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Hiley v. State

Defendant was entitled to a charge on the lesser included offense of trespass because he claimed that he entered the vacant house only to turn on the heat for a homeless acquaintance who planned to sleep there.

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A Muscogee County jury convicted Willie Darrell Hiley of burglary, OCGA § 16-7-1. Following the denial of his motion for new trial, Hiley appeals, asserting the general grounds and contending that the trial court erred in refusing to give his requested jury charge on the lesser included offense of criminal trespass, OCGA § 16-7-21 b 1. We find that the law and the evidence required that the jury be instructed on criminal trespass and, therefore, reverse.

“A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 397 SE2d 550 1990. Criminal trespass is a lesser included offense of burglary. Johnson v. State, 164 Ga. App. 429, 429-30 1 296 SE2d 775 1982. To convict on a charge of burglary, the state must prove the defendant entered or remained within the premises of another without authority and “with the intent to commit a felony or theft therein.” OCGA § 16-7-1 a. To convict on a charge of criminal trespass, the state must prove that the defendant “knowingly and without authority” entered upon the premises of another “for an unlawful purpose.” OCGA § 16-7-21 b 1.

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