Thompson v. State

519 S.E.2d 434, 271 Ga. 105, 99 Fulton County D. Rep. 1924, 1999 Ga. LEXIS 432
CourtSupreme Court of Georgia
DecidedMay 17, 1999
DocketS99A0503
StatusPublished
Cited by20 cases

This text of 519 S.E.2d 434 (Thompson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. State, 519 S.E.2d 434, 271 Ga. 105, 99 Fulton County D. Rep. 1924, 1999 Ga. LEXIS 432 (Ga. 1999).

Opinions

Hunstein, Justice.

Christopher L. Thompson was found guilty of felony murder, burglary, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals from the [106]*106denial of his motion for a new trial.1 For the reasons which follow, we reverse.

1. Under OCGA § 16-7-1 (a), a person commits burglary “[w]hen, without authority and with the intent to commit a felony or theft therein, he enters or remains within.” Thompson concedes that the trial court’s initial charge correctly instructed the jury on burglary.2 However, in answering a question from the jury regarding the “without authority” element of the burglary charge, the trial court instructed the jury that if it found that a person “has entered or has remained on the premises of another with the intent to commit a theft, that person’s entry or remaining would not be legally authorized.” We agree with Thompson that this charge constituted reversible error.

We categorically reject the position that the element of an unlawful entry may be established solely by proof that an accused had the intent to commit a theft or other felony within another’s premises. This is contrary to the plain language of the statute and would lead to the anomalous result that a person could be convicted of burglarizing a grocery store merely by entering the store with the intent to steal a food item therein. By instructing the jury it could find unauthorized entry based on the accused’s criminal intent, the challenged charge improperly eliminated the State’s obligation to prove the essential element of unauthorized entry beyond a reasonable doubt. OCGA § 16-7-1 (a); see generally Freelove v. State, 229 Ga. App. 310 (494 SE2d 72) (1997).

[107]*107Contrary to the State’s argument, nothing in Bradshaw v. State, 172 Ga. App. 330 (2) (323 SE2d 253) (1984); Jackson v. State, 151 Ga. App. 596 (2) (260 SE2d 565) (1979); or Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977) supports the giving of this charge. These cases stand for the principle that evidence of an accused’s unlawful entry into a building where valuable goods are stored may give rise to an inference of an intent to commit a theft therein, particularly where no other motive is apparent for the entry. This inference is based on the recognition that intent is usually not easily susceptible of direct proof, Thomas v. State, 166 Ga. App. 650, 651 (1) (305 SE2d 182) (1983), but may “be manifested by the circumstances connected with the perpetration of the offense.” Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969). Accord OCGA § 16-2-6 (trier of fact may find criminal intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted”). The charge in issue in this case, however, did not instruct the jury that it may infer criminal intent from conduct. Instead, the charge informed the jury that if an accused intends to commit a theft when he enters or remains on premises, the jury may infer from the accused’s intent that the entry or remaining on the premises was unauthorized. In other words, the charge improperly informed the jury that it could infer conduct from criminal intent.

The record reveals that the trial court did not subsequently correct the error or recharge the jury properly on this issue. Our review of the evidence adduced by the State on the burglary charge does not support the State’s contention that Thompson was not harmed by the error. See Division 2, infra. Accordingly, we hold that the trial court committed reversible error by giving the incorrect charge on the elements of burglary.

2. We turn now to the sufficiency of the evidence to support the convictions. At trial the State adduced evidence from which the jury was authorized to find that Thompson, Adams and Ray drove to the home of Ricky Wyatt, a drug dealer whom Adams knew. The plan was that Adams would visit Wyatt, use some ruse to persuade him to leave his home, and then Adams would page Thompson so that he and Ray could enter Wyatt’s home and help Adams steal Wyatt’s money and drugs. Ray, armed with a Colt Python .357 revolver, and Thompson, armed with Ray’s .25 caliber semiautomatic pistol, watched the home while Adams entered and remained in Wyatt’s home at his invitation. During their wait, Thompson heard a siren and, believing the police might be checking on the truck the trio had arrived in, returned to the vehicle. However, finding no police and no traffic ticket on the truck, Thompson walked back to Wyatt’s home in time to see the side door open and hear three shots being fired, with [108]*108first Ray and then Adams fleeing from the direction of the house. Nothing was taken from the victim or his home. Although Thompson told police that he “knew” Ray had entered the home, in statements he made to the police and as a witness for the State during the trial of Adams and Ray, Thompson consistently claimed that he did not personally see the actual shooting and that Ray had fled the scene before Thompson approached the house. The victim was found with his feet inside the side door and his body outside the house at the top of stairs leading to the door. He died from wounds inflicted by the .357 revolver subsequently recovered from Ray’s truck. The State also introduced a certified copy of Thompson’s first offender conviction for a Gordon County burglary.

We find the evidence adduced sufficient to enable a rational trier of fact to find Thompson guilty of felony murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, we must conclude that the State failed to adduce sufficient evidence from which a jury could have convicted Thompson of burglary either directly or as a party to the crime. The evidence established that Thompson’s co-defendant Adams entered and remained in Wyatt’s house with Wyatt’s permission. See footnote 2, supra. Contrary to the State’s contention, our review of the evidence fails to reflect any documentary or testimonial evidence from which the jury could have reasonably found that Thompson’s co-defendant Ray made an unauthorized entry into Wyatt’s house even for the brief time leading up to the victim’s shooting. No reasonable trier of fact could have interpreted Thompson’s statement that he “knew” Ray had entered the home to mean that Thompson had personally observed Ray’s entrance therein so as to establish this necessary element of burglary. Therefore, we reverse the conviction and sentence entered on the burglary count. Accord Caldwell v. State, 183 Ga. App. 110 (1) (357 SE2d 845) (1987).

The record reveals that Thompson was charged in a single count with felony murder based on three underlying felonies: aggravated assault with a deadly weapon, aggravated assault with the intent to rob, and burglary.

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Thompson v. State
519 S.E.2d 434 (Supreme Court of Georgia, 1999)

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Bluebook (online)
519 S.E.2d 434, 271 Ga. 105, 99 Fulton County D. Rep. 1924, 1999 Ga. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-state-ga-1999.