once without authority when that person en-
the victim called police. Gorman v. State, ters without the consent of the owner and
318 Ga. App. 535, 734 S.E.2d 263 (2012)—. when that consent was obtained by fraud,
Probable cause for arrest. deceit, or false pretense, thus, by fraudu-
Arrestee’s false arrest claim failed be- lently posing as a potential house pur-
cause probable cause existed to arrest the chaser and providing false identification
4 2015 Supp.
16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1
and information, appellee violated State, 312 Ga. App. 293, 718 S.E.2d 126
O.C.G.A. 16-7-1. State Newton, 294 2011
§ v.
( ).
Ga. 767, 755 S.E.2d 786 (2014).
Entry gained by fraud, deceit, or Indictments
—
false pretense. Intruder who breaches
the barrier with a lie or deception, by Fai—lure to file timely special demur-
rer. Defendant could admit every alle-
pretending to deliver a package or to read
a meter, is no less dangerous than their gation of the indictment and still lack the
more stealthy cohorts, and nothing in the requisite intent for an attempt at bur-
glary. Consequently, the indictment would
burglary statute, O.C.G.A. § 16-7-1, sug-
gests an intent to exempt them from lia- not have withstood a timely general de-
bility. State v. Newton, 294 Ga. 767, 755 murrer, and trial counsel’s performance
S.E.2d 786 (2014). was deficient in counsel’s failure to timely
—
Entry into store. Evidence was suf- challenge the validity of the attempted
ficient to convict a defendant ofburglariz- burglary count. Coleman v. State, 732
ing a tool supply store, because the defen- S.E.2d 466, No. A12A1087, 2012 Ga. App.
dant’s blood was found on the smashed-in LEXIS 777 (201—2).
door and the defendant had two prior Sufficient. Burglary count of the
convictions for strikingly similar hard- indictment was sufficient to withstand a
ware store burglaries. Although the evi- general demurrer because although the
dence was circumstantial, there was no offense was mislabeled as “aggravated
other evidence of how the defendant’s battery” in the body of the count, the
blood could have been at the scene. The averment portion ofthe count followed the
trial court’s definition of “entry” as entry language ofthe burglary statute and fully
on to real estate was not error or if error apprised defendant ofthe offense charged.
was not harmful, because the charge as a The subject heading of the count clearly
whole required that the defendant enter referred to the offense as burglary and the
the building. Roberts v. State, 309 Ga. heading was followed by a citation to the
App. 681, 710 S.E.2d 878 (2011). burglary statute itself. Jackson v. State,
316 Ga. App. 588, 730 S.E.2d 69 (2012).
3. Intent No fatal variance between indict-
ment and proof.
Effect of defendant’s intoxication.
— Any variance between the indictment
Evidence was sufficient to support the
and the evidence at trial pertaining to the
defendant’s burglary conviction since the
ownership ofthe building burglarized was
jury decided that evidence of the defen-
not fatal, because ownership was not an
dant’s intoxication did not disprove intent.
element of burglary. Smarr v. State, 317
In addition to testimony about the televi-
Ga. App. 584, 732 S.E.2d 110 (2012).
sion wires having been disconnected from
Defendant waived the defendant’s argu-
various devices in the victim’s house, one
ment that there was a fatal variance be-
witness testified that the television was
tween the indictment for burglary and the
sitting upright on the floor, not face-down,
proof by not presenting the indictment to
despite the defendant’s testimony that the
the trial court; moreover, given evidence
defendant had knocked the television off
from the victim that the victim did not
the stand. Dillard v. State, 323 Ga. App. owe the defendant any money and that
333, 744 S.E.2d 863 (2013).
the defendant broke into the victim’s
Sufficient evidence of intent.
apartment and then left with the victim’s
Evidence that the defendant and an-
television and a cell phone, there was no
other were carrying stolen items toward a
variance. Thompson v. State, 324 Ga. App.
police officer’s car and that they dropped
20, 749 S.E.2d 27 (2013).
the items and ran when they realized it
was a police car, despite the officer shout- Jury Instructions
ing at them to stop, was sufficient to
convict the defendant of burglary and ob- Charge on criminal trespass as
struction ofjustice in violation ofO.C.G.A. lesser included offense.
§§ 16-7-l(a) and 16-10-24(a). Mitchell v. Because there was no written request,
2015 Supp. 5
16-7-1 CRIMES AND OFFENSES 16-7-1
Jury Instructions (Cont’d) defendant’s intent could be inferred from
falsely telling a witness that permission
the trial court did not err by failing to was given to take the items. Pullins v.
instruct the jury on criminal trespass as a State, 323 Ga. App. 664, 747 S.E.2d 856
lesser included offense of burglary (2013).
Boatright v. State, 289 Ga. 597, 713 Sufficient circumstantial evidence
S.E.2d 829 (2011). supported burglary of school convic-
—
Defendant’s trial counsel was not inef- tion. State provided circumstantial ev-
fective for failing to request a jury charge idence to support the defendant’s burglary
on criminal trespass as a lesser included conviction including evidence to show that
offense of burglary since such a charge the building had an alarm that was set for
would not have been warranted by the the night, the defendant entered the
evidence, which showed that the defen- building by breaking a window and set-
dant harbored either the unlawful pur- ting off the alarm, the defendant was not
pose of committing theft or the lawful an employee or parent of a student at the
purpose ofgoing back to sleep in a friend’s school, and the defendant fled after set-
house. Dillard v. State, 323 Ga. App. 333, ting offthe alarm. Harris v. State, 322 Ga.
744 S.E.2d 863 (2013).
App. 122, 744 S.E.2d 111 (2013).
Defendant was not entitled to an in- Sufficient circumstantial evidence
struction on criminal trespass as a lesser
of intent.
included offense of burglary because, if
Defendant’s conviction of criminal at-
the jury believed the state’s evidence, the
tempt to commit burglary was affirmed
defendant was guilty of burglary and if
because while the defense presented a
the jury accepted the defendant’s defense
different theory of events and claimed
to the crime, the defendant was guilty of
that defendant did not act with the intent
no offense. Stillwell v. State, 329 Ga. App.
to commit a theft, it was the jury’s prov-
108, 764 S.E.2d 419 (2014). —
ince to assess witness credibility, resolve
Refusal to charge mistake of fact.
the conflicts in the evidence, and deter-
Trial court did not err in failing to charge
mine whether there was a reasonable hy-
the jury on the defense of mistake of fact
pothesis of innocence favorable to defen-
under O.C.G.A. § 16-3-5 as to the bur- dant. Anthony v. State, 317 Ga. App. 807,
glary counts ofthe indictment because the
732 S.E.2d 845 (2012).
fact that the defendant could have
With regard to the defendant’s convic-
thought that someone lived in the home
tion for attempted burglary, sufficient ev-
did not constitute the type of mistake of
idence supported the conviction because
fact that would serve as a defense to the
the jury evaluated the nature of the cir-
defendant’s unauthorized entry into the
cumstances of the morning’s events, as
home since the evidence was
well as the daughter’s eyewitness testi-
uncontroverted that the defendant was
mony identifying the defendant and, al-
not invited into the home. Boatright v. though defendant explained that it was
State, 289 Ga. 597, 713 S.E.2d 829 (2011).
mistakenly the wrong house, the jury was
Inferences and Sufficiency and authorized to come to a different and
reasonable conclusion based on the state’s
Admissibility of Evidence
case. White v. State, 323 Ga. App. 660, 744
Inference or presumption of fact S.E.2d 857 (2013).
sufficient to convict. Evidence was sufficient to prove intent
Jury was authorized to find the defen- for burglary as the jury could infer an
dant guilty of burglary beyond a reason- intent to steal based on the evidence of an
able doubt because the evidence showed unlawful entry into a building housing an
that the defendant was seen loading the operating business, despite no evidence
victim’s furniture, television and other that valuable items were located in the
items onto a truck, the victim did not building, and that defendant crawled out
know the defendant and did not give the of the window during a time when the
defendant permission to enter the apart- business was closed, and ran when con-
ment or take any belongings, and the fronted by the security guard. Taylor v.
6 2015 Supp.