GEORGIA TRESPASSING 101

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In one way or another we encounter sign posts with the above inscriptions posted on fences and trees. But what do those words mean? What does criminal trespassing mean and how is it committed in Georgia?

  1. Criminal Trespass: What is it and what is it not?

In Georgia, criminal trespass can be committed in several ways. CommittingANY ONE of the following acts is enough to make one liable for trespassing:

A.A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less.

  1. There must be specific intent to cause damage to property of another. The damage must not be a result of mere negligence or accident.
  2. There is specific intent when one’s willful acts are carried out to specifically cause damage to the property of another. There is no other objective in the mind of the offender other than the destruction of the property of another.
  3. There must be no consent from the other person. Consent can be verbal or in writing. Consent can be express or implied. It can be inferred from one’s silence or inaction if reasonable person needs to speak up his consent or his objection to the destruction of his property. Consent must not have been obtained through fraud, trickery, deception, or coercion.
  4. If the amount of damage is more than $500.00, the offender is liable for criminal damage to property in the second degree punishable by imprisonment of not less than one nor more than five years. OCGA 16-7-23.

B.A person commits the offense of criminal trespass when he or she knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.

  1. “Property of another” refers to either personal property or real property. Interference with business activities can likewise be considered trespass. Oftentimes, business entities put signposts in their establishments stating that they reserve the right to refuse service to anyone. The main purpose of the business entity is to have something to point at when known unruly customers or those inappropriately dressed want to enter the establishment.
  2. It is important to determine who has the legal right to possess the property at the time of the trespassing. There is a difference between the right of possession and the right of ownership to the same property. The ownership of the property is only one factor to be considered in determining the rightful possessor. For example, the owner might have leased his property to another who can lawfully bar the owner from entering, using, or possessing the property leased. The owner can be charged with trespassing to his own property if he or she lawfully surrendered his or her right of possession to another.

C.A person commits the offense of criminal trespass when he or she knowingly and without authority enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose.

  1. The trespasser must have unlawful purpose when he enters the premise or vehicle.
  2. Entry to someone else’s premise or property is permitted – negating trespass – when public or private necessity demands it. Examples are entry to premises or vehicles of another for the purpose of saving someone’s life and/or properties. Saving someone from house on fire is a common example. Entry to someone else’s property in order to escape from lawless elements (criminals indiscriminately attacking everyone they see on the road) or to seek shelter from imminent danger (hurricanes or tornadoes) cannot also be considered unlawful.

D.A person commits the offense of criminal trespass when he or she knowingly and without authority enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, occupant, or representative that such entry is forbidden.

  1. Prohibition to enter a premise must be taken seriously. If there are “no trespassing” signs posted on fences, tress, or barb wires of a private property, it is better to avoid or get out of the property.
  2. Wandering, strolling, and walking around a private property which doesn’t have expressed prohibition to enter it do not amount to trespassing unless the person enters the property with unlawful purpose.

E.A person commits the offense of criminal trespass when he or she remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, occupant, or a representative to depart.

  1. Consent to enter a premise or a vehicle can be withdrawn by the rightful owner or possessor anytime. Withdrawal of consent may or may not be preceded by warnings to the person occupying the premises. This is why restaurants and other business establishment often threaten their unruly customers with trespassing if the latter refuse to leave after sufficient warnings and demands to leave the premises.
  2. The person must be given reasonable period of time to leave the premise or vehicle. When a worker is fired, for example, he must be given sufficient time to gather all his belongings out of his workspace. After substantial amount of time to pack up and leave, subsequent entry by the EX-worker can be considered trespass if he did not secure appropriate consent from his former employer.
  3. A person can also commit trespass under this provision when he unlawfully withholds a property from the rightful possessor of the property after demands to surrender or return the property are made.

F.A person commits the offense of criminal trespass when he or she intentionally defaces, mutilates, or defiles any grave marker, monument, or memorial to one or more deceased persons who served in the military, OR a monument, plaque, marker, or memorial which is dedicated to, honors, or recounts the military service of any past or present military personnel if such grave marker, monument, memorial, plaque, or marker is privately owned or located on land which is privately owned. OCGA 16-7-21.

  1. Penalties

A person who commits trespassing shall be guilty of a misdemeanor punishable by a fine or jail time or both. Depending on the circumstance of the case and the kind of trespass violated, the judge might also impose community service and restitution in addition to fine and jail time. Restitution involves returning or fixing the damaged property to the rightful possessor/owner plus payment of any damages suffered by the possessor/owner.

If the amount of property damage involve is over $500, the charge is criminal damage to property in the second degree punishable by imprisonment of one year to five years.OCGA 16-7-23.

Sometimes law enforcement officers arrest someone for alleged criminal trespass at the beginning of investigation but later on “upgrade” and amend the charge into criminal damage to property after further investigation is conducted. Offenders are often confused because after they prepare themselves to plea to criminal trespass under OCGA 16-7-21 (a), they are charged with damage to property in the second degree under OCGA 16-7-23 – a more serious crime with higher fines and longer jail time.

  1. Defenses

The defense lawyer must determine whether the elements of the crime of trespassing are present in a particular case. Was there specific intent to cause damage to property? Was there proper notice prohibiting entry into the premise? Was there consent from the lawful possessor/owner? Was there actual interference with the use of the property? Was the entry justified under the given circumstances? Was the damage caused a result of public or private necessity rather than malicious intentions?

Defenses to the charges depend on the type of trespass that was charged as well as to the facts of the every case.

  1. Related Offenses

In reality, there is something more going on than causing damage to properties of another or wandering into premises of another. This makes trespassing laws more complicated. Some of the related offenses are the following:

  1. Eavesdropping, Espionage.

If law enforcement officers want to investigate further what one is doing in sensitive places, they may charge him initially with trespassing as a pretext to further investigation. The charge of trespass will give the officers reason to dig deeper into the motive of the offender. If warranted, the offender will be charged with more serious crimes which may include eavesdropping, unlawful surveillance, espionage, or stalking.

  1. Loitering.

Law enforcement officers may charge persons who are protesting in certain premises and in front of public and private buildings with trespassing in order to get them off these properties. Examples are the trespassing cases filed against the members of the Occupy Movements during 2011.

  1. Domestic Violence, Stalking, and Harassment.

If in the middle of arguments, one of the spouse breaks properties of the other in the marital home, the latter can call for police and report domestic violence and trespass. More often, the responding police will believe the story of the first person who called 911.

In like manner, if Temporary Protective Order (TPO) is violated by the spouse who was retrained from getting into a certain distance from another spouse, trespassing and stalking can be charged in addition to contempt of court.

  1. Burglary and other theft crimes.

Criminal trespass is a lesser included offense of burglary. To convict on a charge of burglary, the state must prove that the offender entered or remained within the premises of another without authority and with intern to commit a felony or theft. OCGA 17-7-1(a). To convict on a charge of criminal trespass, the state must prove that the offender knowingly and without authority entered upon premises of another for unlawful purpose. If the accused admits the unauthorized entry but denies the intent to commit felony or theft, the trial court must grant the request of the offender for a charge on the lesser included offense of criminal trespass (through jury instructions).Hiley v. State, 539 S.E.2d 530, 245 Ga. App. 900 (Ct. App. 2000).

Trespass is often used as a plea bargaining offense to the abovementioned offenses. For the offender, a trespassing conviction is better than a felony conviction arising from more serious charges such as espionage, burglary, domestic violence, and stalking. Aside from the fact that trespassing carries lesser penalties, the social stigma of a criminal record arising from very serious offenses can wreak havoc to the offender’s profession and employment can be avoided.

As you can see above, the crimes of trespassing are complicated requiring the assistance of a well-experienced trial lawyer practicing exclusively in the field of criminal law. If you or someone you know are charged with criminal trespassing in any form, do not hesitate to call Bixon Law at 404-551-5684.


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