Daniel v. State, 301 Ga. 783

Police responded to a 911 call from an 11‑year‑old reporting someone trying to break into his home; officers found Daniel on a screened porch having damaged the porch screen and raised the hinge pins on an interior door. Daniel admitted, “You got me.”
The house was occupied, not abandoned or boarded, and nothing was reported missing or moved after the incident; valuables were present inside.
Daniel was indicted for burglary (intent to commit theft or a felony) and requested a jury instruction on the lesser included offense of criminal trespass under OCGA § 16‑7‑21(b)(1).
Daniel did not testify or put on any evidence at trial; his counsel argued only hypotheticals (e.g., seeking shelter) to support the trespass instruction.
The trial court denied the trespass instruction for lack of evidentiary support; the Court of Appeals affirmed but suggested a defendant must present evidence negating burglary intent to get the lesser instruction.
The Georgia Supreme Court granted certiorari, rejected the notion that a defendant must present evidence to receive a lesser‑included instruction, but affirmed because the record contained no evidence supporting criminal trespass.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a defendant must present affirmative evidence rebutting a permissive inference of intent to receive a jury instruction on a lesser included offense (criminal trespass) in a burglary prosecution	The State (and Court of Appeals reading) argued that absent other evidence negating burglary intent, no trespass instruction is warranted	Daniel argued that because he pleaded not guilty he had no burden to present evidence; a trespass instruction should be given even without defendant testimony	Court: Defendant has no burden to disprove elements, but a lesser‑included instruction requires some evidence in the record supporting that offense; defendant need not testify but must point to some evidence (from any source) supporting the lesser charge
Whether the trial court erred in refusing Daniel’s requested criminal trespass instruction given the record	State: the evidence supported either burglary or no crime; no evidence supported an unlawful purpose other than theft	Daniel: counsel suggested hypotheticals (e.g., seeking shelter) and argued jury could infer lack of intent to steal	Court: No error. The record contained no evidence that Daniel entered for an unlawful purpose other than intent to steal; counsel’s argument was not evidence, so refusal to instruct was proper

Cotton v. State, 274 Ga. 26 (statement of standard that lesser included instruction must be warranted by evidence)
Parker v. State, 277 Ga. 439 (criminal defendant bears no burden to prove or disprove elements after pleading not guilty)
Wyatt v. State, 267 Ga. 860 (reiterating that defendant carries no burden of proof or persuasion)
Moore v. State, 254 Ga. 525 (trial court may refuse lesser included instruction when evidence will not support it)
Edwards v. State, 264 Ga. 131 (no error in failing to charge lesser offense when State’s evidence establishes elements and no evidence raises lesser offense)
Mixon v. State, 226 Ga. 869 (interpreting unlawful purpose in trespass as purpose to violate a criminal law)
Steadman v. State, 81 Ga. 736 (permissive inference of intent to steal from presence of valuables)
Dillard v. State, 323 Ga. App. 333 (criminal trespass may be lesser included of burglary but is not necessarily one; evidence required to support trespass instruction)