A jury convicted Leroy Dillard of burglary and criminal attempt to commit burglary, and the trial court sentenced him to 20 years in confinement followed by 10 years on probation. He appeals, contending that the evidence was insufficient; that his trial counsel was
When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,443 U. S. 307 (99 SCt 2781 , 61 LE2d 560) (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.
(Citations omitted.) Benbow v. State,
So viewed, the first victim testified that she woke from a loud noise and found Dillard standing in her living room. He was standing in front of her 42-inch plasma TV, which was on the floor and had been disconnected from the DVD player, satellite dish, and PlayStation. She yelled at him and woke her adult son. Dillard ran toward the back bedrooms, and the son began grappling with him. The son testified that Dillard punched him in the face during the struggle, but he ultimately forced Dillard out of the house and saw him jog away.
The second victim, who lived nearby, heard loud banging outside his house and turned on his floodlights, which revealed Dillard at the back door. Dillard ran away, and the victim discovered that the screen in his garage window had been removed and his gate had been opened.
At trial, Dillard testified that he had not drunk alcohol for ten years, but fell off the wagon when he ran into some friends at a mall and went with them to their brother’s house for a birthday cookout. He and the two men stayed overnight in the brother’s basement recreation room, which had no bathroom. The brother advised the men to go outside if they had to relieve themselves. Dillard testified that after he went to sleep, his next recollection was bumping into a television and knocking it over. He tried to put it back but it was too heavy to lift, then heard someone screaming at him to get out and realized he was not at the brother’s house. He could not find his way out and did not know why someone was hitting him. Someone pushed him out the door, and he still did not know where he was and was trying to find the brother’s house when he was arrested. He did not recall trying to get into the second house.
Burglary is a specific intent crime — the State must prove that the defendant intended to commit a felony after making an unauthorized entry. Bogan v. State,
While voluntary intoxication does not excuse a criminal act, OCGA § 16-3-4 (c), Dillard argues correctly that evidence of intoxication can disprove the hypothesis of specific intent based on circumstantial evidence. See Ely v. State,
As to the attempted burglary, the second victim testified that after he woke and saw Dillard outside, he found the screen to an open window on the hood of his car and a piece of carpet he had left in the window sill for his cat to sit on was in his yard. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. The jury could have found that Dillard removed the screen in an attempt to gain entrance into the house, and thus the evidence was sufficient to sustain the attempted burglary conviction.
2. Dillard contends that his trial counsel was ineffective for failing to request a charge on criminal trespass as a lesser included
Criminal trespass may be a lesser included offense of burglary, but it is not necessarily one. Absent evidence that a defendant made an unauthorized entry for an unlawful purpose other than to commit a theft or felony, a charge on criminal trespass is unwarranted. Moore v. State,
While this court has stated without reservation that criminal trespass is a lesser included offense of burglary, the facts in those cases would allow a jury to infer that the defendant made an unauthorized entry for some unlawful purpose other than a felony or theft. For example, in Waldrop v. State,
Under the facts of this case, however, a charge on criminal trespass would not have been warranted. While Dillard admitted that his entry into the first residence was unauthorized, under his version of events he did not enter for an unlawful purpose, but simply wandered into the wrong house thinking he was staying there. “ [T]he evidence showed that appellant harbored either the unlawful purpose of committing theft or the lawful purpose of [going back to sleep in a friend’s house]. With only these two possibilities raised by the evidence,” a charge on criminal trespass would not have been warranted. Darden v. State,
As the trial court would not have been authorized to charge the jury on criminal trespass as a lesser included offense of burglary, it logically follows that Dillard cannot show that his trial counsel’s failure to request such a charge was ineffective. Boatright v. State,
3. Finally, Dillard contends that the trial court erred in sustaining the State’s objection to testimony from Dillard’s proffered expert witness on relevancy grounds. Dillard sought to call a licensed professional counselor focused on addiction to testify about alcoholic blackouts, “not for the purposes of showing intent or lack of intent, but for the purpose that it would help the jury understand that a person in a blackout condition still maintains their motor functions . . . [and] to educate the jury.”
“The admissibility of expert testimony is a matter within the trial court’s sound discretion. We will not reverse the trial court’s ruling on such evidence absent an abuse of that discretion.” (Citation and punctuation omitted.) Lott v. State,
In this case, evidence that Dillard might have been walking around in an alcoholic blackout could only have been relevant to whether he had formed the specific intent to commit a felony or theft when he entered or attempted to enter the victims’ houses. His trial counsel specifically stated that the expert was not being offered to address the issue of intent, however, and therefore the expert’s testimony was not relevant to Dillard’s defense. Bryant v. State,
Judgment affirmed.