Georgia Code, Volume 14A, 2013 Supplement

2013·7.8 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2013 Supplement
IncludingActs ofthe 2013 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial StaffofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume 14A
2011 Edition
—
Title 16. Crimes and Offenses (Chapters 7 11)
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
Charlottesville, Virginia
Copyright © 2012, 2013
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-1-4224-9385-4
5018230
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2013 Regular Session ofthe General Assembly.
Annotations ofJudicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 29, 2013. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgia Annotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 29, 2013.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal of International and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2013 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2013 supple-
ment pamphlets and in the bound volumes ofthe Code.
Contacting LexisNexis®:
Visit our Website at http://www.lexisnexis.com for an online book-
store, technical support, customer service, and other company informa-
tion.
Ifyou have questions or suggestions concerning the Official Code of
GeorgiaAnnotated, please write or call toll free 1-800-833-9844, fax at
1-518-487-3584, or email us at [email protected]. Di-
rect written inquiries to:
LexisNexis®
Attn: Official Code of Georgia Annotated
701 East Water Street
Charlottesville, Virginia 22902-5389
IV
TITLE 16
CRIMES AND OFFENSES
VOLUME
14
Chap.
1. General Provisions, 16-1-1 through 16-1-12.
5. Crimes Against the Person, 16-5-1 through 16-5-110.
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 Pubhc Health and Morals, 16-12-1
through 16-12-176.
13. Controlled Substances, 16-13-1 through 16-13-114.
14. Racketeer Influenced and Corrupt Organizations, 16-14-1
through 16-14-15.
16. Forfeiture of Property Used in Burglary or Armed
Robbery, 16-16-1 through 16-16-2.
—
Law reviews. For note, "Seen But ibility ofRecanted Testimony," see 46 Ga.
Not Heard: An Argument for Granting L. Rev. 213 (2011).
Evidentiary Hearings to Weigh the Cred-
2013 Supp.
T.16, C.7 CRIMESAND OFFENSES 16-7-1
CHAPTER
7
DAMAGE TO AND INTRUSION UPON PROPERTY
Article 1
Burglary
Sec.
16-7-1. Burglary.
ARTICLE
1
BURGLARY
16-7-1. Burglary.
(a) As used in this Code section, the term:
(1) "Dwelhng" means any building, structure, or portion thereof
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
(b) Aperson commits the offense ofburglaryin 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 ofanother or any building, vehicle, railroad car,
watercraft, aircraft, or other such structure designed for use as the
dwellingofanother.Apersonwho commits the offense ofburglaryin the
first degree shall be guilty ofa felony and, upon conviction thereof, shall
be punished by imprisonment for not less than one nor more than 20
years. Upon 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.
(c) A 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.
Apersonwho commits the offense ofburglary in the second degree shall
be guilty ofa 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 forburglaryin 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.
2 2013 Supp.
16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1
(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-
read: "(a) Apersoncommits the offense of cation of guilt or imposition of sentence
burglary when, without authority and shall not be suspended, probated, de-
withthe intentto commit afelonyortheft ferred, orwithheldforanyoffensepunish-
therein, he enters or remains within the able under this subsection." See editor's
dwellinghouse ofanotheroranybuilding, note for applicability. —
vehicle, railroad car, watercraft, or other CodeCommissionnotes. 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 ofsubsection (b).
aircraft,oranyroomoranypartthereof.A Editor's notes. Ga. L. 2012, p. 899,
personconvictedoftheoffenseofburglary, § 9-l(a)/HB 1176, notcodifiedbythe Gen-
for the first such offense, shall be pun- eral Assembly, provides: "This Act shall
ished by imprisonment for not less than becomeeffectiveonJuly 1, 2012, andshall
one nor more than 20 years. For the pur- apply to offenses which occur on or after
poses ofthis 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 onflatcars, trailers on statuteineffectatthetimeofsuchoffense
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 ofburglary occurring after the first subsequentconvictionforthesametypeof
conviction, a person shall be punished by offense, ofwhatever degree or level, pur-
imprisonment for not less than two nor suant to thisAct."—
more than 20 years. Upon a third convic- Law reviews. For article on the
tion for the crime of burglary occurring 2012 amendment ofthis Code section, see
afterthefirstconviction, aperson shallbe 29 Ga. St. U.L. Rev. 290 (2012).
JUDICIAL DECISIONS
Analysis
General Consideration
Elements of Burglary
2. Unauthorized Entry
3. Intent
Indictments
Jury Instructions
Inferencesand SufficiencyandAdmissibility of Evidence
Sentencing
2013 Supp.
16-7-1 CRIMES AND OFFENSES 16-7-1
General Consideration convictions for strikingly similar hard-
ware store burglaries. Although the evi-
Evidence sufficientfordelinquency dence was circumstantial, there was no
adjudication. other evidence of how the defendant's
Evidence was sufficient to adjudicate a blood could have been at the scene. The
child delinquent for the adult crime of trial court's definition of"entry" as entry
burglary under O.C.G.A. § 16-7-1 based on to real estate was not error or iferror
on a neighbor's testimony that the neigh-
was not harmful, because the charge as a
bor saw the child tampering with and
whole required that the defendant enter
opening the victim's back door and the the building. Roberts v State, 309 Ga.
child's admission that the child "cracked"
the door. That day, it was discovered that ApNp.o68e1v,id7e1n0cSe.Eo.f2de8n7t8ry(20w1i1t).hout au-
money and video games were taken from —
the victim. In the Interest of R. H., 313 thority. Defendant's burglary convic-
Ga. App. 416, 721 S.E.2d 628 (2011). tion was reversed because even assuming
Sufficient evi—dence to prove iden- that the evidence at trial showed that the
tityandintent. Evidenceinsupportof defendant intended to commit a theft
the burglary charge was sufficient to when the defendant first entered the sell-
prove identity and intent as the victim er's residence, there was no evidence that
identified the defendants as the individu- the defendant entered the home "without
als who had been in the victim's house authority." There was no indication, for
when the officers drove to the victim's example, that the defendant forced the
house with the defendants. In addition, defendant's way in or that the seller de-
the jury was authorized to find that the niedthedefendantpermissiontoenter. In
defendants intended to commit a theft fact, the seller let the real estate agent
when the defendants entered the house and the defendant, the agent's client, into
without permission, looked behind and the seller's house and left the agent and
inside thevictim's furniture, and left once the defendant there. Newtonv. State, 319
the victim called police. Gorman v. State, Ga. App. 494, 736 S.E.2d 752 (2012).
318 Ga. App. 535, 734 S.E.2d 263 (2012).
CitedinMartinezv. State,318Ga.App. 3. Intent
254, 735 S.E.2d 785 (2012); Coleman v Sufficient evidence ofintent.
State, 318 Ga. App. 478, 735 S.E.2d 788 Evidence that the defendant and an-
(2012). otherwere carryingstolenitems toward a
Elements ofBurglary police officer's car and that they dropped
the items and ran when they realized it
2. Unauthorized Entry was a police car, despite the officer shout-
ing at them to stop, was sufficient to
Affirmative defenses.
convict the defendant ofburglary and ob-
Because adefendant's evidencethatthe
defendantactedunderamisapprehension structionofjusticeinviolationofO.C.G.A.
of fact in entering a house would have §§ 16-7-l(a) and 16-10-24(a). Mitchell v
authorized the jury to acquit the defen- State, 312 Ga. App. 293, 718 S.E.2d 126
dant of burglary under O.C.G.A. (2011).
§ 16-7-1(a), and because the charge that Indictments
wasgivendidnotproperlyinformthejury
about the true nature of the defendant's Fai—luretofiletimelyspecialdemur-
affirmative defense, the defendant was rer. Defendant could admit every alle-
entitled to a charge on mistake of fact gation ofthe indictment and still lack the
under O.C.G.A. § 16-3-5. Price v State, requisite intent for an attempt at bur-
289 Ga. 459, 712 S.E.—2d 828 (2011). glary. Consequently, theindictmentwould
Entryinto store. Evidencewas suf- not have withstood a timely general de-
ficientto convict a defendant ofburglariz- murrer, and trial counsel's performance
ing a tool supply store, because the defen- was deficientin counsel's failure to timely
dant's blood was found on the smashed-in challenge the validity of the attempted
door and the defendant had two prior burglary count. Coleman v. State, 732
2013 Supp.
16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1
S.E.2d 466, No. A12A1087, 2012 Ga. App. different theory of events and claimed
LEXIS 777 (201—2). that defendant did not actwith the intent
Sufficient. Burglary count of the to commit a theft, it was the jury's prov-
indictment was sufficient to withstand a ince to assess witness credibility, resolve
general demurrer because although the the conflicts in the evidence, and deter-
offense was mislabeled as "aggravated mine whether there was a reasonable hy-
battery" in the body of the count, the pothesis of innocence favorable to defen-
avermentportionofthecountfollowedthe dant. Anthony v. State, 317 Ga. App. 807,
language oftheburglary statute andfully 732 S.E.2d 845 (2012).
appriseddefendantoftheoffensecharged. Fingerprint evidence.
The subject heading of the count clearly Juvenile's fingerprint, which was found
referredtotheoffenseasburglaryandthe on a bottle of tonic water at the crime
heading was followed by a citation to the scene, was sufficient evidence to support
burglary statute itself. Jackson v. State, the adjudication ofthe juvenile as delin-
316 Ga. App. 588, 730 S.E.2d 69 (2012). quentforcommittingburglaryinviolation
meNnot faantdalprvoaorfi.ance between indict- of O.C.G.A. § 16-7-1, and the juvenile's
alternative hypothesis that the juvenile
Any variance between the indictment
earlier touched the bottle while the bottle
andthe evidence attrial pertainingtothe was in the stream ofcommerce before the
ownershipofthebuildingburglarizedwas victim purchased the bottle was not plau-
not fatal, because ownership was not an
element of burglary. Smarr v. State, 317 s6i6b0l,e.7I1n6tSh.eEI.n2tder7e6s8to(f20H1.1)A.., 311 Ga.App.
Ga. App. 584, 732 S.E.2d 110 (2012).
Evidence sufficient to establish un-
Jury Instructions lawful entry.
Sufficientevidence supportedthedefen-
Charge on criminal trespass as dant'sconvictionforburglarybasedonthe
lesser included offense. evidence that showed that the defendant
Because there was no written request, and the co-defendant approached the vic-
the trial court did not err by failing to tim's house armed and with the intent to
instructthejuryon criminaltrespass as a rob, that the co-defendant knocked and
lesser included offense of burglary gave a false name to entice the occupants
Boatright v. State, 289 Ga. 597, 713 to open the door, that the defendants
S.E.2d 829 (2011). — entered the house without being invited
Refusaltochargemistakeoffact. in, thatthevictimimmediatelyattempted
Trial court did not err in failing to charge to make the strangers leave the house,
thejury on the defense ofmistake offact and thatthe intruders drew theirguns as
under O.C.G.A. § 16-3-5 as to the bur- the intruders entered, all ofwhich estab-
glarycountsoftheindictmentbecausethe lished that the defendant entered the
fact that the defendant could have housewithout authority. Thomasv. State,
thought that someone lived in the home 292 Ga. 429, 738 S.E.2d 571 (2013)—.
did not constitute the type of mistake of Identification of defendant. De-
fact that would serve as a defense to the fendant's convictions for armed robbery,
defendant's unauthorized entry into the aggravated assaultwithadeadlyweapon,
home since the evidence was burglary, and possession ofa firearm dur-
uncontroverted that the defendant was ing the commission of a crime were sup-
not invited into the home. Boatright v. ported by sufficient evidence. While the
State, 289 Ga. 597, 713 S.E.2d 829 (2011). defendant contended that the evidence
Inferences and Sufficiency and against the defendant was purely circum-
Admissibility ofEvidence stantial, an eyewitness's identification of
the defendant as the second gunman dur-
Sufficient circumstantial evidence ing the photographic lineup constituted
ofintent. direct evidence of the defendant's guilt.
Defendant's conviction of criminal at- WilHams v. State, 316 Ga. App. 821, 730
tempt to commit burglary was affirmed S.E.2d 541 (2012).
because while the defense presented a Sufficient evidence existed to support
2013 Supp.
16-7-1 CRIMES AND OFFENSES 16-7-1
the defendant's conviction for burglary, § 24-8-801). Lewis v. State, 311 Ga. App.
aggravated assault, and two counts of 54, 714 S.E.2d 732 (2011).
cruelty to children in the second degree Evidence was sufficient to support the
based on the evidence adduced at trial defendant's conviction for burglary, under
that the defendant broke into the adult O.C.G.A. § 16-7-l(a), because: (1) theper-
victim's apartmentthrougharearwindow petrator of a crime entered just before
andattackedthevictim, stabbedthe adult closing time a fast-food restaurant with a
victim in the neck, dragged the victim gun and directed the employees into a
down the hall, and stabbed the victim's room, a cooler, and a freezer; (2) the per-
hand and, although the defendant put a petrator took money from the restaurant,
cloth over the victim's face at some point, shot one of the employees, and left the
the adultvictim saw thatthe person stab- scene in the employee's car; (3) one ofthe
bingthevictim in the neckwas the defen- employeestelephonedrelativeswith acell
dant, the victim's ex-boyfriend, and the phone and told the relatives what was
victim positively and consistently identi- happening; (4) the relatives called the
fied the defendant as the perpetrator. police, came to the restaurant, and saw
White V. State, 319 Ga. App. 530, 737 the perpetrator drive away; (5) money, a
S.E.2d 324 (2013). gun, anddiscardedclothingwasrecovered
Circumstantial evidence identify- from the car or the area where the perpe-
—
ing defendant. There was sufficient trator fled on foot; (6) a police officer, who
evidence to support the defendant's con- was pursuing the perpetrator, was
viction for burglary, despite a witness be- woundedin an altercationwiththeperpe-
ing impeached, because while there was trator when the officer's gun discharged;
conflicting testimony about what the wit- (7) when the defendant later surrendered
ness told police and whether the defen- to the police, DNAfrom the officer's blood
danthadsoldthestolenphonetosomeone was found on the defendant's chest; and
else, the circumstantial evidence identify- (8) the employees, the relatives, and the
ing the defendant as the perpetrator was officer identified the defendant, a former
sufficient. Jordan v. State, No. A12A2286, employee ofthe restaurant who was fired
2013 Ga.App. LEXIS 163 (Mar. 11, 2013). days before the crime, as the perpetrator.
Sufficient evidence for conviction. Donald v. State, 312 Ga. App. 222, 718
Evidence that a defendant was seen S.E.2d 81 (2011).
riding a bicycle after midnight while car- Evidence was sufficient to convict a de-
rying a tire iron and ablack saw case and fendant of burglary in violation of
wearinganewleathertoolbeltaroundthe O.C.G.A. § 16-7-l(a) because the defen-
defendant's waist, along with the defen- dant was caught within four minutes of
dant's own statement that the defendant the burglary in a truck matching the vic-
had been working at the address later tims'descriptionofthe truckoutsidetheir
determined to have been broken into and home, and the defendant was carrying a
atoolbeltandsawtaken,was sufficientto crowbar, had the victims' television, and
convict the defendant of burglary under fled from police. Veasley v. State, 312 Ga.
O.C.G.A. § 16-7-1, although the defen- App. 728, 719 S.E.2d 585 (2011).
dant fled from police and the stolen items Evidence was sufficient for a rational
were not recovered. Wilcox v. State, 310 factfinder to find the defendant guilty be-
Ga. App. 382, 713 S.E.2d 468 (2011). yondareasonable doubtoffalseimprison-
Because the defendant admitted entry ment, O.C.G.A. § 16-5-41(a), burglary,
into a home, the defendant's statement to O.C.G.A. § 16-7-l(a), and aggravated as-
a witness, and the victim's in-court iden- sault, O.C.G.A. § 16-5-21(a)(2), because
tification of the defendant supported the although the defendant argued that there
defendant's conviction of armed robbery was insufficient credible and admissible
andburglaryunder O.C.G.A. §§ 16-7-l(a) evidence to show that the defendant was
and 16-8-41(a), thejury could find that a the victim's attacker, determinations of
conspiracy existed without regard to a witness credibility and the weight to give
coconspirator's statements under former the evidence presented was solely within
O.C.G.A. § 24-3-5 (see now O.C.G.A. the province of the jury; defense counsel
2013 Supp.