☢ test - Í
Stillwell v. State, 329 Ga.App. 108, 764 S.E.2d 419 (September 23, 2014). Burglary conviction affirmed; trial court was not required to sua sponte charge jury on mistake of fact. Defendant and his brother were found removing a heating unit from a vacant house that was for sale. “Stillwell told police that he was there because he was interested in buying the house.” “Stillwell argues on appeal that this evidence was sufficient to find that he had mistakenly entered the house under the belief that it was open to anyone interested in purchasing the property.” But this is a mistake of law – “namely that he could not be convicted of burglary if the house was for sale and potential buyers were authorized to enter” -- not of fact, says the Court of Appeals. “We have consistently held that failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. See Turner v. State, 210 Ga.App. 303, 304(1), 436 S.E.2d 229 (1993); Taylor v. State, 233 Ga.App. 221, 222(1), 504 S.E.2d 57 (1998) (although Taylor believed that the word ‘Reinstated’ on the receipt from the Department of Public Safety reinstated his license, this was not misapprehension of a fact, but mistake of law).” Distinguishing Price (July 5, 2011), below, “where there was conflicting testimony about whether the house was for sale. … Further, in Price, unlike here, the mistake of fact defense had nothing to do with whether or not Price had an intent to steal once he was inside, but only whether he was authorized to enter the house.” Accord, Paul v. State , 331 Ga.App. 560, 769 S.E.2d 396 (March 6, 2015) (burglary conviction affirmed; “Paul claims that he mistakenly thought the apartment was vacant and thus he was authorized to enter it. This, however, was a mistake of law, not fact; … a person is not authorized to enter the dwelling of another merely because it is vacant and such unauthorized entry may still constitute burglary.”). Floyd v. State, 319 Ga.App. 564, 737 S.E.2d 341 (January 17, 2013). Burglary conviction affirmed; evidence supported finding that defendant entered the home without authority. “Floyd's claim on appeal that he was operating under a mistake of fact with regard to his authority to enter the home is not supported by the record. OCGA § 16–3–5 provides: ‘A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.’ When asked at trial about what she told Floyd about the reasons for needing his help, [co-defendant] Gregory replied, ‘I believe I said that [the tenants] had gotten evicted and that I needed to pick some stuff up. The sheriff had come and she was no longer allowed to be on the property, so she asked me to pick up some stuff.’ This statement, if true, did not provide Floyd with legal authority to enter the home. See Zabain v. State, 315 Ga.App. 749, 751(2) (728 S.E.2d 273) (2012) (‘Without authority means without legal right or privilege or without permission of a person legally entitled to withhold the right’). Gregory did not have the legal right or privilege to grant permission for Floyd to enter the landlord's property based upon the request of an evicted tenant no longer allowed on the property.” Compare Price ( July 5, 2011), below (burglary conviction reversed based on mistake of fact as authority to enter home defendant thought was for sale). Windhom v. State, 315 Ga.App. 855, 729 S.E.2d 25 (May 11, 2012). Armed robbery conviction reversed on other grounds; trial court erred by refusing defendant’s charge on mistake of fact where he testified that he only drove the robbers to the shopping center because he thought they needed to pick up a car. Allen v. State, 290 Ga. 743, 723 S.E.2d 684 (March 19, 2012). Malice murder and related convictions affirmed; trial court properly declined to charge on mistake of fact. “Appellant's belief that the victim was not in the trajectory of the bullet when he intentionally fired his weapon at a third party does not constitute the type of mistake of fact that would serve as a defense to the crimes charged.” Ahmad v. State, 312 Ga.App. 703, 719 S.E.2d 563 (November 18, 2011). Convictions for numerous drug and driving offenses affirmed; trial court properly declined to charge on mistake of fact. “That Ahmad, who used drugs, may have believed he was authorized as a confidential informant to possess sample amounts of drugs to seek out potential drug dealers for drug busts in Hall County does not constitute the type of mistake of fact that would serve as a defense to his possessing a trafficking amount of drugs (and for three days). … The evidence is uncontroverted that Ahmad drove outside of Hall County for the purpose of picking up a large quantity of ecstasy and in fact picked up a trafficking quantity of drugs. At the time, Ahmad had not, for more than a month, been in contact with the officer with whom he worked as a confidential informant or with any other officer who authorized him to possess a trafficking amount of drugs. Also, according to Ahmad, at the time of this incident, his services as a confidential informant were no longer being requested and the charges against him had been ‘taken care of.’ Thus, there existed no misapprehension of fact(s) which, if true, would have justified Ahmad possessing a trafficking amount of drugs. Therefore, the trial court did not err by failing to give his requested jury charge on the defense of mistake of fact because the charge was not authorized by the evidence.” Duvall v. State, 289 Ga. 540, 712 S.E.2d 850 (July 11, 2011). Reversing 305 Ga.App. 545, 699 S.E.2d 761 (2010), in
Made with FlippingBook Ebook Creator