Bowman v. StateBowman v. State
- Reporters:
- , ,
- Before:
- Carley
Appellants Madia Bowman and Michael Hirsh were jointly tried before a jury on accusations which charged that they “did, knowingly and without authority, remain upon the premises of Feminist Women’s Health Center [FWHC], . . . after receiving notice from ... a properly identified and authorized representative of said owner of said premises to depart from said premises. . . .” See
1. Appellants enumerate the general grounds. In support of this enumeration, appellants urge only that there was a lack of sufficient evidence that they were “knowingly” on the premises of FWHC so as
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to authorize a finding that they had violated
Appellants contend that the evidence is undisputed that they acted in the good faith belief that they were on public rather than on private property. Thus, appellants assert that they did not have the requisite guilty “knowledge” that the premises from which they had been asked to depart were actually those of FWHC. “A person commits the offense of criminal trespass when he knowingly and without authority: . . . Remains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or upon proper identification, an authorized representative of the owner or rightful occupant to depart.”
It follows that appellants’ actual “knowledge” of the viability of FWHC’s property rights is not an essential element of the State’s proof of their violation of
2. Appellants enumerate as error the giving of the following charge to the jury: “[E]veryorie is presumed to know the law and ignorance thereof is not an excuse for its violation.”
The contention is that, by the giving of this charge, the trial court unconstitutionally shifted to appellants the burden of proof as to the element of their “knowledge” that they were on the premises of FWHC. However, as discussed in Division 1, whether appellants “knew” they were on the premises of FWHC is not an element of the crime they were charged with violating. Accordingly, the charge could in no way have had the erroneous and harmful effect of shifting to appellants the burden of proof as to an essential element of the crime. Compare Williams v. Kemp, 255 Ga. 380 (338 SE2d 669) (1986).
The charge was a correct instruction as to an applicable legal principle. The charge instructed the jury that appellants were presumed to know that the act of choosing to remain, knowingly and without authority, on the premises of another after having received proper notice to depart therefrom was a violation of the law, and that appellants’ lack of knowledge that the law criminalized such an intentional act would not excuse the commission of that intentional act. “Everyone is presumed to know the law and ignorance thereof is not an excuse for its violation. [Cit.]” Martin v. State, 160 Ga. App. 275, 277 (1) (287 SE2d 244) (1981). “[T]he accused was nevertheless bound to know what the law was. It would never do to hold that one who did an act which the law makes criminal could be excused because he honestly misapprehended the true meaning of a statute. The question in such a case is not one of good faith or of diligence in endeavoring to find out what the law was. It is simply: Did the accused knowingly do the forbidden act?” Fraser v. State, 112 Ga. 13, 18 (5) (37 SE 114) (1900). The issue in this case was simply: Did appellants knowingly and without authority remain on the property of FWHC *547 after they had received proper notice to depart therefrom? If they did, their lack of knowledge that such an intentional act was criminal would be no defense to their criminal liability for its commission. The giving of the charge was not error.
3. Appellants enumerate as error the trial court’s failure to give a requested charge on the defense of mistake of fact. See
Appellants assert only that they were mistaken as to whether the property interest claimed by FWHC in a portion of the premises was sufficient to authorize it to make a valid request that appellants depart therefrom so that appellants may be prosecuted for criminal trespass. However, appellants were not acting under any misapprehension of fact when they refused FWHC’s request that they depart from those premises. The evidence shows that appellants were aware of all the facts regarding the purported public and private property interests in the premises in question and that they were, if anything, merely mistaken as to the legal consequences of those facts. With knowledge of the fact that FWHC had requested that they depart the contested premises, appellants refused to comply, choosing instead to rely upon their own independent assessment of whether FWHC was legally authorized to make and to enforce their request as to those premises. Having considered all of the relevant facts and having then made their own election, appellants’ criminal liability would ultimately depend upon whether their legal assessment of the facts was correct or incorrect. If, under the facts, appellants’ legal assessment was correct and FWHC had no legal right in the property and no legal right to ask them to leave, then the criminal law would not have been violated. If, on the other hand, appellants’ legal assessment was incorrect and FWHC had, under those same facts, the legal right to request that appellants depart, then appellants’ decision to ignore FWHC’s request was, even if made in good faith, in possible violation of
“The accused[s] did not make any mistake of fact; but, conceding that [they] acted in good faith, [they may have] judge [d] erroneously with respect to the law. This cannot, of course, excuse [them]. [Cit.]” Fraser v. State, supra at 18 (5). Thus, the evidence shows, “at best, an inexcusable mistake of law, not of fact. [Cit.]” Morgan v. State, 161 Ga. App. 67, 68 (3) (288 SE2d 836) (1982). Since the evidence did not raise the defense of mistake of fact, the trial court did not err in refusing to give a requested charge on that defense.
4. The trial court’s failure to give appellants’ following request to charge is enumerated as error: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt, and to a moral and reasonable certainty.”
Appellants’ refused request clearly states a correct principle of
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applicable criminal law. See
The record shows that appellants did not deny the commission of any acts attributed to them. They denied only that they had the criminal intent necessary for those acts to constitute the commission of the crime of criminal trespass. With specific regard to the “essential element” of appellants’ intent, the trial court did charge: “[I]ntent is an essential element of any crime and must be proved by the State beyond a reasonable doubt.” Thus, notwithstanding the trial court’s failure to give a general charge as to the State’s burden of proof as to “each element” of the crime, the trial court did give a specific charge as to the State’s burden of proof with regard to the element of intent, which element was, under the circumstances of this case, the decisive element in determining appellants’ criminal liability. Under these circumstances, the failure of the trial court to give appellants’ requested charge as the State’s general burden of proof as to “each element” of the offense or to give a charge which “substantially covered” that general principle was, at most, harmless error. It should be noted, however, that the better practice would be for the trial court to give a written request to charge the jury in the exact language of
5. After the trial court’s charge to the jury, appellant objected to the giving of the following instruction: “[Fjreedom of speech and freedom to peaceably assemble must be exercised within a framework of order and the conduct employed in exercising these freedoms must not constitute a trespass upon property owned or occupied by private persons.” The only objection raised by appellants in the trial court was that the instruction was “subject to the interpretation that public property . . . that [is being occupied by] private persons . . . could become the location of [a] criminal trespass.” On appeal, appellants enumerate the giving of the charge, over their objection, as error.
*549 Contrary to appellants’ assertions in the trial court and on appeal, the charge did not, in effect, instruct the jury that private persons who were occupying public property could enforce the criminal trespass laws as to that public property. The instructions merely informed the jury that the right to exercise the freedoms of speech and of assembly must be tempered by regard for private property. See generally Daniel v. State, 231 Ga. 270 (201 SE2d 393) (1973). This abstractly correct principle of law was certainly applicable in the instant case. See Daniel v. State, supra. “Criminal trespass is ... a location crime and its purpose is to keep the defendant off the property of others.” Williamson v. State, 134 Ga. App. 583 (215 SE2d 518) (1975). The jury was therefore, in effect, correctly instructed that appellants’ acts of expression must nevertheless be performed so as not to constitute a criminal trespass upon property which was being occupied by FWHC. The jury was not erroneously instructed that appellants’ acts, if committed on public property which was merely being occupied by FWHC, would necessarily constitute trespass. The charge did not purport to define the crime of “trespass” for the jury. Rather the instruction simply delineated the parameters of appellants’ constitutional rights.
In arguing this enumeration, appellants also rely upon other instructions which were given by the trial court and which deal with the entirely separate issue of whether the premises over which FWHC purported to exercise dominion were nevertheless public property. However, appellants did not object in the trial court to the charges given as to this separate issue and the record shows that appellants have waived their right to enumerate error on appeal as to those instructions. See generally White v. State, 243 Ga. 250 (253 SE2d 694) (1979). The only instructions which appellants are entitled to assert to be erroneous on appeal are those which have previously been discussed.
6. The trial court’s rulings as to the scope of testimony given by two expert witnesses called by appellants are enumerated as error.
With regard to one of the expert witnesses, appellants made no proffer of what his answer would have been had the State’s objection to the question not been sustained. This prevents appellate review of the exclusion of this witness’ testimony. See generally Stancil v. State, 155 Ga. App. 731, 733 (3) (272 SE2d 511) (1980).
With regard to the other expert witness, the trial court struck legal opinions expressed as to the “ownership” of and property rights in a portion of the premises in question. The trial court’s rulings were not erroneous. See generally Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527, 540 (5) (251 SE2d 800) (1978). Compare Ivy Inn v. MARTA, 175 Ga. App. 580, 583 (4) (334 SE2d 319) (1985), aff‘d 255 Ga. 557 (340 SE2d 600) (1986).
Judgments affirmed.
Benham, J., concurs. Banke, P. J., concurs in Diuisions 1, 2, 3, 5, 6 and in the judgment.