SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1641. PAUL v. THE STATE.
MCFADDEN, Judge.
Jernerick Paul appeals from his burglary conviction. He challenges the
sufficiency of the evidence, the admission of certain evidence found during his arrest,
the effectiveness of his trial counsel and the lack of a jury charge on the defense of
mistake of fact. Because there is enough evidence to support the verdict, the trial
court properly admitted evidence of items as a circumstance of the arrest, Paul was
not prejudiced by his counsel’s performance, and he claimed a mistake of law rather
than a mistake of fact, the challenges are without merit and we affirm.
1. Sufficiency of the evidence.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.
Stillwell v. State, 329 Ga. App. 108 (764 SE2d 419) (2014) (citation omitted).
So viewed, the evidence shows that at 5:00 a.m. on January 19, 2011, Paul
entered the apartment of the victims. One of the victims came out of a bedroom to
find Paul standing in the living room. Paul said that the cat had let him in and he then
left the apartment. The victim noticed that his wallet had been moved and discovered
that a one-dollar bill was missing from it. The victims called the police, who arrived
at the scene within a few minutes and found Paul in the apartment complex parking
lot. The victims identified Paul as the man who had entered their apartment. Paul
consented to a search of his person and backpack, and police found a one-dollar bill
in one of his pockets and various items in the backpack, including several cell phones
and cameras. The state also introduced evidence of Paul’s two prior burglary
convictions.
The version of OCGA § 16-7-1 (a) applicable to this case provides that a
“person commits the offense of burglary when, without authority and with the intent
2 to commit a felony or theft therein, he enters or remains within the dwelling house of
another[.]”1 Paul argues that there was insufficient evidence of his intent to commit
a theft inside the apartment because he testified that he thought the apartment was
vacant and that he could rest there. However, unauthorized entry into a vacant
dwelling house of another may still constitute burglary. See Earnest v. State, 216 Ga.
App. 271, 272 (1) (453 SE2d 818) (1995) (sufficient evidence of burglary even
though house vacant and no one resided there at time of entry, noting that there is no
requirement in the law that a house be continuously occupied in order to be a
dwelling). Moreover, the jury was not bound by Paul’s testimony and was free to
reject it since his credibility, like that of the other witnesses, was a matter solely
within the jury’s province. Lewis v. State, 283 Ga. 191, 192 (1) (657 SE2d 854)
(2008); O’Rourke v. State, 327 Ga. App. 628, 631 (1) (760 SE2d 636) (2014). Indeed,
“[a] jury may reject a defendant’s explanation for his unauthorized entry where that
explanation is inconsistent with other direct and circumstantial evidence.” Long v.
State, 307 Ga. App. 669, 671 (1) (705 SE2d 889) (2011) (citation omitted). “Having
1 OCGA § 16-7-1 was amended, effective July 1, 2012. The amended version of the statute applies to offenses occurring on or after that date. Because Paul’s burglary offense and trial occurred in 2011, the prior version of the statute applies to this case.
3 reviewed all the evidence in the light most favorable to the verdict, we conclude that
there was sufficient evidence for the jury to find [Paul] guilty beyond a reasonable
doubt of burglary.” Murray v. State, 328 Ga. App. 192, 193 (1) (761 SE2d 590)
(2014) (citations and punctuation omitted).
2. Motion in limine.
Paul contends that the trial court erred in denying his motion in limine to
exclude evidence of the items found in his backpack at the time of his arrest. The
contention is without merit.
In general, all of the circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury to be weighed by it for what they are worth. Articles found in the control of the defendant at the time of his arrest are admissible as circumstances connected with the arrest. Police found the [items in Paul’s backpack] after obtaining his consent to search when they arrested him for [burglary] shortly after [the victims] called police. The evidence was properly admitted as part of the circumstances connected with his [burglary] arrest.
Blackwell v. State, 274 Ga. App. 579, 580 (618 SE2d 190) (2005) (citations and
punctuation omitted).
Paul further argues that the state improperly impugned his character by arguing
that the backpack items were evidence of uncharged crimes. He cites to a portion of
the state’s closing argument, during which the prosecutor questioned inconsistencies
4 in the evidence and Paul’s testimony that he owned the items. Paul objected at one
point during that argument, but on different grounds: stating facts not in evidence.
The trial court effectively sustained the objection by responding “[a]ll right” and then
instructing the jury to determine what the evidence is and to ignore any argument not
based on the evidence. Paul did not request further instruction or any other ruling by
the trial court, and he never objected on the ground that the state was improperly
impugning his character based on uncharged crimes.
“Where an entirely different objection or basis for appeal is argued in the brief
which was not presented at trial we will not consider that basis as we are limited to
those grounds presented to and ruled upon by the trial court.” Godfrey v. State, 227
Ga. App. 576, 577 (2) (489 SE2d 364) (1997) (citation and punctuation omitted).
Moreover, even if Paul had presented the same grounds for objection on appeal as
that ruled on by the trial court during the state’s closing argument, “any issue
concerning the propriety of the prosecutor’s comments has been waived. If the trial
court’s curative action in sustaining the objection [and instructing the jury] was
insufficient, defense counsel should have sought additional relief.” Walley v. State,
298 Ga. App. 483, 485 (2) (680 SE2d 550) (2009) (citation and punctuation omitted).
See also Fennell v. State, 271 Ga. App. 797, 798 (1) (611 SE2d 96) (2005) (sustained
5 objection to improper argument of counsel cannot serve as the basis for reversal
unless it is contemporaneous with a denied motion for mistrial, denied request to
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SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 6, 2015
In the Court of Appeals of Georgia A14A1641. PAUL v. THE STATE.
MCFADDEN, Judge.
Jernerick Paul appeals from his burglary conviction. He challenges the
sufficiency of the evidence, the admission of certain evidence found during his arrest,
the effectiveness of his trial counsel and the lack of a jury charge on the defense of
mistake of fact. Because there is enough evidence to support the verdict, the trial
court properly admitted evidence of items as a circumstance of the arrest, Paul was
not prejudiced by his counsel’s performance, and he claimed a mistake of law rather
than a mistake of fact, the challenges are without merit and we affirm.
1. Sufficiency of the evidence.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, this Court will uphold the jury’s verdict.
Stillwell v. State, 329 Ga. App. 108 (764 SE2d 419) (2014) (citation omitted).
So viewed, the evidence shows that at 5:00 a.m. on January 19, 2011, Paul
entered the apartment of the victims. One of the victims came out of a bedroom to
find Paul standing in the living room. Paul said that the cat had let him in and he then
left the apartment. The victim noticed that his wallet had been moved and discovered
that a one-dollar bill was missing from it. The victims called the police, who arrived
at the scene within a few minutes and found Paul in the apartment complex parking
lot. The victims identified Paul as the man who had entered their apartment. Paul
consented to a search of his person and backpack, and police found a one-dollar bill
in one of his pockets and various items in the backpack, including several cell phones
and cameras. The state also introduced evidence of Paul’s two prior burglary
convictions.
The version of OCGA § 16-7-1 (a) applicable to this case provides that a
“person commits the offense of burglary when, without authority and with the intent
2 to commit a felony or theft therein, he enters or remains within the dwelling house of
another[.]”1 Paul argues that there was insufficient evidence of his intent to commit
a theft inside the apartment because he testified that he thought the apartment was
vacant and that he could rest there. However, unauthorized entry into a vacant
dwelling house of another may still constitute burglary. See Earnest v. State, 216 Ga.
App. 271, 272 (1) (453 SE2d 818) (1995) (sufficient evidence of burglary even
though house vacant and no one resided there at time of entry, noting that there is no
requirement in the law that a house be continuously occupied in order to be a
dwelling). Moreover, the jury was not bound by Paul’s testimony and was free to
reject it since his credibility, like that of the other witnesses, was a matter solely
within the jury’s province. Lewis v. State, 283 Ga. 191, 192 (1) (657 SE2d 854)
(2008); O’Rourke v. State, 327 Ga. App. 628, 631 (1) (760 SE2d 636) (2014). Indeed,
“[a] jury may reject a defendant’s explanation for his unauthorized entry where that
explanation is inconsistent with other direct and circumstantial evidence.” Long v.
State, 307 Ga. App. 669, 671 (1) (705 SE2d 889) (2011) (citation omitted). “Having
1 OCGA § 16-7-1 was amended, effective July 1, 2012. The amended version of the statute applies to offenses occurring on or after that date. Because Paul’s burglary offense and trial occurred in 2011, the prior version of the statute applies to this case.
3 reviewed all the evidence in the light most favorable to the verdict, we conclude that
there was sufficient evidence for the jury to find [Paul] guilty beyond a reasonable
doubt of burglary.” Murray v. State, 328 Ga. App. 192, 193 (1) (761 SE2d 590)
(2014) (citations and punctuation omitted).
2. Motion in limine.
Paul contends that the trial court erred in denying his motion in limine to
exclude evidence of the items found in his backpack at the time of his arrest. The
contention is without merit.
In general, all of the circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury to be weighed by it for what they are worth. Articles found in the control of the defendant at the time of his arrest are admissible as circumstances connected with the arrest. Police found the [items in Paul’s backpack] after obtaining his consent to search when they arrested him for [burglary] shortly after [the victims] called police. The evidence was properly admitted as part of the circumstances connected with his [burglary] arrest.
Blackwell v. State, 274 Ga. App. 579, 580 (618 SE2d 190) (2005) (citations and
punctuation omitted).
Paul further argues that the state improperly impugned his character by arguing
that the backpack items were evidence of uncharged crimes. He cites to a portion of
the state’s closing argument, during which the prosecutor questioned inconsistencies
4 in the evidence and Paul’s testimony that he owned the items. Paul objected at one
point during that argument, but on different grounds: stating facts not in evidence.
The trial court effectively sustained the objection by responding “[a]ll right” and then
instructing the jury to determine what the evidence is and to ignore any argument not
based on the evidence. Paul did not request further instruction or any other ruling by
the trial court, and he never objected on the ground that the state was improperly
impugning his character based on uncharged crimes.
“Where an entirely different objection or basis for appeal is argued in the brief
which was not presented at trial we will not consider that basis as we are limited to
those grounds presented to and ruled upon by the trial court.” Godfrey v. State, 227
Ga. App. 576, 577 (2) (489 SE2d 364) (1997) (citation and punctuation omitted).
Moreover, even if Paul had presented the same grounds for objection on appeal as
that ruled on by the trial court during the state’s closing argument, “any issue
concerning the propriety of the prosecutor’s comments has been waived. If the trial
court’s curative action in sustaining the objection [and instructing the jury] was
insufficient, defense counsel should have sought additional relief.” Walley v. State,
298 Ga. App. 483, 485 (2) (680 SE2d 550) (2009) (citation and punctuation omitted).
See also Fennell v. State, 271 Ga. App. 797, 798 (1) (611 SE2d 96) (2005) (sustained
5 objection to improper argument of counsel cannot serve as the basis for reversal
unless it is contemporaneous with a denied motion for mistrial, denied request to
strike, or denied request for curative instructions).
3. Ineffective assistance of counsel claim.
Paul claims that his trial counsel was ineffective in failing to introduce bills and
receipts that purportedly would have supported his testimony that he owned the cell
phones found in his backpack. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must show that counsel’s performance was deficient and that the deficiency so
prejudiced defendant that there is a reasonable likelihood that, but for counsel’s
errors, the outcome of the trial would have been different.” Patel v. State, 279 Ga.
750, 751 (620 SE2d 343) (2005) (citations and punctuation omitted). Here, even
presuming deficient performance, Paul cannot show prejudice. The evidence of Paul’s
guilt was overwhelming, including the victim’s eyewitness encounter with Paul inside
his apartment, Paul’s admission that he made an unauthorized entry into the
apartment, the discovery of money exactly like that stolen from the victim’s wallet
inside Paul’s pocket, and the evidence of Paul’s two prior burglary convictions.
6 Given such overwhelming evidence of guilt, there is no reasonable probability
that the outcome of the trial would have been different if counsel had introduced bills
and receipts of cell phones that were not the subject of the crime charged.
“[A]ccordingly, ineffective assistance of trial counsel has not been shown on this
basis.” Chavez v. State, 329 Ga. App. 207, 210 (1) (764 SE2d 447) (2014) (finding
that regardless of counsel’s deficiency, no prejudice to defendant in view of
overwhelming evidence of guilt). See also Durden v. State, 293 Ga. 89, 99 (6) (b)
(744 SE2d 9) (2013) (no reasonable probability of different outcome at trial given
overwhelming evidence of defendant’s guilt).
4. Mistake of fact charge.
Paul argues that the trial court erred in failing to charge the jury sua sponte on
the defense of mistake of fact. The argument is without merit.
“Mistake of fact represents an affirmative defense, under which a person shall
not be found guilty of a crime if the act constituting the crime was induced by a
misapprehension of fact which, if true, would have justified the act or omission.”
Stillwell, supra at 109 (1) (citation and punctuation omitted). Here, Paul claims that
he mistakenly thought the apartment was vacant and thus he was authorized to enter
it. This, however, was a mistake of law, not fact; as noted above in Division 1, a
7 person is not authorized to enter the dwelling of another merely because it is vacant
and such unauthorized entry may still constitute burglary. Earnest, supra. “We have
consistently held that failure to give a charge on mistake of fact is not error where the
evidence shows that a party has made a mistake of law. It is axiomatic that everyone
is presumed to know the law and ignorance thereof is not an excuse for its violation.”
Stillwell, supra at 110 (1) (citations and punctuation omitted). Because Paul’s
“defense was based on mistake of law rather than mistake of fact, the trial court did
not err in failing to charge mistake of fact.” Id.
Judgment affirmed. Andrews, P. J., concurs; Ray, J., concurs fully in Divisions
1, 2, and 4, and in the judgment only in Division 3.