Solomon v. State

• Decision Date: 20 September 2017
• Docket Number: A17A0760.
• Citation: 805 S.E.2d 293
• Parties: SOLOMON v. The STATE.
• Court: Georgia Court of Appeals

342 Ga.App. 836

805 S.E.2d 293

SOLOMON

v.The STATE.

A17A0760.

Court of Appeals of Georgia.

September 20, 2017

David Gladston Daniell, for Appellant.

Marie R. Banks, George Herbert Hartwig III, for Appellee.

Branch, Judge.

On appeal from his conviction for burglary, J. D. Solomon, Jr., asserts that the evidence was insufficient to support his conviction and that counsel was therefore ineffective when he failed to move for a directed verdict. We find that the evidence was sufficient to sustain his conviction, but that the trial court erred when it sentenced him under the current rather than the former version of the burglary statute, OCGA § 16–7–1. Although we therefore affirm the jury's verdict, we vacate Solomon's conviction and remand for entry of conviction and resentencing under the former OCGA § 16–7–1.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted).

So viewed, the record shows that at 11:36 p.m. on the evening of September 4, 2011, an officer with the Warner Robins police department received a call that an alarm had been activated at a local church. Dispatch advised that the tripped alarm was located on the door of a storage shed, which the responding officer knew to be located on the western edge of the property. The officer and a trainee arrived at the scene two minutes later, parked their patrol car on the street west of the church, cut off the car's lights, and approached the property from the south on foot. During a check of the space between two classroom trailers on the property, the officer saw Solomon folding up a metal ladder as he stood directly under a window of one of the trailers. The officer also saw a damaged window screen on the ground beside Solomon.

The officer and the trainee drew their weapons and commanded Solomon to get on the ground, where he was apprehended. A search incident to Solomon's arrest found that he was wearing a single black glove and carrying two wrenches in his back pocket. The back wall of the shed had also been pried away from the building's frame, and mud and grass were found inside. Fresh boot marks matching the boots Solomon was wearing were also found between the shed and the classroom trailers.

Solomon was charged with two counts of burglary in that he "intentionally, unlawfully and without authority" entered "a building," the trailer, and another "building," the shed, "with the intent to commit a theft or felony therein[.]" On the second day of trial, the State nolle prossed the count as to the trailer. The jury charge, closing arguments, and recharge¹ all repeated the question posed by the indictment: that is, whether Solomon had unlawfully entered a "building," the shed, with the intent to commit theft. A jury found Solomon guilty of one count of burglary as to the shed. The trial court convicted Solomon of "first degree" burglary, however, and sentenced him as a recidivist to 20 years with 15 to serve. Solomon's motion for new trial was denied.

1. In contesting the sufficiency of the evidence, Solomon concedes that he entered the shed without authority, but asserts that his intent in doing so was only to obtain the ladder in order to enter the classroom trailer, with the result that he cannot be found guilty of burglary as to the shed. We disagree.

Former OCGA § 16–7–1 provided that a person committed burglary when, with "the intent to commit a felony or theft therein," that person "enters or remains within [1] the dwelling house of another or [2] any building ... designed for use as the dwelling of another or enters or remains within [3] any other building ... or any part thereof." (Emphasis supplied.) See, e.g., Floyd v. State , 207 Ga. App. 275, 278 (1), 427 S.E.2d 605 (1993) (evidence showing entry into garden center was sufficient to sustain conviction for burglary under former version of OCGA § 16–7–1, which defined burglary as including an unlawful entry with intent to commit a theft into not only "the dwelling of another" but also "any other building") (emphasis omitted).

As our Supreme Court has noted, " OCGA § 16–7–1 [has been] amended to create the gradations of first and second degree burglary. The amendment became effective July 1, 2012, and applies only to offenses that occurred on or after that date."² State v. Newton , 294 Ga. 767, 770, n. 3, 755 S.E.2d 786 (2014), citing Ga. L. 2012, pp. 899, 949, §§ 3–1, 9–1. The events at issue here occurred on September 4, 2011, with the result that the former statute applies. Newton , 294 Ga. at 770, n. 3, 755 S.E.2d 786 (applying the former statute to events occurring in 2007).³

On appeal, as at trial, Solomon concedes that he broke into the shed for the purpose of taking the ladder he was folding up when he was apprehended under the classroom trailer's window. A damaged window screen was also found below that window. This jury was entitled to infer from the evidence before it that Solomon entered the shed with the intent to steal the ladder for the purpose of breaking into the...