Polanco v. the State ( 2017 )

SECOND DIVISION
BARNES, P. J.,
RICKMAN and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 21, 2017
In the Court of Appeals of Georgia
A16A1622 POLANCO v. THE STATE
BARNES, Presiding Judge.
Following 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.
On 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 SCt 2781, 61 LE2d 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 SE2d 900)
(2007).
So 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.”
In 2011 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
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stay away from the family residence, and surrender all keys and other items associated
with the residence.
On 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.
The 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.
1. 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
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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.
In State v. Kennedy, 266 Ga. 195 (467 SE2d 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
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not, in itself, give the defendant subsequent authority to enter.” (Punctuation omitted.)
Williams v. State, 268 Ga. App. 384, 386-387(1) (601 SE2d 833) (2004).
Here, 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 SE2d 70) (1992).
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See Patterson v. State, 274 Ga. App. 341, 343 (2) ( 618 SE2d 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.)
2. 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 evidence shows that he contacted the victim for a single
purpose, namely, retrieving a camera.
Here, a TPO required Polanco to refrain from contacting the victim. Despite the
TPO, the evidence demonstrates that Polanco approached the victim at her apartment
after the TPO was issued, and the next day while she was in her vehicle. While
Polanco argues that the purpose for contact with the victim was only to retrieve the
camera and not to intimidate and harass her, “intent is a question of fact to be
determined by the jury upon consideration of [Polanco’s] words, conduct, demeanor,
motive and all other circumstances connected with the act for which the accused is
prosecuted.” Holmes v. State, 291 Ga. App. 196, 198 (1) (661 SE2d 603) (2008) (the
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jury was authorized to find Holmes guilty of aggravated stalking even where his
stated intent was to “rekindle his failed marriage,” not intimidate and harass his ex-
wife). We therefore find that the evidence was sufficient for a rational trier of fact to
conclude that Polanco was guilty beyond a reasonable doubt of aggravated stalking.
Judgment affirmed. Rickman and Self, JJ., concur.
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