Jennings v. State

May 14, 1997
A97A0760
Reporters:
, , ,
Before:
Johnson
Johnson, Judge.

Michael Dennis Jennings was charged with burglary, making terroristic threats, and second degree criminal damage to property. The evidence at trial showed Jennings broke into the victim’s home, poured paint ‍‌​‌‌‌‌‌​‌​​​​​​​‌​‌​​​​​‌​‌​​‌​​‌​‌‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​‌‌​‌​​​​‌​‌​‌‌‌​​‌​‌​‌‌​‌​‌​​​​​‍on her walls and belongings, wrote on her walls and mirror, damaged or destroyed other items of her personal property, and left threatening notes. The trial court granted Jennings’ motion for directed verdict of acquittal on the criminal damage to property charge, because the state did not prove the damage exceeded $500. See OCGA § 16-7-23 (a) (1). Over Jennings’ objection, the trial court ‍‌​‌‌‌‌‌​‌​​​​​​​‌​‌​​​​​‌​‌​​‌​​‌​‌‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​‌‌​‌​​​​‌​‌​‌‌‌​​‌​‌​‌‌​‌​‌​​​​​‍charged the jury on criminal trespass, ruling that it was a lesser included offense of criminal damage to property. The jury found Jennings guilty of criminal trespass and acquitted him of the remaining charges. In this appeal, Jennings contends the court erred in allowing the jury to consider the criminal trespass charge, because this effectively amended the indictment to add a ‍‌​‌‌‌‌‌​‌​​​​​​​‌​‌​​​​​‌​‌​​‌​​‌​‌‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​‌‌​‌​​​​‌​‌​‌‌‌​​‌​‌​‌‌​‌​‌​​​​​‍new charge. We disagree.

“An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when . . . [i]t differs from the crime charged only in the respect that a less serious injury . . . to the same person, property, or public interest . . . suffices to establish its commission.” OCGA § 16-1-6 (2). Because ‍‌​‌‌‌‌‌​‌​​​​​​​‌​‌​​​​​‌​‌​​‌​​‌​‌‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​‌‌​‌​​​​‌​‌​‌‌‌​​‌​‌​‌‌​‌​‌​​​​​‍the salient difference between criminal trespass as defined in OCGA § 16-7-21 (a) and second degree criminal damage to property is the amount of damage required for conviction, criminal trespass is a lesser included offense of second degree criminal damage to property. See Merrell v. State, 162 Ga. App. 886, 887 (3) (293 SE2d 474) (1982). The trial court therefore did not err in submitting the criminal ‍‌​‌‌‌‌‌​‌​​​​​​​‌​‌​​​​​‌​‌​​‌​​‌​‌‌​​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌​‌‌‌‌​​‌‌​‌​​​​‌​‌​‌‌‌​​‌​‌​‌‌​‌​‌​​​​​‍tres *462 pass charge to the jury.

Decided May 14, 1997 Before Judge Simmons. Michael B. King, for appellant. Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.