Mease v. State

• Decision Date: 11 March 1983
• Docket Number: Nos. 65217,65218,s. 65217
• Citation: 302 S.E.2d 429,165 Ga.App. 746
• Parties: MEASE v. The STATE. BURKE v. The STATE.
• Court: Georgia Court of Appeals

Page 429

302 S.E.2d 429

165 Ga.App. 746

MEASE v. The STATE.

BURKE v. The STATE.

Nos. 65217, 65218.

Court of Appeals of Georgia.

March 11, 1983.

Edwin Marger, Robert O. Davies, Atlanta, for appellants.

T. Michael Martin, Asst. Sol., Martin L. Cowen III, Riverdale, for appellee.

SOGNIER, Judge.

Both appellants were convicted at a joint trial of criminal trespass. Additionally, Mease was convicted of pointing a pistol at another and reckless conduct by waving a pistol around, and Burke was convicted of using abusive language in the presence of another. We granted a motion to consolidate the appeals.

Burke does not appeal her conviction of using abusive language in the presence of another, but contends the trial court erred by denying her motion for a directed verdict of acquittal of criminal trespass. Mease contends, inter alia, the trial court erred by denying her motion for a directed verdict of acquittal of all offenses.

At approximately 5:00 a.m. appellants, licensed bondsmen, went to Ann Barron's home with a pickup order and arrest warrant for Barron's daughter, Donna Gosdin. Although Barron told appellants that her daughter was not there appellants entered Barron's living room. Mease went upstairs carrying a pistol at her side and entered the master bedroom. Barron followed and as she opened the bedroom door, Mease pointed her pistol at Barron. Mease returned to the living room and Barron asked appellants to leave. However, Mease went downstairs to the family room, again carrying her pistol, and met another of Barron's daughters, Tarrant, coming upstairs. Mease pointed her pistol at Tarrant, but lowered it immediately on seeing it was not Gosdin. Gosdin was not in the house, and when appellants refused to leave, Tarrant called the police.

1. Appellants moved for a directed verdict of acquittal of all offenses except for the charge against Burke of using abusive language in the presence of another. The motions were denied and appellants contend this was error.

a. In regard to the offenses of criminal trespass by entering Barron's house without authority for an unlawful purpose, appellants argue that they were authorized by a pickup order and an arrest warrant for Gosdin to enter Barron's home and seize Gosdin and, thus, they cannot be guilty of criminal trespass.

OCGA § 16-7-21(b) (Code Ann. § 26-1503) provides: "A person commits the offense of criminal trespass when he knowingly and without authority: (1) Enters upon the land or premises of another person ... for an unlawful purpose;" (Emphasis supplied.)

The state contends the arrest warrants did not authorize anyone other than an authorized law enforcement officer to arrest Gosdin and, therefore, appellants had no authority to enter Barron's house.

Pretermitting the question of whether or not appellants entered Barron's house without authority is the question of whether they did so for an unlawful purpose, as alleged. In Coleman v. State, 121 Ga. 594, 597(1-2), 49 S.E. 716 (1904), our Supreme Court held: "Where one accused of crime is released on bond, he is transferred from the custody of the sheriff to the legal, but friendly, custody of the bail, whose 'dominion is a continuance of the original imprisonment,' but they may at will surrender him again to the custody of the law. If the accused refuses to surrender, the bail can seize and hold him in order to make delivery in discharge of the bond.... [T]he bail may lawfully deputize an agent to seize the body and deliver him to the custody of the sheriff." (Emphasis supplied.)

Appellants were licensed bondsmen in the employ of Delta Bonding Company, which issued Gosdin's bond. The state stipulated "that the bond was forfeited, that an arrest warrant apparently was issued for her arrest, and that they [appellants] had a legitimate right to look for that lady [Gosdin]." The state stipulated further that Gosdin gave Barron's address as her (Gosdin's) residence on the bond application.

In view of the holding in Coleman, supra, together with the fact that appellants were licensed bondsmen and the state's stipulation that appellants were authorized to look for Gosdin, the evidence does not support a finding that appellants entered Barron's house for an unlawful purpose. Thus, the state failed to prove an essential element of the offense charged in the accusation, and a verdict of acquittal was demanded as a matter of law. Motes v. State, 159 Ga.App. 255, 257(1), 283 S.E.2d 43 (1981). Accordingly, it was error to deny appellants' motion for a directed verdict of acquittal as to the offenses of criminal trespass.

b. As to Mease's conviction of pointing a pistol at another, OCGA § 16-11-102 (formerly Code Ann. § 26-2908) provides: "A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded."

Mease contends she was legally justified in pointing her pistol at Barron (she denied pointing the pistol at Tarrant) because the phrase "armed and dangerous" was at the top of the arrest warrant for Gosdin, and she was surprised when Barron opened the bedroom door. However, Mease knew Gosdin by sight. Since Barron was clearly visible when entering the bedroom and Mease knew it was not Gosdin, Mease was not justified in pointing her pistol at Barron. As Mease's actions fall directly within the conduct prohibited by OCGA § 16-11-102 (Code Ann. § 26-2908), it was not error to deny her motion for a directed verdict of acquittal. At the very least, there was a conflict in the evidence as to whether Mease's actions were justified, and a trial court's refusal to direct a verdict of acquittal is error only when there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law. Sims v. State, 242 Ga. 256, 257(1-3), 248 S.E.2d 651 (1978).

c. In regard to the charge against Mease of reckless conduct, OCGA § 16-5-60 (Code Ann. § 26-2910), provides: "A person who ... endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act ... will ... endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor."

The accusation in this case alleged that Mease "did consciously disregard a substantial and unjustifiable risk by her act of waving a pistol around." (Emphasis supplied.) There is no evidence in the record, including the testimony of Barron and Tarrant, that Mease was ever waving a pistol around. At most, she pointed the pistol at two persons she met suddenly, and lowered the pistol immediately upon recognizing that those persons were not Gosdin. Mease's action in pointing the pistol at Barron and Tarrant formed the basis of the accusation that Mease pointed a pistol at another without justification. Since the state failed to present any evidence that Mease was "waving a pistol around," a verdict of acquittal was demanded by the evidence, and it was error to deny Mease's motion for a directed verdict of acquittal as to the reckless conduct charge. OCGA § 17-9-1 (Code Ann. § 27-1802); Motes v. State, supra.

Mease's third enumeration of error is based on OCGA § 16-1-7(a)(1) (Code Ann. § 26-506), which prohibits conviction of more than one crime established by the same conduct. In view of our holding in Division 1c, we need not discuss the remaining enumeration of error.

Judgment affirmed in part and reversed in part in case number 65217. Judgment reversed as to criminal trespass in case number 65218.

QUILLIAN, P.J., and BANKE, BIRDSONG and POPE, JJ., concur.

SHULMAN, C.J., concurs in the judgment only.

DEEN and McMURRAY, P.JJ., dissent.

CARLEY, J., concurs in judgment of dissent only.

DEEN, Presiding Judge, dissenting.

The evidence supports the allegations that appellants had been to six bars during the night, had been drinking and had the odor of alcohol on their breath, and were belligerent and abusive in using profanity and obscene language (although it is argued that saying a few "God Damn's," if in fact it was said, is not obscene and abusive language), and no appeal was made as to the conviction of using abusive language in the presence of another. Around 5:00 a.m., they pounded on the mother homeowner's door with a pickup order and an arrest warrant for the daughter. The homeowner indicated that her daughter was not there. One appellant, without consent of the homeowner, went through the house on several floors with a handgun, waving and pointing it at another daughter and at the homeowner, and waking up a small grandchild. They proceeded with the search despite the homeowner's demand that they leave.

Initially, I note that the evidence certainly would support a conviction of criminal trespass under OCGA § 16-7-21(b)(3) (Code Ann. § 26-1503), which provides that "a person commits the offense of criminal trespass when he knowingly and without authority ......