Following a jury trial, Michael D. Anderson, Jr. appeals his convictions for burglary, possession of tools for the commission of a crime, use of a license plate for the purpose of concealing or misrepresenting the identity of a vehicle, and affixing a license plate with intent to conceal or misrepresent, contending that: (1) the evidence was insufficient to support the possession of tools count; and the trial court erred in: (2) permitting certain testimony; (3) failing to charge on criminal trespass; (4) charging on grave suspicion; and (5) rejecting his ineffective assistance claim. For the reasons set forth below, we affirm.
On appeal, the evidence must be viewed in a light most favorable to the verdict, and Anderson no longer enjoys the presumption of innocence. Pollard v. State. 1 2Nor can the evidence be reweighed or witness credibility reassessed. Walters v. State 2 So considered, the evidence shows that, in response to a rash of burglaries of new homes still under construction, Williamscraft Group contracted with off-duty police officers for night-time surveillance at the East Park subdivision in Cоbb County. Thefts had included the loss of dishwashers, built-in ovens, cooktop ovens, vent hoods, microwaves, kitchen sinks, and door units. Janice Wood, the company’s quality control manager, testified that at night the houses were secured and all garage and front doors were locked. Wood stated that a garage door could be opened only by use of a wall switch inside the garage.
At approximately 3:30 a.m., while conducting surveillance, Sergeant Timothy
On entering the house, Brooks and Harris discovered that the bottom kick plate of the
Brooks determined that entry had been gained through the front door whiсh had been “slipped,” meaning that some type of tool, such as a driver’s license or credit card, had been put between the locking mechanism and door frame. At defense counsel’s request, during cross-examination, Pugh demonstrated that technique for the jury by unlocking a locked door of the courtroom. Anderson’s driver’s license, entered in evidence, appeared damaged as though used to open up door locks in this manner. According to Wood, after the arrest of Anderson and Jones, the subdivision had no more problem with break-ins.
1. Anderson contends that the evidence was not sufficient to find guilt beyond a reasonable doubt of the possession of tools count. He claims that no witness saw him or his companion “actually using or even holding the tools.” He points out that the arresting officer testified that “[t]he tools had not been used inside the residence that I could tell.” Anderson argues that, although a witness surmised that he could have used his driver’s license to gain entry, the indictment did not list the license as one of the tools.
In pertinent part, the indictment charged Anderson with possession оf tools for the commission of a crime by unlawfully having in his possession screwdrivers, flashlights, a cutting tool, and a drill, “equipment and tools commonly used in the commission of a burglary and theft, with the intent to make use thereof in the commission of a burglary and theft.” The evidence showed that on thе floorboard of the Expedition, Anderson had screwdrivers, loping or pruning shears, a flashlight, and a cordless drill. Brooks testified that such tools “are commonly used for burglaries.” Later, while on cross-examination, Brooks was asked the purpose of the drill and the shears. Brooks explained that by using a drill, a person can screw and unscrew screws more quickly than by hand and that loping shears are used to cut wires and cut tubing.
From the evidence adduced at trial, including the time of night, Anderson’s effort to conceal or misrepresent his ownership of the vehiсle by use of the drive-out tag, the opened rear door of the Expedition, Anderson’s incongruous explanation for his presence at the house, the unauthorized entry of the house, the removal of the kick plate, and repositioning of the stove so that its wires cоuld be cut, we find that a rational trier of fact could have found Anderson guilty of this charge beyond a reasonable doubt. See Manous v. State. 3 Anderson’s reliance upon Burnette v. State 4 is misplaced because here, there was some evidence of forcible entry of the premises and the State presented other еvidence from which the jury could conclude that Anderson had those particular tools to disconnect the appliances so that he could steal them. See Ranson v. State. 5
2.
Anderson contends that the trial court erred in overruling his objection to the investigating officer’s testimony аbout his conclusions. He claims that whether he committed the two indicted offenses was not beyond the ken of the average person and that the officer should not have been allowed to give his opinion. We decline to reach this issue because Anderson failеd to pose a timely objection. See
Ryans v. State
6
7By the time that Anderson did object, the officer had already testified in detail about his findings and conclusions. By then, the officer had explained that the appliances were connected to the house and that the tools nеeded
Notwithstanding Anderson’s claim to the contrary, this is not a situation in which the doctrine of “plain error” applies. See Carroll v. State. 8 In Paul v. State, 9 the Supreme Court restricted the application of the plain error rule “to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57.” Here, no such circumstances exist.
3. Anderson contends that the trial court erred by failing to charge on criminal trespass. He asserts that he was entitled to that instruction because it is a lesser included offense of the burglary charge. He points out that he filed two written requests for an instruction on сriminal trespass, one of which carefully tracked the statutory definition of that offense.
A request to charge must be apt, a correct statement of law, and precisely adjusted to some theory in the case. Duncan v. State. 10 When there is any evidence that the defendant is guilty of the lesser included offense, the trial court must give the charge on the lesser included offense. State v. Alvarado.* 11 However, when the evidence establishes all of the elements of the indicted offense and there is no evidence raising the lesser offense, there is no error in refusing to charge the lesser offense. Edwards v. State 12
By Anderson’s theory of defense, overzealous officers had intercepted him as he innocently drove about looking at houses. Anderson testified that “as we were getting ready to pull back out” of the subdivision, a vehicle without lights “cuts me off in the street.” Anderson denied leaving his vehicle until the officer “directed me to get out of the car and asked me what was going on.” When specifically questioned by his lawyer, “[h]ad you been out of the vehicle prior to that?” Anderson denied having done so. Later, during closing argument, defense counsel claimed that “[t]hey weren’t in the house at all.” Since Anderson denied exiting his vehicle until ordered to do so, an instruction on criminal trespass would not have been adjusted to the evidence. The trial court did not err by refusing the requested charge. See Raymond v. State 13 (when defendant asserts a legal presence at the scene without an unlawful intent, issue of criminal trespass is not raised).
4. Anderson contends that the trial court erred in instructing the jury on “grave suspicion.” He claims that the charge on grave suspicion violated his right to due process by creating a reasonable likelihood that the jury applied the charge in an unconstitutional manner.
In the complained-of instruction, the trial court charged the jury that “the facts and circumstances which merely place upon a defendant a grave suspicion оf a crime charged or which merely raise a speculation or a conjecture of the defendant’s guilt, are not sufficient to authorize a conviction of the defendant.” Although Anderson asserts that this language “negates and weakens the reasonable doubt standаrd,” the trial court’s other instructions fully and correctly informed the jury on the State’s burden to prove the charges beyond a reasonable doubt. See Mika v. State. 14
5. Anderson asserts that the trial court erred in rejecting his ineffective assistance of
At the motion hearing, Anderson testified that his trial counsel should have met with him more frequently, needed to personally visit the subdivision, should have better prepared the defense witnesses including their courtroom attire, and should havе called three additional defense witnesses. The would-be witnesses were two uncles and a friend all of whom were present or former police officers. Anderson claimed that these witnesses would have established his interest in residential construction and his expertisе in remodeling houses. The three men testified at the motion hearing.
Trial counsel disputed Anderson’s claims. He testified that he met with Anderson seven times. Trial counsel explained that he had made use of photographs of the subdivision including an aerial photograph becаuse a visit to the now-occupied neighborhood would have accomplished “zilch.” He disagreed with Anderson’s assertion that the electrician and realtor were not dressed appropriately for court. As to the three would-be witnesses, counsel explained that he had to be very careful about selecting witnesses to ensure that Anderson’s felony forgery conviction and robbery conviction did not come in evidence. Defense counsel observed that “renovating houses is not a real good argument when you’re over in a brand new subdivision as far as a reason to be there. And also, the question of the use of the appliances. I had to make sure that the jury didn’t think that he was over there getting appliances to use in the renovated house.” In his opinion, the testimony of two of the witnesses cоuld have been dangerous, and collectively, the testimony of the three witnesses would have been cumulative or superfluous.
To establish an ineffectiveness claim, an appellant must show not only that his counsel’s performance was deficient but also that the defiсiency prejudiced him. Rucker v. State. 15 Failure to satisfy both requirements is fatal to such claim. Brewer v. State. 16 Here, we cannot say that Anderson made the requisite showing. Since the trial court’s finding on the ineffectiveness claim is not clearly erroneous, that finding must be affirmed. Kelly v. State 17
Judgment affirmed.
Notes
Pollard, v. State,
Walters v. State,
Manous v. State,
Burnette v. State,
Ranson v. State,
Ryans v. State,
Smarr v. State,
Carroll v. State,
Paul v. State,
Duncan v.
State,
State v. Alvarado,
Edwards v. State,
Raymond v. State,
Mika v. State,
Rucker v. State,
Brewer v. State,
Kelly v. State,