(Ga. L. 1882-83, p. 121, § 1; Penal Code 1895, § 220; Penal Code 1910, § 217; Code 1933, § 26-3002; Ga. L. 1959, p. 173, § 1; Ga. L. 1960, p. 142, § 1; Code 1933, § 26-1503, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 5; Ga. L. 1979, p. 764, § 1; Ga. L. 1985, p. 484, § 1; Ga. L. 1985, p. 1491, § 1; Ga. L. 1997, p. 526, § 1; Ga. L. 2001, p. 1153, § 1.)
Cross references.- Justifiable use of force in defense of property, §§ 16-3-23,16-3-24.
Requirement of written permission to hunt on lands belonging to another, § 27-3-1.
Prohibition against unauthorized fishing in waters or from lands belonging to another, § 27-4-2.
Trespassing upon armory, military camp, or other military property, § 38-2-306.
Law reviews.- For article, "Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System," see 8 Ga. St. U.L. Rev. 539 (1992). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Former Code 1933, § 26-1503 was constitutional. Daniel v. State, 231 Ga. 270, 201 S.E.2d 393 (1973); Alonso v. State, 231 Ga. 444, 202 S.E.2d 37 (1973), appeal dismissed, 417 U.S. 938, 94 S. Ct. 3062, 41 L. Ed. 2d 661 (1974).
Statutory vagueness and ambiguity.
- Former Code 1933, § 26-1503 was not so indefinite, vague, or uncertain as to fail to give a person of ordinary intelligence fair notice that the person's contemplated conduct was forbidden. Mixon v. State, 226 Ga. 869, 178 S.E.2d 189 (1970).
Former Code 1933, § 26-1503 (see now O.C.G.A. § 16-7-21(b)(2)) was neither vague nor ambiguous; nor was it drawn in words that are not capable of understanding by persons of ordinary intelligence. Starkly similar wording was employed by the General Assembly in former Code 1933, § 26-1503 (see now O.C.G.A. § 16-7-21 (b)(3)), which previously had been upheld against such attacks. State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979).
O.C.G.A. §§ 16-7-21 and16-7-23 define identical crimes except for the amount of damage required for conviction and the former is a lesser included offense of the latter. Merrell v. State, 162 Ga. App. 886, 293 S.E.2d 474 (1982); Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).
Strict construction.
- As a criminal statute, O.C.G.A. § 16-7-21 is subject to strict construction. McGonagil v. Treadwell, 216 Ga. App. 850, 456 S.E.2d 260 (1995).
Criminal trespass is location crime and its purpose is to keep defendant off property of others. Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975).
Moral turpitude not involved.
- Misdemeanor offense of criminal trespass does not involve moral turpitude and therefore the trial court properly refused to admit the conviction thereof to impeach a witness's testimony at trial. Barker v. State, 211 Ga. App. 279, 438 S.E.2d 649 (1993).
O.C.G.A. § 16-7-21 not preempted by § 16-11-35. - Appellants who were charged under the general criminal trespass statute, O.C.G.A. § 16-7-21, for knowingly and without authority remaining on the premises of a junior college could not get their convictions overturned by arguing that the charge should have been brought under a specific trespass statute dealing with disruptive activity on college campuses, O.C.G.A. § 16-11-35, since the latter statute was not intended to preempt the general criminal trespass statute. Brooks v. State, 170 Ga. App. 440, 317 S.E.2d 552 (1984).
Accusation not required to specify instrumentality used.
- Accusation for battery, family violence, and criminal trespass that alleged that the defendant injured the victim by striking the victim, causing a visibly bloody lip, and that the defendant knocked a hole in the victim's closet door, was sufficient under O.C.G.A. § 17-7-71(c). There was no requirement that the accusation state the instrumentality used by the defendant because the instrumentality was not an element of any of the charged crimes. State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).
Charging instrument defective.
- Trial court's denial of a defendant's special demurrer to a charge of criminal trespass, in violation of O.C.G.A. § 16-7-21(a), was error as the accusation failed to identify with particularity the property of the victim that the defendant allegedly interfered with and damaged. Newsome v. State, 296 Ga. App. 490, 675 S.E.2d 229 (2009).
Pretrial intervention program on related charges did not bar prosecution.
- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).
Multiple prosecutions for same conduct.
- When the defendant is convicted of criminal damage to property in the second degree (a felony) and criminal trespass (a misdemeanor) and when the offenses were committed at different apartments under different tenancies, such convictions do not fall within the purview of the burglary statute. Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974).
Denial of motion to sever.
- In a prosecution on two counts of attempting to hijack a motor vehicle, four counts of aggravated assault, possession of a firearm during the commission of a crime, and criminal trespass, because the offenses committed by a defendant and a codefendant amounted to a series of continuous acts connected together both in time and the area in which committed, and there was no likelihood of confusion, the trial court did not abuse the court's discretion in denying the defendant's motion to sever the trial from that of the codefendant; furthermore, the mere fact that the codefendants' defenses were antagonistic was insufficient in itself to warrant separate trials. Diaz v. State, 280 Ga. App. 413, 634 S.E.2d 160 (2006).
Defendant claiming that defendant did not damage property.
- Criminal defendant cannot legitimately raise the issue of criminal trespass by means of intentionally damaging another person's property without consent when the defendant claimed to not have damaged the property. Elder v. State, 180 Ga. App. 295, 349 S.E.2d 30 (1986).
Malicious prosecution action based on arrest for criminal trespass.
- In an action for malicious prosecution, where an employee of an apartment complex had given notice to the plaintiff that the plaintiff was forbidden to enter the property, even though the plaintiff entered as the guest of a tenant, the employee had probable cause to arrest the plaintiff for malicious trespass when the plaintiff deviated from the purpose for which the plaintiff was invited and entered upon a portion of the premises unrelated to the invitation. Arbee v. Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995).
Church officials had probable cause to have former pastor arrested for criminal trespass when the pastor had been warned not to come on church premises. United Baptist Church, Inc. v. Holmes, 232 Ga. App. 253, 500 S.E.2d 653 (1998).
Applicability to civil cases.
- Transportation company's action against quarry for negligent hiring and retention failed because, although the quarry employee had a criminal history, that history did not involve the employee's experience working with heavy equipment; even considering the employee's criminal history, it was not natural and probable that the employee would violate O.C.G.A. § 16-7-21 and trespass on the company's railroad tracks using quarry equipment, and damage to the tracks was accidental, resulting from, at worst, a lapse in judgment. CSX Transp., Inc. v. Pyramid Stone Indus., Inc., F.3d (11th Cir. Sept. 17, 2008)(Unpublished).
In a case in which a car buyer appealed a district court's entry of summary judgment in favor of a lender, the Georgia criminal statutes for trespassing and theft, O.C.G.A. §§ 16-7-21,16-8-2, and16-8-3, did not expressly provide for a civil remedy and, thus, a civil remedy could not arise from a violation of those statutes. Goia v. Citifinancial Auto, 499 Fed. Appx. 930 (11th Cir. Dec. 3, 2012)(Unpublished).
Cited in Rose v. State, 128 Ga. App. 370, 196 S.E.2d 683 (1973); Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974); Hudgens v. Retail, Whsle. & Dep't Store Local 315, 231 Ga. 669, 203 S.E.2d 478 (1974); Hudgens v. Retail, Whsle. & Dep't Store Local 315, 133 Ga. App. 329, 210 S.E.2d 821 (1974); M.J.W. v. State, 133 Ga. App. 350, 210 S.E.2d 842 (1974); Burton v. State, 137 Ga. App. 686, 224 S.E.2d 876 (1976); Rowles v. State, 143 Ga. App. 553, 239 S.E.2d 164 (1977); Williams v. State, 144 Ga. App. 72, 240 S.E.2d 591 (1977); Loury v. State, 147 Ga. App. 152, 248 S.E.2d 291 (1978); Favors v. State, 149 Ga. App. 563, 254 S.E.2d 886 (1979); State v. Moore, 243 Ga. 594, 255 S.E.2d 709 (1979); Bradford v. State, 149 Ga. App. 839, 256 S.E.2d 84 (1979); Huffman v. State, 153 Ga. App. 203, 265 S.E.2d 603 (1980); Giddens v. State, 156 Ga. App. 258, 274 S.E.2d 595 (1980); Septum, Inc. v. Keller, 614 F.2d 456 (5th Cir. 1980); Motes v. State, 159 Ga. App. 255, 283 S.E.2d 43 (1981); Sizemore Sec. Int'l, Inc. v. Lee, 161 Ga. App. 332, 287 S.E.2d 782 (1982); Walls v. State, 161 Ga. App. 625, 288 S.E.2d 769 (1982); Lemon v. State, 161 Ga. App. 692, 289 S.E.2d 789 (1982); Joiner v. State, 163 Ga. App. 521, 295 S.E.2d 219 (1982); Sellers v. State, 164 Ga. App. 637, 298 S.E.2d 623 (1982); Henderson v. State, 169 Ga. App. 615, 314 S.E.2d 677 (1984); Jones v. State, 169 Ga. App. 872, 315 S.E.2d 305 (1984); Raymond v. State, 170 Ga. App. 676, 318 S.E.2d 71 (1984); Cave v. State, 171 Ga. App. 22, 318 S.E.2d 689 (1984); Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986); Stover v. Watson, 180 Ga. App. 16, 348 S.E.2d 463 (1986); McLeroy v. State, 184 Ga. App. 62, 360 S.E.2d 631 (1987); Allison v. State, 184 Ga. App. 294, 361 S.E.2d 271 (1987); In re A.W.G., 184 Ga. App. 343, 361 S.E.2d 510 (1987); Butler v. State, 196 Ga. App. 706, 396 S.E.2d 916 (1990); State v. Seignious, 197 Ga. App. 766, 399 S.E.2d 559 (1990); Groom v. State, 212 Ga. App. 133, 441 S.E.2d 259 (1994); Brownlee v. City of Atlanta, 212 Ga. App. 174, 441 S.E.2d 492 (1994); Williams v. State, 214 Ga. App. 834, 449 S.E.2d 532 (1994); Harris v. State, 222 Ga. App. 56, 473 S.E.2d 229 (1996); Holmes v. Achor Ctr. Inc., 242 Ga. App. 887, 531 S.E.2d 773 (2000); Holmes v. Achor Ctr., Inc., 260 Ga. App. 882, 581 S.E.2d 390 (2003); State v. Perry, 261 Ga. App. 886, 583 S.E.2d 909 (2003); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006); Griffin v. State, 291 Ga. App. 618, 662 S.E.2d 171 (2008); Johnson v. State, 293 Ga. App. 32, 666 S.E.2d 452 (2008); Georgiacarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 299 Ga. 26, 785 S.E.2d 874 (2016); State v. Freeman, 349 Ga. App. 94, 825 S.E.2d 538 (2019); Robinson v. State, 353 Ga. App. 420, 838 S.E.2d 92 (2020).
Elements of Crime
Remaining on land without authority is essential element in crime of criminal trespass. Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978).
State was required to prove that the defendants had actual knowledge that the defendants were on private premises even though the defendants knowingly remained on the property after being asked to depart. Bowman v. State, 258 Ga. 829, 376 S.E.2d 187 (1989).
Criminal intent and entry without authority.
- Former Code 1933, §§ 26-401(r) (see now O.C.G.A. § 16-1-3(18)) and 26-1503(b)(2) (see now O.C.G.A. § 16-7-21(b)(2)) require that a person accused of its violation shall have entered "knowingly and without authority" after having been told that such entry is forbidden. Thus, criminal intent and entry "without legal right or privilege or without permission of a person legally entitled to withhold the right" are elements of the crime. State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979).
Former Code 1933, § 26-1503(a) and (b)(1) delineate two completely separate criteria for misdemeanor of criminal trespass. Pittman v. State, 139 Ga. App. 661, 229 S.E.2d 135 (1976).
Notice is essential element of criminal trespass and must be proven by state beyond reasonable doubt at trial. Rayburn v. State, 250 Ga. 657, 300 S.E.2d 499 (1983).
An apartment complex security guard's testimony that a defendant had told the guard that the defendant was at the complex to buy drugs from a friend and that the guard then warned the defendant to stay off the premises was relevant, although the testimony incidentally put the defendant's character in issue, because the testimony showed that the defendant had notice to stay away from the property, an essential element of the offense of criminal trespass under O.C.G.A. § 16-7-21(b)(3). Love v. State, 302 Ga. App. 106, 690 S.E.2d 246 (2010).
Reasonable and sufficiently explicit notice required.
- Inherent in O.C.G.A. § 16-7-21 notice provision is a requirement that notice be reasonable under the circumstances, as well as sufficiently explicit to apprise the trespasser what property the trespasser is forbidden to enter. Rayburn v. State, 250 Ga. 657, 300 S.E.2d 499 (1983).
Because the trial court could have concluded that the state failed to prove beyond a reasonable doubt that the defendant had been given the requisite notice to not return to a train station without facing the risk of an arrest, some evidence supported the trial court's conclusion that the arrest, which was based solely on the violation of an invalid criminal trespass warning, lacked probable cause; hence, the suppression order was not disturbed on appeal.
Notice not to enter to be given by owner or rightful occupant.
- Evidence failed to establish an essential element of criminal trespass when a police officer notified the defendant not to enter the apartment based on a conversation the officer had with the manager of the apartment complex, however, the manager did not testify, the substance of the conversation was not in evidence, and there was no evidence that, when the officer gave the notice to the defendant, the officer was acting as the authorized representative of the owner or rightful occupant of the apartment. Jackson v. State, 242 Ga. App. 113, 528 S.E.2d 864 (2000).
Defendant's conviction for criminal trespass was reversed even though the evidence was that, pursuant to a divorce decree, defendant was prohibited from being on the property of the ex-spouse's work place until further order of the court because there was no evidence that the ex-spouse was the rightful occupant of the premises or that the rightful owner gave defendant prior notice. Sheehan v. State, 314 Ga. App. 325, 723 S.E.2d 724 (2012), overruled on other grounds, State v. Harper, 303 Ga. 144, 810 S.E.2d 484, 2018 Ga. LEXIS 105 (Ga. 2018).
Locked door as notice not to enter.
- Locked door to the residence provided reasonable and sufficiently explicit notice to the defendant that entry into the complainant's residence was forbidden and, thus, to support a finding of guilt for criminal trespass. State v. Harper, 303 Ga. 144, 810 S.E.2d 484 (2018).
Difference between offenses described in former Code 1933, § 26-1503(b)(2) and (b)(3); the latter deals with a lawful entry and remaining on the premises after having been directed to leave while the former applies when notice forbidding entry is given before the accused goes upon the premises.
Meaning of Terms
Premises.
- Term "premises" has varying meanings, but it is inclusive enough generally to mean land and the buildings thereon. Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975).
Premises of another person.
- Phrase "premises of another" in subdivision (b)(3) was broad enough to include and embrace property owned by and used for public school purposes by a city or a county. Kitchens v. State, 221 Ga. 839, 147 S.E.2d 509 (1966).
Phrase "premises of another person" found in subdivision (b)(3) included property owned or used for public purposes. E.P. v. State, 130 Ga. App. 512, 203 S.E.2d 757 (1973).
Unlawful purpose.
- Words "unlawful purpose" mean a purpose to violate a criminal law. Mixon v. State, 226 Ga. 869, 178 S.E.2d 189 (1970).
An intent to commit a felony or theft is always an unlawful purpose. Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975).
Driver's argument that a city employee was acting outside the scope of employment at the time of an accident was without merit because the employee's act of crossing a private shopping center before pulling onto the road was not unlawful under O.C.G.A. § 40-6-20(e) (disregard of a traffic signal) or O.C.G.A. § 16-7-21(b)(1) (criminal trespass) because no unlawful purpose was shown; the employee was, therefore, immune from suit and liability based on O.C.G.A. § 36-92-3. Guice v. Brown, 334 Ga. App. 199, 778 S.E.2d 823 (2015).
Authority with Regard to Property
Authority to forbid entry.
- Officer who acts under the direction of the director of public safety at the University of Georgia has the authority to forbid entry on University of Georgia property. Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980).
Possession of weapon on premises.
- Private property owners could forbid the possession of a weapon on their premises, as property law, tort law, and criminal law, such as that later codified in O.C.G.A. §§ 16-7-21(b)(3),51-3-1 to51-3-2, and51-9-1, provided the canvas on which the Second Amendment was drafted, illustrated that the basis of the Second Amendment did not include protection for a right to carry a firearm in a place of worship against the church owner's wishes. GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244 (11th Cir. 2012).
Defense of "entering with permission".
- Defendant established a defense to the charge of criminal trespass by showing that defendant entered the apartment with the permission of the tenant and rightful occupant of the apartment. Jackson v. State, 242 Ga. App. 113, 528 S.E.2d 864 (2000).
The 15-year-old daughter was a "rightful occupant" of her parent's home and her invitation conveyed authority to the defendant to disregard an earlier notice that the defendant was barred from the home. Hutson v. State, 220 Ga. App. 609, 469 S.E.2d 825 (1996).
Minor's authority to allow entrance on property.
- Juvenile was properly convicted of criminal trespass under O.C.G.A. § 16-7-21(b)(2) as the juvenile's minor friend did not have the authority to override the mother's warnings that the juvenile was not permitted to enter their property. In re J. B. M., 294 Ga. App. 545, 669 S.E.2d 523 (2008).
Tenant's authority to be on property.
- When the defendant has a legal and binding contract to remain at a site, and nothing in the contract allows either party to rescind the contract unilaterally, and there is no judicial determination that the contract is void or breached, an offer by a landlord to refund part of the rent does not negate the contract when the refund is not accepted, and the defendant does not agree to any cancellation. In such a case, there is no authority for a landlord to revoke the defendant's authority to be or remain on the land, and the defendant is not shown beyond a reasonable doubt to be in violation of former Code 1933, § 26-1503. Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978).
Protection of life tenant's interests.
- Witness's testimony that subject property passed to the witness after the end of a life estate, and that the life tenant's guardian had given the witness authority to protect the life tenant's interests, including getting defendant off the property, was proof of ownership and authority under O.C.G.A. § 16-7-21. Wigley v. State, 194 Ga. App. 7, 389 S.E.2d 769, cert. denied, 194 Ga. App. 913, 389 S.E.2d 769 (1989).
Ownership of property.
- State did not have to prove the actual ownership of a door damaged by the defendant; it was only necessary to prove that the door belonged to someone other than the defendant. Jones v. State, 236 Ga. App. 716, 513 S.E.2d 254 (1999).
Former resident.
- Once the victim withdrew the defendant's authority to enter the victim's house, the fact that the defendant once lived there did not give the defendant subsequent authority to enter; further, the jury was authorized to find that the defendant entered the home at least once with the intent to assault the victim. Bilow v. State, 279 Ga. App. 509, 631 S.E.2d 743 (2006).
Home builder's right to exclude others from property.
- Home builder had the right to exclude a home inspector from trespassing on the builder's properties and properly exercised that right by instructing the inspector not to enter the builder's properties. Pope v. Pulte Home Corp., 246 Ga. App. 120, 539 S.E.2d 842 (2000).
Bank's authority over patron refusing to leave premises.
- Despite the plaintiff patron's claim that summary judgment was improperly granted to defendant bank on the patron's false arrest claim in light of conflicting evidence as to whether the patron was loud and hostile in the bank's premises, the bank was properly granted summary judgment regardless of whether the patron was loud and hostile because: (1) it was undisputed that the patron refused to leave the bank after being repeatedly asked by bank representatives to do so; (2) such refusal clearly provided probable cause for the patron's arrest for criminal trespass under O.C.G.A. § 16-7-21(b); and (3) such probable cause defeated an element of the false arrest claim. Mohamud v. Wachovia Corp., 260 Ga. App. 612, 580 S.E.2d 259 (2003).
Evidence and Corroboration
Evidence as to amount of property damage.
- When there is no evidence as to whether the amount of damage done is more or less than $100.00, no conviction can stand under O.C.G.A. § 16-7-21(a). Johnson v. State, 156 Ga. App. 411, 274 S.E.2d 778 (1980), cert. denied, 451 U.S. 989, 101 S. Ct. 2327, 68 L. Ed. 2d 848 (1981); Matthews v. State, 224 Ga. App. 407, 481 S.E.2d 235 (1997).
No corroboration of accomplice's testimony required.
- Corroboration rule requiring independent corroborative evidence supporting the testimony of an accomplice does not apply to a misdemeanor. J.B.L. v. State, 144 Ga. App. 223, 241 S.E.2d 40 (1977).
Res gestae.
- Evidence of a female defendant's actions in knocking on hotel room doors and allegedly soliciting for prostitution would have been admissible at a trial as part of a course of criminal conduct because it was part of the res gestae of the charged crime; thus, the evidence could be admitted in a sentencing hearing. The hotel owner's testimony regarding the hotel guests' complaints, while not admissible to prove solicitation, would have been admissible to explain the owner's conduct in giving defendant notice to depart the hotel premises. Ansley v. State, 197 Ga. App. 765, 399 S.E.2d 558 (1990).
Evidence sufficient for conviction.
- Evidence was sufficient to prove that a juvenile appellant committed criminal trespass since, even though there was no direct evidence that the appellant was at the crime scene, the appellant was with three other juveniles when the others were seen driving and riding in vehicles that were later discovered to have been stolen from a repair shop storage facility, since a witness testified that the vehicles exited a driveway near the shop shortly before one of the of the vehicles broke down, that the vehicle broke down a few hundred feet from the shop, and that the second vehicle circled back, since the juveniles gave conflicting stories about the owner of the broken down vehicle, and since the key to the second vehicle was found in the appellant's pocket; the juvenile court could have inferred from the location of the broken down vehicle that both vehicles had just been taken from the shop by the four juveniles. In the Interest of R.F., 279 Ga. App. 708, 632 S.E.2d 452 (2006).
An adjudication on a charge of criminal trespass was not reversed on appeal, despite a claim that the evidence adduced at trial varied from the facts alleged in the delinquency petition, because the undisputed evidence showed that the juvenile came onto school property after having been advised against doing so, and the juvenile failed to show that the variance between the petition and the proof was misleading, led to surprise, impaired a defense, or would have resulted in a double jeopardy violation. In the Interest of R.C., 289 Ga. App. 293, 656 S.E.2d 914 (2008).
There was sufficient evidence to support a defendant's convictions for false imprisonment, simple assault, and criminal trespass with regard to actions the defendant took toward the victim, who was a prior romantic friend, as the evidence established that the defendant went to the victim's home uninvited and entered the home; as the victim exited the bathroom, the defendant was standing in the hallway in front of the victim; alarmed, the victim attempted to flee into an adjacent room at which time the victim and the defendant struggled as the defendant attempted to prevent the victim from passing the defendant; once in the adjacent room, the defendant took the telephone from the victim as the victim tried to call9-1-1; and the victim ultimately pushed out the screen and successfully exited the residence through an open window despite the defendant's attempt to pull the victim back inside. Port v. State, 295 Ga. App. 109, 671 S.E.2d 200 (2008).
Evidence that the defendant, despite the victim's insistence that the defendant not do so, drove to the victim's house, knocked over the victim's mailbox, kicked in the glass panes of the victim's door, and refused to leave the premises was sufficient to convict the defendant of criminal trespass in violation of O.C.G.A. § 16-7-21(a). Bradley v. State, 298 Ga. App. 384, 680 S.E.2d 489 (2009).
Evidence was sufficient to convict the defendant of criminal trespass and theft by taking because the defendant was found at a recycling facility trying to sell pieces of the victim's aluminum awning, which the defendant had previously been told was not trash, but belonged to a laundry establishment. Jackson v. State, 301 Ga. App. 863, 690 S.E.2d 195 (2010).
Because there was evidence to support each fact necessary to make out the state's case, the jury was authorized to find that the defendant was guilty beyond a reasonable doubt of family violence battery, O.C.G.A. § 16-5-23.1, criminal trespass, O.C.G.A. § 16-7-21, and abuse of an elder person, O.C.G.A. § 30-5-8; the victim's recollection of what occurred on the night at issue was contradicted by the victim's contemporaneous statements to neighbors and the police, as well as the victim's statements to the daughter the next morning that the defendant had grabbed the victim by the arm and twisted the arm, thereby causing the wound and other bruises. Laster v. State, 311 Ga. App. 360, 715 S.E.2d 768 (2011).
Evidence that a defendant possessed a cell phone, a debit card, and women's jewelry, all of which had been stolen a day earlier, while the defendant attempted to climb into a stranger's home, along with evidence that the defendant attempted to flee when caught climbing in the window, was sufficient to support convictions for criminal trespass and felony theft by receiving stolen property in violation of O.C.G.A. §§ 16-7-21(b)(1) and16-8-7(a). Reese v. State, 313 Ga. App. 746, 722 S.E.2d 441 (2012).
Evidence was sufficient to support defendant's criminal trespass conviction when the victim testified that the defendant snapped the victim's cell phone in half, rendering the cell phone inoperable, and that the cell phone was worth less than $500. Although there was no evidence of the specific monetary amount of damage done to the cell phone, the jurors were authorized to draw from the jurors' own experience in forming an estimate of the damage to the cell phone, which was an everyday object. Feagin v. State, 317 Ga. App. 543, 731 S.E.2d 778 (2012).
Evidence that the victim's daughter saw the defendant back a truck onto the victim's property, the defendant fled in the truck and abandoned it, and the defendant's explanation that the truck had broken down was inconsistent with the tire tracks on the victim's property, as well as witness testimony was sufficient to support the defendant's conviction for criminal trespass. Dowda v. State, 341 Ga. App. 295, 799 S.E.2d 807 (2017).
Although the evidence was insufficient to convict the defendant of second-degree damage to property, the evidence was sufficient to convict the defendant of criminal trespass to property as there was clear evidence that the defendant intentionally damaged the property of another without consent of that other person and the damage to the property was $500 or less because the property owner testified to the extent of the damage to the air-conditioning units, and the jury viewed a surveillance video of the defendant inflicting such damage. Wynn v. State, 344 Ga. App. 554, 811 S.E.2d 53 (2018).
In a domestic dispute case between the defendant, a father, and the defendant's adult children, the evidence was sufficient to convict the defendant of trespass for refusing to leave the property because the defendant's older son told the defendant to leave more than once before calling police and the defendant's younger son told the defendant to leave more times than the younger son could remember; and the jury was authorized to find that the defendant had reasonable time to leave between the time the defendant's sons told the defendant to leave and when the police arrived. Anderson v. State, 348 Ga. App. 322, 822 S.E.2d 684 (2018).
Evidence insufficient.- Victim's statement to defendant, made when they were living in the marital residence, that he did not want to see her again was not sufficient notice to support a conviction of criminal trespass based on defendant's knocking on the victim's door at a different residence nearly three years later.
Defendant's convictions for terroristic acts, aggressive driving, and criminal trespass were reversed on appeal since the only evidence identifying the defendant as the perpetrator of a roadway situation wherein the victim was tailgated and an object was thrown at the victim's car, causing a dent, was a police officer's hearsay testimony that the officer spoke to the defendant's mother, who indicated that the defendant had not been home, and the hearsay statement of the defendant admitting to the tailgating and honking; this evidence was inadmissible hearsay and therefore, relying on the remaining evidence, insufficient evidence existed to support the defendant's convictions. Patterson v. State, 287 Ga. App. 100, 650 S.E.2d 770 (2007).
In a domestic dispute case between the defendant, a father, and the defendant's adult children, there was insufficient evidence to convict the defendant of trespass arising from the defendant's initial presence on the property because, even if an officer previously told the defendant not to enter the property, no evidence was presented at trial that such an instruction was authorized by an owner or occupant of the property. Anderson v. State, 348 Ga. App. 322, 822 S.E.2d 684 (2018).
Included Crimes
Unlawful assembly for the purpose of committing criminal trespass is included in the crime of criminal trespass. Kerr v. State, 193 Ga. App. 165, 387 S.E.2d 355, cert. denied, 193 Ga. App. 910, 387 S.E.2d 355 (1989).
Merger with or inclusion within burglary.
- When the intent to steal was proved, the crime of criminal trespass then merged with or was included within former Code 1933, § 26-1601. Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975); Deese v. State, 137 Ga. App. 476, 224 S.E.2d 124 (1976); Varnes v. State, 159 Ga. App. 452, 283 S.E.2d 673 (1981); Poole v. State, 205 Ga. App. 652, 423 S.E.2d 52 (1992); Vaughan v. State, 210 Ga. App. 381, 436 S.E.2d 19 (1993).
Defendant could properly be sentenced to serve consecutive terms on defendant's convictions of criminal damage to property in the second degree and criminal trespass, where the latter crime had been charged as the lesser offense of burglary. Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986), cert. denied, 198 Ga. App. 899, 400 S.E.2d 709 (1991).
When the defendant was convicted of burglary, but the evidence also could have supported a conviction of criminal trespass, the trial court erred in denying the defendant's request to charge on the lesser offense. Echols v. State, 222 Ga. App. 598, 474 S.E.2d 766 (1996).
Trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused, if believed, would negate an element of the crime of burglary, i.e., entry with intent to commit a felony or theft. Hiley v. State, 245 Ga. App. 900, 539 S.E.2d 530 (2000).
Defendant did not meet the defendant's burden to show through the record that the trial court did not consider criminal trespass under O.C.G.A. § 16-7-21(b) as a lesser included offense of burglary under O.C.G.A. § 16-7-1 in light of the fact that both the defendant and defense counsel put forth the theory of criminal trespass, and the trial court explicitly stated that the court believed the victim's testimony over that of defendant. Joyner v. State, 267 Ga. App. 309, 599 S.E.2d 286 (2004).
Under the facts, the trial court should have merged the defendant's criminal trespass conviction into the burglary conviction prior to sentencing because the offenses were based upon the same act; the evidence showed that the defendant only entered an apartment one time. Hawkins v. State, 302 Ga. App. 84, 690 S.E.2d 440 (2010).
Rule of lenity did not apply.
- Trial court did not err in not applying the rule of lenity with regard to the defendant's conviction for criminal attempt to commit burglary because the crimes of criminal trespass and criminal attempt to commit a burglary did not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime, thus, the rule of lenity did not apply. Snow v. State, 318 Ga. App. 131, 733 S.E.2d 428 (2012).
Not included offense of aggravated assault.
- Criminal trespass is not a lesser included offense of aggravated assault as a matter of law, and, since the indictment for aggravated assault alleged that the defendant committed an assault by shooting a deadly weapon "at, toward, and in the direction of" the victim, the state was not required to prove that the defendant interfered with the victim's property, and criminal trespass was not an included offense as a matter of fact. Robinson v. State, 217 Ga. App. 832, 459 S.E.2d 588 (1995).
Included offense of second degree criminal damage to property.
- Trial court did not err in instructing the jury on criminal trespass after granting a directed verdict of acquittal on a charge of second degree criminal damage to property because criminal trespass is a lesser included offense of the latter crime. Jennings v. State, 226 Ga. App. 461, 486 S.E.2d 693 (1997).
Defendant, who shot and damaged three out-of-service power transformers and was convicted of second degree criminal damage to property, was entitled to jury charge on criminal trespass, a lesser included offense, because the state failed to prove that the value of the transformers was over $500. Waldrop v. State, 231 Ga. App. 164, 498 S.E.2d 337 (1998).
Because it was undisputed that the victim failed to testify regarding the value of the damage to the subject property, an adjudication for the offense of second-degree criminal damage to property entered against a juvenile was vacated; however, given evidence that the juvenile intentionally damaged the property of another without consent, and the damage was $500 or less, an adjudication could be entered on a charge of criminal trespass, which did not violate the juvenile's due process right to be notified of the charges. In the Interest of J.T., 285 Ga. App. 465, 646 S.E.2d 523 (2007).
Although the state failed to provide any evidence regarding the value of a broken window and, thus, a juvenile court erred in finding that a juvenile committed criminal damage to property in the second degree, the juvenile court did not err in finding that the juvenile participated in the act of breaking the victim's window in an attempt to burglarize the house; thus, the evidence was sufficient to support an adjudication of delinquency for committing an act which would support a conviction for the offense of criminal trespass to property as a lesser included offense of criminal damage to property in the second degree. The result of reducing the offense did not violate the juvenile's due process right to be notified of the charges against the juvenile since the juvenile, as a defendant, is on notice of all lesser crimes which are included in the crime charged as a matter of law. In the Interest of J. S., 296 Ga. App. 144, 673 S.E.2d 645 (2009).