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McLEROY v. THE STATE

Court of Appeals of Georgia1987-09-08No. 74430
184 Ga. App. 62360 S.E.2d 631

Summary

Holding. The judgment convicting the appellant of burglary was affirmed. The trial court properly admitted prior burglary evidence as probative of the appellant's intent to steal and properly refused to instruct the jury on criminal trespass as an included offense because the evidence did not support the statutory elements of that charge.

The appellant was convicted of burglary after being arrested exiting a building through a broken window that he had damaged with lumber. The trial court admitted evidence of two prior burglary convictions from 10 and 11 years earlier, where the appellant had similarly forced entry into unoccupied buildings, stolen property, and been caught entering or leaving the premises. The court found the prior crimes sufficiently similar to the current offense to show the appellant's intent to steal and determined that the passage of time did not warrant exclusion of this evidence.

The appellant also requested a jury instruction on criminal trespass as an included offense of burglary. The trial court declined to provide this instruction. The court rejected this claim because there was no evidence supporting the statutory elements of criminal trespass, specifically no evidence regarding the amount of property damage or any intent other than theft. The requested charge was therefore not grounded in the evidence presented at trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Admissibility of evidence of prior similar burglaries committed 10 and 11 years earlier
  • Whether the passage of time since prior burglaries required exclusion of such evidence
  • Propriety of refusing a jury instruction on criminal trespass as an included offense when evidence does not support the statutory elements

Procedural posture

The appellant appealed his burglary conviction, raising two issues: the trial court's admission of evidence regarding prior burglaries and the trial court's refusal to give a requested jury instruction on criminal trespass as an included offense.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Benham, Judge.

This appeal is from appellant’s conviction of burglary. The testimony of the arresting officer was that he heard glass breaking while on patrol; that he returned to the place where he heard that sound and found a window broken and burglar bars bent; that he shined his flashlight through the window and saw appellant; and that appellant was arrested when he exited the building through the broken window at the officer’s direction. Two issues are raised on appeal: the admission of evidence of two previous burglaries by appellant, and the trial court’s refusal to give a requested charge on criminal trespass as an included offense.

Decided September 8, 1987.

J. Douglas Willix, for appellant.

1. The evidence of similar transactions established that appellant had entered pleas of guilty to two burglary indictments 10 and 11 years prior to the present prosecution. In both those cases appellant had gained access to unoccupied buildings by forcing entrance, had stolen items from inside the buildings, and had been apprehended either inside or as he departed the building. Here, appellant had broken a window and bent burglar bars with a piece of lumber, then ransacked the premises, a doctor’s office, strewing medication around the floor. We find the prior transactions sufficiently similar to the present case to permit the admission of the evidence for the purpose of showing that appellant entered the building on this occasion with the intent to steal as he had done on both previous occasions. We also find that the passage of time since the previous burglaries was not so great as to require that the evidence be excluded. Support for our position on both issues may be found in our recent decision in Nelson v. State, 181 Ga. App. 481 (352 SE2d 804) (1987). Therefore, the trial court did not err in admitting the evidence and denying appellant’s motion for new trial.

2. Appellant filed a request with the trial court for a jury instruction concerning criminal trespass as an included offense of burglary. The refusal of the trial court to give that charge is enumerated as error.

Appellant’s request to charge purported to set out the provisions of OCGA § 16-7-21 (a) and (b) (1), which establish two different ways the offense may be committed: by intentionally damaging the property of another in an amount set by the statute or less; or by entering the premises of another for an unlawful purpose. Since there was no evidence in the present case concerning the dollar amount of the damage done to the premises entered by appellant, and since there is no evidence of any intent other than that set out in the indictment, to commit a theft, the requested charge was not supported by evidence. See Johnson v. State, 156 Ga. App. 411 (2) (274 SE2d 778) (1980); Fullewellen v. State, 127 Ga. App. 568 (194 SE2d 275) (1972). That being so, the trial court did not err in refusing to give the requested charge. Prater v. State, 171 Ga. App. 122 (3) (318 SE2d 816) (1984).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.