O'Neal v. State

Birdsong, Judge.

Buster O’Neal, Jr. was convicted of burglary of a United Parcel Service building. He was discovered in the building and escaped, but not without leaving behind his jacket with his wallet and identification papers. He complains on appeal that the trial court erred in refusing, upon request, to charge the lesser included offense of theft by taking. Held:

The appeal is without merit. Appellant’s defense to the burglary charge was that he was not at the property; therefore, he could not raise the issue of a lesser included offense by making a claim that he was not there, but was present with a less serious intent or state of mind. Johnson v. State, 164 Ga. App. 429, 430 (296 SE2d 775); Tuggle v. State, 149 Ga. App. 844, 846 (256 SE2d 104).

Appellant’s contention that the UPS building was a place of public access, which he therefore had implied authority to enter and consequently was guilty only of theft by taking, is without merit for additional reasons. The evidence shows the building was not open to the public for business at the hour appellant was discovered in it, before 8:00 a.m. Business hours began at 9:00 a.m. and the only customers admitted before that time were persons who were there by prior arrangement, or who appeared and asked for particular help and were escorted through the building. In any case, the evidence showed that appellant without authority rifled through areas and rooms which were not opened to the public at any time, and this was burglary. Dixon v. State, 165 Ga. App. 133, 135 (2) (299 SE2d 608). Additionally, nothing was proved taken during the intrusion, so he could hardly be guilty of or entitled to a charge of theft by taking in any event.

Judgment affirmed.

Quillian, P. J., and Parley, J., concur.