A Cоweta County jury found Jesse Louis Anthony guilty of criminal attempt to commit burglary, and the trial court denied his motion for new trial. On appeal, Anthony challenges the sufficiency of the evidence to convict him. He also contends that the trial court erred by not permitting his mother to testify that he suffered from а mental infirmity, and by failing to charge the jury on the lesser included offense of criminal trespass. Additionally, Anthony argues that his trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.
Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict. Hayes v. State,
Once on the front porch of the victim’s house, Anthony tried to open the front door without first ringing the doorbell or knocking on the door. After unsuccessfully trying to open the front doоr, Anthony went over to a window on the porch, turned facing the street, placed his fingers in a crack between the bottom of the window and the window frame, and tried to lift the window.
The neighbor, who had watched Anthony try to open the door and window, drove up to the victim’s house and yelled out to Anthony, “What the ‘bleep’ are you doing?” Anthony responded by running down the street. The neighbor got out of his car, chased Anthony, and tackled him. Another neighbor dialed 911, and the police arrived shortly thereafter.
Anthony was arrested and taken to the sheriff’s department, where he agreed to an interview with the investigator after being advised of his rights under Miranda v. Arizona,
Anthony was indicted for criminal attempt to commit burglary in that he attempted to enter the victim’s house to commit a theft. At the jury trial, the neighbor who witnessed what had transpired and who had tackled Anthony testified to the events as set out above. He further tеstified that Anthony never said anything to him about trying to find a place to live and never claimed to him that the incident had been a misunderstanding. The neighbor said that, instead, Anthony had threatened him by claiming that he would have someone come and “take care” of the neighbor in retaliation for chasing and subduing him.
In addition to the neighbor, the police investigator testified about his interview of Anthony at the sheriff’s department after he had been arrested. A video recording of the interview was introduced into evidence and played for the jury.
The victim whose house Anthony had attempted to enter also testified. According to the victim, he had recently purchased the house, and he and his wife were still in the process of moving their belongings into the house from out of state when the incident occurred. The victim testified that he had been splitting his time between his home out of state and his new home in Coweta Cоunty, and he slept in the house on an air mattress on the nights when he was there. He also noted that contractors had left construction equipment in the house. The victim had never seen Anthony previously and had never given him permission to enter his house, and he denied that the house still had a “for rent” or “for sale” sign outside on the day of the incident.
Anthony elected not to testify at trial, but he presented the testimony of his mother and stepfather to support the defense theory that he had simply been looking for a house for him and his family to rent or buy. His mother and stepfather testified that at the time of the incident, the family had been in the process of being evicted from their home and had been looking for a new place to live for several months. However, Anthony’s mother conceded on cross-examination that the family had in fact closed on a new house on the same day that thе incident occurred, and that Anthony had been made aware of the closing the previous night.
To show that Anthony lacked the requisite criminal intent, the defense wanted his mother also to testify that Anthony suffered from a mental infirmity. But Anthony had chosen not to raise an insanity defense, as the State pointed out to the trial court in opposing the
After hearing all of the’ testimony and reviewing the video recording of the police interview, the jury convicted Anthony of the charged offense. Anthony moved for a new trial, contending, among other things, that his trial counsel had been ineffective. After conducting an evidentiary hearing, the trial court denied Anthony’s motion. This appeal followed.
1. Anthony challenges the sufficiency of the evidencе, contending that there was insufficient circumstantial evidence that he intended to commit a theft in the victim’s house. He argues that the evidence supported a reasonable hypothesis that he was simply at the property to look it over as a possible place to live. He notes in his brief that he did not have a bag or burglary tools with him on the day in question, that his mother and stepfather provided testimony confirming that the family had been looking for a new place to live, and that there was evidence suggesting that a “for sale” sign may have still been up outside the residence and that the house appeared to be unoccupied at the time.
A person commits the offense of burglary by “entering or remaining in a dwelling house of another or building without authority and with the intent to commit a . . . theft therein.” Hopkins v. State,
As discussed previously, there was witness testimony at trial that Anthony emerged from between two houses in the neighborhood, attempted to open the front door of the victim’s house аnd force open a window, and tried to flee upon being seen by the neighbor. Additionally, there was testimony that construction equipment inside the victim’s home could be seen from outside, that there was no “for rent” or “for sale” sign outside the home at the time of the incident, and that Anthony did not have permission to enter the victim’s house. Lastly, there was evidence that Anthony’s family had in fact closed on a new home on the very day of the incident in question, and that Anthony had known that the closing was to occur. This combined evidence was sufficient to authorize a rational jury to find that Anthony had acted with the intent to commit a theft inside the victim’s house and had taken a substantial step toward entering the house for that purpose, and, therefore, to find him guilty beyond a reasonable doubt of criminal attempt to commit burglary. See Jackson v. Virginia,
While the defense presented a different theory of events and claimed that Anthony did not act with the intent to commit a theft, it was the jury’s province to assess witness credibility, resolve the conflicts in the evidence, and detеrmine whether there was a reasonable hypothesis of innocence favorable to Anthony. See Clarke v. State,
2. Anthony next contends that the trial court erred by prohibiting his mother from testifying that he possessed a mental
Anthony declined to pursue а defense of not guilty by reason of insanity, or to contend that he was guilty but mentally ill or guilty but mentally retarded.
3. Anthony also asserts that the trial court erred by not charging the jury on the lesser included offense of criminal trespass. In this regard, he appears to contend in this brief that he was entitled to a jury instruction on the lesser included offense of criminal trеspass under OCGA § 16-7-21 (b) (1), which provides that a person commits the offense of criminal trespass when he knowingly and without authority enters upon the land or premises of another for an unlawful purpose.
Because Anthony neither requested this charge nor objected when the trial court failed to give it, wе review the failure to give the charge only for plain error. See Alatise v. State,
Anthony cannot show that the failure to charge the jury on the lesser included offense of criminal trespass was erroneоus, and thus cannot show that the first prong has been met for proving plain error. Where the evidence shows either the commission of the offense charged in the indictment, or the commission of no offense at all, the trial court is not required to charge the jury on a lesser included offense. See
Anthony claimed in his interview with the investigator that he was at the victim’s property for the lаwful purpose of looking it over as a possible place to live. The defense presented the testimony of Anthony’s mother and stepfather in an effort to corroborate his claim, and elicited testimony from the neighbor on cross-examination that the victim’s home may have had a “fоr sale” sign still outside of it. In contrast, the State presented evidence reflecting that Anthony entered onto the property with the intent to commit theft inside the victim’s home, as discussed in Division 1. There was no evidence that Anthony entered on the property for any other unlawful purpose.
4. In a related enumeration of error, Anthony maintains that his trial counsel was ineffective for failing to request a charge on the lesser included offense of criminal trespass or to object when the trial court failed to give that charge.
To prevail on a claim of ineffective assistance, [Anthony] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if [Anthony] has made an insufficient showing on either prong.
(Citation and punctuation omitted.) Ledford v. State,
Judgment affirmed.
Notes
Before trial, a physician had evaluated Anthony and determined that he was mentally comрetent to stand trial.
Under Georgia law,
[t]he only two situations authorizing a verdict of not guilty by reason of insanity are where the defendant does not have the ability to distinguish between right and wrong at the time of the crime, OCGA § 16-3-2, and where at the time of the crime the defendant acted under a delusional compulsion which overmastered his will to resist committing the crime, OCGA § 16-3-3.
Caldwell v. State,
Unlike in Waldrop v. State,