SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 4, 2012
In the Court of Appeals of Georgia A12A1615. ANTHONY v. THE STATE.
BARNES, Presiding Judge.
A Coweta County jury found Jesse Louis Anthony guilty of criminal attempt
to commit burglary, and the trial court denied his motion for new trial. On appeal,
Anthony challenges the sufficiency of the evidence to convict him. He also contends
that the trial court erred by not permitting his mother to testify that he suffered from
a mental infirmity, and by failing to charge the jury on the lesser included offense of
criminal trespass. Additionally, Anthony argues that his trial counsel rendered
ineffective assistance. For the reasons set forth below, we affirm.
Following a criminal conviction, the defendant is no longer presumed innocent,
and we view the evidence in the light most favorable to sustain the verdict. Hayes v.
State, 276 Ga. App. 268, 269 (1) (623 SE2d 144) (2005). So viewed, the evidence showed that around noon on January 22, 2010, a neighbor driving home from work
saw an unfamiliar man, later identified as Anthony, emerge from between two houses
down the street from where the neighbor lived in Coweta County. The neighbor then
saw Anthony go onto the front porch of the victim’s house. No one appeared to be
home at the residence, which recently had been sold to the victim. A table saw and
other tools left inside the house by contractors could be seen from outside. According
to the neighbor, at some point there had been a “for sale” sign outside of the victim’s
house, but he was not sure whether it was still there on January 22nd.
Once on the front porch of the victim’s house, Anthony tried to open the front
door without first ringing the doorbell or knocking on the door. After unsuccessfully
trying to open the front door, Anthony went over to a window on the porch, turned
facing the street, placed his fingers in a crack between the bottom of the window and
the window frame, and tried to lift the window.
The neighbor, who had watched Anthony try to open the door and window,
drove up to the victim’s house and yelled out to Anthony, “What the ‘bleep’ are you
doing?” Anthony responded by running down the street. The neighbor got out of his
car, chased Anthony, and tackled him. Another neighbor dialed 911, and the police
arrived shortly thereafter.
2 Anthony was arrested and taken to the sheriff’s department, where he agreed
to an interview with the investigator after being advised of his rights under Miranda
v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The investigator
noticed that Anthony smelled strongly of alcohol. Anthony claimed that his family
was being evicted from its residence, that he had been at the victim’s house because
he was looking for a place for him and his mother to live, and that he had done
nothing more than look through a window and knock on the front door.
Anthony was indicted for criminal attempt to commit burglary in that he
attempted to enter the victim’s house to commit a theft. At the jury trial, the neighbor
who witnessed what had transpired and who had tackled Anthony testified to the
events as set out above. He further testified that Anthony never said anything to him
about trying to find a place to live and never claimed to him that the incident had
been a misunderstanding. The neighbor said that, instead, Anthony had threatened
him by claiming that he would have someone come and “take care” of the neighbor
in retaliation for chasing and subduing him.
In addition to the neighbor, the police investigator testified about his interview
of Anthony at the sheriff’s department after he had been arrested. A video recording
of the interview was introduced into evidence and played for the jury.
3 The victim whose house Anthony had attempted to enter also testified.
According to the victim, he had recently purchased the house, and he and his wife
were still in the process of moving their belongings into the house from out-of-state
when the incident occurred. The victim testified that he had been splitting his time
between his home out-of-state and his new home in Coweta County, and he slept in
the house on an air mattress on the nights when he was there. He also noted that
contractors had left construction equipment in the house. The victim had never seen
Anthony previously and had never given him permission to enter his house, and he
denied that the house still had a “for rent” or “for sale” sign outside on the day of the
incident.
Anthony elected not to testify at trial, but he presented the testimony of his
mother and stepfather to support the defense theory that he had simply been looking
for a house for him and his family to rent or buy. His mother and stepfather testified
that at the time of the incident, the family had been in the process of being evicted
from their home and had been looking for a new place to live for several months.
However, Anthony’s mother conceded on cross-examination that the family had in
fact closed on a new house on the same day that the incident occurred, and that
Anthony had been made aware of the closing the previous night.
4 To show that Anthony lacked the requisite criminal intent, the defense wanted
his mother also to testify that Anthony suffered from a mental infirmity. But Anthony
had chosen not to raise an insanity defense, as the State pointed out to the trial court
in opposing the introduction of witness testimony about his mental condition. The
trial court ruled in favor of the State and prohibited the mother from testifying that
Anthony possessed a mental infirmity.
After hearing all of the testimony and reviewing the video recording of the
police interview, the jury convicted Anthony of the charged offense. Anthony moved
for a new trial, contending, among other things, that his trial counsel had been
ineffective. After conducting an evidentiary hearing, the trial court denied Anthony’s
motion. This appeal followed.
1. Anthony challenges the sufficiency of the evidence, contending that there
was insufficient circumstantial evidence that he intended to commit a theft in the
victim’s house. He argues that the evidence supported a reasonable hypothesis that
he was simply at the property to look it over as a possible place to live. He notes in
his brief that he did not have a bag or burglary tools with him on the day in question,
that his mother and stepfather provided testimony confirming that the family had been
looking for a new place to live, and that there was evidence suggesting that a “for
5 sale” sign may have still been up outside the residence and that the house appeared
to be unoccupied at the time.
A person commits the offense of burglary by “entering or remaining in a
dwelling house of another or building without authority and with the intent to commit
a . . . theft therein.” Hopkins v. State, 309 Ga. App. 298, 300 (1), n. 5 (709 SE2d 873)
(2011).
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 4, 2012
In the Court of Appeals of Georgia A12A1615. ANTHONY v. THE STATE.
BARNES, Presiding Judge.
A Coweta County jury found Jesse Louis Anthony guilty of criminal attempt
to commit burglary, and the trial court denied his motion for new trial. On appeal,
Anthony challenges the sufficiency of the evidence to convict him. He also contends
that the trial court erred by not permitting his mother to testify that he suffered from
a mental infirmity, and by failing to charge the jury on the lesser included offense of
criminal trespass. Additionally, Anthony argues that his trial counsel rendered
ineffective assistance. For the reasons set forth below, we affirm.
Following a criminal conviction, the defendant is no longer presumed innocent,
and we view the evidence in the light most favorable to sustain the verdict. Hayes v.
State, 276 Ga. App. 268, 269 (1) (623 SE2d 144) (2005). So viewed, the evidence showed that around noon on January 22, 2010, a neighbor driving home from work
saw an unfamiliar man, later identified as Anthony, emerge from between two houses
down the street from where the neighbor lived in Coweta County. The neighbor then
saw Anthony go onto the front porch of the victim’s house. No one appeared to be
home at the residence, which recently had been sold to the victim. A table saw and
other tools left inside the house by contractors could be seen from outside. According
to the neighbor, at some point there had been a “for sale” sign outside of the victim’s
house, but he was not sure whether it was still there on January 22nd.
Once on the front porch of the victim’s house, Anthony tried to open the front
door without first ringing the doorbell or knocking on the door. After unsuccessfully
trying to open the front door, Anthony went over to a window on the porch, turned
facing the street, placed his fingers in a crack between the bottom of the window and
the window frame, and tried to lift the window.
The neighbor, who had watched Anthony try to open the door and window,
drove up to the victim’s house and yelled out to Anthony, “What the ‘bleep’ are you
doing?” Anthony responded by running down the street. The neighbor got out of his
car, chased Anthony, and tackled him. Another neighbor dialed 911, and the police
arrived shortly thereafter.
2 Anthony was arrested and taken to the sheriff’s department, where he agreed
to an interview with the investigator after being advised of his rights under Miranda
v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The investigator
noticed that Anthony smelled strongly of alcohol. Anthony claimed that his family
was being evicted from its residence, that he had been at the victim’s house because
he was looking for a place for him and his mother to live, and that he had done
nothing more than look through a window and knock on the front door.
Anthony was indicted for criminal attempt to commit burglary in that he
attempted to enter the victim’s house to commit a theft. At the jury trial, the neighbor
who witnessed what had transpired and who had tackled Anthony testified to the
events as set out above. He further testified that Anthony never said anything to him
about trying to find a place to live and never claimed to him that the incident had
been a misunderstanding. The neighbor said that, instead, Anthony had threatened
him by claiming that he would have someone come and “take care” of the neighbor
in retaliation for chasing and subduing him.
In addition to the neighbor, the police investigator testified about his interview
of Anthony at the sheriff’s department after he had been arrested. A video recording
of the interview was introduced into evidence and played for the jury.
3 The victim whose house Anthony had attempted to enter also testified.
According to the victim, he had recently purchased the house, and he and his wife
were still in the process of moving their belongings into the house from out-of-state
when the incident occurred. The victim testified that he had been splitting his time
between his home out-of-state and his new home in Coweta County, and he slept in
the house on an air mattress on the nights when he was there. He also noted that
contractors had left construction equipment in the house. The victim had never seen
Anthony previously and had never given him permission to enter his house, and he
denied that the house still had a “for rent” or “for sale” sign outside on the day of the
incident.
Anthony elected not to testify at trial, but he presented the testimony of his
mother and stepfather to support the defense theory that he had simply been looking
for a house for him and his family to rent or buy. His mother and stepfather testified
that at the time of the incident, the family had been in the process of being evicted
from their home and had been looking for a new place to live for several months.
However, Anthony’s mother conceded on cross-examination that the family had in
fact closed on a new house on the same day that the incident occurred, and that
Anthony had been made aware of the closing the previous night.
4 To show that Anthony lacked the requisite criminal intent, the defense wanted
his mother also to testify that Anthony suffered from a mental infirmity. But Anthony
had chosen not to raise an insanity defense, as the State pointed out to the trial court
in opposing the introduction of witness testimony about his mental condition. The
trial court ruled in favor of the State and prohibited the mother from testifying that
Anthony possessed a mental infirmity.
After hearing all of the testimony and reviewing the video recording of the
police interview, the jury convicted Anthony of the charged offense. Anthony moved
for a new trial, contending, among other things, that his trial counsel had been
ineffective. After conducting an evidentiary hearing, the trial court denied Anthony’s
motion. This appeal followed.
1. Anthony challenges the sufficiency of the evidence, contending that there
was insufficient circumstantial evidence that he intended to commit a theft in the
victim’s house. He argues that the evidence supported a reasonable hypothesis that
he was simply at the property to look it over as a possible place to live. He notes in
his brief that he did not have a bag or burglary tools with him on the day in question,
that his mother and stepfather provided testimony confirming that the family had been
looking for a new place to live, and that there was evidence suggesting that a “for
5 sale” sign may have still been up outside the residence and that the house appeared
to be unoccupied at the time.
A person commits the offense of burglary by “entering or remaining in a
dwelling house of another or building without authority and with the intent to commit
a . . . theft therein.” Hopkins v. State, 309 Ga. App. 298, 300 (1), n. 5 (709 SE2d 873)
(2011). See OCGA § 16-7-1 (b). “A person commits the offense of criminal attempt
when, with intent to commit a specific crime, he performs any act which constitutes
a substantial step toward the commission of that crime.” OCGA § 16-4-1.
As discussed previously, there was witness testimony at trial that Anthony
emerged from between two houses in the neighborhood, attempted to open the front
door of the victim’s house and force open a window, and tried to flee upon being seen
by the neighbor. Additionally, there was testimony that construction equipment inside
the victim’s home could be seen from outside, that there was no “for rent” or “for
sale” sign outside the home at the time of the incident, and that Anthony did not have
permission to enter the victim’s house. Lastly, there was evidence that Anthony’s
family had in fact closed on a new home on the very day of the incident in question,
and that Anthony had known that the closing was to occur. This combined evidence
was sufficient to authorize a rational jury to find that Anthony had acted with the
6 intent to commit a theft inside the victim’s house and had taken a substantial step
toward entering the house for that purpose, and, therefore, to find him guilty beyond
a reasonable doubt of criminal attempt to commit burglary. See Jackson v. Virginia,
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Rudnitskas v. State, 291 Ga.
App. 685, 686-687 (1) (662 SE2d 729) (2008) (witness testimony regarding
defendant’s effort to pry open sliding glass door of victim’s house supported
conviction for criminal attempt to commit burglary).
While the defense presented a different theory of events and claimed that
Anthony did not act with the intent to commit a theft, it was the jury’s province to
assess witness credibility, resolve the conflicts in the evidence, and determine
whether there was a reasonable hypothesis of innocence favorable to Anthony. See
Clarke v. State, __ Ga. App. __, __ (1) (a) (Case No. A12A0924, decided Aug. 10,
2012); Biggins v. State, 299 Ga. App. 554, 556 (1) (683 SE2d 96) (2009). “As a
general rule the [S]tate must, of necessity, rely on circumstantial evidence in proving
intent. And the fact that the defendant may have failed in accomplishing his apparent
purpose does not render a finding of criminal attempt to commit burglary improper.”
(Citations and punctuation omitted.) Murray v. State, 187 Ga. App. 747 (371 SE2d
272) (1988). See Durham v. State, 295 Ga. App. 734, 736 (673 SE2d 80) (2009).
7 Accordingly, Anthony cannot succeed on his challenge to the sufficiency of the
evidence to support his conviction.
2. Anthony next contends that the trial court erred by prohibiting his mother
from testifying that he possessed a mental infirmity, which he contends was relevant
to showing that he did not have the requisite criminal intent at the time of the alleged
offense. “The . . . exclusion of evidence which is objected to on the ground of
relevancy lies within the sound discretion of the trial court, whose decision will not
be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation
omitted.) Hayes, 276 Ga. App. at 270 (2). Under the circumstances of this case, we
conclude that no abuse of discretion can be shown by the exclusion of the mother’s
testimony.
Anthony declined to pursue a defense of not guilty by reason of insanity, or to
contend that he was guilty but mentally ill or guilty but mentally retarded.1 See
OCGA §§ 16-3-2; 16-3-3; 17-7-131 (b). And “mental abnormality, unless it amounts
to insanity, is not a defense to a crime.” (Citation and punctuation omitted.) State v.
1 Before trial, a physician had evaluated Anthony and determined that he was mentally competent to stand trial.
8 Abernathy, 289 Ga. 603, 607-608 (4) (a) (715 SE2d 48) (2011).2 See Wallin v. State,
285 Ga. App. 377, 383 (b) (646 SE2d 484) (2007) (noting that “a person is not legally
insane simply because he suffers from schizophrenia or a psychosis”) (citation
omitted). Given Anthony’s failure to raise an insanity defense or to contend that he
was guilty but mentally ill or mentally retarded, the trial court acted within its
discretion in concluding that the testimony of Anthony’s mother was irrelevant to the
issue of whether Anthony acted with the criminal intent necessary to determine guilty.
See Paul v. State, 274 Ga. 601, 603 (2) (555 SE2d 716) (2001); Lewandowski v.
State, 267 Ga. 831, 832 (2) (483 SE2d 582) (1997); Selman v. State, 267 Ga. 198, 200
(3) (475 SE2d 892) (1996); McDowell v. State, 269 Ga. App. 475, 476 (1) (604 SE2d
575) (2004). Compare Porter v. State, 243 Ga. App. 498, 503-505 (5), 506-508 (532
SE2d 407) (2000) (expert testimony regarding defendant’s psychological condition
was erroneously excluded by trial court, where the evidence was relevant to showing
2 Under Georgia law, [t]he only two situations authorizing a verdict of not guilty by reason of insanity are where the defendant does not have the ability to distinguish between right and wrong at the time of the crime, OCGA § 16-3-2, and where at the time of the crime the defendant acted under a delusional compulsion which overmastered his will to resist committing the crime, OCGA § 16-3-3. Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124) (1987).
9 that defendant had no knowledge of the child abuse committed by her husband, an
issue which was “very different” from the issue whether the defendant had the
criminal intent to harm her son).
3. Anthony also asserts that the trial court erred by not charging the jury on the
lesser included offense of criminal trespass. In this regard, he appears to contend in
this brief that he was entitled to a jury instruction on the lesser included offense of
criminal trespass under OCGA § 16-7-21 (b) (1), which provides that a person
commits the offense of criminal trespass when he knowingly and without authority
enters upon the land or premises of another for an unlawful purpose.
Because Anthony neither requested this charge nor objected when the trial
court failed to give it, we review the failure to give the charge only for plain error.
See Alatise v. State, __ Ga. __, __ (2) (Case No. S12A0024, decided June 18, 2012);
White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). To prove that the failure to
give the charge was plain error, Anthony must show that a four-pronged test has been
met: the omission of the charge was erroneous, the error was obvious, the omission
of the charge likely affected the outcome of the proceedings, and the error seriously
affects the fairness, integrity or public reputation of judicial proceedings. See White,
291 Ga. at 8 (2); State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).
10 Anthony cannot show that the failure to charge the jury on the lesser included
offense of criminal trespass was erroneous, and thus cannot show that the first prong
has been met for proving plain error. Where the evidence shows either the
commission of the offense charged in the indictment, or the commission of no offense
at all, the trial court is not required to charge the jury on a lesser included offense. See
Sanders v. State, 293 Ga. App. 534, 536 (2) (a) (667 SE2d 396) (2008). Furthermore,
a charge on the lesser included offense of criminal trespass is not warranted in a
burglary case where the defendant claimed to have been on the premises for a lawful
purpose. See Reidling v. State, 309 Ga. App. 719, 720 (2) (710 SE2d 903) (2011);
Sanders, 293 Ga. App. at 536 (2) (a); Moore v. State, 280 Ga. App. 894, 898 (6) (c)
(635 SE2d 253) (2006).
Anthony claimed in his interview with the investigator that he was at the
victim’s property for the lawful purpose of looking it over as a possible place to live.
The defense presented the testimony of Anthony’s mother and stepfather in an effort
to corroborate his claim, and elicited testimony from the neighbor on cross-
examination that the victim’s home may have had a “for sale” sign still outside of it.
In contrast, the State presented evidence reflecting that Anthony entered onto the
property with the intent to commit theft inside the victim’s home, as discussed in
11 Division 1. There was no evidence that Anthony entered on the property for any other
unlawful purpose.3 Thus, if the jury believed the State’s evidence, Anthony was guilty
of criminal attempt to commit burglary, but if the jury accepted Anthony’s defense
to that crime, he was guilty of no offense. Under these circumstances, where Anthony
was guilty either of criminal attempt to commit burglary or no crime at all, the trial
court committed no error, and thus no plain error, in failing to charge the jury on the
lesser included offense of criminal trespass. See White, 291 Ga. at 9 (2) (because
defendant failed to show that trial court was required to give the instruction at issue,
he could not show plain error).
4. In a related enumeration of error, Anthony maintains that his trial counsel
was ineffective for failing to request a charge on the lesser included offense of
criminal trespass or to object when the trial court failed to give that charge.
To prevail on a claim of ineffective assistance, [Anthony] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been
3 Unlike in Waldrop v. State, 300 Ga. App. 281, 285 (3) (684 SE2d 417) (2009), and Hiley v. State, 245 Ga. App. 900, 901 (539 SE2d 530) (2000), there was no evidence that Anthony made an unauthorized entry onto the victim’s property simply for the purpose of loitering there.
12 different. We need not address both the deficient performance and prejudice prongs of the test if [Anthony] has made an insufficient showing on either prong.
(Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 393 (4) (721
SE2d 585) (2011). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80
LE2d 674) (1984). Because, as explained in Division 3, Anthony cannot show that
a jury charge on the lesser included offense of criminal trespass would have been
appropriate, he cannot show that his trial counsel’s performance was deficient. See
Jones v. State, 287 Ga. 770, 772 (2) (700 SE2d 350) (2010). Consequently, the trial
court did not err in denying Anthony’s motion for a new trial on the ground of
ineffective assistance of counsel. See Ledford, 313 Ga. App. at 393 (4).
Judgment affirmed. Adams and McFadden, JJ., concur.