Chambers v. State

• Decision Date: 21 March 2007
• Docket Number: No. A06A2461.,A06A2461.
• Citation: 643 S.E.2d 871,284 Ga. App. 400
• Parties: CHAMBERS v. The STATE.
• Court: Georgia Court of Appeals

284 Ga. App. 400

643 S.E.2d 871

CHAMBERS v. The STATE.

No. A06A2461.

Court of Appeals of Georgia.

March 21, 2007.

Brandon Lewis, San Jose, CA, for appellant.

Paul L. Howard Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

BARNES, Chief Judge.

Following a jury trial, Percy Chambers was convicted of one count of burglary and was sentenced as a recidivist to twenty years, with eight to serve. Following the denial of his new trial motion, he appeals contending that the trial court erred in denying his motion for a directed verdict, and that his trial counsel was ineffective. Upon our review, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Citation and punctuation omitted.) Williams v. State, 217 Ga.App. 636, 638(3), 458 S.E.2d 671 (1995).

So viewed, the evidence shows that on March 3, 2002, the owner of several homes that were being constructed on Lakeside Drive arrived at the site and found a U-Haul truck backed up to the garage of one of the newly constructed homes. There were three newly constructed homes built next to each other—5510, 5520 and 5530 Lakeside Drive. Upon investigation, the owner discovered Chambers inside the home located at 5530 Lakeside. Chambers told the owner that he was there working on the home at the owner's request. The owner knew that Chambers was lying, so he engaged Chambers in conversation while his wife telephoned the police. When police arrived, they arrested Chambers, and it was later discovered that the U-Haul was stolen. The rear door of the house had been kicked in, and a dishwasher had been dislodged and dragged across the floor.

Similar transaction evidence was admitted that in October 1995, Chambers was found leaving the basement of a vacant house carrying an air conditioner and copper tubing. The rear door was kicked in, but he told police that he had gone into the house to use the restroom. Evidence was also admitted that in February 2003, Chambers was a passenger in a truck that police stopped that was loaded with appliances, one of which was stolen from a new construction site.

1. In his first enumeration of error, Chambers argues that the trial court erred in denying his directed verdict motion because the indictment alleged that the burglary was committed at 5530 Dixie Lake, and the facts show that the burglary occurred at 5530 Lakeside. The State argues that this variance was not fatal, and we agree.

The right to be tried upon an indictment that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the indictment. McKay v. State, 234 Ga.App. 556, 558(2), 507 S.E.2d 484 (1998).

We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance "fatal."

(Citation omitted.) Flanagan v. State, 265 Ga.App. 122, 125(2), 592 S.E.2d 894 (2004). See Edward v. State, 261 Ga.App. 57, 59(2), 581 S.E.2d 691 (2003) (a variance was not fatal where the indictment charged the correct address of the burglary but may have misidentified the house's owner).

Here, the indictment alleged that Chambers "did unlawfully, without authority, enter into the building located at 5530 Dixie Lake Drive, property of Regal Ezuruike, with intent to commit a theft within." The evidence at trial established that there was no such address in Fulton County, that the address where the crime was allegedly committed was actually 5530 Lakeside Drive, a new construction site upon which the victim was constructing three homes—5510 Lakeside Drive, 5520 Lakeside Drive and 5530 Lakeside Drive. Chambers argued that his defense was prejudiced because he had mounted a defense predicated on his investigation of the 5520 address based on a conversation with the victim, rather than the 5530 address alleged in the indictment.

Chambers' attorney apparently talked with the victim and knew that there was a defect on the address before the trial. It was also apparent that he mounted a defense against the burglary at that residence. As the trial court noted, Chambers was arrested at the scene of the burglary, and his actions in court demonstrated that he was fully aware of the location of the home he was accused of burglarizing.

"The variance between the indictment and the proof did not misinform or mislead [Chambers] in any manner that surprised him at trial or impaired his defense. Nor can he be subjected to another prosecution for the same offense...." (Citation omitted.) Brown v. State, 250 Ga.App. 147, 149(2), 550 S.E.2d 701 (2001).

Chambers' reliance on Charles v. State, 167 Ga.App. 806, 307 S.E.2d 703 (1983) is misplaced. In that burglary case, the victim, a business, owned five warehouses in the county. The indictment alleged that a warehouse at a specific address was burglarized, but the proof at trial showed that the crime actually occurred at another of the victim's warehouses at a different address. We held that failure to grant a directed verdict of not guilty was error, holding that our laws require "specification in a burglary indictment of the particular business structure burglarized when that business operates from two or more locations in the county. [Cits.]" Id. at 807, 307 S.E.2d 703. We are not persuaded by Chambers' argument that Charles applies because the "victim was a developer who owned three houses in the same county";...