On appeal from his conviction for burglary, J. D. Solomon, Jr., asserts that the evidence was insufficient to support his conviction and that counsel was thеrefore ineffective when he failed to move for a directed verdict. We find that the evidence was sufficient to sustain his conviction, but that the triаl court erred when it sentenced him under the current rather than the former version of the burglary statute, OCGA § 16-7-1. Although we therefore affirm the jury’s verdict, we vacate Solomon’s conviction and remand for entry of conviction and resentencing under former OCGA § 16-7-1.
“On appeal from a criminal conviction, wе view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State,
So viewed, the record shows that at 11:36 p.m. on September 4, 2011, an officer with the Warner Robins police department received a call that an alarm had been аctivated at a local church. Dispatch advised that the tripped alarm was located on the door of a storage shed, which the rеsponding officer knew to be located on the western edge of the property The officer and a trainee arrived at the scene two minutes later, parked their patrol car on the street west of the church, cut off the car’s lights, and approached the propеrty from the south on foot. During a check of the space between two classroom trailers on the property, the officer saw Solomon folding up a metal ladder as he stood directly under a window of one of the trailers. The officer also saw a damaged window screen on the ground beside Solomon.
The officer and the trainee drew their weapons and commanded Solomon to get on the ground, where he was apprehended. A search
Solomon was charged with two counts of burglary in that he “intentionally, unlawfully and without authority” entered “a building,” the trailer, and another “building,” the shed, “with the intent to commit a theft or felony therein[.]” On the second day of trial, the State nolle prossed the count as to the trailer. The jury charge, closing arguments, and recharge
1. In cоntesting the sufficiency of the evidence, Solomon concedes that he entered the shed without authority, but asserts that his intent in doing so was only to obtain the ladder in order to enter the classroom trailer, with the result that he cannot be found guilty of burglary as to the shed. We disagree.
Former OCGA § 16-7-1 provided thаt a person committed burglary when, with “the intent to commit a felony or theft therein,” that person “enters or remains within [1] the dwelling house of another or [2] any building . . . designed for use as the dwelling of another or enters or remains within [3] any other building ... or any part thereof.” (Emphasis supplied.) See, e.g., Floyd v. State,
As our Supreme Cоurt has noted, “OCGA § 16-7-1 [has been] amended to create the gradations of first and second degree burglary The amendment became effective July 1, 2012 [,] аnd applies only to
On aрpeal, as at trial, Solomon concedes that he broke into the shed for the purpose of taking the ladder he was folding up when he was apprehended under the classroom trailer’s window. A damaged window screen was also found below that window. This jury was entitled to infer from the evidencе before it that Solomon entered the shed with the intent to steal the ladder for the purpose of breaking into the classroom building such that he was guilty of the burglary of the shed under the former burglary statute. Floyd,
2. In what may well have been a scrivener’s error, however, the trial court entered Solomon’s conviction as that of burglary in the first degree even though the former law encompassed no such crime. Because this error of law appears on the face of the trial court’s judgment, and because we cannot determine how the trial court would have sentenced Solomon under the former law, we vacate his conviction and remand for the entry of a new conviction and resen-tencing under that law. See Hoglen v. State,
3. In light of Division 1 above, in which we conclude that the evidence sufficed to sustain the jury’s verdict under former OCGA § 16-7-1, Solomon’s сontention that trial counsel was ineffective in failing to move for a directed verdict has no merit. See Hayes v. State,
Judgment vacated and case remanded with direction.
Notes
After the jury asked a question about the difference between burglary and the lesser included offense of criminal trespass, the trial court recharged on both of these definitions.
The current version of OCGA § 16-7-1 provides in relevant part:
(b) Aperson commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [1] an occupied, unoccupied, or vacant dwelling house of another or [2] any building, vehicle, railroad car, watercraft, aircraft, or other such, struct ure designed fоr use as the dwelling of another. . . .
(c) A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felоny or theft therein, he or she enters or remains within [3] an occupied, unoccupied, or vacant bu ilding, structure, railroad car, watercraft, or aircraft. . . .
(Emphasis supplied.) The current law’s distinction thus turns on whether, with “the intent to commit a felony or theft therein,” a defendant is found to have broken into a “dwelling house of another” or other “structure designed for use as [a] dwelling,” in which case he has committed first-degree burglary, or merely any other “building [or] structure,” in which case he has committed second-degree burglary. Id.
This indictment did not allege that either the trailer or the shed was a dwelling or that either structure was “designed for use” as such.