OFFICIAL CODE OF GEORGIA ANNOTATED 2013 Supplement IncludingActs ofthe 2013 Regular Session ofthe General Assembly Prepared by The Code Revision Commission The Office ofLegislative Counsel and The Editorial StaffofLexisNexis® Published Under Authority ofthe State of Georgia Volume 14A 2011 Edition — Title 16. Crimes and Offenses (Chapters 7 11) IncludingAnnotations to the Georgia Reports and the GeorgiaAppeals Reports Place in Pocket of Corresponding Volume of Main Set LexisNexis® Charlottesville, Virginia Copyright © 2012, 2013 BY The State of Georgia All rights reserved. ISBN 978-0-327-11074-3 (set) ISBN 978-1-4224-9385-4 5018230 (Pub.41805) THIS SUPPLEMENT CONTAINS Statutes: All laws specifically codified by the General Assembly ofthe State of Georgia through the 2013 Regular Session ofthe General Assembly. Annotations ofJudicial Decisions: Case annotations reflecting decisions posted to LexisNexis® through March 29, 2013. These annotations will appear in the following tradi- tional reporter sources: Georgia Reports; Georgia Appeals Reports; Southeastern Reporter; Supreme Court Reporter; Federal Reporter; Federal Supplement; Federal Rules Decisions; Lawyers' Edition; United States Reports; and Bankruptcy Reporter. Annotations ofAttorney General Opinions: Constructions ofthe Official Code ofGeorgia Annotated, prior Codes ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti- tution of the United States by the Attorney General of the State of Georgia posted to LexisNexis® through March 29, 2013. OtherAnnotations: References to: Emory Bankruptcy Developments Journal. Emory International Law Review. Emory Law Journal. Georgia Journal of International and Comparative Law. Georgia Law Review. Georgia State University Law Review. Mercer Law Review. Georgia State Bar Journal. Georgia Journal of Intellectual Property Law. American Jurisprudence, Second Edition. American Jurisprudence, Pleading and Practice. American Jurisprudence, ProofofFacts. American Jurisprudence, Trials. Corpus Juris Secundum. Uniform Laws Annotated. American Law Reports, First through Sixth Series. American Law Reports, Federal. Tables: In Volume 41, a Table Eleven-A comparing provisions of the 1976 Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table Eleven-B comparing provisions of the 1983 Constitution of Georgia to the 1976 Constitution of Georgia. An updated version of Table Fifteen which reflects legislation through the 2013 Regular Session ofthe General Assembly. iii Indices: A cumulative replacement index to laws codified in the 2013 supple- ment pamphlets and in the bound volumes ofthe Code. Contacting LexisNexis®: Visit our Website at http://www.lexisnexis.com for an online book- store, technical support, customer service, and other company informa- tion. Ifyou have questions or suggestions concerning the Official Code of GeorgiaAnnotated, please write or call toll free 1-800-833-9844, fax at 1-518-487-3584, or email us at [email protected]. Di- rect written inquiries to: LexisNexis® Attn: Official Code of Georgia Annotated 701 East Water Street Charlottesville, Virginia 22902-5389 IV TITLE 16 CRIMES AND OFFENSES VOLUME 14 Chap. 1. General Provisions, 16-1-1 through 16-1-12. 5. Crimes Against the Person, 16-5-1 through 16-5-110. VOLUME 14A 7. Damage to and Intrusion upon Property, 16-7-1 through 16-7-97. 8. Offenses Involving Theft, 16-8-1 through 16-8-106. 9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157. 10. Offenses Against Public Administration, 16-10-1 through 16-10-98. 11. Offenses Against Public Order and Safety, 16-11-1 through 16-11-203. VOLUME 14B 12. Offenses Against Pubhc Health and Morals, 16-12-1 through 16-12-176. 13. Controlled Substances, 16-13-1 through 16-13-114. 14. Racketeer Influenced and Corrupt Organizations, 16-14-1 through 16-14-15. 16. Forfeiture of Property Used in Burglary or Armed Robbery, 16-16-1 through 16-16-2. — Law reviews. For note, "Seen But ibility ofRecanted Testimony," see 46 Ga. Not Heard: An Argument for Granting L. Rev. 213 (2011). Evidentiary Hearings to Weigh the Cred- 2013 Supp. T.16, C.7 CRIMESAND OFFENSES 16-7-1 CHAPTER 7 DAMAGE TO AND INTRUSION UPON PROPERTY Article 1 Burglary Sec. 16-7-1. Burglary. ARTICLE 1 BURGLARY 16-7-1. Burglary. (a) As used in this Code section, the term: (1) "Dwelhng" means any building, structure, or portion thereof which is designed or intended for occupancy for residential use. (2) "Railroad car" shall also include trailers on flatcars, containers on flatcars, trailers on railroad property, or containers on railroad property (b) Aperson commits the offense ofburglaryin the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house ofanother or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwellingofanother.Apersonwho commits the offense ofburglaryin the first degree shall be guilty ofa felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by impris- onment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by impris- onment for not less than five nor more than 25 years. (c) A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant building, structure, vehicle, railroad car, watercraft, or aircraft. Apersonwho commits the offense ofburglary in the second degree shall be guilty ofa felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions forburglaryin the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years. 2 2013 Supp. 16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1 (d) Upon a fourth and all subsequent convictions for a crime of burglary in any degree, adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld. (Laws 1833, Cobb's 1851 Digest, p. 790; Ga. L. 1858, p. 98, § 1; Code 1863, §§ 4283, 4285; Ga. L. 1865-66, p. 232, § 2; Ga. L. 1866, p. 151, § 1; Ga. L. 1868, p. 16, § 1; Code 1868, §§ 4320, 4322; Code 1873, §§ 4386, 4388; Ga. L. 1878-79, p. 65, §§ 1, 2; Code 1882, §§ 4386, 4388; Penal Code 1895, §§ 149, 150; Penal Code 1910, §§ 146, 147; Code 1933, §§ 26-2401, 26-2402; Code 1933, § 26-1601, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L, 1977, p. 895, § 1; Ga. L. 1978, p. 236, § 1; Ga. L. 1980, p. 770, § 1; Ga. L. 2012, p. 899, § 3-1/HB 1176.) The 2012 amendment, effective July punished by imprisonment for not less 1, 2012, rewrote this Code section, which than five nor more than 20 years. Adjudi- read: "(a) Apersoncommits the offense of cation of guilt or imposition of sentence burglary when, without authority and shall not be suspended, probated, de- withthe intentto commit afelonyortheft ferred, orwithheldforanyoffensepunish- therein, he enters or remains within the able under this subsection." See editor's dwellinghouse ofanotheroranybuilding, note for applicability. — vehicle, railroad car, watercraft, or other CodeCommissionnotes. Pursuant such structure designed for use as the to Code Section 28-9-5, in 2012, "more dwelling of another or enters or remains than" was substituted for "more that" in within any other building, railroad car, the next-to-last sen—tence ofsubsection (b). aircraft,oranyroomoranypartthereof.A Editor's notes. Ga. L. 2012, p. 899, personconvictedoftheoffenseofburglary, § 9-l(a)/HB 1176, notcodifiedbythe Gen- for the first such offense, shall be pun- eral Assembly, provides: "This Act shall ished by imprisonment for not less than becomeeffectiveonJuly 1, 2012, andshall one nor more than 20 years. For the pur- apply to offenses which occur on or after poses ofthis Code section, the term 'rail- that date. Any offense occurring before road car' shall also include trailers on July 1, 2012, shall be governed by the flatcars, containers onflatcars, trailers on statuteineffectatthetimeofsuchoffense railroad property, or containers on rail- and shall be considered a prior conviction road property. for the purpose of imposing a sentence "(b) Upon a second conviction for a that provides for a different penalty for a crime ofburglary occurring after the first subsequentconvictionforthesametypeof conviction, a person shall be punished by offense, ofwhatever degree or level, pur- imprisonment for not less than two nor suant to thisAct."— more than 20 years. Upon a third convic- Law reviews. For article on the tion for the crime of burglary occurring 2012 amendment ofthis Code section, see afterthefirstconviction, aperson shallbe 29 Ga. St. U.L. Rev. 290 (2012). JUDICIAL DECISIONS Analysis General Consideration Elements of Burglary 2. Unauthorized Entry 3. Intent Indictments Jury Instructions Inferencesand SufficiencyandAdmissibility of Evidence Sentencing 2013 Supp. 16-7-1 CRIMES AND OFFENSES 16-7-1 General Consideration convictions for strikingly similar hard- ware store burglaries. Although the evi- Evidence sufficientfordelinquency dence was circumstantial, there was no adjudication. other evidence of how the defendant's Evidence was sufficient to adjudicate a blood could have been at the scene. The child delinquent for the adult crime of trial court's definition of"entry" as entry burglary under O.C.G.A. § 16-7-1 based on to real estate was not error or iferror on a neighbor's testimony that the neigh- was not harmful, because the charge as a bor saw the child tampering with and whole required that the defendant enter opening the victim's back door and the the building. Roberts v State, 309 Ga. child's admission that the child "cracked" the door. That day, it was discovered that ApNp.o68e1v,id7e1n0cSe.Eo.f2de8n7t8ry(20w1i1t).hout au- money and video games were taken from — the victim. In the Interest of R. H., 313 thority. Defendant's burglary convic- Ga. App. 416, 721 S.E.2d 628 (2011). tion was reversed because even assuming Sufficient evi—dence to prove iden- that the evidence at trial showed that the tityandintent. Evidenceinsupportof defendant intended to commit a theft the burglary charge was sufficient to when the defendant first entered the sell- prove identity and intent as the victim er's residence, there was no evidence that identified the defendants as the individu- the defendant entered the home "without als who had been in the victim's house authority." There was no indication, for when the officers drove to the victim's example, that the defendant forced the house with the defendants. In addition, defendant's way in or that the seller de- the jury was authorized to find that the niedthedefendantpermissiontoenter. In defendants intended to commit a theft fact, the seller let the real estate agent when the defendants entered the house and the defendant, the agent's client, into without permission, looked behind and the seller's house and left the agent and inside thevictim's furniture, and left once the defendant there. Newtonv. State, 319 the victim called police. Gorman v. State, Ga. App. 494, 736 S.E.2d 752 (2012). 318 Ga. App. 535, 734 S.E.2d 263 (2012). CitedinMartinezv. State,318Ga.App. 3. Intent 254, 735 S.E.2d 785 (2012); Coleman v Sufficient evidence ofintent. State, 318 Ga. App. 478, 735 S.E.2d 788 Evidence that the defendant and an- (2012). otherwere carryingstolenitems toward a Elements ofBurglary police officer's car and that they dropped the items and ran when they realized it 2. Unauthorized Entry was a police car, despite the officer shout- ing at them to stop, was sufficient to Affirmative defenses. convict the defendant ofburglary and ob- Because adefendant's evidencethatthe defendantactedunderamisapprehension structionofjusticeinviolationofO.C.G.A. of fact in entering a house would have §§ 16-7-l(a) and 16-10-24(a). Mitchell v authorized the jury to acquit the defen- State, 312 Ga. App. 293, 718 S.E.2d 126 dant of burglary under O.C.G.A. (2011). § 16-7-1(a), and because the charge that Indictments wasgivendidnotproperlyinformthejury about the true nature of the defendant's Fai—luretofiletimelyspecialdemur- affirmative defense, the defendant was rer. Defendant could admit every alle- entitled to a charge on mistake of fact gation ofthe indictment and still lack the under O.C.G.A. § 16-3-5. Price v State, requisite intent for an attempt at bur- 289 Ga. 459, 712 S.E.—2d 828 (2011). glary. Consequently, theindictmentwould Entryinto store. Evidencewas suf- not have withstood a timely general de- ficientto convict a defendant ofburglariz- murrer, and trial counsel's performance ing a tool supply store, because the defen- was deficientin counsel's failure to timely dant's blood was found on the smashed-in challenge the validity of the attempted door and the defendant had two prior burglary count. Coleman v. State, 732 2013 Supp. 16-7-1 DAMAGE TO AND INTRUSION UPON PROPERTY 16-7-1 S.E.2d 466, No. A12A1087, 2012 Ga. App. different theory of events and claimed LEXIS 777 (201—2). that defendant did not actwith the intent Sufficient. Burglary count of the to commit a theft, it was the jury's prov- indictment was sufficient to withstand a ince to assess witness credibility, resolve general demurrer because although the the conflicts in the evidence, and deter- offense was mislabeled as "aggravated mine whether there was a reasonable hy- battery" in the body of the count, the pothesis of innocence favorable to defen- avermentportionofthecountfollowedthe dant. Anthony v. State, 317 Ga. App. 807, language oftheburglary statute andfully 732 S.E.2d 845 (2012). appriseddefendantoftheoffensecharged. Fingerprint evidence. The subject heading of the count clearly Juvenile's fingerprint, which was found referredtotheoffenseasburglaryandthe on a bottle of tonic water at the crime heading was followed by a citation to the scene, was sufficient evidence to support burglary statute itself. Jackson v. State, the adjudication ofthe juvenile as delin- 316 Ga. App. 588, 730 S.E.2d 69 (2012). quentforcommittingburglaryinviolation meNnot faantdalprvoaorfi.ance between indict- of O.C.G.A. § 16-7-1, and the juvenile's alternative hypothesis that the juvenile Any variance between the indictment earlier touched the bottle while the bottle andthe evidence attrial pertainingtothe was in the stream ofcommerce before the ownershipofthebuildingburglarizedwas victim purchased the bottle was not plau- not fatal, because ownership was not an element of burglary. Smarr v. State, 317 s6i6b0l,e.7I1n6tSh.eEI.n2tder7e6s8to(f20H1.1)A.., 311 Ga.App. Ga. App. 584, 732 S.E.2d 110 (2012). Evidence sufficient to establish un- Jury Instructions lawful entry. Sufficientevidence supportedthedefen- Charge on criminal trespass as dant'sconvictionforburglarybasedonthe lesser included offense. evidence that showed that the defendant Because there was no written request, and the co-defendant approached the vic- the trial court did not err by failing to tim's house armed and with the intent to instructthejuryon criminaltrespass as a rob, that the co-defendant knocked and lesser included offense of burglary gave a false name to entice the occupants Boatright v. State, 289 Ga. 597, 713 to open the door, that the defendants S.E.2d 829 (2011). — entered the house without being invited Refusaltochargemistakeoffact. in, thatthevictimimmediatelyattempted Trial court did not err in failing to charge to make the strangers leave the house, thejury on the defense ofmistake offact and thatthe intruders drew theirguns as under O.C.G.A. § 16-3-5 as to the bur- the intruders entered, all ofwhich estab- glarycountsoftheindictmentbecausethe lished that the defendant entered the fact that the defendant could have housewithout authority. Thomasv. State, thought that someone lived in the home 292 Ga. 429, 738 S.E.2d 571 (2013)—. did not constitute the type of mistake of Identification of defendant. De- fact that would serve as a defense to the fendant's convictions for armed robbery, defendant's unauthorized entry into the aggravated assaultwithadeadlyweapon, home since the evidence was burglary, and possession ofa firearm dur- uncontroverted that the defendant was ing the commission of a crime were sup- not invited into the home. Boatright v. ported by sufficient evidence. While the State, 289 Ga. 597, 713 S.E.2d 829 (2011). defendant contended that the evidence Inferences and Sufficiency and against the defendant was purely circum- Admissibility ofEvidence stantial, an eyewitness's identification of the defendant as the second gunman dur- Sufficient circumstantial evidence ing the photographic lineup constituted ofintent. direct evidence of the defendant's guilt. Defendant's conviction of criminal at- WilHams v. State, 316 Ga. App. 821, 730 tempt to commit burglary was affirmed S.E.2d 541 (2012). because while the defense presented a Sufficient evidence existed to support 2013 Supp. 16-7-1 CRIMES AND OFFENSES 16-7-1 the defendant's conviction for burglary, § 24-8-801). Lewis v. State, 311 Ga. App. aggravated assault, and two counts of 54, 714 S.E.2d 732 (2011). cruelty to children in the second degree Evidence was sufficient to support the based on the evidence adduced at trial defendant's conviction for burglary, under that the defendant broke into the adult O.C.G.A. § 16-7-l(a), because: (1) theper- victim's apartmentthrougharearwindow petrator of a crime entered just before andattackedthevictim, stabbedthe adult closing time a fast-food restaurant with a victim in the neck, dragged the victim gun and directed the employees into a down the hall, and stabbed the victim's room, a cooler, and a freezer; (2) the per- hand and, although the defendant put a petrator took money from the restaurant, cloth over the victim's face at some point, shot one of the employees, and left the the adultvictim saw thatthe person stab- scene in the employee's car; (3) one ofthe bingthevictim in the neckwas the defen- employeestelephonedrelativeswith acell dant, the victim's ex-boyfriend, and the phone and told the relatives what was victim positively and consistently identi- happening; (4) the relatives called the fied the defendant as the perpetrator. police, came to the restaurant, and saw White V. State, 319 Ga. App. 530, 737 the perpetrator drive away; (5) money, a S.E.2d 324 (2013). gun, anddiscardedclothingwasrecovered Circumstantial evidence identify- from the car or the area where the perpe- — ing defendant. There was sufficient trator fled on foot; (6) a police officer, who evidence to support the defendant's con- was pursuing the perpetrator, was viction for burglary, despite a witness be- woundedin an altercationwiththeperpe- ing impeached, because while there was trator when the officer's gun discharged; conflicting testimony about what the wit- (7) when the defendant later surrendered ness told police and whether the defen- to the police, DNAfrom the officer's blood danthadsoldthestolenphonetosomeone was found on the defendant's chest; and else, the circumstantial evidence identify- (8) the employees, the relatives, and the ing the defendant as the perpetrator was officer identified the defendant, a former sufficient. Jordan v. State, No. A12A2286, employee ofthe restaurant who was fired 2013 Ga.App. LEXIS 163 (Mar. 11, 2013). days before the crime, as the perpetrator. Sufficient evidence for conviction. Donald v. State, 312 Ga. App. 222, 718 Evidence that a defendant was seen S.E.2d 81 (2011). riding a bicycle after midnight while car- Evidence was sufficient to convict a de- rying a tire iron and ablack saw case and fendant of burglary in violation of wearinganewleathertoolbeltaroundthe O.C.G.A. § 16-7-l(a) because the defen- defendant's waist, along with the defen- dant was caught within four minutes of dant's own statement that the defendant the burglary in a truck matching the vic- had been working at the address later tims'descriptionofthe truckoutsidetheir determined to have been broken into and home, and the defendant was carrying a atoolbeltandsawtaken,was sufficientto crowbar, had the victims' television, and convict the defendant of burglary under fled from police. Veasley v. State, 312 Ga. O.C.G.A. § 16-7-1, although the defen- App. 728, 719 S.E.2d 585 (2011). dant fled from police and the stolen items Evidence was sufficient for a rational were not recovered. Wilcox v. State, 310 factfinder to find the defendant guilty be- Ga. App. 382, 713 S.E.2d 468 (2011). yondareasonable doubtoffalseimprison- Because the defendant admitted entry ment, O.C.G.A. § 16-5-41(a), burglary, into a home, the defendant's statement to O.C.G.A. § 16-7-l(a), and aggravated as- a witness, and the victim's in-court iden- sault, O.C.G.A. § 16-5-21(a)(2), because tification of the defendant supported the although the defendant argued that there defendant's conviction of armed robbery was insufficient credible and admissible andburglaryunder O.C.G.A. §§ 16-7-l(a) evidence to show that the defendant was and 16-8-41(a), thejury could find that a the victim's attacker, determinations of conspiracy existed without regard to a witness credibility and the weight to give coconspirator's statements under former the evidence presented was solely within O.C.G.A. § 24-3-5 (see now O.C.G.A. the province of the jury; defense counsel 2013 Supp.