Feagin v. State

• Decision Date: 01 February 1991
• Docket Number: No. A90A2140,A90A2140
• Citation: Feagin v. State, 402 S.E.2d 80, 198 Ga.App. 460 (Ga. App. 1991)
• Parties: FEAGIN v. The STATE.
• Court: Georgia Court of Appeals

Page 80

402 S.E.2d 80

198 Ga.App. 460

FEAGIN v. The STATE.

No. A90A2140.

Court of Appeals of Georgia.

Feb. 1, 1991.

Robert E. Bergman, Warner Robins, for appellant.

Douglas C. Pullen, Dist. Atty., Bradford R. Pierce, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

A.P. Feagin, Sr., appeals his bench trial conviction of criminal trespass asserting insufficiency of evidence.

The alleged victim, Gleason Fowler, claims appellant interfered with Fowler's right of use of a road giving access to the northern portion of his property, by barricading it and driving spikes into the ground. The trial meanders on both appellant's and Fowler's property. Appellant denied he drove spikes into the ground and asserts that he did erect barricades across the road, but only within the boundaries of his own property, after detecting the unauthorized dumping of garbage upon his land.

The criminal trespass accusation avers appellant did "knowingly and without authority enter upon the premises of another person, to-wit: Gleason Fowler ... for an unlawful purpose, to-wit: to drive metal spikes into the private roadway of ... Gleason Fowler." (Emphasis supplied.) Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. But, we note that in this case, the transcript contains repeated instances of testimonial hearsay. "Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection." Roney v. State, 192 Ga.App. 760, 761(1), 386 S.E.2d 412. Accordingly, hearsay, such as Fowler's testimony regarding a conversation during which a hunter reported that appellant had been observed putting metal files (apparently at some unidentified point) in the road, is without probative value.

2. OCGA § 16-7-21 pertinently provides: "(a) A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without his consent" and "(b) A person commits the offense of criminal trespass when he knowingly and without authority ... (1) Enters upon the land or premises of another ... for an unlawful purpose ... (2) Enters upon the land ... of another person ... after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or ... (3) Remains upon the land or premises of another person ... after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart."

In Ross v. State, 195 Ga.App. 624(1)(b), 625, 394 S.E.2d 418, we held "[t]his case is distinguishable from those cases in which an indictment [or accusation] avers several different manners in which the offense was committed, and there exists evidence sufficient to support a finding of guilt as to one of these averred manners; and, those cases where an appellant was an aider and abettor to the crime as averred. In this case, appellant was the only averred perpetrator and only one manner of crime commission was averred. While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance." (Citations, punctuation, and emphasis omitted.)

During bench trial the court observed that "[u]nless you have [a] survey, I don't know ... on whose property [the road is] on [at any given point]." And at the close of the hearing, even though this was a criminal trial, the court announced the following findings: "[T]hat the pathway is on both properties and that the victim ... does have an easement of wild property by prescription.... And so the [c]ourt is going to say that by using that for 20 years [the victim] has developed an easement into [appellant's] property. So the [c]ourt will find you guilty of criminal trespass."

Appellant asserts most persuasively, inter alia, that the evidence is insufficient to establish the existence of an easement by prescription in favor of Gleason...