                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 7, 2016




In the Court of Appeals of Georgia
 A16A0587. DANIEL v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Desmond Daniel was convicted of burglary. He appeals,

challenging the sufficiency of the evidence, the lack of a jury charge on trespass as

a lesser offense, and the effectiveness of his trial counsel. However, there was

sufficient evidence to support the verdict, there was no evidence to authorize a jury

charge on trespass as a lesser offense, and there has been no showing that trial

counsel’s performance was both deficient and prejudicial. Accordingly, we affirm.

      1. Sufficiency of the evidence.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the [defendant] is no longer entitled to the presumption

of innocence. [Cit.]” Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013).
“We determine only whether the evidence authorized the jury to find the defendant

guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor

judge the credibility of the witnesses. [Cit.]” Byrd v. State, 325 Ga. App. 24 (752

SE2d 84) (2013).

      So viewed, the evidence shows that at approximately 9:30 a.m., on November

25, 2009, Daniel opened a fence gate and entered the victims’ property; went to the

back door of their house and knocked on the door; upon no one answering the knock,

Daniel broke in the back door and entered an enclosed porch; he then attempted to

remove the hinges of a door leading into the interior of the house, where the victims

had many valuable items, including a computer, television, video game consoles, and

leather goods.

      At the time of the attempted break-in, 11-year-old M. R. was inside the house

alone, while both of his parents were at work. M. R. called 911 and reported the

incident. A patrol officer responded to the call within two minutes, heard a loud

metal-on-metal noise as Daniel was still trying to gain entry through the door,

confronted Daniel with his weapon drawn, and ordered him to show his hands. Daniel

came out from the porch with his hands up and said, “You got me.” As the officer

handcuffed him, Daniel told the officer, “I can get you a murderer.”

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      Daniel was charged with burglary in violation of OCGA § 16-7-1 in that he

unlawfully entered the victims’ premises with the intent to commit a theft therein. He

argues that the evidence was insufficient because it did not exclude the reasonable

hypothesis that he did not have the intent to commit theft and instead was simply

seeking shelter from the cold. However, Daniel has pointed to no evidence in the

record which would support an inference that he was merely seeking shelter.

Conversely, “[t]he presence of valuables inside the premises can support an inference

of intent to steal, particularly when no other motive is apparent.” Miller v. State, 208

Ga. App. 547, 547-548 (1) (430 SE2d 873) (1993) (citations and punctuation

omitted). In this case, evidence showing “[t]he presence of valuables, such as [the

victims’] television[, computer and other goods], is sufficient to support an inference

of [Daniel’s] intent to steal.” Howard v. State, 227 Ga. App. 5, 8 (6) (b) (488 SE2d

489) (1997) (citation omitted). “And the fact that [Daniel] may have failed in

accomplishing his apparent purpose does not render a finding of burglary improper.”

Bradshaw v. State, 172 Ga. App. 330, 332 (2) (323 SE2d 253) (1984) (citations and

punctuation omitted). Accordingly, “the evidence was sufficient to authorize the

jury’s verdict that defendant is guilty, beyond a reasonable doubt, of burglary as

alleged in the indictment.” Howard, supra.

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      2. Jury charge on criminal trespass.

      Daniel contends that the trial court erred in failing to charge the jury on

criminal trespass as a lesser included offense of burglary. Our review of this issue is

only for plain error. Although Daniel filed a written request for such an instruction

and objected at the charge conference when the court indicated that it would not give

the charge, Daniel failed to object to the jury charge that the court eventually gave.

      Because an objection voiced at the charge conference does not preserve
      objections to the charge as subsequently given, the failure to object to
      the charge as given precludes appellate review unless such portion of the
      jury charge constitutes plain error which affects substantial rights of the
      parties. Despite the lack of objection below, the omission of the jury
      instruction [on criminal trespass] was raised on motion for new trial and
      enumerated as error and argued on appeal in this case. Consequently, we
      will review the failure to charge on [criminal trespass], but we review
      only for plain error, meaning an error that is obvious, that likely affected
      the outcome of the proceedings, and that seriously affects the fairness,
      integrity or public reputation of judicial proceedings. We find no plain
      error here.

Merritt v. State, 292 Ga. 327, 330-331 (2) (737 SE2d 673) (2013) (citations and

punctuation omitted).

      “A person commits the offense of criminal trespass when he or she knowingly

and without authority . . . [e]nters upon the land or premises of another person . . . for

an unlawful purpose[.]” OCGA § 16-7-21 (b) (1). Daniel argues that the jury could


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have found that the unlawful purpose for which he entered upon the victims’ premises

was to seek shelter, not to commit a theft, and thus a jury charge on trespass was

warranted. Indeed,

      [w]e have held that the 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 (entry with intent to commit a felony or theft).
      Specifically, where the accused admits the unauthorized entry but denies
      the intent to commit a felony or theft, the trial court must give a
      requested charge on the lesser included offense of criminal trespass.

Hiley v. State, 245 Ga. App. 900 (539 SE2d 530) (2000) (citations and punctuation

omitted).

      However, in this case, Daniel did not testify at trial or present any other

evidence negating any element of the crime of burglary. Rather, as noted above and

as properly found by the trial court, while the state presented evidence from which the

jury could infer an intent to steal, there was no evidence that Daniel was merely

seeking shelter when he tried to break into the area of the victims’ house containing

valuables. “[S]ince there [was] no evidence of any intent other than that set out in the

indictment, to commit a theft, the requested charge [on trespass as a lesser offense]

was not supported by evidence. That being so, the trial court did not [commit plain

error] in refusing to give the requested charge.” McLeroy v. State, 184 Ga. App. 62,

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63 (2) (360 SE2d 631) (1987) (citations omitted) (affirming trial court’s refusal to

give jury charge on criminal trespass as a lesser included offense of burglary). Accord

Varnes v. State, 159 Ga. App. 452, 453 (2) (a) (283 SE2d 673) (1981) (where the

evidence disclosed only that the defendants entered the premises for the unlawful

purpose of committing theft, there was nothing to authorize an instruction on the

lesser offense of criminal trespass).

      3. Ineffective assistance of counsel.

      Daniel claims his trial counsel was ineffective in failing to preserve the

objection to the court’s failure to charge on criminal trespass and in failing to object

to a burden-shifting answer by the trial court in response to jury questions. To prevail

on these claims, Daniel must show both that his counsel’s performance was deficient

and that the deficient performance so prejudiced him that, but for the deficiency, there

is a reasonable probability that the outcome of the trial would have been different.

See McDuffie v. State, 298 Ga. 112, 115 (2) (779 SE2d 620) (2015); Long v. State,

287 Ga. 886, 891 (4) (700 SE2d 399) (2010). Daniel has not made these required

showings.

      With regard to a jury charge on criminal trespass, as discussed above in

Division 2, there was no evidence to support such a charge. “As the trial court would

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not have been authorized to charge the jury on criminal trespass as a lesser included

offense of burglary, it logically follows that [Daniel] cannot show that his trial

counsel’s failure to [preserve an objection to the lack of] such a charge was

ineffective.” Dillard v. State, 323 Ga. App. 333, 337 (2) (753 SE2d 772) (2013)

(citation omitted).

      As for the trial court’s response to the jury’s questions, contrary to Daniel’s

characterization, the response was not burden-shifting. During deliberations, the

jurors sent a note to the judge asking about the phrase “no other apparent motive,” if

a motive had to be based solely on the evidence before them, if the state had the

burden to disprove apparent motives, and if a motive would be reasonable if no

evidence were presented on it. After consulting with the parties, the trial court gave

the following response to the jury:

      The state is required to prove all of the elements of burglary as charged
      in this indictment that you have back there with you. Motive is not an
      element of burglary. You may only consider evidence you have heard in
      the courtroom and any exhibits that have been admitted during the
      course of this trial. I will remind you that the opening statements,
      closing arguments, indictment and plea of not guilty are not evidence.

      “When a jury . . . requests further explanation of the law or raises other

questions it is within the trial court’s sound discretion to determine the need, breadth,


                                           7
and formation of any additional jury instructions.” Benjamin v. State, 322 Ga. App.

8, 12 (2) (b) (743 SE2d 566) (2013) (citations and punctuation omitted). Here, the

trial court did not abuse its discretion in responding to the jury’s questions as the

response, contrary to Daniel’s claim, was not burden-shifting and instead “was legally

accurate and not confusing or misleading[.]” Payne v. State, 219 Ga. App. 318 (1) (b)

(464 SE2d 884) (1995). Moreover, Daniel has made no showing of any reasonable

probability that the outcome of the trial would have been different had counsel

objected to the court’s recharge. “Thus, trial counsel’s failure to object to the recharge

does not amount to ineffective assistance of counsel, and does not warrant a reversal.”

Skaggs-Ferrell v. State, 287 Ga. App. 872, 878 (3) (652 SE2d 891) (2007).

      Judgment affirmed. Miller, P. J., and McMillian, J., concur.




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