BARNES, P. J., RICKMAN and SELF, JJ.
BARNES, PRESIDING JUDGE.
the denial of his motion for new trial, Deivi M. Polanco
appeals his burglary and aggravated stalking convictions and
contends that the evidence adduced at trial was insufficient
to enable a rational trier of fact to find him guilty beyond
a reasonable doubt. Upon our review, we affirm.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict in accordance with
the standard set forth in Jackson v. Virginia, 443
U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). "We do
not weigh the evidence or determine witness credibility, but
only determine if the evidence was sufficient for a rational
trier of fact to find the defendant guilty of the charged
offense beyond a reasonable doubt." Clark v.
State, 283 Ga.App. 884, 886(1) (642 S.E.2d 900) (2007).
viewed, the evidence demonstrates that Polanco and the victim
were married on March 7, 2007, and were husband and wife
throughout the incidents upon which the convictions are
based. The victim testified that by "the fall of 2011,
" the relationship had deteriorated into "[a] lot
of fights, arguing, hitting [and] insults." When she had
threatened to leave him, Polanco said that he would "put
[her] four meters under the ground."
and January 2012, Polanco was arrested after domestic
violence incidents with the victim. While Polanco was
incarcerated for the 2012 incident, the victim moved all of
his possessions to Polanco's mother's house, gave his
car to his mother, and changed the locks to the apartment.
After Polanco was released from jail, he stayed with his
mother. He soon began appearing at the victim's residence
on several separate occasions - crouching below the window,
hiding in a storage closet, and entering the residence and
hiding under the bed. In response, the victim obtained a
temporary protective order (TPO), which was served on Polanco
on April 11, 2012. The TPO ordered that Polanco, among other
things, not contact the victim, leave and stay away from the
family residence, and surrender all keys and other items
associated with the residence.
April 12, 2012, the victim arrived home and found flowers, a
ring, and a note from Polanco inside her apartment. Polanco
then approached her from where he had been hiding in the back
of the apartment, and fearing for her safety, the victim told
him to leave. Polanco eventually left, and the victim called
the police. The responding officers discovered that Polanco
had gained access to the apartment from a bedroom window and
that "[t]he window was off the hinge and the blinds were
disarrayed." Fearing that Polanco might come back, the
victim and her children stayed in a hotel that night.
next day, as the victim was sitting in her vehicle preparing
to move to a new apartment in the same complex, Polanco
approached her and asked for a camera. She picked up her
phone and threatened to call the police, but Polanco leaned
inside the car and yanked the phone out of her hand. The
victim went inside and called the police from a different
phone. Polanco was later arrested and convicted of burglary
and aggravated stalking.
Under OCGA § 16-7-1 (b), a person is guilty of burglary
when, without authority and with the intent to commit a
felony or theft therein, he or she enters or remains within
the dwelling house of another. Polanco argues that the State
failed to prove an essential element of burglary, namely,
that he entered the dwelling house of another. Polanco
contends that he cannot be guilty of burglary because he was
authorized to enter his own residence.
State v. Kennedy, 266 Ga. 195 (467 S.E.2d 493)
(1996), the Georgia Supreme Court recognized that while
"marriage is a significant factor in the determination
of whether one spouse is authorized . . . to enter the
separate residence of his or her estranged spouse . . .
marriage alone is not an absolute defense to burglary."
Id. at 196. The Court held that,
there are no express marital exemptions nor implicit
exclusions in the burglary statute which give a spouse
unlimited consent, as a matter of law, to enter the separate
residence of his or her estranged spouse . . . [a]n entry
into the separate residence of an estranged spouse, without
authority and with the intent to commit a felony or theft
therein, constitutes burglary.
Id. The jury may consider the fact the Polanco used
to live in the residence with his wife and family in
determining whether he was authorized to enter the apartment.
However, "the fact that [Polanco] may have once lived at
the victim's house. . . does not, in itself, give the
defendant subsequent authority to enter." (Punctuation
omitted.) Williams v. State, 268 Ga.App. 384,
386-387(1) (601 S.E.2d 833) (2004).
the evidence demonstrated that Polanco been arrested for
domestic violence against the victim, and that the victim so
feared for her safety that a temporary protective order had
been issued which required that Polanco leave and stay away
from the family residence. Further, Polanco's name was
not on the lease for the residence. During Polanco's
incarceration, the victim changed the locks to the residence.
When he was released from jail, Polanco moved in with his
mother and did not live at the residence, and when Polanco
later entered the residence, he did so through a bedroom
window. Given these circumstances, the jury was entitled to
conclude that Polanco no longer lived at the residence and
was no longer authorized to enter it. Moreover, "in
light of [Polanco's] forcible entry, the jury could infer
that [Polanco] knew that he was without authority to be in
[his wife's] house." Williams, 268 Ga.App.
at 387. Likewise, there was evidence, based on past domestic
violence, to support a finding that, when Polanco entered the
apartment, he had the intent to commit a felony therein
against the victim. "For such action to constitute
burglary, it is not necessary that the felony be committed as
long as the intent to commit the felony was present."
Johnson v. State, 262 Ga. 441, 442 (1) (421 S.E.2d
70) (1992). See Patterson v. State, 274 Ga.App. 341,
343 (2) (618 S.E.2d 81) (2005) ("Whether a defendant
entertained the requisite intent after entering is a matter
for the jury to say, under the facts and circumstances
proved. As a general rule the state must, of necessity, rely
on circumstantial evidence in proving intent.")
(footnote and punctuation omitted.)
Under OCGA § 16-5-91 (a), a person is guilty of
aggravated stalking when, in violation of a temporary
protective order, he or she contacts another person without
their consent, and for the purpose of harassing and
intimidating the other person. Polanco argues that the