GA Code § 16-7-5 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 7 - Damage to and Intrusion Upon Property|Article 1A - Home Invasion|§ 16-7-5. Home Invasion in the First and Second Degree

  As used in this Code section, the term "dwelling" shall have the same meaning as provided in Code Section 16-7-1.   A person commits the offense of home invasion in the first degree when, without authority and with intent to commit a forcible felony therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.   A person commits the offense of home invasion in the second degree when, without authority and with intent to commit a forcible misdemeanor therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.   A person convicted of the offense of home invasion in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for life or imprisonment for not less than ten nor more than 20 years and by a fine of not more than $100,000.00. A person convicted of the offense of home invasion in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.   Adjudication of guilt or imposition of sentence for home invasion in any degree may be probated at the discretion of the judge; provided, however, that such sentence shall not be suspended, deferred, or withheld.   A sentence imposed under this Code section may be imposed separately from and consecutive to a sentence for any other offense related to the act or acts establishing the offense under this Code section.     (Code 1981, §16-7-5, enacted by Ga. L. 2014, p. 426, § 3/HB 770.)   Law reviews.   - For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015).   JUDICIAL DECISIONS   Home invasion required defendant to bring weapon into home.    - Because the uncontroverted evidence showed that the defendant did not possess the iron used in the assault of the victim at the time the defendant entered the apartment but found the iron after making the unlawful entry, the state failed to prove an essential element of the crime of home invasion in the first degree and the trial court erred when the court denied the defendant's motion for a directed verdict on that count of the indictment. Mahone v. State, 348 Ga. App. 491, 823 S.E.2d 813 (2019).   Indictment sufficient as to victim's authority to be present in home.    - Trial lawyer's failure to file a general demurrer to the count of the indictment that charged the defendant with home invasion based on the indictment referring to the victim's dwelling house without specifying that the victim had authority to be present was not ineffective assistance of counsel because the allegation that the house was the dwelling house of the victim necessarily implied that the victim had the authority to be present therein; thus, the indictment was sufficient. Jordan v. State, 307 Ga. 450, 836 S.E.2d 86 (2019).   Indictment specified that defendant intended to commit underlying crimes inside residence.    - Counsel was not ineffective for failing to file a general demurrer or a motion in arrest of judgment as those motions would have been meritless because the indictment did not fail to specify that the defendant intended to commit the underlying crimes of armed robbery and aggravated assault inside the residence for purposes of the offense of home invasion as the allegation that the defendant entered the victim's home without authority and with the intent to commit various felonies necessarily implied that the defendant intended to commit the underlying crimes inside the residence. Subar v. State, 309 Ga. 805, 848 S.E.2d 109 (2020).   Jury instruction on second-degree home invasion not supported by evidence.   - Trial court did not err in denying the defendant's written request for a charge on second-degree home invasion as a lesser-included offense of first-degree home invasion because the evidence did not support the defendant's argument that the defendant did not possess a deadly weapon and the defendant pointed to no evidence that the defendant intended to commit an assault by some means other than with a deadly weapon. Campbell v. State, Ga. App. , S.E.2d (Apr. 29, 2021).