313 Ga. App. 170 - Smith v. State

PHIPPS, Presiding Judge,

¶1concurring in part and dissenting in part.

¶2I concur fully in Divisions 2 and 3. Because the evidence of asportation was insufficient to support Smith’s kidnapping conviction, I respectfully dissent from the judgment in Division 1.

¶3The evidence shows that on March 11, 2005 an office manager was working alone at a warehouse facility. The facility was located near a road which received light traffic. The manager testified that Smith entered the office at about 1:30 and asked her for the prices of the storage units. The manager wrote the prices on a piece of paper for Smith, and Smith left.

¶4About an hour later, a man called the facility on the phone and asked whether there was anybody at the office who could help him unload items into a unit. Smith’s name and phone number displayed on the caller I.D. device, and the manager recognized his voice from when he had come into the office. The manager told Smith that nobody was there to help him unload items and that she was there alone. At 4:30 Smith entered the office again, this time stating that he was going to rent a storage unit. The manager asked Smith for his license, filled out a contract, and received a check from Smith. Smith asked the manager to show him to the unit, which was located near the entrance gate. No other customers entered the office either during or after the transaction, which incidentally, was the only business that day.

¶5Smith left the rental office and walked to his vehicle. He then drove through a gate and met the manager who had walked to the unit. Smith began to unload items into the unit. As the manager started to walk away, Smith grabbed her from behind and “jumped on” her. The manager “remember [ed] a couple of punches in the face and my neck from behind. And by that time, we were in the unit.” When she turned to leave before Smith grabbed her, she was standing “just on the outside” of the unit, “just... on the outside of *177the door.” The manager testified that “[h]e jumped on me from behind and I think we fell in. Because we fell forward onto the trash bags.” When asked how quickly the “grabbing, hitting, [and] falling happened,” the manager testified that she was “on the floor before [she] realized what had happened.”

¶6The manager was struck on her head, neck and shoulder. They both fell on the floor, and they “went from facing the back ... to turning to where we were cross-ways in the unit. And then we turned to where my head was at the door.” Smith told the manager that he had a knife, and he held it to her cheek. Smith told her to remove her pants and threatened to kill her and her child (who was in an office asleep) if she screamed. Smith was on top of her.

¶7At this point, the manager’s head was next to the door, which was closed. She opened the door, saw the knife next to her head, and pushed the knife outside of the unit. Smith had released his hold on the manager’s neck and began “piddling” with the belt on her waist. The manager crawled out of the unit, and as she was running she looked back and saw Smith get into his car and drive away. The manager suffered bruising on her face, neck, and shoulders, and scratches on her back.

¶8Smith testified on his own behalf, admitting that he went to the warehouse facility more than once that day, rented a unit, and unloaded items into the unit, but denying that he attacked or attempted to rape the manager.

¶9Smith was indicted for kidnapping in that he “did abduct, a person, without lawful authority and hold this victim against her will. ...” “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.”3 The elements of kidnapping are: (1) an illegal holding, (2) an overmastering of the victim’s will; and (3) an asportation of the victim.4

¶10In Garza v. State,5the Supreme Court of Georgia adopted a four-factor test for determining whether a victim’s movement constitutes the asportation necessary for kidnapping or is merely incidental to other criminal activity. The four factors are: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such *178movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.6

¶11The Garza factors are intended to assist Georgia prosecutors and courts in

determining whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance” attendant to some other crime.7

¶12In deriving the factors, the Supreme Court of Georgia, citing Leppla v. State8 and Woodson v. State,9recognized that the “definition of asportation ha[d] evolved to the point where it seem[ed] that the only type of movement considered insufficient as evidence of asportation [was] movement immediately resulting from a physical struggle.”10 Indeed, in Leppla we held that a struggle which began at the driver’s side door of a vehicle and ended at the rear of the vehicle was insufficient evidence of asportation.11 In Woodson, the Supreme Court determined that asportation was shown because the victim “went from one room to another in response to [the defendant’s] threatening command.”12 The Court noted however that the act of merely “shoving the victim, without moving her to a different location, was not the evidence that satisfied the requirement of asportation, nor was pulling her to the floor at a single location.”13

¶13I believe that the description of the attack in this case demonstrates that Smith and the victim struggled and fell to the ground.14 The fall across the threshold into the storage unit, from just outside the warehouse unit to inside the unit, was of minimal duration.15 The *179victim testified that as she had turned to leave, she was standing just on the outside of the door and that Smith jumped on her from behind and they “fell in” the unit, onto trash bags. The movement occurred during the commission of the attempted rape, as the evidence showed that Smith was seeking to gain control of the victim.16 Smith tried to further subdue the victim by striking her and threatening to kill her and her child if she screamed. In my opinion, this attack — grabbing, striking, and threatening her — was incidental to Smith’s attempt to rape her.17 For the same reasons, I believe the movement was also an inherent part of the other crimes charged. Given that the victim had left the rental office, which was located on an isolated road, and was at the storage unit alone with Smith, the movement itself did not significantly increase the danger to the victim independent of the danger posed by the separate offenses of attempted rape, aggravated assault, or battery.18

Decided December 1, 2011.Jimmonique R. S. Rodgers, for appellant.Robert E. Brooks, Jr., District Attorney, Carmen T. Bolden, Assistant District Attorney, for appellee.

¶14Here, I believe an assessment of all the Garza factors shows the movement was more accurately characterized as a criminologically insignificant circumstance attendant to the other crimes charged — attempted rape, aggravated assault, and battery. The movement was not “in the nature of the evil the kidnapping statute was originally intended to address.”191 would therefore conclude that the evidence was insufficient for the jury to find that the asportation element, as interpreted in Garza, was proven in this case to support Smith’s conviction for kidnapping.20 Therefore, I would reverse Smith’s conviction for kidnapping.21

¶15I am authorized to state that Presiding Judge Barnes joins in this dissent.

¶16 OCGA § 16-5-40 (a) (2005). See Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006) (generally, a crime is to be construed according to the provisions of the law existing at the time of its commission); see Garza v. State, 284 Ga. 696, 697 (1) (670 SE2d 73) (2008).

¶17Leppla v. State, 277 Ga. App. 804, 806 (1) (627 SE2d 794) (2006).

¶18 Supra at 702 (1). See Dixon v. State, 300 Ga. App. 183, 184 (1), n. 3 (684 SE2d 679) (2009) (“Subsequent to Garza, the legislature amended the kidnapping statute; because the amendment applies to crimes committed on or after the revision’s effective date of July 1,2009, it is inapplicable here, and Garza’s standard applies.”).

¶19Garza, supra.

¶20Id.

¶21 Supra.

¶22273 Ga. 557 (544 SE2d 431) (2001).

¶23Garza, supra at 698 (1).

¶24Leppla, supra at 809-810 (1).

¶25 Supra at 558.

¶26 Id. (footnote omitted).

¶27 See Leppla, supra at 810 (1).

¶28 See Ham v. State, 303 Ga. App. 232, 237 (1) (a) (692 SE2d 828) (2010) (victim’s movement from living room to bedroom was of minimal duration); Crawford v. State, 297 Ga. App. 187, 188, 190 (1) (b) (676 SE2d 843) (2009) (victim’s movement from restaurant’s oven room to cash register in another room was brief); Brashier v. State, 299 Ga. App. 107, 110 (2) (681 SE2d 750) (2009) (movement of victim from the middle of the basement to the front of the basement was of minimal duration).

¶29 See generally Thomas v. State, 310 Ga. App. 404, 407-408 (2) (714 SE2d 37) (2011).

¶30 See generally id.

¶31 See Moore v. State, 301 Ga. App. 220, 229 (7) (687 SE2d 259) (2Q09) (conviction for kidnapping reversed due to lack of evidence of asporation, where the defendant forced the victim’s car off the road and pulled the victim out of her car, then dragged her into a ditch on the side of a road to commit a sexual offense).

¶32Garza, supra at 702 (1).

¶33Leverette v. State, 303 Ga. App. 849 (696 SE2d 62) (2010).

¶34Ham, supra;Crawford, supra;Leppla, supra;Woodson, supra.