Opinion
A02A1614.
Decided October 3, 2002
Criminal attempt to commit burglary. Henry Superior Court. Before Judge Craig.
Lloyd J. Matthews, for appellant.
Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.
A jury found Christopher Snipes guilty of criminal attempt to commit burglary. In his sole enumeration of error, Snipes asserts that the trial court erred in denying his request to charge the jury on criminal trespass as a lesser included offense. Because the evidence did not support the charge, we affirm the trial court's ruling.
The evidence showed that the victim of the attempted burglary was a Ms. Sullivan. On the day of the incident, Fred Reynolds, a relative of Ms. Sullivan, was driving by the house and noticed that a car was parked in her carport. Although Reynolds continued driving to his own house nearby, after calling his father-in-law and learning that nobody had a reason to be at Ms. Sullivan's house, he returned to investigate the car's presence.
When Reynolds arrived at Ms. Sullivan's house, the car was still there, but it was now backed into the carport with a man in the driver's seat, and another man was at the front door with the storm door pulled open. When Reynolds drove into Ms. Sullivan's driveway, the man at the front door immediately went to the car in the carport and the car started to leave. As the two men were driving past Reynolds, he asked if he could help them, and one of the men responded that they "`were just turning around.'" Reynolds was unable to identify either of the individuals because both had stocking hats pulled down on their heads, but he recorded the license plate number on their car as they left the driveway.
Upon further investigation, Reynolds discovered that the door frame surrounding Ms. Reynold's front door had been "pushed in." Reynolds reported the incident to the police and provided the license plate number. Detective Jason Bolton discovered the license tag was registered to a car owned by Snipes' mother.
Bolton spoke with Snipes, who admitted being present at Ms. Sullivan's house. Snipes told Bolton — and testified at trial — that he met the other man, who he knew only as Mike, in front of a record store. According to Snipes, Mike paid him $20 to drive Mike to Sullivan's house. When they arrived, Mike told Snipes to turn the car around in the driveway and wait for him. Snipes thought Mike was visiting with his aunt, and when Reynolds arrived, Mike got back in the car and told Snipes to leave. Snipes claimed that, as they passed Reynolds in the driveway, he merely followed Mike's instructions and pretended that they were turning around because they were at the wrong house. Snipes testified that he was unaware Mike was attempting to burglarize the house.
A grand jury indicted Snipes for attempted burglary. At trial Snipes requested the court to charge the jury on criminal trespass as a lesser included offense. The written request provided: "A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less and knowingly and maliciously interferes with the possession or use of the property of another without his consent."
Emphasis supplied.
Although criminal trespass may be a lesser included offense of attempted burglary, where there is no evidence supporting a requested jury charge on the lesser offense, a trial court does not err in rejecting the request. Although Snipes contends that the charge was merited because it showed that the doorframe was damaged, he has pointed to no evidence concerning "the amount of damage done [to] the door and whether it was more or less than [$500]." Without such evidence, Snipes could not have been convicted of criminal trespass, and the trial court did not err in rejecting his requested charge on the offense.
See Moore v. State, 197 Ga. App. 9, 10(1) ( 397 S.E.2d 477) (1990); Fullewellen v. State, 127 Ga. App. 568, 569 ( 194 S.E.2d 275) (1972).
See Vaughn v. State, 210 Ga. App. 381, 384(4)(a) ( 436 S.E.2d 19) (1993).
Fullewellen, supra. See also OCGA § 16-7-21(a) (increasing amount of damage to $500 or less)
See id.; see also Matthews v. State, 224 Ga. App. 407, 409(2) ( 481 S.E.2d 235) (1997); Vaughn, supra.
Furthermore, Snipes' written request was not an accurate statement of the law. Although the request largely tracked the language of OCGA § 16-7-21(a), it deviated from that Code subsection in one significant respect. That subsection defines two ways a person can commit criminal trespass: either by damaging property or by maliciously interfering with the possession or use of property. By joining these alternatives with "and," instead of "or," as used in the subsection, Snipes' requested instruction improperly reflected that they were multiple elements of a single definition of the crime. Accordingly, the trial court could have rejected the request on this ground as well. Judgment affirmed. Barnes, J., and Pope, Senior Appellate Judge, concur.
See OCGA § 16-7-21(a).
See Green v. State, 240 Ga. App. 774, 778(3) ( 525 S.E.2d 154) (1999) ("a request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper"). (Punctuation omitted.).