State v. Newton

• Decision Date: 10 March 2014
• Docket Number: No. S13G0668.,S13G0668.
• Citation: 294 Ga. 767,755 S.E.2d 786
• Parties: The STATE v. NEWTON.
• Court: Georgia Supreme Court

294 Ga. 767
755 S.E.2d 786

The STATE
v.
NEWTON.

No. S13G0668.

Supreme Court of Georgia.

March 10, 2014.

[755 S.E.2d 787]

James Alan Dooley, Asst. Dist. Atty., James David McDade, Dist. Atty., Emily Kathleen Richardson, Asst. Dist. Atty., for appellant.

Jason W. Swindle, Sr., Carrollton, for appellee.

BENHAM, Justice.

We granted the State's petition for a writ of certiorari to consider a matter of first impression. As summarized by the Court of Appeals in Newton v. State, 319 Ga.App. 494, 736 S.E.2d 752 (2012), the facts are as follows:

David Allen Newton was tried by a jury and convicted of burglary, theft by taking, and first degree forgery for taking jewelry while touring a home that he claimed he was interested in purchasing and using a fictitious name on a brokerage agreement. He was sentenced to twenty years for burglary, ten years for theft by taking to run concurrently with the burglary sentence, and ten years for forgery to run consecutively to the burglary sentence. The trial court ordered that upon service of nine years in confinement, Newton could serve the remaining twenty-one years on probation. On appeal, Newton challenges the sufficiency of the evidence to support his burglary conviction. He does not appeal his conviction for theft by taking or forgery.

Viewed in the light most favorable to the verdict, the evidence showed that a man identifying himself as David Flynn contacted Jessica Harris, a real estate agent in Douglas County, and told her that he was relocating from New Jersey and wanted to look at houses in the $600,000 to $1,000,000 price range. Harris met with the potential buyer and presented him with a buyer's brokerage agreement, which he signed as David Flynn. He provided a driver's license with his picture and the name David Flynn. They spent two full days looking at houses. At trial, Harris identified the defendant, David Newton, as the potential buyer she had known as David Flynn.

One of the houses they planned to tour was owned by another real estate agent, Cynthia Murphy. Harris testified that the house did not have a lockbox so she called Murphy to let them in. After letting them into her house, Murphy left. While Harris and Newton were upstairs looking at the master bedroom, Harris heard a door shut and ran downstairs. Murphy had returned, and she spoke briefly to Harris while Newton was alone in the master bedroom. Murphy and Harris both went upstairs to look for Newton. Murphy checked a chest in her closet where she kept two boxes of jewelry. She saw that the two boxes were still there, but did not open them at the time. Harris found her client; they finished touring the house and left. When they got back to her car, Harris saw Newton reach into the back seat where he had stored a canvas tote bag and do something with the bag before getting into her car.

A week to ten days later, Murphy received a call from her managing broker

[755 S.E.2d 788]

asking her to check her house for missing items. She checked her jewelry boxes, and they were empty. The value of her missing jewelry was approximately $20,000. Murphy testified that from the time Newton toured her house until she discovered her jewelry was gone, only immediate family members had access to the area where her jewelry was stored.

Shay Brooks with the Douglas County Sheriff's Office investigated the theft from Murphy's home. After obtaining the paperwork Harris had on David Flynn, Brooks determined that the New Jersey license in the name of David Flynn was fake and received information that David Flynn was actually David Newton.

The State introduced similar transaction evidence of a theft from a home in Sandy Springs. Kelly Boudreau, a real estate agent in Atlanta, testified that she showed Newton a house as a potential buyer, and the following day, the homeowners notified her that a necklace had been taken from the house. Boudreau testified that she was not with Newton at all times while they were looking at the house. The detective investigating that theft obtained a photograph of Newton, showed it to real estate agents, and put out a buyer beware notice on the real estate listing service. He obtained an arrest warrant for Newton for theft of the necklace, which was valued at $5,000.

After he was convicted, Newton filed motions for new trial. At the hearing on those motions, counsel for Newton argued that the evidence was insufficient to support the burglary conviction because there was no evidence that he entered the house without authority. The trial court denied the motion, noting that Newton never had authority to enter the house because only a person named David Flynn was so authorized.

... The indictment in this case charged Newton with

enter[ing] the dwelling house of another without authority and with the intent to commit a theft therein, to wit: Said accused did enter a room within the dwelling house of Cynthia Murphy without authority in order to commit a theft therein.

The jury was instructed that

[a] person commits the offense of burglary when, without authority and with the intent to commit a theft therein, he enters a room in the dwelling house of another. To constitute the offense of burglary, it is not necessary that it be shown that a break-in occurred or that an actual theft was accomplished.

Despite the fact that appellee engaged in subterfuge to gain permission to enter Murphy's home, the Court of Appeals reversed appellee's burglary conviction, concluding the evidence was insufficient to show that appellee was “without authority” to be in the victim's house. Newton at 498, 736 S.E.2d 752. We granted the State's petition for certiorari, posing the following question: “Whether a person enters a home ‘without authority’ when he enters with the consent of the owner, but when that consent was obtained by fraud, deceit, or false pretense. See OCGA § 16–7–1; see also OCGA § 16–1–3(18).” Because we have determined the answer to our question to be in the affirmative, the Court of Appeals' decision must be reversed and appellee's conviction reinstated. Our reasons are set forth fully below.

“At common law burglary was defined as the breaking...