WALKER v. the STATE.

                               FIRST DIVISION
                               BARNES, P. J.,
                           MERCIER and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       May 30, 2019




In the Court of Appeals of Georgia
 A19A0774. WALKER v. THE STATE.

      BROWN, Judge.

      Maurice Walker appeals from his convictions of armed robbery, kidnapping,

and possession of a firearm during the commission of a crime,1 contending that

insufficient evidence supports each of his convictions. For the reasons explained

below, we reverse Walker’s kidnapping conviction and affirm his remaining

convictions.

          On appeal from a criminal conviction, the standard for reviewing the

sufficiency of the evidence




      1
        The trial court sentenced Walker to life for armed robbery, 20 years
concurrent for kidnapping, and 5 years probation consecutive to the armed robbery
sentence for possession of a firearm during the commission of a crime.
      is whether a rational trier of fact could have found the defendant guilty
      beyond a reasonable doubt. This Court does not reweigh evidence or
      resolve conflicts in testimony; instead, evidence is reviewed in a light
      most favorable to the verdict, with deference to the jury’s assessment of
      the weight and credibility of the evidence.


(Citations and punctuation omitted.) Hayes v. State, 

 (

)

(2013). So viewed, the record shows that after the victim parallel parked his car, he

noticed two men, approximately 100 feet away, walking in the center of the street

toward him as he started to get out of his car. The victim thought it was odd and “just

kind of scurried myself up, [and] headed between cars to walk on the lawn side.” The

victim testified that as the men

      got closer they kind of drifted in my direction a little bit as I was coming
      between the two cars to get on the other side. . . . One of them asked if
      I had a cigarette or a smoke, and then right when I was motioning that
      I didn’t have anything, . . . the other individual came up behind me with
      a pistol – or behind me, the first one, and had a pistol and pulled down
      either a hat with holes in it or a ski mask.


At another point in his testimony, the victim clarified that the man with the gun was

behind the one who asked for a cigarette and turned away from him briefly and pulled




                                           2
down the mask before turning back around with the pistol pointed at him. Both men

demanded that he give them his money.

      When the victim told the men that his money was in his car, they ordered him

to hurry and get it. After he moved a few feet and stepped back onto the street, he

gave the gunman cash from a wallet in his back pocket. Right after that, the first man

grabbed the victim’s arm and told the gunman to “cap him, man; he saw me; cap

him.” The victim testified that as he jumped away, “[the first man]’s grip went to [his]

shirt and [the first man] started pulling me back and so I was struggling with that, and

[the gunman] was trying to keep up with how we were moving, and then finally I

broke free after [the first man] pulled me a couple of feet back towards the trees” and

“the shadows again.” The victim testified that the entire encounter “couldn’t have

been more than 30 seconds.”

      In his trial testimony, the victim described the first man who had asked for the

cigarette as a black man with “dread-locks” and “smaller built than the gunman,”

wearing a designer camouflage jacket, dark boots, and a ski cap. This man was later

identified as Mason Johnson. He described the gunman as being taller, heavier built,




                                           3
and wearing light-colored athletic shoes,2 jeans and “a dark – it looked like a coverall

or a sweater or some kind of over-jacket that was zipped up or buttoned up and had

a ski mask on. Could’ve been a hat with holes in it, or a ski mask.” The gunman was

later identified as Walker. The victim testified that he saw both of the men’s faces

before Walker put the mask on and that there were “bright street lamps” all along the

street where he parked. While the street was illuminated well, the residences were

“kind of darkish and in shadow.”

      After the victim’s escape, he called 911. Approximately 15 minutes later, the

victim saw the two men walking down the sidewalk on the other side of the street as

he was talking to a police officer about the robbery. The victim testified that he

      actually was in disbelief that they came back to where I was, so I just
      wanted to make sure that they were who I thought they were, so I took
      a minute – after I told the deputy that I thought these were the guys that
      just robbed me, he said, are you sure. I said, well, let me make sure. As
      they were walking up the street they actually came closer to where I was.
      They were still on the sidewalk. Almost to where they were across the
      street from me I identified – positively identified them without a doubt.




      2
         An investigating officer who took a recorded statement from the victim
testified that the victim told him that it was Johnson who was wearing light-colored
shoes.

                                           4
The officer then got into his patrol car and detained the two men with the assistance

of other patrol officers. The victim then identified both men again. At the time the

victim identified Walker to the police, Walker was no longer wearing the “outer

garment that was worn during the robbery and the knit cap or ski mask.” When they

were arrested, Johnson was wearing a camouflage jacket, black boots, a white shirt,

and dark-colored blue jeans, and Walker was wearing a pair of white and black tennis

shoes, dark blue jeans, a gray shirt, and a black hat.

      1. Walker contends that insufficient evidence supports the asportation element

of his kidnapping conviction under the standard created by the Supreme Court of

Georgia in Garza v. State, 

 (

) (2008).3

      Garza requires courts to consider four factors to determine whether the
      movement of an alleged kidnapping victim is sufficient to establish the
      essential element of asportation: the duration of the movement; whether
      the movement occurred during the commission of a separate offense;
      whether such movement was an inherent part of that separate offense;
      and whether the movement itself presented a significant danger to the
      victim independent of the danger posed by the separate offense.

      3
        As the incident at issue took place on January 3, 2009, we must apply the
standard for asportation enunciated by the Supreme Court of Georgia in 

The Legislature’s subsequent amendment to the kidnapping statute did not become
effective until July 1, 2009. See Hammond v. State, 

 (

)
(2011).

                                           5
(Citation and punctuation omitted.) Chambers v. Hall, Ga. (2) (Case No. S18A1322,

decided March 4, 2019). The purpose of the Garza test is to “determin[e] whether the

movement in question is in the nature of the evil the kidnapping statute was originally

intended to address – i. e., movement served to substantially isolate the victim from

protection or rescue – or merely a criminologically insignificant circumstance

attendant to some other crime.” (Citation and punctuation omitted.) Garza, 

 (1).

      In this case, as in Chambers, supra, the victim’s “movement was minimal in

duration and distance – it happened quickly and was limited to a few feet.”

Chambers, Ga. at (2). While the victim may have been dragged a couple of feet

toward a darker area of a public place, that scant distance did not place the victim in

more danger than he was already in or isolate him from protection or rescue. See

Levin v. Morales, 

 (

) (2014); Wilkerson v. Hart, 

 (3) (

) (2014). Even though the movement here took place

after the armed robbery was complete and was arguably not an inherent part of that

offense, satisfaction of some factors of the Garza test does not mandate a finding that

the State presented sufficient evidence of asportation. In 

 the Supreme

Court of Georgia found insufficient evidence of asportation even though it assumed

                                          6
that the State had satisfied factor two (movement did not occur during the

commission of a separate offense) and three (was not an inherent part of that separate

offense) of the Garza test. Levin, 

. Based upon the short distance the

victim was moved in a public street, we conclude that the State failed to present

evidence of asportation sufficient to support Walker’s kidnapping conviction.

Chambers, Ga. (2). Compare Humphries v. State, 

 (1) (

) (2010) (sufficient evidence of asportation under Garza test where victim

pulled from top of open hill on golf course near lighted area and dragged down steep

hill into darker wooded area).

      2. Walker contends that insufficient evidence supports his convictions for

armed robbery and possession of a firearm during the commission of a crime based

upon the victim’s limited opportunity to view Walker during the crime and an

inconsistency in the victim’s statement about the shoes worn by Walker and Johnson.

Any inconsistencies in the victim’s testimony and the reliability of his identification

are for the jury to consider and weigh. See Graham v. State, 

, 195-

196 (1) (

) (2016). “Because [Walker]’s arguments go to the weight,

rather than to the sufficiency of the evidence, he presents no basis for reversing [these



                                           7
convictions.]” (Citation and punctuation omitted.) Tiller v. State, 

 (1) (

) (2012).

      Judgment affirmed in part and reversed in part. Mercier, J., concurs. Barnes,

P.J., concurs in part and dissents in part.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF APPEALS

RULE 33.2(a).
 A19A0774. WALKER v. THE STATE.

      BARNES, Presiding Judge, concurring in part and dissenting in part.

      Because there was sufficient evidence to support the asportation element of

kidnapping under the test enunciated in Garza v. State, 

 (1) (

) (2008), I would affirm the kidnapping conviction.           Accordingly, I

respectfully dissent in part from the majority opinion.1

      In the present case, the forced movement of the victim occurred after the armed

robbery was complete and was not an inherent part of that offense. The majority,



      1
       I concur with the majority opinion to the extent that the majority affirms
Walker’s convictions for armed robbery and possession of a firearm during the
commission of a crime.

                                          2
however, concludes that the Garza test for asportation was not satisfied because the

victim’s movement was minimal in duration and distance and the “scant distance did

not place the victim in more danger.” While I agree that the movement of the victim

was minimal, I disagree with the majority’s conclusion that the victim was not placed

in more danger. The victim testified that after he gave his wallet to the robbers at

gunpoint, one robber told the other robber that the victim should be shot because he

had seen the robber’s unmasked face, leading to a physical struggle between the

victim and robbers. Significantly, according to the victim, the robbers “were pushing

me back in the shadows underneath one of the trees out of the light of the street

lamp.” This testimony by the victim, when construed in the light most favorable to

the prosecution, reflected that after the armed robbery, the robbers moved the victim

away from a visible area near a street lamp to a dark area underneath a tree where

they planned to shoot him.

      The jury was authorized to find that moving the victim from a lighted area to

a dark area under a tree at night after the armed robbery was complete lessened the

perpetrators’ risk of detection and was intended “to isolate the victim from protection

or rescue, thus increasing the danger faced by the victim.” Flores v. State, 

 (1) (

) (2009) (although duration of the movement was


                                          3
short, the “forced removal of the victim from a visible area to the secluded dark area”

was sufficient to show asportation under Garza because it presented “a significant

danger to the victim independent of the [underlying crime]”). See Humphries v. State,

 (1) (

) (2010) (evidence was sufficient to show

asportation pursuant to Garza; although record did not specify the duration of the

movement, the forced movement of the victim “away from a more lighted place to a

darker and more isolated place” increased the danger to the victim and was not an

inherent part of the other, separate offenses). Accordingly, although the duration of

the movement was minimal, the other three Garza factors were satisfied, including

the “significant danger” factor, and thus the evidence was sufficient to establish

asportation under the Garza test. See Inman v. State, 

 (1) (b) (

) (2014) (evidence was sufficient to support conviction under Garza, where

the movement was not extensive in distance or duration, but other three Garza factors

were satisfied). See also Smith v. State, 

 (5) (

)

(2011) (concluding that asportation had been shown under Garza even though the

duration of the victim’s movement was short).

      While the majority relies on the recent Supreme Court case of Chambers v.

Hall, 

 (2) (

) (2019), that case is distinguishable


                                          4
because the victim’s forced movement “occurred during and was an integral part of

the armed robbery,” unlike in the present case, where the movement occurred after

the armed robbery was completed. Wilkerson v. Hart, 

 (3) (

) (2014) is distinguishable for the same reason because in that case the

movement “occurred during the commission of the separate crimes.” Additionally,

Levin v. Morales, 

 (

) (2014) is distinguishable because

the victim in that case was moved back and forth to a bedroom, not from a lighted

area to a dark area where the victim would be less visible, as occurred here.

      For these reasons, the evidence was sufficient to show asportation under the

Garza test. This Court therefore should affirm the kidnapping conviction.




                                         5