Hambrick v. State, A89A0309

• Citation: 378 S.E.2d 340,190 Ga.App. 119
• Decision Date: 18 January 1989
• Docket Number: No. A89A0309,A89A0309
• Parties: HAMBRICK v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 340

378 S.E.2d 340

190 Ga.App. 119

HAMBRICK v. The STATE.

No. A89A0309.

Court of Appeals of Georgia.

Decided Jan. 18, 1989.

Rehearing Denied Jan. 31, 1989.

Certiorari Denied March 8, 1989.

Mullins, Whalen & Shepherd, Samuel H. Sullivan, Griffin, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., Anne Cobb, Asst. Dist. Atty., for appellee.

BANKE, Presiding Judge.

The appellant was convicted of burglary. His primary complaint on appeal concerns the trial court's refusal to give his requested charge on criminal trespass as a lesser included offense.

The appellant was arrested while standing just inside the unlocked rear door of a Sears store which had been secured for the night only a few minutes earlier. He explained to the arresting officer that "he was looking for some food and a place to get warm." There was no evidence that the appellant was in possession of burglary tools or property belonging to the store, and the officer testified that there was no sign of a forced entry.

The appellant testified that he had lived on the streets for the previous four years, scavenging for food in trash cans and dumpsters. He stated that he had been searching through a trash can behind a restaurant in the shopping center where the Sears store was located when he noticed that the door to the Sears store was open. Explaining that he knew there was an area in the back of the store "where they kept the refrigerator and cookie machines," he testified that he "walked in and went straight to where they kept the food and stuff at, the refrigerator, and started looking in the trash can."

The trial court concluded that the appellant was not entitled to a charge on criminal trespass as a lesser included offense because he had admitted to entering the building with the intent to commit a theft therein when he testified that he entered to get food. Not knowing that his requested charge on criminal trespass would be refused, the appellant's counsel had already argued to the jury that his client should be found guilty of the lesser offense; and during the course of their deliberations, the jury returned to the courtroom to ask "if we can consider, as [appellant's counsel] suggested, a charge of criminal trespass." The judge responded by instructing them as follows: "You can either find one of two verdicts in this case. You can either find [the appellant] guilty of burglary or not guilty of burglary." Held:

1. Where the evidence establishes without conflict that a burglary in fact occurred, and the defendant simply denies being the one who committed it, the crime of criminal trespass merges with the crime of burglary, and no charge on criminal trespass is required. See Deese v. State, 137 Ga.App. 476, 477(3), 224 S.E.2d 124 (1976); Varnes v. State, 159 Ga.App. 452, 453(2), 283 S.E.2d 673 (1981). However, the evidence in this case does not establish without dispute that a burglary occurred. The appellant testified that he did not intend to steal anything from inside the store but merely hoped to find some food in the trash can in the vending machine area. Because any such food would have been discarded, it would not necessarily have been a violation of anyone's property rights for the appellant to have taken it. See Williams v. State, 187 Ga.App. 859(2), 371 S.E.2d 673 (1988) (holding that a defendant accused of theft by taking was entitled to defend against the charge on the theory that he reasonably believed the property had been discarded). Thus, a jury might reasonably have determined under the circumstances of this case that although the appellant acted unlawfully in entering the store, he did not enter "with the intent to commit a felony or theft therein," so as to be guilty of burglary within the contemplation of OCGA § 16-7-1(a). Accordingly, we hold that the trial court erred in refusing to give the appellant's requested charge on criminal trespass as a lesser included offense.

2. The court did not err, however, in "r...