White v. State
323 Ga. App. 660
Ga. Ct. App.2013Background
- On Sept. 13, 2010, a homeowner’s adult daughter was alone when a young man repeatedly knocked, rang the doorbell, and rattled the carport door; she confronted him and told him to leave.
- She observed a maroon pickup backed into the carport with the tailgate down and wrote down the tag and description.
- Police located and stopped a maroon truck matching the tag; three men were detained and returned to the residence.
- The daughter identified Kavaseay Hines as the man at the door and Brian Jeremy White as the driver of the truck; officers observed damage to the carport door.
- White was indicted and convicted by a Dougherty County jury for attempted burglary (as a party to the offense). He appealed, arguing insufficient evidence of intent and a fatal variance between the indictment (alleging prying at the locked carport door) and the proof.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (White) | Held |
|---|---|---|---|
| Sufficiency of evidence of intent for attempted burglary | Circumstantial evidence and eyewitness ID support that White, as a party, took substantial steps toward burglary; jury may infer intent | White lacked requisite intent; his explanation (soliciting yard work) undermines State’s proof | Affirmed — viewing evidence in light most favorable to prosecution, a rational juror could find intent; credibility was for jury (Jackson standard) |
| Fatal variance between indictment (prying at locked carport door) and proof | Indictment gave adequate notice that defendants attempted entry of locked carport door; any discrepancy with proof was immaterial | No evidence any defendant actually pried at the door, so indictment allegation was not proven (fatal variance) | Affirmed — court applies materiality test; variance did not affect substantial rights or ability to defend and did not expose defendant to double prosecution |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- Weeks v. State, 274 Ga. App. 122 (2005) (materiality-based fatal-variance inquiry; protect accused’s substantial rights)
- Murray v. State, 187 Ga. App. 747 (1988) (intent can be proven by circumstantial evidence)
- Anthony v. State, 317 Ga. App. 807 (2012) (jury’s province to resolve witness credibility and conflicts)
- Smarr v. State, 317 Ga. App. 584 (2012) (variance that does not expose defendant to another prosecution is not fatal)