Opinion
A90A1064.
DECIDED JULY 13, 1990.
Peeping Tom. DeKalb Superior Court. Before Judge Peters.
John D. McCord III, for appellant.
Robert E. Wilson, District Attorney, Barbara B. Conroy, Desiree L. Sutton, Michael D. Thorpe, Assistant District Attorneys, for appellee.
Defendant McBride appeals his conviction of the offense of "peeping Tom," OCGA § 16-11-61. Held:
1. The first enumeration of error contends the trial court erred in charging the jury as follows: "I charge you that if you find beyond a reasonable doubt that the defendant did peep or do similar acts for the purpose of spying or invading the privacy of others, the crime is complete regardless of who or what may have been seen." Defendant argues that the charge was not adjusted to the evidence since it was error to instruct the jury, in effect, that the identity of the victim was immaterial. However, this contention is without merit since under OCGA § 16-11-61 the State is not required to show that a person is actually spied upon, the gravamen of the offense being that the spying took place regardless of whether the attempt to invade the privacy of another was successful. Chance v. State, 154 Ga. App. 543 (1) ( 268 S.E.2d 737); Butts v. State, 97 Ga. App. 465 (2) ( 103 S.E.2d 450). Thus, the allegation in the indictment as to the identity of the victim was mere surplusage, and the failure to prove this allegation is not a fatal variance requiring reversal of defendant's conviction. Kelly v. State, 188 Ga. App. 362, 363 (2) ( 373 S.E.2d 63). Nor was there any fatal variance between the allegations and proof under the criteria adopted in DePalma v. State, 225 Ga. 465, 469 (3) ( 169 S.E.2d 801).
2. Defendant also enumerates as error the trial court's refusal to charge the jury on criminal trespass as a lesser included offense. However, the evidence fails to raise any issue that defendant may be guilty only of the lesser crime. There is no evidence that defendant entered upon the premises of another for any unlawful purpose other than to commit the offense of "peeping Tom." Therefore, defendant was either innocent or guilty of the offense charged. This enumeration of error lacks merit. Roman v. State, 185 Ga. App. 32, 34 (3), 35 ( 363 S.E.2d 329); Hernandez v. State, 182 Ga. App. 797, 801 (3) ( 357 S.E.2d 131).
Judgment affirmed. Carley, C. J., and Sognier, J., concur.