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Court of Appeals of Georgia.


No. A08A1249.

Decided: September 15, 2008

Davis Cohen, Savannah, for appellant. Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

After a jury trial, William Morris Sanders was convicted of burglary,1 possession of tools for the commission of a crime (theft),2 and giving a false name to a law enforcement officer.3  His motion for new trial was denied.   Sanders contends on appeal that the evidence did not authorize the guilty verdict on the charge of giving a false name to a law enforcement officer, that he was entitled to a jury instruction on criminal trespass as a lesser included offense of burglary, and that his trial counsel was ineffective.   We affirm.

The state's evidence showed the following.   At about 7:45 a.m. on Sunday, January 15, 2006, two police officers and an officer-recruit were dispatched to 130 Ferrill Street in Savannah in response to a report that suspicious noises were coming from a house under construction there.   They arrived to find the house “boarded up as if no one was there,” with hurricane shutters covering windows and plywood across its exterior doorways.   But noticeably, the plywood across a side doorway appeared to have been pried off, then left leaning on the house.

The officers peered through a window and observed a man standing beside a detached air conditioning unit in the middle of the ground floor of the house.   The man was using a screwdriver to remove duct pipes protruding from the unit.   One such pipe appeared to have simply been “ripped from the rest of the piping.”   The man had a tool belt and a large purse, both filled with various items, including screwdrivers, wrenches, pliers, and a knife.

The officers and the recruit entered the house.   When the officers asked the man for his name and birth date, he gave the name “Willie Cone” and a date.   A police officer was unable to obtain any information for a person with that identification, and the man “clarified” that his last name was “Cohen.”   However, the officer again was unable to obtain any information for such a person. Responding to additional police questioning, the man claimed he was performing electrical work for a contractor whom he knew only as “Anthony.”   He stated that he had no contact information for Anthony, but that the officers might possibly verify his claim by calling “Home Depot.”   Finding the man's story too vague to investigate and unable to obtain any other specifics from him, the officers summoned to the scene the property owner, Aaron Fox.

Fox was also the owner of the company constructing the house, and he personally supervised the job site on a daily basis.   The officers asked Fox to identify the man;  Fox could not.   The man was not the heating-and-air contractor.   What is more, Fox recalled that at the close of the previous workday, the air conditioning unit had been in the attic and connected to duct work there.   According to Fox, he and “the City of Savannah [had] inspected it,” and “there was no more work to be done to the unit in the attic.”   Indeed, Fox did not recognize the man as having been a worker of any kind at that job site.   He adamantly complained to the officers (and subsequently testified at trial) that the man had no authority to be inside his house.   Not until after the man was arrested did he reveal to the officers his true identity:  it was Sanders.

 1. Sanders argues that, because he eventually gave his name to police, he “withdrew” from the crime of giving a false name to a law enforcement officer and thus could not be found guilty of that crime.   However, the evidence was sufficient to authorize the jury's verdict of guilty on the charge of giving a false name to a law enforcement officer.4

 2. Sanders contends that the trial court erred by refusing to instruct the jury on criminal trespass under OCGA § 16-7-21(b)(1) as a lesser included offense of burglary.5  We disagree.

A person commits burglary under OCGA § 16-7-1(a) when

without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.

A person commits criminal trespass under OCGA § 16-7-21(b)(1) when he “knowingly and without authority ․ [e]nters upon the land or premises of another person ․ for an unlawful purpose.”

 (a) Where, as here, “the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” 6  During closing argument, Sanders's attorney cited Sanders's account to the officers at the scene that, at the behest of a contractor named Anthony, Sanders was in the house to perform electrical work.   Further arguing that the state's case included no evidence of any police investigation revealing Sanders's account to be false, the attorney urged that the state had failed to prove beyond a reasonable doubt the burglary charge.   As to this charge, if the jury believed the state's evidence, Sanders was guilty of burglary;  but if the jury accepted Sanders's defense to that crime, he would have been guilty of no offense at all.   Because the trial court correctly determined that the evidence as to this charge showed that Sanders had either committed the crime of burglary or committed no crime at all, it did not err by refusing to instruct the jury on criminal trespass.7

(b) Sanders points out that the indictment charged that he “entered and remained within the dwelling house of another, to wit:  Aaron Fox, located at 130 Ferrill Street in Savannah.”   Citing evidence that the house was not completely constructed, Sanders asserts that the state failed to show that the structure was a dwelling house as contemplated by the burglary statute.

 It is true that for purposes of that statute, “dwelling house” has been defined as a “residence or habitation of a person other than the defendant, where such person makes his abode.” 8  It is also true that the crime of criminal trespass under OCGA § 16-7-21(b)(1) does not require that the property at issue constitute a residence, habitation, or place of abode.   But even without a showing that the house at issue in this case constituted a “dwelling house,” the evidence did not authorize a jury instruction on criminal trespass.  “A house under construction which is so far completed as to be capable of providing shelter to people, animals, or property constitutes a building under [the burglary] statute.” 9  This results because “Georgia's burglary statute is very broad and does not limit its application to buildings of any particular type or in any particular condition.” 10  Unquestionably, the evidence showed the house under construction to be a building under the burglary statute,11 and Sanders makes no contrary assertion.   Because the evidence established all the elements of burglary, and under Sanders's defense as to the burglary charge, he would have been guilty of no offense at all,12 a charge on the lesser included offense was not required.13

 (c) We will not ignore that Sanders's argument demonstrates a variance between the allegata and probata.   The evidence proved that he committed burglary on a building, not on a dwelling house as charged.   Nevertheless, our examination of the record reveals that this variance was not fatal.

We no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.   The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.   It is the underlying reasons for the rule which must be served:  1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.   Only if the allegations fail to meet these tests is the variance fatal.14

Here, the burglary charge correctly described that the house structure unlawfully entered belonged to “Aaron Fox,” adequately specified its location, and identified January 15, 2006, as the date of the crime.

Specifically describing the structure's location and owner and the date of the burglary, the allegations definitely informed [Sanders] as to the charge [ ] against him so as to enable him to present his defense and not to be taken by surprise.   The allegations were further adequate to protect [Sanders] against another prosecution for the same offense.   The indictment's description of the structure as a dwelling house as opposed to a building did not mislead [Sanders] in such a manner that impeded his ability to present a subsequent defense or surprise him at trial, and he cannot be subjected to a subsequent prosecution for the burglary of the building in question.   Thus, [Sanders] has failed to show that any variance was fatal.15

3. Sanders claims that his trial counsel rendered ineffective assistance.   To prevail on a claim of ineffective assistance of counsel,

a defendant must establish, pursuant to Strickland v. Washington, 16 that counsel's performance was deficient and that the deficient performance was prejudicial to his defense․ In reviewing a trial court's determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court's factual findings unless they are clearly erroneous;  we review a trial court's legal conclusions de novo.17

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order.18

 Specifically, Sanders argues that his trial lawyer failed to fully prepare and present a defense concerning (i) a contractor named Anthony and (ii) the construction stage of the house at the time of the incident.   Regarding a contractor named Anthony, Sanders's trial counsel acknowledged at the motion for new trial hearing that Sanders had informed him that he (Sanders) was inside the house to perform work at the request of a contractor named Anthony.   The attorney further recounted that Sanders had given him a telephone number to call Anthony, that he had called the number provided, that he left a message, but that no one returned his call.   Thus, Anthony did not testify at Sanders's trial.   Sanders asserts in his appellate brief that Anthony would have been a “material witness.”   But at the hearing on motion for new trial, Sanders did not present Anthony as a witness, did not demonstrate that Anthony's whereabouts were ascertainable at the time of Sanders's trial, and did not present any evidence that Anthony could have aided his defense.

 Regarding the stage of construction work on the house, Sanders complains on appeal that his trial lawyer did not visit the construction site early in the case and consequently took no photographs to show the jury that the house was not completely constructed as of the date of the incident.   Sanders also points out that the state introduced in evidence three photographs of the house in its completed stage.   He argues that without photographs showing that the house was still under construction at the time of the underlying incident, the jury was allowed to conclude that the state had proved that the structure was a dwelling house.

The trial transcript confirms that any photographs of the house at or around the time of the incident would have been merely cumulative of the undisputed testimony that the house was not fully constructed on the day of the crimes underlying this case.   Each of the state's witnesses who were at the scene that day-Fox, the two officers, and the officer-recruit-described the house as then under construction.   Indeed, one of the officers testified that, on that day, the house was “boarded up” and no one was living there.   Furthermore, Fox, as well as an officer, clarified that on the date of the burglary, the house did not appear as shown by the photographs.

Having examined the record in this case, we conclude that as to both matters-a contractor named Anthony and photographs that would have depicted the house in its state on or close to the date of the crimes underlying this case-Sanders has failed to establish how trial counsel's performance, even if deficient, resulted in prejudice so as to support a claim of ineffective assistance of counsel.19

Judgment affirmed.


1.   See OCGA § 16-7-1 (defining burglary).

2.   See OCGA § 16-7-20 (defining possession of tools for the commission of crime).

3.   See OCGA § 16-10-25 (defining giving false name to law enforcement officer).

4.   See Davis v. State, 270 Ga.App. 777(1), 607 S.E.2d 924 (2004) (regarding review for sufficiency of the evidence), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

5.   Hiley v. State, 245 Ga.App. 900, 539 S.E.2d 530 (2000) (criminal trespass under OCGA § 16-7-21(b)(1) is a lesser included offense of burglary).

6.   Johnson v. State, 275 Ga.App. 21, 24(6), 619 S.E.2d 731 (2005) (citation and punctuation omitted).

7.   See Moore v. State, 280 Ga.App. 894, 898(6)(c), 635 S.E.2d 253 (2006) (where state's evidence showed defendant entered building with the intent to commit theft and defendant testified that he entered building for a lawful purpose, there was no evidence that defendant entered for any other unlawful purpose and thus defendant was not entitled to a jury instruction of criminal trespass under OCGA § 16-7-21(b)(1));  Johnson, supra at 24-25, 619 S.E.2d 731;  but see Hiley, supra at 901, 539 S.E.2d 530 (determining that an instruction on criminal trespass as a lesser included offense of burglary should have been given, where it could have been inferred from the evidence that the defendant unlawfully entered a house for some unlawful purpose other than a felony or theft).

8.   Mash v. State, 90 Ga.App. 322(2), 82 S.E.2d 881 (1954) (citations omitted);  see also Earnest v. State, 216 Ga.App. 271, 272(1), 453 S.E.2d 818 (1995) (there is no requirement that a house be continuously occupied to be a dwelling;  it is sufficient that it is occasionally occupied for residential purposes and any such lawful occupant has a superior right as against burglars).

9.   Weeks v. State, 274 Ga.App. 122, 124(1), 616 S.E.2d 852 (2005) (citation and footnote omitted;  emphasis supplied).

10.   Redfern v. State, 246 Ga.App. 572, 574-575, 540 S.E.2d 701 (2000) (citations and punctuation omitted).

11.   See Weeks, supra;  Smith v. State, 226 Ga.App. 9, 11-12, 485 S.E.2d 572 (1997);  but see Redfern, supra (finding that the broad meaning given to the term “building” under the burglary statute did not encompass a 2,000-foot-high broadcast tower).

12.   See Division 2(a), supra.

13.   See Moore, supra;  Weeks, supra.

14.   Weeks, supra at 125, 616 S.E.2d 852 (citation, punctuation and footnote omitted).

15.   Id. at 125-126, 616 S.E.2d 852 (citation and punctuation omitted).

16.   466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

17.   Espinosa v. State, 285 Ga.App. 69, 72(2), 645 S.E.2d 529 (2007) (footnotes omitted).

18.   Turner v. State, 253 Ga.App. 760, 763(6), 560 S.E.2d 539 (2002).

19.   See Bell v. State, 278 Ga. 69, 73(6), 597 S.E.2d 350 (2004);  Gibson v. State, 277 Ga. 486, 487-488(2), 591 S.E.2d 800 (2004);  Morgan v. State, 275 Ga. 222, 227(10), 564 S.E.2d 192 (2002).

PHIPPS, Judge.

BARNES, C.J., and JOHNSON, P.J., concur.

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