FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
January 17, 2013
In the Court of Appeals of Georgia A12A1996. FLOYD v. THE STATE.
BOGGS, Judge.
William Floyd appeals, contending in his sole enumeration of error that
insufficient evidence supports his burglary conviction. We disagree and affirm.
When reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III)
(B) (99 SC 2781, 61 LE2d 560) (1979).
So viewed, the record shows that when a landlord entered a rental home from
which he had recently evicted tenants, he observed that the water heater in the utility
room was in good order. He removed locks from the doors and drove to a nearby
home supply store to purchase replacements. Approximately 20-25 minutes later, he
received a telephone call from a person who lived near the rental home informing him
that a white or beige Tahoe was parked in its driveway. Within 15 minutes of
receiving this telephone call, the landlord returned to the rental home and parked his
truck behind the Tahoe in the driveway.
When the landlord entered the home, he noticed that the attic stairway was
pulled down and called, “You guys have been evicted. Come on down. Get out of
here.” While he was looking up in the attic, Holly Gregory appeared in the hallway
behind him, waving her arms. When he informed her that she should not be in the
home, Gregory explained “our friend said we could come get some stuff out of the
house.” The landlord informed her that nothing remained in the house because it was
in a pile beside the street.
2 As Gregory was waving her hands and talking, the landlord “saw from the side
a figure with a red handle . . . scurrying out the back door.” Fearing for his safety, he
immediately left the home through the carport door, followed by the woman. While
he was standing at the front of his truck, the man came “around the side of the house
to where this woman was.” He was no longer carrying the red-handled object. After
telling them that “they had no business there,” the landlord called 911 and gave the
dispatcher a detailed description of the man and woman, as well as the Tahoe and its
tag number. While the landlord was on the telephone with 911, the man and woman
jumped in the Tahoe and drove “through the yard and out, not even on the driveway,
just to get out of there.”
A few minutes later, a police officer arrived. When the name Holly Gregory
came up in a conversation between the landlord and a third party, the officer decided
to drive to her father’s house because he knew her from high school. When he
arrived, he encountered Gregory and Floyd outside near a white SUV, placed them
in handcuffs, and advised them of their Miranda rights. Both claimed that they had
gone to the rental home to retrieve a refrigerator and a television for the former
tenants. The police officer testified that the Tahoe was filled with too much junk and
trash to move a refrigerator.
3 A search of the rental home revealed that the following damage had been done
to the hot water heater during the time the landlord left for the home repair store: the
top of the hot water heater had been cut off; pipes leading from the top of the hot
water heater had been cut off; and hot water supply pipes in the wall had been torn
out and cut off. Additionally, a red-handled bolt cutter was found behind bushes
located near the door used by Floyd to exit the house.
The landlord identified Floyd as the man he encountered in the rental home
both before and during trial. Following her guilty plea to burglary, Gregory testified
at trial on behalf of the State. During her testimony, she was impeached with her prior
statements that Floyd had gone into the home looking for copper wire and that he had
cut copper wires in the home. She testified that she was friends with the tenants who
had been evicted and admitted that she knew they were no longer allowed on the
property at the time she and Floyd encountered the landlord. She denied that she and
Floyd entered the house before encountering the landlord, claiming instead that they
were in the backyard to retrieve a refrigerator. Both Gregory and the landlord testified
that the landlord had not given Gregory and Floyd permission to enter the house that
day.
4 Floyd contends that this evidence is insufficient to sustain his burglary
conviction because the State presented insufficient evidence that (1) he entered the
home without authority, and (2) he intended to commit theft. “A person commits the
offense of burglary when, without authority and with the intent to commit a felony
or theft therein, he enters or remains within the dwelling house of another.” OCGA
§ 16-7-1 (a).
We conclude that the State presented sufficient evidence that Floyd entered the
home without authority. The landlord testified that the tenants had been evicted, that
all of their belongings had already been removed from inside the home, and that he
had not given permission for Floyd and Gregory to enter the home. Floyd’s claim on
appeal that he was operating under a mistake of fact with regard to his authority to
enter the home is not supported by the record. OCGA § 16-3-5 provides: “A person
shall not be found guilty of a crime if the act or omission to act constituting the crime
was induced by a misapprehension of fact which, if true, would have justified the act
or omission.” When asked at trial about what she told Floyd about the reasons for
needing his help, Gregory replied, “I believe I said that [the tenants] had gotten
evicted and that I needed to pick some stuff up. The sheriff had come and she was no
longer allowed to be on the property, so she asked me to pick up some stuff.” This
5 statement, if true, did not provide Floyd with legal authority to enter the home. See
Zabain v. State, 315 Ga. App. 749, 751 (2) (728 SE2d 273) (2012) (“Without
authority means without legal right or privilege or without permission of a person
legally entitled to withhold the right”). Gregory did not have the legal right or
privilege to grant permission for Floyd to enter the landlord’s property based upon
the request of an evicted tenant no longer allowed on the property.
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FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
January 17, 2013
In the Court of Appeals of Georgia A12A1996. FLOYD v. THE STATE.
BOGGS, Judge.
William Floyd appeals, contending in his sole enumeration of error that
insufficient evidence supports his burglary conviction. We disagree and affirm.
When reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III)
(B) (99 SC 2781, 61 LE2d 560) (1979).
So viewed, the record shows that when a landlord entered a rental home from
which he had recently evicted tenants, he observed that the water heater in the utility
room was in good order. He removed locks from the doors and drove to a nearby
home supply store to purchase replacements. Approximately 20-25 minutes later, he
received a telephone call from a person who lived near the rental home informing him
that a white or beige Tahoe was parked in its driveway. Within 15 minutes of
receiving this telephone call, the landlord returned to the rental home and parked his
truck behind the Tahoe in the driveway.
When the landlord entered the home, he noticed that the attic stairway was
pulled down and called, “You guys have been evicted. Come on down. Get out of
here.” While he was looking up in the attic, Holly Gregory appeared in the hallway
behind him, waving her arms. When he informed her that she should not be in the
home, Gregory explained “our friend said we could come get some stuff out of the
house.” The landlord informed her that nothing remained in the house because it was
in a pile beside the street.
2 As Gregory was waving her hands and talking, the landlord “saw from the side
a figure with a red handle . . . scurrying out the back door.” Fearing for his safety, he
immediately left the home through the carport door, followed by the woman. While
he was standing at the front of his truck, the man came “around the side of the house
to where this woman was.” He was no longer carrying the red-handled object. After
telling them that “they had no business there,” the landlord called 911 and gave the
dispatcher a detailed description of the man and woman, as well as the Tahoe and its
tag number. While the landlord was on the telephone with 911, the man and woman
jumped in the Tahoe and drove “through the yard and out, not even on the driveway,
just to get out of there.”
A few minutes later, a police officer arrived. When the name Holly Gregory
came up in a conversation between the landlord and a third party, the officer decided
to drive to her father’s house because he knew her from high school. When he
arrived, he encountered Gregory and Floyd outside near a white SUV, placed them
in handcuffs, and advised them of their Miranda rights. Both claimed that they had
gone to the rental home to retrieve a refrigerator and a television for the former
tenants. The police officer testified that the Tahoe was filled with too much junk and
trash to move a refrigerator.
3 A search of the rental home revealed that the following damage had been done
to the hot water heater during the time the landlord left for the home repair store: the
top of the hot water heater had been cut off; pipes leading from the top of the hot
water heater had been cut off; and hot water supply pipes in the wall had been torn
out and cut off. Additionally, a red-handled bolt cutter was found behind bushes
located near the door used by Floyd to exit the house.
The landlord identified Floyd as the man he encountered in the rental home
both before and during trial. Following her guilty plea to burglary, Gregory testified
at trial on behalf of the State. During her testimony, she was impeached with her prior
statements that Floyd had gone into the home looking for copper wire and that he had
cut copper wires in the home. She testified that she was friends with the tenants who
had been evicted and admitted that she knew they were no longer allowed on the
property at the time she and Floyd encountered the landlord. She denied that she and
Floyd entered the house before encountering the landlord, claiming instead that they
were in the backyard to retrieve a refrigerator. Both Gregory and the landlord testified
that the landlord had not given Gregory and Floyd permission to enter the house that
day.
4 Floyd contends that this evidence is insufficient to sustain his burglary
conviction because the State presented insufficient evidence that (1) he entered the
home without authority, and (2) he intended to commit theft. “A person commits the
offense of burglary when, without authority and with the intent to commit a felony
or theft therein, he enters or remains within the dwelling house of another.” OCGA
§ 16-7-1 (a).
We conclude that the State presented sufficient evidence that Floyd entered the
home without authority. The landlord testified that the tenants had been evicted, that
all of their belongings had already been removed from inside the home, and that he
had not given permission for Floyd and Gregory to enter the home. Floyd’s claim on
appeal that he was operating under a mistake of fact with regard to his authority to
enter the home is not supported by the record. OCGA § 16-3-5 provides: “A person
shall not be found guilty of a crime if the act or omission to act constituting the crime
was induced by a misapprehension of fact which, if true, would have justified the act
or omission.” When asked at trial about what she told Floyd about the reasons for
needing his help, Gregory replied, “I believe I said that [the tenants] had gotten
evicted and that I needed to pick some stuff up. The sheriff had come and she was no
longer allowed to be on the property, so she asked me to pick up some stuff.” This
5 statement, if true, did not provide Floyd with legal authority to enter the home. See
Zabain v. State, 315 Ga. App. 749, 751 (2) (728 SE2d 273) (2012) (“Without
authority means without legal right or privilege or without permission of a person
legally entitled to withhold the right”). Gregory did not have the legal right or
privilege to grant permission for Floyd to enter the landlord’s property based upon
the request of an evicted tenant no longer allowed on the property.
The State also presented sufficient evidence of Floyd’s intent to commit theft.
Whether the defendant entertained an intent to commit a theft after entering is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state 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 burglary improper.
(Citation and punctuation omitted.) Nelson v. State, 277 Ga. App. 92, 95 (1) (a) (625
SE2d 465) (2005). In this case, the following evidence sufficiently supports the
conclusion that Floyd intended to commit theft: the hot water heater and pipes were
damaged less than an hour before the landlord saw Floyd exit the rental home through
a back door while carrying an object with a red handle; Floyd was not carrying the
red-handled object when the landlord saw him come around the side of the house; a
6 red-handled bolt cutter was found underneath bushes near the door where Floyd
exited the home; there were no personal possessions of the former tenants located
inside the home; Gregory and Floyd fled when the landlord called 911; and Gregory
told the police that she and Floyd had gone to the home looking for copper wire and
that Floyd had cut wire in the home. See Snow v. State, 318 Ga. App. 131, 131-133
(1) (733 SE2d 428) (2012); Wilcox v. State, 310 Ga. App. 382, 384-385 (713 SE2d
468) (2011).
Because the State presented sufficient evidence to support Floyd’s burglary
conviction, we affirm.
Judgment affirmed. Doyle, P. J. and Andrews, P. J., concur.