*1
by receiving,
which led to his arrest for theft
and then to custodial
interrogation.
by receiving
His
that the
contention
arrest for theft
depends entirely
validity
was tainted
on the
of his first enumeration
preceding
opinion
in
of error. Since we held
division of this
his first
meritorious,
enumeration of error was not
his second enu-
Although
argues
Rushing
mеration is likewise without merit.
in his
suppressed
brief that his statement should also be
the result of
an
illegal
making
ground
suppres-
statements,
arrest for
false
for
presented
by
sion of the statements was not
court and
(313
to or ruled
was, therefore,
waived. Hardeman v.
Decided August appellant. Siemon, F. Morgan, Attorney, Coker,
J. Tom District Robert M. Assistant Attorney, Attorney Bаker, General, District Thurbert E. Paula K. Attorney Angelica Smith, General, Woo, Senior Assistant M. Assistant Attorney appellee. General,
S99A0503. THOMPSON v. THE STATE. Justice.
Hunstein, Christopher L. was found burglary, possession crime, the commission of a appeals of a firearm a convicted felon. He from the follow, a new trial.1 For the reasons which we
denial of his motion for reverse. (a), “[w]hen, a
1. Under OCGA 16-7-1 commits and with the intent to commit a or theft authority without therein, he enters or remains within.” concedes that initial charge correctly burglary.2 trial court’s instructed *2 However, in from the answering question jury regarding the “with- authority” out element of the burglary charge, court if jury instructed the that it found that a “has entered or has persоn remained on premises the another with the intent to commit a theft, that or not person’s entry remaining legally would autho- rized.” We agree with this constituted revers- ible error.
We the categorically reject position that the element of an unlawful entry may solely by be established that an accused proоf had the intent a theft commit or other within another’s This to the premises. contrary plain language of the statute and lead would to the anomalous result that a could person be convicted burglarizing store grocery merely by entering the store with the intent to steal a item By instructing food therein. the jury could find entry basеd on the intent, accused’s criminal the challenged charge improperly eliminated the State’s obligation the prove essential element of unauthorized entry beyond a reason- (a); able doubt. OCGA 16-7-1 see generally Freelove v. 229 § (494 310 SE2d App. 1 5,1997. Thompson originally The Floyd crimes occurred on Decembеr indicted in County co-defendants, LaShay Adams, with two Paul and testified the co- guilty plea agreement Upon withdrawing guilty defendants to a with the State. 10, plea, Thompson July jury September 16, was reindicted 1998. A found him on days imprisonment 1998 and two later he was sentenced to life for the a concurrent twenty-year burglary, five-year term for the and two consecutive terms on the charges. 15,1998, 17, His motion for new filed October was denied A November 1998. appeal appeal notice of was filed December 1998. The was docketed December 15,1998. orally argued and was March (1991) Suggested Jury Instructions, Cases, Pattern Vol. II: Criminal 2d ed. sets following charge burglary: person burglary when, forth the without “A commits the offense of (or in) authority, person any building dwelling enters remains or house of Burglary when, another . . . requi with the intent to commit a theft.” can result with the intent, (such person premises authority site criminal either enters another’s without as window) breaking through entering premises the door оr or the enters the with (such authority entering premises authority then remains on the after that has been revoked open public business, remaining a store but hidden inside when business over). (a). language suggested hours are pattern jury § OCGA 16-7-1 The “remains in” in the placed parentheses instruction to reflect the two factual alternates under the statute, thereby leaving appropriate to the trial court to select the more factual basis the charge. Although any in this case there was no evidence adduced that or of his co- Wyatt’s authority, defendants remained in house without the trial court nevertheless charged jury against сontinuing factual both alternates. We caution trial courts practice. nothing Contrary argument, in Bradshaw v. to the State’s (2) (1984); App. 151 Ga. (1979); App. App. State, 141 or Parrish v. (1977) charge. supports giving of this principle for the that evidence of an accused’s These cases stand building goods may are stored into a wherе valuable unlawful partic- give inference therein, intent to commit a theft rise to an of an entry. ularly apparent This inference no other motive is where usually easily suscepti- recognition intent is not is based on proof, of direct Thomas ble 182) (1983), may but “be manifested the circumstances con- perpetration the offense.”Mallette v. nected with the (trier Accord 16-2-6 24, 27 OCGA “upon may words, fact find criminal intent consideration of the con- demeanor, motive, duct, and all other circumstances connected with prosecuted”). charge in the act for which the accused is this nal intent from conduct. issue however, infer crimi- case, did not instruct that it Instead, the that if informed the theft when he an accused intends to commit a enters or remains on jury may premises, infer from the accused’s intent that remaining premises words, In on the was unauthorized. other or *3 jury charge improperly from informed the could infer conduct intent. criminal subsequently reveals that the trial court did not cor-
The record recharge jury properly on this issue. Our review rect the error or by burglary adduced the State on the does not of the evidence by Thompson support harmed the State’s contention that was not Accordingly, the trial court infra. we hold that error. See committed by giving the incorrect on the ele- reversible error ments of sufficiency support turn now to the the evidence
2. We jury evidence from which the At trial the State adduced convictions. Ray Thompson, drove to the to find that Adams and was authorized home of plan Ricky Wyatt, drug dealer whom Adams knew. Wyatt, persuade him to would visit use some ruse to that Adams Thompson page so that he home, and then Adams would leave his Wyatt’s Wyatt’s help Ray and Adams steal could enter home and Ray, Python money drugs. revolver, .357 armed with Colt Ray’s pistol, Thompson, armed with .25 caliber semiautomatic Wyatt’s and remained in home while Adams entered watched the home at During Thompson wait, heard a siren his invitation. their checking believing police might the trio had on the truck and, finding police However, no and no in, the vehicle. arrived returned to Wyatt’s Thompson home truck, walked back to ticket on the traffic being open fired, three with and hear shots time to see the side door Ray fleeing first Nothing and then Adams from the direction of the house. Although Thompson
was taken from victim or his home. police Ray told that he had home, “knew” entered the in statements police during he made to the and as a witness for the State Ray, Thompson consistently of Adams and claimed that he did not personally Ray see the actual and that had fled the scene Thompson approached before the house. The victim was found with body top his feet inside the side door and his outside the house at the leading of stairs to the door. He died from wounds inflicted subsequently Ray’s .357 revolver recovered from truck. The State copy Thompson’s also introduced a certified first offender convic- County burglary. tion for a Gordon
We find the evidence adduced sufficient to enable a rational trier
Thompson guilty
possession
of fact to find
arm
of a fire-
felony,
the commission of a
beyond
a convicted felon
a reasonable doubt. Jackson v.
the State failed to adduce sufficient evidence from
Thompson
burglary
which a
could have convicted
either
directly
or as a
to the crime. The evidence established that
Wyatt’s
co-defendant Adams entered and remained in
Wyatt’s permission.
supra. Contrary
house with
See footnote
any
State’s contention, our review of the evidence
fails
reflect
doc-
umentary
reasonably
or testimonial evidence from which the
could have
Ray
found that
co-defendant
made an
entry Wyatt’s
leading
house even for the brief time
up
shooting.
to the victim’s
No reasonablе trier of fact could have
interpreted Thompson’s
that he “knew”
had entered
personally
Ray’s
the home to mean that
had
observed
necessary
entrance therein so as to establish this
element of bur-
glary. Therefore, we reverse the conviction and sentence entered on
count. Accord
Caldwell v.
charged
single
The record reveals that
in a
count
underlying
aggravated
murder based on three
felonies:
deadly weapon, aggravated
assault with a
assault with the intent to
*4
general
rob, and
felony
returned a
verdict on the
delineating
underlying
murder count without
which of the
felonies
predicate
fеlony
served as
Accordingly,
for the
murder conviction.
general
because the
verdict of
did not indicate which of the
felony
alternate
upon,
theories the
murder conviction was based
we
Thompson’s
must likewise set aside
conviction murder.
(51
1117)
Stromberg
California,
v.
283 U.
S. 359
75 LE
(1931);
726)
Dunagan
(1998),
State,
v.
Corthran videotaped in it involved a distinguishable by Thompson, plea a negotiated the accused given police who consti- testimony given by rather than trial agreement, self-incrimination. tutionally right waived in no error at we find on the facts adduced 4. Based on abandon- give Thompson’s requested refusal court’s trial 16-4-5. ment. OCGA § enumeration, regarding remaining
5. crime, unlikely to a parties alleged incomplete court’s retrial. recur the Justices in All part. and reversed part
Judgment affirmed J., concur, specially. who concurs except Carley, Justice, concurring specially. Carley, majority concludes
I in Division wherein concur an essential entry as on unauthorized recharge erred its trial court general Becаuse the returned crime of burglary. element of the recharge requires count, the erroneous murder verdict on offense, as rever- for that as well convictions of Thompson’s reversal posses- offenses of separate sal of his convictions Dunagan a crime. firearm the commission sion of a *5 110 (3) (502 726) (1998). In 2, however, 594 590,
269 Ga. the majority not further holds that the evidence was sufficient to Thompson’s consequence, conviction for As a the authorize burglary retry him either for or for murder with State cannot (1) (456 burglary predicate State, as the offense. Priest v. 503) (1995). agree holding, SE2d dence I do not with this because the evi- guilt burglary Thompson’s of offеnse satisfies the stan- 2781, of 443 dard U. S. 307 opinion. 5, I 43, also concur Divisions and of the Court’s posses- Thus, I concur in affirmance of conviction the felon, a sion of firearm a convicted and in the reversal of his con- burglary victions for of a firearm dur- However, commission a crime. I the of believe that the State retry Thompson originally all three of the latter offenses as alleged in the indictment. theory majority finds the awas burglary inapplicable, of is
crime because there no evidence that the Ray entry co-defendant made an into unauthorized the victim’s leading up shooting.” house “even for the time the brief to victim’s 108.) (Majority opinion p. assuming Even be a correct assess- transcript, Ray ment the there nevertheless evidence that did authority. Thomp- enter the son told statement, victim’s home without In his Ray stepped “I officers that know at least into the door- way” shooting. Although after the this statement would not be Ray, against against Thompson admissible it is admissible himself. “Any transpired [his] regarding shortly references in what during, shortly before, or after the murder would be admissible as res (4) (477 gestae [Cit.]” 257, evidence. Garcia v. (1) (448 SE2d SE2d also See Johnson v. 177) Compare Gober 616) (1994) (inculpatory reference to co-defendant redacted trial). joint Thomp- when introduced аt a It does not matter whether personal son’s statement based his own observation of Ray’s entry, assessment the scene after the or what Ray subsequently inculpatory told him. The an statement attributes conspirator conspiracy, act to in the furtherance of the criminal against Thompson, § and, 24-3-52, to OCGA it is admissible though against Ray declarant, as the even it would not be admissible incriminating under OCGA 24-3-5. An statement made after the enterprise criminal has ended admissible who it. made It Munsford entry by Ray is immaterial that the unauthorized into the victim’s shooting. after, before, house rather than It is the actual timing, precise occurrence, not thе anof unauthorized which Ray inquiry. If first, constitutes the relevant fired shot his subse-
Ill no less certainly the victim’s house would entry quent then gain entry only if he used gun had unauthorized than 500, shot the victim. See Robbins 323) (1998) (defendant first where the victim was The evi- home, again). inside and shot pursued outside and then shot co- other Thompson, dence of between conspiracy the victim’s home was from property defendant to commit theft which, Thus, jury, if there is evidence believed overwhelming. Ray shot finding co-defendant would authorize an into the victim’s the victim and then made intent commit a therein. Insofar as commis- house theft *6 concerned, have of a is irrelevant sion аnd that he stole noth- only momentarily house entered victim’s App. while there. Williams v. 309) (1992); App. Ga. Mullinnix v. In sufficient to authorize the evidence is my opinion, fact to find a reasonable doubt proof beyond
rational trier of Ray’s commission Jackson State, 197 See Graham v. Ga. Virginia, supra.
600) (1990); Coursey subsequent Ray’s evidence testified that not uncontradicted. At In addressing [.]” made that house “[t]here no ever however, construed most grounds, evidence must be general for State was entitled favorably Thompson. testimony, trial believe reject Thompson’s exculpatory to the officers. Gibbons prior inculpatory inconsistent (1982). Therefоre, I disa- 863-864 be retried for Thompson may and believe that gree com- a firearm murder, burglary mission of crime. May 17, 1999.
Decided McClellan, Jr., appellant. F. John Colston, Jacobs, Martha P. Assistant Attorney,
TambraR District General, Baker, K. Paula Attorney Thurbert E. Attorney, District Smith, General, Assis- Attorney Kilgore, H. Maddox Assistant Senior General, appellee. tant Attorney