BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE.
found Richard Reason guilty of burglary in the second degree
and obstruction of a law enforcement officer, and the trial
court sentenced him as a recidivist under OCGA § 17-10-7
(a) and (c). Reason filed a motion for new trial, which the
trial court denied. On appeal, Reason contends that the trial
court committed plain error in its jury instruction on the
manner in which jurors should consider criminal trespass as a
lesser included offense of burglary. Reason also contends
that the trial court erred in sentencing him as a recidivist
under both subsections (a) and (c) of OCGA § 17-10-7.
Upon our review, we affirm.
a criminal conviction, the defendant is no longer presumed
innocent, and we view the evidence in the light most
favorable to sustain the verdict." (Citation and
punctuation omitted.) Phillips v. State, 347 Ga.App.
147, 147 (817 S.E.2d 711) (2018). So viewed, the evidence
showed that around midnight on November 29, 2016, a homeowner
in Chatham County got up from bed to use the restroom and
looked out the window. The homeowner had a locked storage
shed in her fenced backyard, but when she looked out the
window, she noticed that the door to the shed was open and
that a man whom she later identified as Reason was in the
shed. She called the police, and two uniformed patrol
officers quickly responded to the scene.
the officers arrived at the residence and entered the
backyard, they saw Reason coming out of the shed. Reason
tried to walk away when the officers commanded him to
"come here," and he struggled with the officers as
they ordered him to stop resisting and tried to handcuff him.
One of the officers took Reason to the ground, and the
officers eventually were able to handcuff him even though he
would not obey their commands. The officers then placed
Reason in the back of their patrol car. Once in the car,
Reason, who appeared highly intoxicated, made unprompted
statements to one of the officers that he had been in the
shed, that he tried to get a couple of items, that he was
hiding out from some people who wanted to shoot him, that he
was in a tough spot, and that he was trying to help his
mother. Several items belonging to the homeowner that had
been in the shed were located on the other side of the fence
in a neighbor's yard and were returned to the homeowner.
was indicted on several charges, including burglary in the
second degree and misdemeanor obstruction of a law
enforcement officer. At trial, the homeowner and the two
responding officers testified to events as set out above, and
the State played for the jury the recordings made from the
body cameras worn by the officers. Reason elected not to
testify and did not call any defense witnesses. He requested
and received a jury charge on criminal trespass as a lesser
included offense of burglary. After closing arguments and the
charge of court, the jury found Reason guilty of burglary and
sentencing, the State introduced into evidence Reason's
nine certified prior felony convictions. Pursuant to OCGA
§ 17-10-7 (a) and (c), the trial court sentenced Reason
as a recidivist to 5 years in prison on the burglary charge
and 12 months in prison on the obstruction charge, with the
sentences to run consecutively.
Reason contends that the trial court erred when it instructed
the jury on how it should consider criminal trespass as a
lesser included offense of burglary on the verdict form. The
verdict form read in relevant part:
Count One: Burglary in the Second Degree,
We the Jury find the defendant Richard Reason: ____not guilty
Or Criminal Trespass (lesser included offense): ____not
its charge to the jury, the trial court instructed:
Now, we will provide you the verdict form, and Count One
reads: We, the jury, find the Defendant Richard Reason,
it's not guilty or guilty. Now, if you find him guilty in
burglary in the second degree, you do not consider whether or
not he's guilty of criminal trespass. You would leave
both blank, you would leave both lines blank on it, it's
the next, criminal trespass. If you check "Not
guilty" for burglary in the second degree, then you
should consider whether he is guilty or not guilty of
concedes that because his trial counsel did not object to the
instruction, he must prove plain error. According to Reason,
the instruction on how to consider criminal trespass was
plain error because, when coupled with the fact that the
trial court also instructed the jury on the need for a
unanimous verdict, the instruction implied that the jury had
to reach a unanimous ...