Burglary. Henry Superior Court. Before Judge McGarity.
Jimmonique R. S. Rodgers, for appellant.
James L. Wright III, District Attorney, Blair D. Mahaffey, Atha H. Pryor, Assistant District Attorneys, for appellee.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
Following the denial of his motion for new trial, Herman A. Stillwell appeals his burglary conviction. On appeal, Stillwell contends that the trial court erred in refusing to instruct the jury on mistake of fact and trespass. Following our review, we affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption
of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the jury's verdict.
(Punctuation and footnotes omitted.) Skaggs-Ferrell v. State, 266 Ga.App. 248 (1) (596 S.E.2d 743) (2004).
So viewed, the evidence shows that a neighbor observed a truck with a " Herman's Heating and Air" magnet on the tailgate pull up and stop at an unoccupied home located across the street that was on the market for sale. It is unclear from the record, and there is no testimony about whether there was a for sale sign posted in front of the home. The neighbor observed two men exit the truck, peer through the windows, and then enter the home through the garage. The men subsequently came out of the house, retrieved " stuff" from the truck and re-entered the vacant home. Several minutes later, he observed only one of the men exit the house, retrieve more tools, and again re-enter the house. The neighbor, who was viewing the scene through binoculars, testified that the man had retrieved screwdrivers, pliers and possibly a cordless drill. He called 911 to report his observations, and police were dispatched to the house.
[329 Ga.App. 109] When police arrived, they observed one of the men, later identified as Stillwell, standing near the rear corner of the house. The other man, Stillwell's brother, ran away when the police arrived. Stillwell told police that he was there because he was interested in buying the house. The police entered the house and discovered that the attic stairs were lowered and found multiple tools, including wire cutters, a cordless drill, a screwdriver, and channel locks, laid out on the floor at the top of the stairs. They further observed that the heating unit in the attic had been disconnected and saw copper tubing and disconnected pipe lying nearby. The homeowner told police that he had not authorized a service call and that he did not know Stillwell or his brother. Stillwell was arrested and charged with burglary.
1. Stillwell contends that the trial court erred in failing to charge the jury sua sponte on the defense of mistake of fact. He maintains that the evidence supported the ...