Carter v. State

Decision Date23 June 1999
Docket NumberNo. A99A0512.,A99A0512.
PartiesCARTER v. The STATE.
CourtGeorgia Court of Appeals


James E. Millsaps, Covington, for appellant.

Alan A. Cook, District Attorney, Jennifer E. Greene, Assistant District Attorney, for appellee.

SMITH, Judge.

David Andrew Carter was convicted by a jury on one count of voluntary manslaughter, two counts of arson, one count of burglary, and one count of concealing the death of another. His motion for new trial was denied, and he appeals. We find no error, and we affirm.

Construed in support of the jury's verdict, evidence was presented, through Carter's own testimony, that he met the victim when making a delivery to the victim's company. The two became friends, sometimes sharing lunch together. The victim eventually invited Carter to his home, where he and Carter drank cocktails. Carter testified that he became drunk, and then they watched a pornographic movie and had a "sexual encounter." The next time Carter saw the victim, he told the victim he did not want to "do this again" but the victim threatened to drop Carter's account with the victim's company. According to Carter, he was "blackmailed" by the victim into a sexual relationship that continued over the next few years. He stated that the victim threatened him from "day one" of the relationship and that he feared the victim would reveal the relationship to Carter's employer and to Carter's wife. Carter testified that this relationship "was a small price to pay to keep my family."

The victim began demanding that Carter come to his home frequently, which helped precipitate an argument between the two men on the last of Carter's visits. Shortly after Carter arrived, he and the victim began fighting, and the victim fell, striking his head against the hearth in his living room. Carter testified that after the victim fell, Carter "jumped on him and held him down by his throat." Although the victim stated to Carter that he was bleeding, Carter stated that "the last thing I wanted to do was let him get a second wind." He also stated that he did not simply run away because the victim had told him there were guns in the house, and he was afraid of being shot. While Carter was holding the victim's throat, the victim stopped moving, and Carter eventually realized that he was dead. Carter also acknowledged that it was possible he could have struck the victim in his throat.

Carter went home, but a few days later returned to the victim's home, bringing matches and a plastic bottle containing gasoline. He testified that he walked through the unlocked front door, saw the victim still lying in the living room, poured gasoline onto a chair next to the victim, struck a match and threw it on the chair, and went home. He acknowledged that in setting the fire, he intended to "burn up [the victim] and any evidence" that he had been inside the house. The fire begun by Carter extensively damaged the entire house. Following the ensuing investigation of the fire and the victim's death, the medical examiner determined that the victim's cause of death was asphyxiation caused by strangulation or a blunt blow to the neck.

1. Carter argues that the evidence was insufficient to convict him of the crime of concealing the death of another.

Under OCGA § 16-10-31, "[a] person who, by concealing the death of any other person, hinders a discovery of whether or not such person was unlawfully killed is guilty of a felony." Carter argues that although he "readily conceded that his intent in setting fire to [the victim's] house was to hinder the discovery of whether or not such person was unlawfully killed," a rational jury could not have inferred that he intended "to conceal the death of [the victim]." According to Carter, his action "in starting the fire brought discovery of the death of [the victim]." We find no merit in this contention, for Carter testified that he intended to burn up the victim's body and other evidence linking him to the crime. The evidence authorized a rational trier of fact to convict him of hindering the discovery of whether the victim was unlawfully killed under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See generally Life v. State, 261 Ga. 709, 410 S.E.2d 421 (1991).

2. Carter argues that his convictions for burglary and arson should merge on the ground that "everything necessary to prove burglary was `used up' in proving the arson." We do not agree. The offense of burglary is completed when a person enters the dwelling of another, without authority, with the intent to commit a felony therein. OCGA § 16-7-1(a); Childs v. State, 257 Ga. 243, 251-252(12), 357 S.E.2d 48 (1987). The offense of burglary in this case was completed when Carter entered the victim's home with the intent to commit arson. Carter then committed arson by pouring gasoline on a chair and setting it on fire. The offense of arson was not included in the offense of burglary "as a matter of fact or law." Id. at 252, 357 S.E.2d 48. The same facts were not necessary to prove the commission of both offenses, and Carter was properly convicted and sentenced on each.

We note Carter's reliance on Lockett v. State, 153 Ga.App. 569, 266 S.E.2d 236 (1980), to argue that his convictions for arson and burglary should have merged. Lockett expressly states that "[t]heft by taking is a lesser included offense to burglary. [Cit.]" Id. at 570, 266 S.E.2d 236. Carter argues that Lockett exemplifies a line of cases contrary to the holding in cases such as Childs, supra, because, according to Carter, the logic of these cases, "if sound, should apply as well to ... theft cases."

Lockett does not require reversal in this case. This court in Lockett relied upon Baker v. State, 127 Ga.App. 99, 192 S.E.2d 558 (1972). But in Baker, the defendant had a factual defense that raised the possibility of conviction on theft by taking as opposed to burglary,1 and that case does not imply that theft by taking is always a lesser included offense of burglary. Indeed, the cases show that depending upon their facts, theft by taking is not necessarily a lesser included offense of burglary. See generally Hopkins v. State, 227 Ga.App. 567-568(1), 489 S.E.2d 368 (1997); Hambrick v. State, 174 Ga.App. 444, 447-448(2), 330 S.E.2d 383 (1985); Carroll v. State, 142 Ga.App. 428, 430-431(3), 236 S.E.2d 159 (1977). Accordingly, to the very limited extent that cases such as Lockett, supra, Darden v. State, 165 Ga.App. 739, 741(3), 302 S.E.2d 425 (1983), and McClinic v. State, 172 Ga.App. 54, 321 S.E.2d 796 (1984)2 stand for the proposition that theft by taking is always a lesser included offense of burglary, they are disapproved.

It may certainly be true, as theorized by the special concurrence, that Lockett, Darden, and McClinic were decided on the basis of the facts of each individual case. But in each of those cases, a broad, general statement was made without limitation to the facts presented. Each case states unequivocally that "[t]heft by taking is a lesser included offense to burglary." (Emphasis supplied.) Lockett, supra at 570(1), 266 S.E.2d 236; Darden, supra at 741(3), 302 S.E.2d 425; McClinic at 54(1), 321 S.E.2d 796. Significantly, however, this statement is not a complete statement of the law. Theft by taking may be, but is not always, a lesser included offense of burglary. Our hope, in disapproving the very broad language in the limited circumstances when it is applied wrongly, is not to "gratuitously" disapprove legitimate precedent, but simply to clarify the law and avoid the danger that the language will be misread or misunderstood to imply that theft by taking is always a lesser included offense to burglary.

Such a misreading of the law is evident from Carter's argument in this appeal. Without acknowledging that theft by taking is a lesser included offense of burglary based upon the facts of the case, Carter, in his brief, cites Lockett and asserts that Lockett holds that "Theft by Taking is a lesser included offense of Burglary with Intent to Commit a Theft." He relies upon the broad statement in Lockett to question why this court, in his opinion, has reached inconsistent conclusions with regard to the merger of violent offenses and the merger of non-violent offenses.3 The special concurrence therefore incorrectly states that the basis for disapproving Lockett, Darden, and McClinic "is not raised by Carter and does not affect Carter's contentions—or his case—one iota."

If one appellant, particularly one who has apparently not studied the greater body of law to determine the more correct language with respect to theft by taking as a lesser included offense, could rely upon the broad, general statement in Lockett, other appellants could do so as well. To avoid this result, it is this court's duty to clarify this statement for the bench and bar and avoid the possibility of future confusion concerning this issue. In this opinion, we do not overrule Lockett, Darden, and McClinic in their entirety; we do not criticize the otherwise sound analysis in those cases. Instead, as discussed above, we disapprove only that language that might be misinterpreted—or even intentionally misused—to argue falsely that theft by taking is always a lesser included offense of burglary. If we failed to recognize this potential for confusion, illustrated by Carter's arguments in this case, and failed to attempt to clarify our own inadvertently broad statements, we would be derelict in our duty. In the words of the special concurrence, we would "undermine ... our legal system and the public's confidence therein."

3. Carter contends that the trial court erroneously refused to recharge the jury on justification. After the jury began deliberating, it sent the following note to the trial court, "`We need a reading of the guidelines for the four choices on Count 1. Define, please, Number 1, murder; number 2, voluntary...

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