Daniel v. State

• Decision Date: 14 August 2017
• Docket Number: S17G0107.
• Citation: 804 S.E.2d 61
• Parties: DANIEL v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 783
804 S.E.2d 61

DANIEL
v.
The STATE.

S17G0107.

Supreme Court of Georgia.

Decided: August 14, 2017

Gerard Bradley Kleinrock, OFFICE OF THE PUBLIC DEFENDER, 320 Church Street, Decatur, Georgia 30030, for Appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Senior A.D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 126 Pryor Street, SW, Atlanta, Georgia 30303, for Appellee.

GRANT, Justice.

A jury found Appellant Desmond Daniel guilty of burglary after he was caught attempting to gain entry to a house by removing a back door's hinges. The Court of Appeals affirmed the trial court's order denying Daniel's motion for new trial. Daniel v. State , 338 Ga.App. 389, 787 S.E.2d 281 (2016). We granted certiorari to address whether, in a prosecution for burglary, a defendant must present affirmative evidence to counter a permissible inference of specific intent in order to receive a jury instruction on a lesser-included offense of criminal trespass. Or in other words, as the Court of Appeals suggested, whether a defendant must present "other evidence negating any element of the crime of burglary" in order to receive a criminal trespass charge as a lesser-included offense in a burglary case. Id. at 391, 787 S.E.2d 281. The answer to that question is no—the defendant never assumes any burden to "disprove" any element of a criminal charge. But it is also true that an instruction on a lesser-included offense must be given only if the evidence warrants the instruction. Cotton v. State , 274 Ga. 26, 26 (2), 549 S.E.2d 71 (2001) ; Bryson v. State , 299 Ga. 751, 755 (2 (d), 791 S.E.2d 43 (2016). That standard was not reached here because there was no evidence at all before the jury to support Daniel's requested for a criminal trespass charge. Accordingly, we affirm the judgment of the Court of Appeals.

I.

On November 25, 2009, a Fulton County police officer responded to a 911 call from an eleven-year-old boy reporting that someone was trying to break into his home. When the officer arrived, he heard a loud "metal on metal" noise and found Daniel on a screened porch attempting to get inside the home through a door that led into the boy's bedroom. Daniel had breached a fence surrounding the property and had cut or damaged a portion of the screen on the porch door in an attempt to gain access to the home. A door leading to the interior of the home was not damaged, although the door's hinge pins had been raised as a result of the break-in attempt. When ordered to show his hands,

804 S.E.2d 64

Daniel exited the porch, walked towards the officer, and responded, "You got me." As the officer handcuffed him, Daniel told the officer, "I can get you a murderer." Although there were valuable items on the porch and inside the home, the residents determined that nothing was missing or moved. Situated in a neighborhood of occupied homes, the house was not boarded up and did not appear to be abandoned.

As was his right, Daniel did not testify at trial or present any other evidence. He did request in writing that the trial court instruct the jury on criminal trespass.¹ Ultimately, the trial court concluded that there was no evidence to support a criminal trespass instruction and denied Daniel's request. In his motion for a new trial, Daniel challenged the trial court's decision not to instruct the jury on criminal trespass. The trial court denied his motion, and the Court of Appeals affirmed. The Court of Appeals concluded that since there was no evidence of any intent other than that set out in the indictment, the evidence did not support the requested criminal trespass charge. Daniel , 338 Ga.App. at 392 (2), 787 S.E.2d 281. In reaching this conclusion, the Court of Appeals noted that Daniel "did not testify at trial or present any other evidence negating any element of the crime of burglary." Id. Because the Court of Appeals correctly concluded that there was no evidence to support the requested criminal trespass charge under the argument set forth by Daniel, we affirm. But to the extent that the Court of Appeals' opinion could be read to require a defendant to testify or present affirmative evidence negating the State's evidence of intent in order to be entitled to a jury instruction on a lesser-included offense, we disapprove of such a reading.

II.

Where a criminal defendant has pleaded not guilty and thereby disputed every element of the crime, that criminal defendant is under no obligation to prove, or disprove, anything. Parker v. State , 277 Ga. 439, 441 (2), 588 S.E.2d 683 (2003). "[T]he law is absolutely clear that a criminal defendant carries no burden of proof or persuasion whatsoever." Wyatt v. State , 267 Ga. 860, 863 (1), 485 S.E.2d 470 (1997). Consequently, Daniel was under no obligation to prove or disprove any element of burglary, the charge for which he was indicted. Any suggestion to the contrary in the decision below was incorrect.

But in order to authorize a jury instruction on a lesser-included offense, there must be some evidence in the record that the defendant committed that offense. See, e.g., Moore v. State , 254 Ga. 525, 531 (7), 330 S.E.2d 717 (1985) (finding no error in the trial court's refusal to instruct the jury on a lesser-included offense where the evidence would not support any such charge); Edwards v. State , 264 Ga. 131, 133, 442 S.E.2d 444 (1994) ("[W]here the State's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense , there is no error in failing to give a charge on the lesser offense."); see also Lupoe v. State , 284 Ga. 576, 577 (2), 669 S.E.2d 133 (2008) (holding that "where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense"). The evidence to support the charge does not need to be persuasive, but it must exist. There certainly have been cases where a defendant's own testimony or statements provided some support for charging the jury on a lesser-included offense. See, e.g., Hiley v. State , 245 Ga.App. 900, 539 S.E.2d 530 (2000) ; Hambrick v. State , 190 Ga. App. 119, 120 (1), 378 S.E.2d 340 (1989)....