Donald E. Joyner was indicted by a Jenkins County grand jury on two counts of burglary and one count of sexual battery. After a bench trial, he was convicted of one count of burglary and sexual battery. His motion for new trial was denied, and he appeals, asserting the general grounds, failure to consider a lesser included offense, newly discovered evidence, and ineffective assistance of counsel. Finding no error, we affirm.
1. Joyner asserts the general grounds, arguing that the State failed to prove that he entered the victim’s home with the intent of committing a theft. Construed in favor of the verdict, the evidence shows that Joyner admitted he entered the victim’s home at 1:30 in the morning without permission, explaining that he was intoxicated at the time. He testified that he went into the victim’s bedroom and dropped his keys and that he “used the bed as a brace to pick up my keys.” The victim testified that she was awakened from sleep by a cold hand on her pubic area. When she asked who it was, Joyner identified himself and said “he wanted to wish [her] a merry Christmas.” She chased him out of the house with a pair of scissors, and he cursed her and left. When the sheriffs deputy arrived, he asked the victim if *310 anything was missing and she checked her electronics and Christmas gifts and reported that nothing was missing. After the deputy left, however, the victim discovered that several bottles of prescription medication were missing from a basket on top of her dishwasher and that her purse had been rifled. She testified that $39 was missing from her wallet.
Joyner argues that the victim’s testimony with regard to the missing money and drugs is mere “conjecture” and refers to it as “negative testimony,” citing OCGA § 24-4-7. The victim’s testimony, however, is more accurately described as circumstantial evidence.
A conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused. OCGA § 24-4-6. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.
(Citations and punctuation omitted; emphasis in original.)
Hayes v. State,
The requisite intent necessary for commission of burglary, pursuant to OCGA § 16-7-1 (a), need not be formed at the precise moment of entry, but can be formed thereafter while the perpetrator is remaining on the premises. Moreover, intent may be inferred from, and usually of necessity must be proved by, circumstantial evidence. Whether the circumstantial evidence adduced at trial was sufficient to prove the requisite intent necessary for each count of burglary was a question of fact for the factfinder.
(Citations and punctuation omitted.)
Hewatt v. State,
Joyner contends that certain comments made by the trial court during sentencing show the trial court found “that the defendant probably did not enter the residence with the specific intention of stealing, but of pursuing some other unfulfilled hope.” This argument mischaracterizes the trial court’s comments. The trial court found Joyner guilty of burglary with the intent to commit theft, but not guilty of burglary with intent to commit rape. The comments refer to the trial court’s reason for finding Joyner not guilty of burglary with intent to commit rape. The court stated, “I don’t think you entered there with intent to commit rape, I think you went there with an intent to pursue something that didn’t come to fruition and was met by a rebuff rather than friendliness, and I think that says well what [the victim] testified to that she didn’t think that you intended to rape her.” The trial court explicitly stated, “The reason why the court’s found you guilty is because I find the testimony of the victim credible.” The evidence was sufficient for the trier of fact to find Joyner guilty beyond a reasonable doubt under the standard of
Jackson v. Virginia,
2. Joyner contends the trial court erred in failing to consider criminal trespass, OCGA § 16-7-21 (b), as a lesser included offense of burglary. “Since there is no jury, a bench trial creates fewer possible grounds for appellate review. For example, the conduct of voir dire and jury instructions are not a potential basis for reversal.”
Brown v. State,
Here, the record shows that both Joyner and his counsel put forth the theory of criminal trespass: Joyner testified that “I should have left” and “I realize I had no business at [the victim’s] house” but denied that he intended to commit a theft or sexual assault. His counsel argued this as well. Clearly, Joyner’s position was that he
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knew he should not have entered the house but did so without the intent to commit a theft or rape, and this position was presented to the trial court. Joyner “bears the burden of showing error affirmatively by the record,” (footnote omitted)
Carter v. State,
3. Joyner contends he is entitled to a new trial on the basis of newly discovered evidence, presenting the affidavits of several witnesses who challenge the victim’s testimony that she knew Joyner but had never “partied” or smoked marijuana with him.
The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.
(Citations and punctuation omitted.)
Timberlake v. State,
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4. Finally, Joyner claims his counsel provided ineffective assistance at trial. His trial attorney represented Joyner on the motion for new trial, and he has now retained new counsel. This appeal therefore appears to be the earliest opportunity for Joyner to raise an ineffective assistance of counsel claim, and remand for an evidentiary hearing ordinarily would be required. But if Joyner’s “claims can be resolved as a matter of fact or law upon the existing record, we will not remand this case.” (Citation omitted.)
Massingill v. State,
In order to establish ineffectiveness of trial counsel under Strickland v. Washington,466 U. S. 668 , 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
(Citations and punctuation omitted.)
Stephens v. State,
In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a defendant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant.
(Citation and punctuation omitted.)
Letson v. State,
Judgment affirmed.