Showers v. State

• Decision Date: 20 February 2020
• Docket Number: A19A1945
• Citation: 353 Ga.App. 754,839 S.E.2d 245
• Parties: SHOWERS v. The STATE.
• Court: Georgia Court of Appeals

353 Ga.App. 754

839 S.E.2d 245

SHOWERS

v.The STATE.

A19A1945

Court of Appeals of Georgia.

February 20, 2020

Cara Clark, for Appellant.

Lenny I. Krick, Sherry Boston, Decatur, for Appellee.

Mercier, Judge.

Following a jury trial, Michael Showers was convicted of burglary in the first degree. He filed a motion for new trial, which the trial court denied. Showers appeals, arguing that the evidence was insufficient and that the trial court committed plain error in its jury instructions. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence at trial showed the following. See Vasquez v. State , 306 Ga. 216, 217 (1), 830 S.E.2d 143 (2019). The victim, a home builder, purchased a house in 2012 that he planned to tear down and replace with a "dream" home for his family. At the end of 2015, the house was still under construction, but the framing, windows, doors, roofing, plumbing, electrical and HVAC systems had been completed. While the victim was building the house, he kept construction materials in the basement and lived at another location. Beginning in November 2015, the victim noticed that some of the materials stored in the basement had been stolen. On a later date, the victim noticed that more materials were stolen, and he reported the second loss to the police. Following a third loss, which the victim’s wife reported to the police, the victim planned to watch the house at night.

On the night of January 3, 2016, the victim watched the house from his business partner’s nearby driveway. At approximately 3:00 a.m. on January 4, 2016, he heard noises and drove towards his house. He observed a Toyota 4Runner backing up into the yard with a trailer attached to it. The driver left the trailer in the yard and drove away. The victim followed the 4Runner for two miles, until the 4Runner entered an apartment complex. While the victim was following the 4Runner, he took a photograph of its license plate. The victim then returned to his partner’s house, and they reported the incident to the DeKalb County Police Department.

A police officer arrived at the victim’s house at approximately 4:30 a. m., observed Andy Weems walking out of the house with wood in his hands, and arrested him. Weems claimed that he was working and that he had been dropped off at the house by "Mr. T" in a gold Toyota 4Runner, but he did not know the name of the company he was working for. The trailer, which was still on the premises, contained treated wood that had been in the house’s basement.

Following Weems’s arrest, the victim, who had been at the scene with the police officer, began driving away from the house when he observed the 4Runner returning to the scene. The victim called his partner, and the two were able to use their vehicles to block the 4Runner from leaving the area. The victim and his partner called the police, who arrived and arrested Showers, the driver of the 4Runner. The victim observed cut, rolled up copper

wires in the 4Runner that had been connected to the air conditioning units in the basement of his house. After Showers was arrested, the police searched his vehicle and found copper pipes with "jagged edges as if they had been cut," along with cutting tools.

The victim and his partner informed the police that, based on a neighbor’s surveillance footage, the prior thefts occurred in a similar fashion, namely that a 4Runner would drop a trailer off at the house at approximately 4:00 a.m. and then return at approximately 7:00 a.m. to pick up the trailer from the house. A detective conducted a National Crime Information Center inquiry of the license plate shown in the photograph taken by the victim and determined that the Toyota 4Runner was registered to Showers. Following Showers’s arrest, he provided his home address, which was in the same apartment complex that the victim saw the 4Runner enter on January 4, 2016.

Weems, who was Showers’s cousin, testified at trial that he and "two or three" other men were dropped off at the victim’s house by Showers on the night of the burglary, where Weems was told to load "some 2-by-4s" from the house onto the trailer. Weems claimed that Showers asked him to go, that he believed it was just a construction job, and he did not think it was odd to be working at 3 a. m. Neverthless, Weems plead guilty to burglary in the first degree and was sentenced to serve five years on probation in exchange for his testimony at Showers’s trial.

Showers took the stand at trial and testified that on the night of the burglary, Weems called him and asked him for a ride to work. Showers then took him and another man, Antonio Tripp, to the house, dropped them off and returned to his apartment where he went to sleep. He claimed that when he was stopped by the victim and his partner near the victim’s house, he was not returning to the house to pick up Weems and the trailer, but instead he had left his apartment to purchase cigarettes and coffee from a gas station and happened to drive by the house on the way back to his apartment, despite the fact that he had to travel on the interstate to do so and passed multiple gas stations on the way. Showers testified that the copper

found in his 4Runner belonged to Tripp.

1. Showers argues that the evidence was insufficient to sustain his burglary conviction because the house did not constitute a dwelling under OCGA § 16-7-1 (a) (1). Showers was charged with burglary in the first degree pursuant to former OCGA § 16-7-1 (b). The indictment charged that Showers "did unlawfully without authority and with intent to commit a theft therein, enter the dwelling house of another[.]" OCGA § 16-7-1 (b) (2016) provided that: "A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another ... or other such structure designed for use as the dwelling of another." Dwelling is defined as "any building, structure, or portion thereof which is designed or intended for occupancy for residential use." OCGA § 16-7-1 (a) (1) (2016). Showers claims that because the house was under construction at the time of the burglary and had not been occupied, it did not fall within the statutory definition of "dwelling".

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman , 294 Ga. 170, 172-173 (1) (a), 751 S.E.2d 337 (2013) (citations and punctuation omitted). "Applying these principles, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end." Id. at 173 (1) (a), 751 S.E.2d 337 (citation and punctuation omitted).

The house was under construction at the time of the crime and, without dispute, no one had lived in the house yet. However, the victim was in the process of building his home and had completed the house’s framing, and installed the windows, doors, roofing, plumbing, electrical and HVAC systems. The statute’s plain language states that a dwelling is any building "designed or intended for occupancy for residential use." OCGA § 16-7-1 (a) (1) (2016). The victim intended to live in the house with his family and was building the house over time as he was able to afford to purchase construction materials.

This Court has previously held that even a one-room camper without a bathroom, electricity or refrigeration constituted a dwelling for the purposes of the statute because it was occasionally used as a dwelling. Frazier v. State , 352 Ga. App. 98, 100-101, 834 S.E.2d 107 (2019). Whether the construction of the house was complete or whether the victim had begun living in the home does not preclude a finding that the house was a dwelling at the time of the burglary. The house was designed for use as a dwelling pursuant to the plain language of the statute, and therefore our search for statutory meaning must end. See Deal , supra.

Moreover, the jury was authorized to find that Weems did not have authority to enter the dwelling. As Showers was a party to the entry and the ensuing theft, the evidence was sufficient to authorize his conviction for burglary. See generally Jackson v. State , 305 Ga. 614, 617 (1), 825 S.E.2d 188 (2019) (evidence sufficient to support defendant’s burglary conviction where defendant’s accomplice entered residence without authority and committed a burglary to which defendant was party).

2. Showers argues that the trial court erred in three ways with respect to the instructions it gave or failed to give to the jury. As Showers failed to object to the jury charges at trial, we review the jury charges for plain error. See OCGA § 17-8-58 (b).

In the context of jury instruction errors, plain errors are evaluated on appeal under the following four-part test: First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Vasquez , supra at 225 (2), 830 S.E.2d 143 (citation and...