Hambrick v. StateHambrick v. State
The appellant was convicted of burglary. His primary complaint on appeal concerns the trial court’s refusal to give his requested charge on criminal trespass as a lesser included offense.
The appellant was arrested while standing just inside the unlocked rear door of a Sears store which had been secured for the night only a few minutes earlier. He explained to the arresting officer that “he was looking for some food and a place to get warm.” There was no evidence that the appellant was in possession of burglary tools or property belonging to the store, and the officer testified that there was no sign of a forced entry.
The appellant testified that he had lived on the streets for the previous four years, scavenging for food in trash cans and dumpsters. He stated that he had been searching through a trash can behind a restaurant in the shopping center where the Sears store was located when he noticed that the door to the Sears store was open. Explaining that he knew there was an area in the back of the store “where they kept the refrigerator and cookie machines,” he testified that he “walked in and went straight to where they kept the food and stuff at, the refrigerator, and started looking in the trash can.”
The trial court concluded that the appellant was not entitled to a charge on criminal trespass as a lesser included offense because he had admitted to entering the building with the intent to commit a theft therein when he testified that he entered to get food. Not knowing that his requested charge on criminal trespass would be refused, the appellant’s counsel had already argued to the jury that his client should be found guilty of the lesser offense; and during the course of their deliberations, the jury returned to the courtroom to ask “if we can consider, as [appellant’s counsel] suggested, a charge of criminal trespass.” The judge responded by instructing them as follows: “You can either find one of two verdicts in this case. You can either find [the appellant] guilty of burglary or not guilty of burglary.” Held:
1. Where the evidence establishes without conflict that a burglary in fact occurred, and the defendant simply denies being the one who committed it, the crime of criminal trespass merges with the crime of burglary, and no charge on criminal trespass is required. See
Deese v. State,
2. The court did not err, however, in “restricting] the [jury’s] right to return a conviction based upon the crime of theft by taking. . . .” Since the appellant unquestionably had entered or remained in the building without authority, a finding that he had committed a theft would necessarily have established his guilt of burglary. “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.”
Burley v. State,
3. Nor did the trial court err in denying the appellant’s motion for a directed verdict of acquittal on the burglary charge. Although the jury could have concluded from the appellant’s testimony that he did not intend to commit a theft inside the building, it was not required to do so. “[P]roof of unauthorized entry does not dispense with the need to further show such entry was with the intent to commit a felony or theft; it does make, however, the jury’s conclusion, reached by consideration of
all
circumstances connected with the act, that the requisite intent was present, a logical one.”
Ealey v. State,
4. The trial court did not err in refusing to give the appellant’s
5. The appellant’s remaining enumeration of error is directed to the trial court’s failure to hold a pre-charge conference to inform counsel of its proposed action on the requests to charge prior to closing arguments, as required by
Judgment reversed.