(Laws 1833, Cobb's 1851 Digest, p. 788; Code 1863, §§ 4266, 4267; Code 1868, §§ 4301, 4302; Code 1873, §§ 4367, 4368; Ga. L. 1876, p. 39, § 1; Ga. L. 1880-81, p. 74, § 1; Code 1882, §§ 4367, 4368; Penal Code 1895, §§ 109, 110; Penal Code 1910, §§ 109, 110; Code 1933, §§ 26-1601, 26-1602, 26-1603; Ga. L. 1937, p. 489, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 99, § 1; Code 1933, § 26-1311, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 970, § 1; Ga. L. 1994, p. 1959, § 4; Ga. L. 2006, p. 379, § 5/HB 1059; Ga. L. 2009, p. 331, § 1/HB 575.)
Cross references.- Jurisdiction of the Court of Appeals over certain crimes, § 15-3-3.
Statutory rape, § 16-6-3.
Enticing a child for indecent purposes, § 16-6-5.
Time limitation on prosecution for crimes punishable by death or life imprisonment, § 17-3-1.
Law enforcement agencies' duties to collect information as to missing persons, §§ 35-1-8,35-3-4.
Prohibition on minimum waiting periods for initiating missing person report, § 35-1-18.
Immunity of broadcasters from liability for Levi's Call: Georgia's Amber Alert Program, § 51-1-50.
Editor's notes.- Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), held that imposition of the death penalty for rape where the victim is not killed is in violation of the Eighth Amendment. Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977), citing Coker, held the death penalty for kidnapping where the victim is not killed to be in violation of the Eighth Amendment. The Supreme Court of Georgia, in Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977) held that the rationale of Coker must be applied also to kidnapping.
Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."
Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:
"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and
"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."
Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."
Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.
Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews.- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For annual survey of law on criminal law, see 62 Mercer L. Rev. 87 (2010). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 159 (1994). For comment on Adams v. State, 218 Ga. 130, 126 S.E.2d 624 (1962), see 25 Ga. B. J. 327 (1963).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Many of the cases noted below were decided prior to the 1994 amendment to subsection (b).
Constitutionality.
- See Albert v. State, 180 Ga. App. 779, 350 S.E.2d 490 (1986).
Constitutionality of mandatory 25-year sentence.
- Trial court decision that the mandatory 25-year sentence set forth in O.C.G.A. § 16-5-40(b)(2) for kidnapping of a child under the age of 14 constituted cruel and unusual punishment as applied to a defendant was premature as the defendant's motion for a new trial on the two relevant kidnapping charges had to be remanded for reconsideration of other issues as an ineffective assistance of counsel issue had been waived. State v. Jones, 284 Ga. 302, 667 S.E.2d 76 (2008).
Jurisdiction over juvenile defendant.
- When either the juvenile court or the superior court properly could have exercised jurisdiction, no petition alleging delinquency was ever filed in juvenile court, and the superior court first took jurisdiction through indictment, jurisdiction properly vested in the superior court and no transfer hearing pursuant to O.C.G.A. § 15-11-39 was required. Taylor v. State, 194 Ga. App. 871, 392 S.E.2d 57 (1990).
Jurisdiction when offense in multiple states.
- Under O.C.G.A. § 17-2-1(b)(1), Georgia had subject matter jurisdiction over a kidnapping case even though the victim was killed in South Carolina. As the victim was abducted in Georgia, the kidnapping occurred there; when the victim was later injured in South Carolina, it was nevertheless a bodily injury for purposes of the Georgia kidnapping. Hunsberger v. State, 299 Ga. App. 593, 683 S.E.2d 150 (2009).
Venue proper in any county where vehicle traveled.
- Because a defendant forced the victim to drive to an abandoned house and then drove the victim through other neighborhoods before forcing the victim out of the car and refusing to return the victim's personal belongings, the defendant's convictions for kidnapping and robbery by intimidation under O.C.G.A. §§ 16-5-40(a) and16-8-40 did not merge; pursuant to O.C.G.A. § 17-2-2(e), venue was proper in any county through which the vehicle traveled. Aldridge v. State, 310 Ga. App. 502, 713 S.E.2d 682 (2011).
Failure to define "bodily injury" in subsection (b).
- That O.C.G.A. § 16-5-40 does not define "bodily injury" does not render present subsection (b) (former subsection (c)), providing punishment for kidnapping with bodily injury, unconstitutionally vague. Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).
There was no merit in a defendant's challenge to the statute proscribing kidnapping with bodily injury, O.C.G.A. § 16-5-40, on the ground that the statute was unconstitutionally vague by not defining the term "bodily injury" because bodily injury was a term that was commonly understood. Harper v. State, 300 Ga. App. 757, 686 S.E.2d 375 (2009).
Venue.
- Venue in cases of kidnapping is proper in the county where the victim was seized. Harris v. State, 165 Ga. App. 249, 299 S.E.2d 924 (1983).
By applying the provisions of O.C.G.A. § 17-2-2(e) and (h), the jury could conclude that venue was proper because there was evidence that the victim's presence in the car remained voluntary until it became clear that defendant was not mistakenly driving toward Alabama and that defendant would not accommodate the victim's wish that the victim not be taken there; the jury could determine that the crime of kidnapping was complete when defendant refused to turn the car around or to stop and let the victim exit. Pruitt v. State, 279 Ga. 140, 611 S.E.2d 47, cert. denied, 546 U.S. 866, 126 S. Ct. 165, 163 L. Ed. 2d 152 (2005).
Georgia trial court was an improper venue for trying the kidnapping offense, as the kidnapping offense, pursuant to O.C.G.A. § 16-5-40(a), was complete when the defendant allegedly forced the victim into the defendant's truck in Tennessee and drove away; the victim testified that the victim was forced into the defendant's truck in Tennessee. Martin v. State, 281 Ga. App. 64, 635 S.E.2d 358 (2006).
Kidnapping is not a continuing offense, and the crime is consummated when the victim is seized; thus, the prosecution failed to prove venue in a county in Georgia when the evidence showed that the victim was seized in another state. Miller v. State, 174 Ga. App. 42, 329 S.E.2d 252 (1985); Jordan v. State, 242 Ga. App. 408, 530 S.E.2d 42 (2000), overruled on other grounds, Shields v. State, 276 Ga. 669, 581 S.E.2d 536 (2003).
"Bodily injury" includes any physical injury.
- For purposes of construing O.C.G.A. § 16-5-40(b), "bodily injury" is a term of common usage requiring no legal definition. Thus, "bodily injury" is accomplished, within the meaning of the statute, by inflicting any physical injury upon the victim's body, however slight. Green v. State, 193 Ga. App. 894, 389 S.E.2d 358, cert. denied, 193 Ga. App. 909, 389 S.E.2d 358 (1989).
Bruises which the victim testified were on the victim's neck and the evidence that defendant kept a hand tightly around the victim's neck while defendant moved the victim from room to room was sufficient to support a conviction of kidnapping with bodily injury. Bluain v. State, 242 Ga. App. 125, 529 S.E.2d 155 (2000).
Under O.C.G.A. § 16-5-40(b), kidnapping with bodily injury only requires that an injury, no matter how slight, occur during the kidnapping; the evidence was sufficient to support a kidnapping conviction with bodily injury conviction after defendant forced the victim into defendant's truck, drove away, and the victim received cuts to the victim's throat, face, hand, and back as a result of the kidnapping. Bailey v. State, 269 Ga. App. 262, 603 S.E.2d 786 (2004).
Timing of injury.
- An injury does not have to be inflicted at the same moment as the initial abduction. Whether the injury occurs at the beginning of the kidnapping incident or after the victim has been abducted is immaterial for purposes of proving the elements of the crime. Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003).
Supreme Court of Georgia adopts the Berry test, which assesses four factors in determining whether the movement at issue constitutes asportation: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement 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. To the extent prior case law and, specifically, the "slight movement" standard are inconsistent with this approach, those cases and that standard are hereby overruled. Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).
Refusal to sever charges.
- Trial court did not abuse the court's discretion in failing to sever a charge against the defendant for possession of methamphetamine in violation of O.C.G.A. § 16-13-30(a) and a charge against the defendant for kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40; when the defendant was arrested for possession, the kidnapping was ongoing, as the victim remained locked in the camper where the defendant had bound the victim, and it was not an abuse of discretion for a trial judge to deny a motion for severance since the crimes alleged were part of a continuous transaction and from the nature of the entire transaction it would have almost been impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other. Johnson v. State, 281 Ga. App. 7, 635 S.E.2d 278 (2006).
Trial court did not abuse the court's discretion by denying defendant's motion to sever 12 counts of robbery and kidnapping because all 12 counts involved a distinctive modus operandi and took place over a period of less than a month in a single county and showed a common scheme, which justified the denial of the defendant's motion to sever. Fielding v. State, 299 Ga. App. 341, 682 S.E.2d 675 (2009).
Trial court did not err in denying the defendant's motion to sever the charges of rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy arising out of three sexual assaults against three different women because the charges against the defendant clearly showed a recurring pattern of conduct suggesting a common scheme or modus operandi as the victims of the three sexual assaults were adult women who did not know the defendant, all three incidents occurred in DeKalb County within six months of each other, each victim was taken by vehicle to a secluded location before the victims were raped, all three incidents involved a handgun, and semen matching the defendant's DNA profile was found on each victim. Ray v. State, 329 Ga. App. 5, 763 S.E.2d 361 (2014).
Amendment to statute means slight movement sufficient for asportation.
- Georgia General Assembly amended the kidnapping statute in 2009 to provide that slight movement is sufficient to prove asportation. Arnold v. State, 324 Ga. App. 58, 749 S.E.2d 245 (2013).
Georgia legislature amended the kidnapping statute, O.C.G.A. § 16-5-40, effective July 1, 2009, to provide that slight movement is sufficient to establish kidnapping as long as the movement was not incidental to another offense. Floyd v. State, 342 Ga. App. 438, 803 S.E.2d 597 (2017).
There was evidence from which the jury could conclude that the defendant moved the victim into the bathroom during the robbery to isolate or conceal the victim and to make it easier to commit the robbery because the victim testified that two people entered the apartment, duct-taped the victim's hands and face, and moved the victim into the bathroom where the victim had to kick the door to be located and rescued and there were phone calls and texts between the defendant and a friend of the victim's father who was involved in the crime. Alexander v. State, 348 Ga. App. 859, 825 S.E.2d 405 (2019).
Distance victim is carried is not material. Any carrying away is sufficient. Brown v. State, 132 Ga. App. 399, 208 S.E.2d 183 (1974); Lockett v. State, 217 Ga. App. 328, 457 S.E.2d 579 (1995); Lumsden v. State, 222 Ga. App. 635, 475 S.E.2d 681 (1996); Lloyd v. State, 226 Ga. App. 401, 487 S.E.2d 44 (1997).
Only the slightest movement of the victim is required to constitute the necessary element of asportation. Helton v. State, 166 Ga. App. 662, 305 S.E.2d 592 (1983).
Any asportation of victim, however slight, is sufficient. Haynes v. State, 159 Ga. App. 34, 283 S.E.2d 25 (1981), rev'd on other grounds, 249 Ga. 119, 288 S.E.2d 185 (1982), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
There is no minimum requirement as to the distance of asportation. That asportation was of short duration is without legal significance. Giddens v. State, 190 Ga. App. 723, 380 S.E.2d 274 (1989).
Unlawful asportation, however slight, is sufficient to support a kidnapping conviction. Williams v. State, 178 Ga. App. 581, 344 S.E.2d 247 (1986).
Only the slightest movement of the victim is required to establish the element of asportation, and this element was satisfied by evidence that defendant grabbed victim by the forearm and pushed the victim to the rear of the premises. Robinson v. State, 210 Ga. App. 175, 435 S.E.2d 466 (1993).
Slightest movement of the victim is sufficient to establish asportation. Williams v. State, 236 Ga. App. 351, 511 S.E.2d 910 (1999).
Movement for a short distance satisfies the asportation element of kidnapping. Hardy v. State, 240 Ga. App. 115, 522 S.E.2d 704 (1999).
Despite the fact that the movement of a victim to the floor to bind that victim's arms and legs was slight, because it was clear that the movement materially facilitated the commission of an aggravated assault on that victim, that movement was sufficient to support the defendant's kidnapping conviction. Mercer v. State, 289 Ga. App. 606, 658 S.E.2d 173 (2008).
Aggravated assault, under O.C.G.A. § 16-5-21(a)(2), was completed when the defendant pointed a gun at the victim and grabbed the victim around the neck, while the asportation for the kidnapping occurred when the defendant then dragged the victim into another room. The movement of the victim from one room to another within the hotel room, even though of minimal duration, created an additional danger to the victim by enhancing the defendant's control over the victim, and the movement was not an inherent part of the aggravated assault. Williams v. State, 307 Ga. App. 675, 705 S.E.2d 906 (2011).
Physical injury can be slight.
- Evidence of any physical injury, however slight, satisfies the bodily injury element necessary to establish kidnapping with bodily injury. Lundy v. State, 341 Ga. App. 767, 801 S.E.2d 629 (2017).
Kidnapping by force.
- Offense of kidnapping was complete when defendant forced the victim into the pecan grove and held the victim against the victim's will. Dawson v. State, 203 Ga. App. 146, 416 S.E.2d 125, cert. denied, 203 Ga. App. 905, 416 S.E.2d 125 (1992).
Movement of person 15 feet against that person's will may constitute crime of kidnapping. Brown v. State, 132 Ga. App. 399, 208 S.E.2d 183 (1974).
Forcing women, at gunpoint, to move 100 yards constituted kidnapping.
- Kidnapping occurred where undisputed evidence showed that two women were forced, at gunpoint, to march 100 yards from their car to a woods. Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983).
"Asportation" of the victim, necessary for conviction of kidnapping, was sufficiently shown by the evidence that the appellant, armed with a handgun, forced the victim to walk from the victim's desk about 25 feet to the office of the hotel manager, to whom defendant made a demand for $20,000, and that defendant held the victim there against the victim's will for 20 hours. Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
Evidence showing that boys in house during robbery by defendant were forced to go into several rooms and the attic of the house against their will, but were never carried away from the house, was sufficient to support conviction for kidnapping. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).
Defendant forced a nurse into the office of an emergency room. Upon seeing that defendant was armed, the three women who were already in the office ran to a location where they felt they would be afforded a degree of relative safety. The women acted on their own volition and, accordingly, the asportation element was not established. Briard v. State, 188 Ga. App. 490, 373 S.E.2d 239, cert. denied, 188 Ga. App. 911, 373 S.E.2d 239 (1988).
Evidence showed the unlawful asportation of a security guard who was coerced into entering an office against the guard's will by defendant's threats to injure female captives, where, once the guard was in the office, defendant threatened the guard with a gun and directed the guard to sit down. Briard v. State, 188 Ga. App. 490, 373 S.E.2d 239, cert. denied, 188 Ga. App. 911, 373 S.E.2d 239 (1988).
Evidence that defendant dragged the victim at gunpoint down the hall to the victim's bedroom was sufficient to authorize the jury's verdict that defendant kidnapped the victim. Humphrey v. State, 218 Ga. App. 574, 462 S.E.2d 641 (1995).
When the defendant willingly drove the victims around the corner of the parking lot while the victims were being robbed at gunpoint, there was sufficient evidence to authorize the defendant's conviction as a party to the kidnapping. Williams v. State, 236 Ga. App. 351, 511 S.E.2d 910 (1999).
Asportation for purposes of kidnapping under O.C.G.A. § 16-5-40(a) supported defendant's conviction since defendant: (1) grabbed a victim as the victim was trying to run out of the store, forcing that victim back in the store, and moving the victim approximately six to eight feet during the struggle; (2) pushed another victim; and (3) then tried to pull both victims back to the bathrooms. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).
Victim's testimony that the defendant's accomplice ordered the victim to move from the victim's vehicle to the ground during the hijacking of the victim's vehicle was sufficient to support the asportation element of the kidnapping offense. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).
Defendant's conviction for kidnapping was affirmed as there was sufficient evidence of asportation since the defendant pulled a handgun on a car salesperson as the defendant slowed a car down, at which time the salesperson was seized against the salesperson's will, and defendant then forced the salesperson to the shoulder of the road. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006).
Evidence that defendant forcibly moved the victim from the living room to the kitchen, and then from the kitchen to the bedroom, where defendant threw the victim on and off the bed, was more than sufficient to support defendant's kidnapping conviction. Gilbert v. State, 291 Ga. App. 898, 663 S.E.2d 299 (2008), cert. denied, 2008 Ga. LEXIS 883 (Ga. 2008).
Under the four-factor test for assessing whether a victim's movement constituted asportation, neither of the two distinct movements of the victim during the victim's false imprisonment constituted the necessary asportation to support a kidnapping conviction. Both the act of falling to the floor and the act of rising to sit in the chair where the victim was bound were of minimal duration and were incidental to the false imprisonment of the victim and the victim's children; the blow that caused the victim's fall was an inherent part of an aggravated assault; and the victim's movements did not significantly increase the dangers to the victim over those the victim faced from the false imprisonment or the aggravated assault. Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).
There was sufficient evidence of asportation with regard to the kidnapping convictions. The movement of the victims from the street to inside a car was not an inherent part of the robbery offense, which had begun outside the car when the victims were ordered to "give it up" and one victim relinquished a wallet, and the movement created an additional danger to the victims by enhancing the control of the robbers over the victims. Wright v. State, 300 Ga. App. 32, 684 S.E.2d 102 (2009).
With regard to a kidnapping with bodily injury charge, the defendant's movement of the victim from the defendant's yard to the defendant's carport and later from the carport to the defendant's television cabinet constituted asportation. Although the duration of both movements was minimal, not all of the Berry factors had to favor the state in order to prove asportation; the movements were not an inherent part of the defendant's other crimes; both movements created an additional danger to the victim independent of any of the other offenses; and both movements served to conceal the victim from the potential view of neighbors and diminished the victim's opportunity for rescue or escape. Abernathy v. State, 299 Ga. App. 897, 685 S.E.2d 734 (2009).
Asportation of the victim, necessary for kidnapping, was sufficiently shown, even though defendant only moved the victim two times because the moving occurred after the other crimes were completed and the moving was intended to prevent the victim's escape. Hammond v. State, 303 Ga. App. 176, 692 S.E.2d 760 (2010), aff'd, 289 Ga. 142, 710 S.E.2d 124 (2011).
Kidnapping of soft drink delivery truck driver.
- Evidence was sufficient to sustain defendant's kidnapping conviction based on defendant's jumping into a soft drink delivery truck and forcing the driver at gunpoint to drive more than six miles from a lighted parking lot to a secluded dirt road, thereby isolating the driver and making it less likely that anyone would discover the driver's predicament and come to the driver's aid. Howard v. State, 310 Ga. App. 659, 714 S.E.2d 255 (2011).
Defendant's movement of a victim from the outside of a storage unit to inside the unit, where the defendant produced a knife and attempted to rape the victim, was sufficient to show asportation as required under the kidnapping statute, O.C.G.A. § 16-5-40(a). Although the movement was of brief duration, the movement was not an inherent part of the other offenses. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011).
Release as asportation.
- Although releasing an individual from confinement necessitates movement of that individual, it is movement away from the control of the defendant and is not the type of movement that constitutes asportation. Gibson v. State, 233 Ga. App. 838, 505 S.E.2d 63 (1998).
Shoving was not asportation.
- Shoving a victim without moving the victim from one location to another, or merely pushing a victim to the ground, is not sufficient to satisfy the element of asportation for purposes of kidnapping under O.C.G.A. § 16-5-40(a). Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).
Consent of child victim.
- Insofar as a five year old child can be said to have gone with the defendant "willingly" or "voluntarily" because of enticement, when the victim was hit on the head and lost consciousness, the victim was deprived of the capacity to choose to remain with the defendant voluntarily, and thus was held against the victim's will. Taylor v. State, 194 Ga. App. 871, 392 S.E.2d 57 (1990).
Common-law marriage as defense.
- When the existence of a common-law marriage was raised as a defense to kidnapping, there was no presumption in defendant's favor, and it was defendant's burden to prove that such marriage existed which gave defendant lawful authority to take the child from the child's mother. Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758 (1995).
When the existence of a common-law marriage was raised as a defense to kidnapping, even though the trial court erred in failing to charge that defendant's burden to prove the marriage was only to a preponderance of the evidence, the error was harmless since no evidence was cited to prove two of the elements as required by O.C.G.A. § 19-3-2. Dixon v. State, 217 Ga. App. 267, 456 S.E.2d 758 (1995).
Victim voluntarily getting into defendant's car.
- Although the victim got in defendant's car voluntarily, once the defendant refused to let the victim out of the car and held the victim against the victim's will, a kidnapping occurred. Helton v. State, 166 Ga. App. 662, 305 S.E.2d 592 (1983).
There was no merit to the defendant's claim that the victim's getting into a car willingly precluded a finding that a kidnapping thereafter occurred; this is simply not the law, as an abduction and holding against one's will could certainly take place thereafter.
Being forced into a car can substantially isolate the victim from protection or rescue, see Wright v. State, 300 Ga. App. 32, 684 S.E.2d 102 (2009).
Testimony by victim concerning whether consent was given or withheld was not essential under former Code 1933, § 26-1311 since other evidence can be utilized to establish the victim was abducted and held against the victim's will. Strozier v. State, 156 Ga. App. 241, 274 S.E.2d 633 (1980) (see O.C.G.A. § 16-5-40).
Victim's testimony was sufficient to convict and physical evidence not required.
- Because the victim's statement of sexual abuse was sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) to convict defendant of kidnapping with bodily injury, aggravated child molestation, rape, aggravated sodomy, aggravated assault, and possession of a knife during the commission of a crime, the victim's testimony did not have to be corroborated by physical evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226 (2005).
Noncooperation of victim as not rendering kidnapping a mere attempt.
- Fact that victim did not obey all of assailant's commands did not transpose offense from that of kidnapping to that of mere criminal attempt. Padgett v. State, 170 Ga. App. 98, 316 S.E.2d 523 (1984).
Defendant's repeated shooting of victim rendered the victim abducted against the victim's will because: (1) the victim would not have willingly remained with defendant to be further harmed or (2) the victim was so badly wounded that the victim had lost the capacity to make a voluntary choice to remain with the defendant. Wright v. State, 209 Ga. App. 128, 433 S.E.2d 99 (1993).
Forcible abduction not required.
- There was sufficient evidence for the jury to find that victim was abducted when the victim was induced by persuasion, enticement, or fraud to get back in the car so defendant could supposedly take the victim to get medical assistance. Wright v. State, 209 Ga. App. 128, 433 S.E.2d 99 (1993).
Whether abduction was forcible or by enticement is immaterial, so long as the victim is unlawfully held "against his will." Fredrick v. State, 181 Ga. App. 600, 353 S.E.2d 41 (1987).
Movement of victim need not be clandestine.
- Offense of kidnapping does not require proof that the movement of the victim was made in a clandestine or surreptitious manner. Cosby v. State, 234 Ga. App. 723, 507 S.E.2d 551 (1998).
Kidnapping for ransom.
- Legislature clearly intended that kidnapping for ransom be higher grade of offense of kidnapping. Krist v. State, 227 Ga. 85, 179 S.E.2d 56 (1970).
Showing that ransom was actually paid is not necessary to constitute offense, but is one method of demonstrating the intent of the defendant at the time the victim's person is seized. Krist v. State, 227 Ga. 85, 179 S.E.2d 56 (1970).
State may allege in indictment the way and manner in which bodily harm was inflicted upon kidnap victim. Roberts v. State, 158 Ga. App. 309, 279 S.E.2d 753 (1981).
Severance of trials.
- When defendants were convicted of kidnapping, the trial court did not abuse the court's discretion by denying their motions to sever their trials, as defendants failed to make a clear showing of prejudice and a denial of due process protection. Attaway v. State, 259 Ga. App. 822, 578 S.E.2d 529 (2003).
Because the evidence was sufficient to find defendant guilty of rape, sexual battery, false imprisonment, and kidnapping with a scheme or a common modus operandi, the trial court properly denied defendant's motions for a directed verdict and to sever the offenses; without a completed offense, there was no basis for a lesser-included offense instruction. Quenga v. State, 270 Ga. App. 141, 605 S.E.2d 860 (2004).
Evidence of gun used in kidnapping.
- Kidnapping was completed when defendant seized the victims and forcibly moved them from one location in the store to another, and then defendant committed the armed robbery; accordingly, convictions for both offenses did not amount to two punishments for the same conduct, nor was one offense included in the other as a matter of fact. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).
When the defendants were convicted of kidnapping, the trial court did not err by admitting a shotgun used in the crime spree into evidence without establishing an appropriate chain of custody as the state was not required to prove a chain of custody of the exhibit since the gun was a distinct and recognizable physical object which could be identified upon mere observation. Attaway v. State, 259 Ga. App. 822, 578 S.E.2d 529 (2003).
Evidence was sufficient to support the first defendant and the second defendant's convictions for murder, kidnapping, armed robbery, and burglary as the evidence showed that the defendants were involved in a scheme to rob a person who the defendants believed to be selling large amounts of marijuana from the apartment, that the defendants burst into the person's apartment brandishing guns, that one of the defendants fatally shot the person, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166, 611 S.E.2d 3 (2005).
Defendant's ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of the limited nature of a challenged witnesses' trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450, 657 S.E.2d 560 (2008).
Cited in Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970); United States v. Stone, 472 F.2d 909 (5th Cir. 1973); Butler v. State, 132 Ga. App. 750, 209 S.E.2d 28 (1974); Weaver v. State, 234 Ga. 890, 218 S.E.2d 750 (1975); Weaver v. State, 137 Ga. App. 470, 224 S.E.2d 110 (1976); Atkins v. State, 236 Ga. 624, 225 S.E.2d 7 (1976); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Williams v. State, 238 Ga. 244, 232 S.E.2d 238 (1977); Molisani v. State, 142 Ga. App. 234, 235 S.E.2d 658 (1977); Carroll v. State, 143 Ga. App. 230, 237 S.E.2d 703 (1977); Eberheart v. State, 239 Ga. 407, 238 S.E.2d 1 (1977); Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977); Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977); Thomas v. State, 145 Ga. App. 69, 243 S.E.2d 250 (1978); Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978); Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978); Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Dotson v. State, 160 Ga. App. 898, 288 S.E.2d 608 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982); Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984); Short v. State, 256 Ga. 165, 345 S.E.2d 340 (1986); Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Hamilton v. State, 185 Ga. App. 536, 365 S.E.2d 120 (1987); Dade v. State, 185 Ga. App. 748, 365 S.E.2d 543 (1988); Potts v. State, 258 Ga. 430, 369 S.E.2d 746 (1988); Potts v. State, 261 Ga. 716, 410 S.E.2d 89 (1991); Lynd v. State, 262 Ga. 58, 414 S.E.2d 5 (1992); State v. Sallie, 206 Ga. App. 732, 427 S.E.2d 11 (1992); Melton v. State, 221 Ga. App. 778, 472 S.E.2d 547 (1996); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Hurst v. State, 258 Ga. App. 664, 574 S.E.2d 876 (2002); Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003); Blake v. State, 272 Ga. App. 181, 612 S.E.2d 33 (2005); Clue v. State, 273 Ga. App. 672, 615 S.E.2d 800 (2005); Brown v. State, 280 Ga. App. 767, 634 S.E.2d 875 (2006); Opio v. State, 283 Ga. App. 894, 642 S.E.2d 906 (2007); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); In the Interest of B.M., 289 Ga. App. 214, 656 S.E.2d 855 (2008); Hyde v. State, 291 Ga. App. 662, 662 S.E.2d 764 (2008); Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882 (2008); Davis v. State, 292 Ga. App. 782, 666 S.E.2d 56 (2008); Burton v. State, 293 Ga. App. 822, 668 S.E.2d 306 (2008); Shearin v. State, 293 Ga. App. 794, 668 S.E.2d 300 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Gonzales v. State, 298 Ga. App. 821, 681 S.E.2d 248 (2009); Hunsberger v. State, 348 Ga. App. 898, 825 S.E.2d 391 (2019); Gay v. State, 351 Ga. App. 811, 833 S.E.2d 305 (2019), cert. denied, No. S20C0264, 2020 Ga. LEXIS 317 (Ga. 2020); Dodson v. State, 353 Ga. App. 412, 838 S.E.2d 87 (2020); Davenport v. State, Ga. , 846 S.E.2d 83 (2020).
Relationship to Other Offenses
Kidnapping with bodily injury distinct offense.
- Although the statute does not make it explicit, the courts have treated kidnapping with bodily injury as a distinct offense separate from and greater than kidnapping. Hester v. State, 216 Ga. App. 400, 454 S.E.2d 604 (1995).
Charges against the defendant for kidnapping and aggravated assault, in violation of O.C.G.A. §§ 16-5-21(a)(2) and16-5-40(a), did not merge as a matter of law because the aggravated assault occurred when the defendant pointed a gun at one store owner to hold the owner at bay while the other owner was being robbed, and the kidnapping of that same owner who was assaulted occurred when the defendant and the defendant's cohort then forced both owners into the store's back office; the assault and kidnapping were supported by facts that were separate from each other. Owens v. State, 271 Ga. App. 365, 609 S.E.2d 670 (2005).
Defendant's rape conviction was proper, even though defendant was acquitted of kidnapping with bodily injury, false imprisonment, and aggravated assault as Georgia did not recognize the inconsistent verdict rule; further, the convictions were not necessarily inconsistent as the jury could have found that defendant raped the victim, but did not commit the other crimes. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005).
Aggravated assault with intent to rape did not merge with kidnapping.
- Evidence showed that the kidnapping conviction, O.C.G.A. § 16-5-40(a), was based on evidence showing that when the victim attempted to escape the initial attack, defendant grabbed the victim and dragged the victim to a more secluded area of the trailer park and the aggravated assault with intent to rape conviction, O.C.G.A. § 16-5-21, was based on evidence that defendant beat the victim with the defendant's hands and fists with the intention of raping the victim; thus, the two crimes were separate offenses supported by different facts that did not merge as a matter of law. McGuire v. State, 266 Ga. App. 673, 598 S.E.2d 55 (2004).
Defendant's conviction for aggravated assault, which was based on the defendant's striking the victim with a pistol, did not merge with the defendant's kidnapping conviction, which was based on the defendant's forcing the victim upstairs, because the assault occurred prior to the kidnapping and was not necessary to accomplish the kidnapping. Williams v. State, 295 Ga. App. 9, 670 S.E.2d 828 (2008).
Aggravated assault did not merge with kidnapping with bodily injury or aggravated battery, and aggravated battery did not merge with kidnapping, as each count referred to a separate cut of the victims with a decorative sword that defendant pulled off the wall during a domestic dispute with defendant's spouse and child. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789 (2005).
Aggravated assault with a rope and kidnapping with bodily injury offenses did not merge for sentencing purposes as one crime was completed before the other took place, and the crimes were established by separate and distinct facts. McCaskell v. State, 285 Ga. App. 592, 646 S.E.2d 761 (2007).
Because there was independent evidence to support each of the offenses as indicted, a defendant's aggravated assault conviction did not merge as a matter of fact with either the aggravated battery or kidnapping with bodily injury convictions. Pitts v. State, 287 Ga. App. 540, 652 S.E.2d 181 (2007).
Trial court did not err under O.C.G.A. § 16-1-7 in failing to merge convictions for aggravated assault and aggravated battery with a conviction for kidnapping with bodily injury as each crime required proof of at least one different element, and the state presented independent evidence to prove each individual crime as set out in the indictment. Evidence that the defendant pointed a gun at the victim and fired the gun at the floor near the victim, that the defendant used a wooden stick resembling a baseball bat to repeatedly hit the victim, and that the defendant hit and kicked the victim while the victim was tied up supported the three aggravated assault counts; aggravated battery was established by evidence that the defendant broke the victim's nose, wrist, and shoulder and knocked out two teeth and by evidence that the defendant burned the victim's hand and caused the victim to be bitten by fire ants; and kidnapping with bodily injury was proven by evidence of injuries to the victim due to being bound by rope. Rouse v. State, 295 Ga. App. 61, 670 S.E.2d 869 (2008).
Trial court correctly sentenced the defendant for both aggravated assault, O.C.G.A. § 16-5-21, and kidnapping with bodily injury, O.C.G.A. § 16-5-40, because the crimes did not merge since each of the two crimes required proof of at least one fact that the other did not, and the state provided such proof. Kidnapping required proof of asportation, holding the victim against the victim's will, and bodily injury, which was not required to prove aggravated assault; and aggravated assault required proof that the defendant used the defendant's hands, with either the intent to cause a violent injury or which placed the victim in reasonable fear of receiving a violent injury, but the kidnapping charge did not require such proof. Mayberry v. State, 301 Ga. App. 503, 687 S.E.2d 893 (2009).
Trial court correctly sentenced the defendant for both aggravated assault, O.C.G.A. § 16-5-21, and kidnapping with bodily injury, O.C.G.A. § 16-5-40, because the evidence was sufficient to support the charge of kidnapping, apart from the evidence of choking, since even though the victim did not testify at trial that the defendant struck the victim, there was at least some evidence to support such a conclusion. The emergency room doctor testified that upon noticing bruising on the victim's face, the doctor "vaguely" recalled the victim saying that the victim could have been struck in the eye or struck below the eye; in addition, the evidence at trial showed that the victim had bruising not just on the victim's neck, but also on the victim's face. Mayberry v. State, 301 Ga. App. 503, 687 S.E.2d 893 (2009).
Aggravated assault and armed robbery.
- Trial court's decision not to merge the conviction of kidnapping, in violation of O.C.G.A. § 16-5-40, with defendant's convictions for aggravated assault and armed robbery, in violation of O.C.G.A. §§ 16-5-21 and16-8-41, was proper under O.C.G.A. § 16-1-7(a), as the facts that supported the kidnapping were not the same as those that supported the convictions for the other offenses; the kidnapping occurred when defendant forced three store employees into an office, the aggravated assaults occurred when defendant pointed a gun at one employee's head and hit another employee with it, and the armed robbery occurred when defendant took money from the store safe. Hill v. State, 279 Ga. App. 666, 632 S.E.2d 443 (2006).
Essential difference between kidnapping and false imprisonment is that kidnapping involves the additional element of asportation. Raysor v. State, 191 Ga. 422, 382 S.E.2d 162 (1989).
Evidence was sufficient to support a verdict of guilty of kidnapping where the transcript reveals that defendant assisted the sister by carrying and lifting the victim into defendant's truck and dumping the body in another county. Vincent v. State, 203 Ga. App. 874, 418 S.E.2d 138 (1992).
False imprisonment as lesser included offense of kidnapping.
- When defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502, 455 S.E.2d 315 (1995).
Kidnapping as defined may be committed without use of deadly weapon. Bill v. State, 153 Ga. App. 131, 264 S.E.2d 582 (1980); Helton v. State, 166 Ga. App. 662, 305 S.E.2d 592 (1983).
Aggravated battery did not merge with kidnapping with bodily injury because the battery was concluded when defendant delivered the initial blow to the victim's head before moving the victim to another place. Deal v. State, 233 Ga. App. 79, 503 S.E.2d 288 (1998).
Rape of victim is sufficient evidence of bodily injury to authorize conviction for kidnapping with bodily injury to victim. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977).
Kidnapping is a lesser included offense of kidnapping with bodily injury, lacking only the element of bodily injury. Hunter v. State, 228 Ga. App. 846, 493 S.E.2d 44 (1997).
Kidnapping with bodily injury and rape.
- Since kidnapping with bodily injury constituted the greater of two offenses in a kidnapping with bodily injury and rape conviction, the 20-year sentence imposed on the rape conviction should have been vacated, rather than the mandatory life sentence of kidnapping with bodily injury. Gober v. State, 203 Ga. App. 5, 416 S.E.2d 292, cert. denied, 203 Ga. App. 906, 416 S.E.2d 292 (1992).
When the victim alleged the defendant robbed and raped the victim at knifepoint, identified the defendant from a photo lineup and at trial, DNA on the victim's clothes matched that of the defendant, the defendant testified the defendant had consensual sex with the victim for money, and the detective who first interviewed the defendant testified that the defendant never told the detective that the defendant had consensual sex, the evidence was sufficient to convict the defendant of rape and kidnapping. Munn v. State, 263 Ga. App. 821, 589 S.E.2d 596 (2003).
Offenses of kidnapping and aggravated assault with intent to rape were not included in each other in law or in fact. Strozier v. State, 171 Ga. App. 703, 320 S.E.2d 764 (1984).
Battery, simple assault, and aggravated assault as lesser included offenses.
- Battery, simple assault, and aggravated assault are not lesser included offenses of kidnapping. Boxer X v. State, 237 Ga. App. 526, 515 S.E.2d 668 (1999).
Kidnapping within aggravated sodomy offense.
- Defendant's conviction was reversed when the kidnapping offense was included within a charged aggravated sodomy offense because the element requiring that the victim be held "against his will" was proven by the same evidence used to establish the aggravated sodomy offense. Fredrick v. State, 181 Ga. App. 600, 353 S.E.2d 41 (1987).
Kidnapping and aggravated sodomy not included offenses.
- Kidnapping and aggravated sodomy are not included offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).
Evidence of victim's murder can also be basis for conviction of kidnapping with bodily injury.
- Evidence of the murder of a given victim can be used as the basis for the separate conviction of the murder count and also as the basis for the conviction of kidnapping with bodily injury to the same victim. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982), but see, Morgan v. State, 267 Ga. 203, 476 S.E.2d 747 (1996).
Kidnapping and sexual battery.
- Jury's verdict finding the defendant not guilty of aggravated sexual battery was not necessarily logically inconsistent with the verdict finding the defendant guilty of kidnapping with bodily injury since the evidence was that the victim suffered bodily injury during a kidnapping when one of the men involved sexually assaulted the victim, but the victim could not identify which of the three men it was. Kimble v. State, 236 Ga. App. 391, 512 S.E.2d 306 (1999).
Kidnapping is not included in crime of robbery as a matter of law. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).
Armed robbery and kidnapping are clearly not included offenses as a matter of law. Nor are they included offenses as a matter of fact where the two offenses are based on separate acts. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707 (1991), cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991).
Since the sentences imposed upon an inmate upon the inmate's convictions for armed robbery and kidnapping were within the statutory guidelines under both O.C.G.A. §§ 16-5-40(b) and16-8-41(b), they were upheld; further, because armed robbery and kidnapping did not merge, the inmate was properly sentenced separately for those different crimes. Benjamin v. State, 269 Ga. App. 232, 603 S.E.2d 733 (2004).
Merging kidnapping and robbery as matter of fact.
- When facts supporting robbery charge included taking property in presence of boys, and facts showing appellant's additional conduct of forcing the children into various rooms and the attic and tying the children were incidental to, but not part of, the robbery, that conduct constituted a separate crime, kidnapping, which did not merge with the robbery as a matter of fact. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).
Kidnapping did not merge with attempted armed robbery.
- Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).
No merger of kidnapping and robbery by intimidation.
- When defendant's kidnapping conviction was premised on the victim's testimony that after defendant entered the victim's home without the victim's permission, the defendant forced the victim to move from a living room into the victim's bedroom with the insinuation the defendant had a weapon, the crime of kidnapping was complete. Defendant's subsequent act of asking the victim for money and taking a bank envelope from the victim's purse without permission constituted the separate crime of robbery by intimidation. Hickey v. State, 267 Ga. App. 724, 601 S.E.2d 157 (2004).
Trial court did not err in refusing to merge kidnapping charge into rape charge since the evidence authorized the jury to find that defendant, armed with a pistol, forced defendant's way into the victim's car and drove off with the victim to a secluded area where defendant raped and beat the victim, and moved to another location and again raped and abused the victim and then drove away with the victim's car and the property in the car, leaving the naked victim behind. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).
Malice murder and kidnapping are not "same offense" for double jeopardy purposes under Georgia law even though they involve the same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
When it was clear petitioner was tried and convicted for malice murder and that crime was not the "same offense" as the kidnapping with bodily injury for which petitioner was convicted in the first proceeding, the double jeopardy clause did not bar the malice murder conviction. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Once the state tried and convicted petitioner for kidnapping, the state would be barred from prosecuting petitioner for felony murder only if the underlying felony upon which that prosecution was based were that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
Murder and kidnapping with bodily injury not included offenses as matter of fact and of law.
- When the defendant was convicted for the murder of and kidnapping with bodily injury of the same victim, the bodily injury alleged was the killing of the victim. As a matter of fact, as well as a matter of law, the murder of the victim and the kidnapping of the victim with bodily injury were not included offenses so as to bar the defendant from being prosecuted and subsequently convicted of both crimes. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 393, 290 S.E.2d 442 (1982).
Aggravated assault is included offense of kidnapping with bodily injury.
- Because the elements of the crime of aggravated assault must have been proved in order to sustain a conviction for the crime of kidnapping with bodily injury, the aggravated assault is an included offense of the crime of kidnapping with bodily injury. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981); Herring v. State, 224 Ga. App. 809, 481 S.E.2d 842 (1997).
Aggravated assault and kidnapping.
- Aggravated assault, with intent to rob as the factor in aggravation, is not a lesser included offense of kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787, 504 S.E.2d 452 (1998).
Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and16-1-7, as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and16-5-40(a), respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as the crimes were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862, 622 S.E.2d 64 (2005).
Convictions for aggravated assault, under O.C.G.A. § 16-5-21(a)(2), and kidnapping, under O.C.G.A. § 16-5-40, did not merge because the aggravated assault was completed when the defendant pointed a gun at the victim and grabbed the victim around the neck, while the asportation for the kidnapping occurred when the defendant then dragged the victim into another room. The movement of the victim from one room to another within the hotel room, even though of minimal duration, created an additional danger to the victim by enhancing the defendant's control over the victim, and the movement was not an inherent part of the aggravated assault. Williams v. State, 307 Ga. App. 675, 705 S.E.2d 906 (2011).
Aggravated assault, rape, and kidnapping.
- Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).
Kidnapping and false imprisonment all separate offenses.
- Charge of false imprisonment did not merge with a kidnapping charge either as a matter of fact or as a matter of law since the kidnapping (the asportation of the victim to a place where the victim did not wish to go) involved conduct distinct from that which constituted false imprisonment, which embraced appellant's chasing the victim each time the victim managed to escape from the appellant's automobile and forcing the victim to re-enter the car and remain there until it suited the appellant to release the victim. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).
Because the evidence against the defendant showed that a charge of kidnapping and a charge of false imprisonment were not proven by the same facts, but: (1) the former occurred when the defendant abducted the victim outside of a mobile home and forced that victim inside of the home, completing the kidnapping crime at that time; and (2) the latter occurred when the defendant kept the victim inside the mobile home against the victim's will, the trial court did not err in holding that the crimes did not merge. Chatman v. State, 283 Ga. App. 673, 642 S.E.2d 361 (2007).
Because the kidnapping and false imprisonment convictions entered against the defendant were based on different conduct, the two did not merge. Snelson v. State, 286 Ga. App. 203, 648 S.E.2d 647 (2007).
Defendant committed false imprisonment by forcing the victim into a closet, binding the closet doors closed, and ordering the victim under threat of death to remain there until the defendant left. As the crime of kidnapping occurred and was complete prior to that, when the defendant forced the victim into a bedroom and held the victim there against the victim's will, the kidnapping and false imprisonment offenses were proven by different facts and did not merge. Williams v. State, 295 Ga. App. 9, 670 S.E.2d 828 (2008).
Defendant's conviction for false imprisonment did not merge with the offense of kidnapping since the kidnapping occurred when the defendant forced the victim to move to a secluded location and held the victim there against the victim's will. After the defendant raped the victim, the defendant falsely imprisoned the victim on the premises by shoving the victim to the ground and ordering the victim to remain under threat of violence while the defendant escaped. These two events were separate in time and supported by separate facts. Consequently, the acts constituted separate offenses which did not merge. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011).
False imprisonment and kidnapping merged.
- Trial court erred in failing to merge defendant's false imprisonment conviction into defendant's kidnapping conviction because false imprisonment was an integral part of the kidnapping charge, requiring the same evidence except for asportation and, accordingly, the offense of false imprisonment merged with the offense of kidnapping as a matter of fact, even though the offenses did not merge as a matter of law. Upshaw v. State, 249 Ga. App. 741, 549 S.E.2d 526 (2001), overruled on other grounds, Wallace v. State, 275 Ga. 879, 572 S.E.2d 579 (2002).
Because a jury convicted a defendant on both an indicted charge of kidnapping and an unindicted lesser charge of false imprisonment without any intervention of the trial court, the rule in Camphor v. State, 272 Ga. 408, 529 S.E.2d 121 (2000) did not apply; thus, the trial court properly merged the false imprisonment with the kidnapping and properly entered judgment on the jury's verdict finding the defendant guilty of the kidnapping. Manning v. State, 296 Ga. App. 376, 674 S.E.2d 408 (2009).
Aggravated assault did not merge with kidnapping and armed robbery charges because each count relied on separate facts. Howard v. State, 230 Ga. App. 437, 496 S.E.2d 532 (1998).
Theft by receiving stolen property and kidnapping.
- Kidnapping, O.C.G.A. § 16-5-40(a), had no element that the accused either stole property or received stolen property; in a case where defendant kidnapped the victim, then stole the victim's car, defendant's conviction for theft by receiving the stolen car, O.C.G.A. § 16-8-7(a), was not mutually exclusive of a kidnapping conviction and did not preclude prosecution for the kidnapping charge. State v. Fuller, Ga. App. , S.E.2d (Mar. 9, 2004).
Interference with custody as lesser included offense.
- Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, since the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991).
Interference with custody is not a lesser included offense of kidnapping. Valdez-Hardin v. State, 201 Ga. App. 126, 410 S.E.2d 354 (1991).
Jury Instructions
Failure to instruct on bodily injury requires retrial of capital offense.
- When the judge failed to offer the jury any specific instructions on the importance of a finding of bodily injury in making kidnapping a capital offense at both the guilt/innocence and sentencing trials, a retrial at both stages was required. Potts v. Zant, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610 (1986).
Jury sufficiently instructed on essential element of "bodily injury".
- See Messer v. Kemp, 760 F.2d 1080 (11th Cir. 1985), cert. denied, 474 U.S. 1088, 106 S. Ct. 864, 88 L. Ed. 2d 902 (1986).
Trial court's instructions that merely informed the jury that it was necessary that the injury was received during or as a result of the kidnapping was not in conflict with O.C.G.A. § 16-5-40. Lamunyon v. State, 218 Ga. App. 782, 463 S.E.2d 365 (1995).
In a prosecution for kidnapping with bodily injury, it was not error to instruct the jury that the jury must find that bodily injury occurred in conjunction with the alleged kidnapping because there was no requirement that the injury occur at the precise moment the victim was first kidnapped, and the crime, under O.C.G.A. § 16-5-40(b), required only that an injury, no matter how slight, occur during the kidnapping, so whether the bodily injury occurred at the beginning of the kidnapping or after the victim was abducted was immaterial. Nelson v. State, 278 Ga. App. 548, 629 S.E.2d 410 (2006).
Even though the verdict form indicated that the jury found the defendant guilty of kidnapping, the trial court nevertheless properly sentenced the defendant for kidnapping with bodily injury as although the pre-printed verdict form did not give the jury the option to choose, the indictment alleged kidnapping resulting in bodily injury to the victim, and the trial court also instructed the jury on the elements of kidnapping with bodily injury. Robinson v. State, 353 Ga. App. 420, 838 S.E.2d 92 (2020).
Slight movement as part of instruction.
- Trial court erred in charging the jury that "slight movement" was sufficient to prove asportation, but the error did not require reversal of the defendant's conviction for kidnapping with bodily injury because the evidence of asportation was overwhelming and undisputed; it was highly probable that any alleged error in giving the defendant's requested charge that "slight movement" was sufficient to prove asportation did not contribute to the judgment. Leverette v. State, 303 Ga. App. 849, 696 S.E.2d 62 (2010).
Conviction for kidnapping was not reversed because it was highly probable that the jury charge that the slightest movement sufficiently established asportation did not contribute to the judgment. Williams v. State, 307 Ga. App. 675, 705 S.E.2d 906 (2011).
In a kidnapping case, although the trial court's charge that omitted statutory language explaining "slight movement" was error, it was not plain error given that the evidence showed movement that was substantial, involving a number of miles. Deleon v. State, 344 Ga. App. 499, 811 S.E.2d 35 (2018).
Failure to instruct on bodily injury was reversible error.
- Failure to instruct the jury that bodily injury is an essential element of kidnapping with bodily injury was reversible error, even though defendant failed to reserve any objection to the charge. Hunter v. State, 228 Ga. App. 846, 493 S.E.2d 44 (1997).
Failure to instruct on false imprisonment not harmless.
- Defendant's conviction for kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a) was reversed because the trial court erred in failing to charge the jury on the lesser-included offense of false imprisonment, O.C.G.A. § 16-5-41(a); there was some evidence from which the jury could have convicted the defendant on the lesser-included offense, and the evidence of kidnapping was not so overwhelming so as to render the trial court's failure to give the charge harmless. Curtis v. State, 310 Ga. App. 782, 714 S.E.2d 666 (2011).
Instruction on conspiracy may be proper though conspiracy not charged.
- In a trial for armed robbery and kidnapping, the trial court does not err in instructing the jury on the law of conspiracy although conspiracy is not charged in the indictment, where the conspiracy instruction is properly adjusted to the evidence. Spencer v. State, 180 Ga. App. 498, 349 S.E.2d 513 (1986).
False imprisonment charge not warranted.
- Evidence did not require the trial court to give defendant's requested charge on false imprisonment as a lesser included offense of kidnapping. Williams v. State, 237 Ga. App. 555, 515 S.E.2d 862 (1999).
Trial court's jury instructions in defendant's criminal trial on multiple charges arising out of a domestic dispute were proper as: (1) there was no requirement that the jury be instructed on the element of assault (O.C.G.A. § 16-5-20) in order to be properly instructed on the crime of aggravated assault (O.C.G.A. § 16-5-21); (2) the methods of committing an aggravated battery, pursuant to O.C.G.A. § 16-5-24(a), were properly defined based on the methods asserted in the indictment; (3) there was no support for a requested charge on the lesser included offense of reckless conduct, pursuant to O.C.G.A. § 16-5-60(b); and (4) there was no possibility of a lesser included conviction for false imprisonment (O.C.G.A. § 16-5-41), such that instruction only on the indicted offense of kidnapping (O.C.G.A. § 16-5-40) was proper. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789 (2005).
Counsel was not ineffective for not requesting a charge on false imprisonment as a lesser included offense of kidnapping. The only evidence was either that the defendant kidnapped the victim by dragging the victim by the hair or that the victim went with the defendant voluntarily. Eller v. State, 294 Ga. App. 77, 668 S.E.2d 755 (2008).
As the crime of kidnapping was complete when the defendant seized law office employees and forced the employees to a back office, and when the defendant taped up and moved an attorney from place to place in the office, the defendant was not entitled to a charge on a lesser included offense because there was no evidence that the defendant was guilty of merely false imprisonment. Brower v. State, 298 Ga. App. 699, 680 S.E.2d 859 (2009), cert. denied, No. S09C1845, 2010 Ga. LEXIS 13 (Ga. 2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
State presented evidence that the defendant detained the victim inside the victim's car and made the victim drive to a secluded location and the defendant provided no evidence of any alternative scenario involving detention without asportation; thus, there was no evidence of false imprisonment, and the trial court did not err by refusing to charge the jury on that offense. Lundy v. State, 341 Ga. App. 767, 801 S.E.2d 629 (2017).
Charge of simple kidnapping as a lesser included offense of kidnapping with bodily injury was not warranted because the evidence showed that after the defendant lured the victim into the van, the defendant drove to another location and assaulted and injured the victim; the victim was never free to leave until the defendant finally dropped the victim off after sexually assaulting and injuring the victim. Robertson v. State, 278 Ga. App. 376, 629 S.E.2d 79 (2006).
Jury instruction proper.
- Trial court's jury charge in defendant's trial on charges of kidnapping by bodily injury in violation of O.C.G.A. § 16-5-40 was proper even though there was no evidence of persuasion or enticement, as indicated in the instruction, but only of abduction by force; an abduction need not be by force, actual or constructive, as inducement, persuasion, or fraud is sufficient, and the jury could possibly have interpreted the facts in such a way as to have found that defendant persuaded the victim to go to defendant's truck. Mann v. State, 264 Ga. App. 631, 591 S.E.2d 495 (2003), overruled on other grounds, Kaiser v. State, 285 Ga. App. 63, 646 S.E.2d 84 (2007).
Trial court, in response to a request by the jury during deliberations, did not erroneously give the jury a written copy of the charge on the definition of kidnapping, as such was within the court's discretion and the defendant failed to show an abuse of that discretion. McCaskell v. State, 285 Ga. App. 592, 646 S.E.2d 761 (2007).
With regard to a defendant's convictions for aggravated sodomy, rape, and other related crimes, trial counsel's decision not to object to the jury charge on kidnapping with bodily injury did not amount to ineffective assistance of counsel as the trial court employed the language of the relevant statute (O.C.G.A. § 16-5-40) and instructed the jury that the offense of kidnapping with bodily injury occurs when a person abducts "or" steals away any person. The fact that the indictment charged the defendant with abducting "and" stealing away the victim did not require trial counsel to object to the jury charge as the statute provided only one way in which kidnapping can be committed, namely by abducting or stealing away the victim, and the jury charge using the statutory language was appropriate, even though the indictment used the conjunctive. Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009), cert. denied, No. S09C0862, 2009 Ga. LEXIS 259 (Ga. 2009).
Although the defendant argued that the trial court improperly charged the jury on the offense of kidnapping, no plain error existed as the defendant intentionally relinquished any claim of error related to the charge on kidnapping by inducing the alleged error because the defendant objected and specifically asked the trial court not to include that language in the charge that the defendant now argued was erroneously omitted. Ashley v. State, 340 Ga. App. 539, 798 S.E.2d 235 (2017).
Trial court did not plainly err by instructing the jury with regard to the asportation element of the kidnapping charge because the instruction tracked the statutory language and properly advised the jury of the asportation requirement. Alexander v. State, 348 Ga. App. 859, 825 S.E.2d 405 (2019).
Allen instruction proper.
- In a prosecution for aggravated battery, false imprisonment, and kidnapping, a written Allen charge issued by the court was not coercive, despite the court's use of the phrase "must be decided", given that the language was only a small portion of an otherwise fair and balanced charge, the trial court urged the jury to take their time, and the defendant was acquitted of the kidnapping charge. Benson v. State, 280 Ga. App. 643, 634 S.E.2d 821 (2006).
Charge tracking statutory language sufficient.
- Since the statutory law stated that kidnapping occurred when a person abducted or stole away another without lawful authority and held that other person against the other person's will, the statutory law only permitted one way in which kidnapping could be committed; accordingly, the trial court did not err in charging the jury on the kidnapping charge and petitioner's appellate counsel could not have provided ineffective assistance for not challenging that instruction on appeal since the jury charge did not permit petitioner to be found guilty in a manner not listed in the indictment. Specifically, "bodily injury" in regard to the offense of kidnapping with bodily harm was not part of the definition of the offense of kidnapping which could only be committed in one manner; rather, bodily injury was addressed only in a statutory subsection addressing punishment and the jury was, therefore, not able to convict petitioner of kidnapping with bodily harm based on harm that was inflicted but was not listed in the indictment. Lewis v. McDougal, 276 Ga. 861, 583 S.E.2d 859 (2003).
Defendant cited no authority and the trial court found no authority requiring the trial court to use and explain the term asportation as formerly used in the kidnapping statute, O.C.G.A. § 16-5-40(a); additionally, defendant did not request any additional charges on kidnapping to prevent any confusion on the requirements of asportation and, thus, could not complain about the trial court's failure to give an unrequested instruction on a collateral issue, especially when the omission was not clearly harmful and erroneous as a matter of law. McGuire v. State, 266 Ga. App. 673, 598 S.E.2d 55 (2004).
Since the language "with bodily injury" was not included in the kidnapping counts in the indictment. the trial court could not sentence the defendant to life on kidnapping charges, despite the fact that one of the kidnapping victims suffered bodily injury. Smith v. State, 302 Ga. App. 222, 690 S.E.2d 867 (2010).
Jury sufficiently instructed on asportation.
- In a defendant's trial for kidnapping with bodily injury and related offenses, the trial court committed no error in instructing the jury on the asportation element of kidnapping; the instruction given, which stated that the victim's slightest movement was sufficient to prove asportation, accurately stated the law with regard to that element of the crime. Wright v. State, 282 Ga. App. 649, 639 S.E.2d 581 (2006).
Defendant's requested charge on asportation was properly denied because the charge was not a correct statement of the law and the actual jury charge correctly stated the law on asportation. Hammond v. State, 303 Ga. App. 176, 692 S.E.2d 760 (2010), aff'd, 289 Ga. 142, 710 S.E.2d 124 (2011).
Trial court's error of not properly instructing the jury was not reversible because it was highly probable that the error in not instructing the jury to consider the asportation element of kidnapping using the Garza factors did not contribute to the judgment of guilt on that charge since the movement of the victim and the baby was from the living room to the bedroom and was of minimal duration and the movement was not necessary to effect the completion of the burglary or aggravated assault. Turner v. State, 331 Ga. App. 78, 769 S.E.2d 785 (2015).
Punishment
Simple kidnapping is not a capital felony, but kidnapping for ransom or with bodily injury is.
- Since the court charged only "kidnapping" and the jury found only "kidnapping," the jury's finding could not support the death penalty. Patrick v. State, 247 Ga. 168, 274 S.E.2d 570 (1981), cert. denied, 459 U.S. 1089, 103 S. Ct. 575, 74 L. Ed. 2d 936 (1982).
Simple kidnapping is not a capital felony, but kidnapping with death is.
- The offense of kidnapping with bodily injury is a capital felony. It requires an unlawful abduction and the infliction of some bodily injury. A defendant may receive a death sentence for kidnapping with bodily injury when the victim is killed. As a matter of law, bodily injury does not have to be inflicted at the same moment as the initial abduction. Sears v. State, 270 Ga. 834, 514 S.E.2d 426 (1999).
Since kidnapping when no bodily injury occurs was not a capital crime at the time O.C.G.A. § 17-10-30 was enacted, such an offense cannot serve as a statutory aggravating circumstance. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989); Crawford v. State, 256 Ga. 57, 344 S.E.2d 215, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986).
Question of whether a kidnapping is punishable as a capital offense is a question of the grade of crime charged in the indictment and proved at the innocence/guilt phase of the trial. The court must instruct the jury at the guilt/innocence phase that it is considering the charge of a crime involving bodily injury and the jury is required to make a specific finding or verdict as to this element. Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983), aff'd, 734 F.2d 526 (11th Cir. 1984), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610, judgment vacated, 478 U.S. 1017, 106 S. Ct. 3328, 92 L. Ed. 2d 734 (1986) (remanded for further consideration in light of Rose v. Clark, 478 U.S. 570 (1986)), aff'd, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).
Punishment of death does not invariably violate Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Statutorily specified aggravating circumstance must be found beyond reasonable doubt.
- Before a convicted defendant may be sentenced to death, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30). Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Death sentence for simple kidnapping is not authorized. Jarrell v. Zant, 248 Ga. 492, 284 S.E.2d 17 (1981).
Sentence for kidnapping with bodily injury.
- Upon a conviction of kidnapping with bodily injury, the trial court did not err in entering a life sentence without conducting a pre-sentence hearing, since the only sentences authorized were life imprisonment or death, and the state did not seek the death penalty. Hasty v. State, 210 Ga. App. 722, 437 S.E.2d 638 (1993).
Defendant was convicted of kidnapping with bodily injury, which carries a minimum life sentence; thus, the trial court did not err when it denied defendant's oral request for a presentence investigation prior to sentencing. Bolick v. State, 244 Ga. App. 567, 536 S.E.2d 242 (2000).
Defendant's life sentence for kidnapping with bodily injury was not improper or illegal as that crime carried the punishment of life imprisonment or death. Fulcher v. State, 259 Ga. App. 648, 578 S.E.2d 264 (2003).
Sentence for kidnapping without bodily injury.
- There is no requirement that a kidnapping victim receive bodily injury when sentencing is pursuant to O.C.G.A. § 17-10-6.1; moreover, as defendant had also been convicted of armed robbery, the trial court correctly imposed a mandatory life without parole sentence for either of the defendant's second serious violent felonies: kidnapping and armed robbery. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007), cert. denied, No. S07C1910, 2007 Ga. LEXIS 806 (Ga. 2007).
First Offender Act treatment unavailable.
- There was no error in the trial court's failure to convict defendant of kidnapping and armed robbery, in violation of O.C.G.A. §§ 16-5-40 and16-8-41, respectively, under the First Offender Act, as O.C.G.A. § 42-8-66 specifically stated that the Act did not apply to sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1, and those two crimes were listed as serious violent felonies. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483 (2005).
Plea not invalid when defendant received bargained for sentence.
- Although the record did not reveal that the defendant was advised of the mandatory minimum sentences on the charges to which the defendant pled guilty, as contemplated by Ga. Unif. Super. Ct. R. 33.8(C)(4), given that the defendant received the sentence the defendant bargained for, the defendant could not establish that the defendant suffered adverse consequences from not knowing the mandatory minimum sentences for armed robbery and kidnapping. Belcher v. State, 304 Ga. App. 645, 697 S.E.2d 300 (2010).
Merger.
- Defendant's aggravated assault convictions were to be merged with armed robbery and kidnapping convictions as the same set of facts were used to prove the offenses. Lenon v. State, 290 Ga. App. 626, 660 S.E.2d 16 (2008).
No merger with false imprisonment.
- Defendant's kidnapping and false imprisonment sentences did not merge for sentencing purposes where the victim had been made to drive around at gunpoint, then taken to an apartment before being forced into some woods and shot in the head; thus, the crime of false imprisonment was complete before the victim was forced into the woods and shot. John v. State, 282 Ga. 792, 653 S.E.2d 435 (2007).
No merger with aggravated assault.
- Movement of each of the victims from the kitchen to the bedroom, where the intruders attempted to tie them up, was sufficient to convict the defendant for the kidnapping of both victims; the kidnappings occurred independently of the aggravated assault (pistol-whipping) of another victim and independently of the armed robbery of still another victim's purse; thus, the trial court properly declined to merge the kidnapping convictions with the aggravated assault and armed robbery convictions for sentencing purposes. Maddox v. State, 277 Ga. App. 580, 627 S.E.2d 166 (2006).
Defendant's guilty pleas for aggravated assault with intent to rape in violation of O.C.G.A. § 16-5-21(a)(1) and kidnapping in violation of O.C.G.A. § 16-5-40(a) were not accepted in violation of the constitutional prohibition against double jeopardy because the offenses did not merge as a matter of law since each of the offenses were separate and required proof of different facts; the state asserted that the defendant dragged the victim from the front of a laundromat facility into a bathroom in the back of the facility, which formed a basis for the kidnapping charge, and that the defendant sexually assaulted the victim while holding the victim in the bathroom, which formed a basis for the aggravated assault with the intent to rape charge. Shelton v. State, 307 Ga. App. 599, 705 S.E.2d 699 (2011), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).
Trial court did not err in declining to merge under O.C.G.A. § 16-1-7(a) kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
Simple assault did not merge with kidnapping.
- Trial court did not err in declining to merge a defendant's convictions for assault and kidnapping with bodily injury because assault under O.C.G.A. § 16-5-20(a)(2) was established by evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury when defendant told the victim the defendant had a gun, and kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a), on the other hand, was established by evidence that defendant abducted and held the victim against the victim's will in the victim's car, driving from one location to another, during which time the victim received bodily injuries. Walker v. State, 306 Ga. App. 16, 701 S.E.2d 523 (2010).
Mandatory minimum sentence.
- O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2), as applied to the defendant, did not violate due process because an earlier indictment charged regular kidnapping and, only after plea negotiations failed, was the more severe sentence included in a re-indictment because such circumstances did not raise a presumption of prosecutorial vindictiveness in the absence of actual evidence thereof. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2) do not violate equal protection by punishing a person differently depending on the age of the victim because that classification is not arbitrarily drawn and instead is rationally related to the legitimate governmental interest in protecting children. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
Order of the habeas court vacating the defendant's convictions based on ineffective assistance of trial and appellate counsel was vacated because the habeas court was required to make a finding based on evidence in the record as to whether the defendant would have accepted the state's plea offer if the defendant had been afforded effective assistance of trial counsel who adequately informed the defendant that the defendant would face a mandatory life sentence upon conviction of the kidnapping charge. Gramiak v. Beasley, 304 Ga. 512, 820 S.E.2d 50 (2018).
Sentence proper.
- Trial court did not impose an unjustifiably lengthy sentence merely because a defendant chose to require the prosecution to prove the defendant's guilt at trial rather than to enter a plea of guilty because the trial court sentenced defendant to the maximum term of 20 years in prison for kidnapping and on each of the aggravated assault counts, the trial court also exercised the court's discretion to run all of the counts concurrently instead of consecutively; the defendant's claim that the trial court punished the defendant for exercising the defendant's right to a jury trial was not supported by the transcript, which revealed that the sentence imposed by the trial court was based on the defendant's lack of remorse. Brown v. State, 299 Ga. App. 782, 683 S.E.2d 874 (2009).
Trial court did not err in denying the defendant's motion for an out-of-time appeal to vacate a void sentence because the defendant's sentence of 40 years imprisonment for aggravated assault with intent to rape in violation of O.C.G.A. § 16-5-21(a)(1) and kidnapping in violation of O.C.G.A. § 16-5-40(a) fell within the statutory range and was not void; the offenses of aggravated assault and kidnapping both carry maximum sentences of 20 years, §§ 16-5-21(b) and16-5-40(b)(1). Shelton v. State, 307 Ga. App. 599, 705 S.E.2d 699 (2011), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).
Trial counsel did not render ineffective assistance by failing to raise the constitutionality of the defendant's mandatory minimum sentence of 25 years imprisonment without parole, as codified in O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2), because the defendant's concurrent 25-year sentences for child kidnapping did not raise a threshold inference of gross disproportionality; after beating the mother in the young children's presence so severely as to break her jaw and cause other injuries, the defendant ordered all three of the victims to enter a car, drove the victims away, and left the victims in a location where the victims were isolated and unprotected. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
Defendant's life sentence for kidnapping the seven-year-old girl and the 30-year sentence for criminal attempt to kidnap the two-year-old girl did not constitute cruel and unusual punishment forbidden by the Eighth Amendment because the punishments fell within the statutory limits set by the legislature for those offenses; furthermore, because the defendant's challenges to the constitutionality of the defendant's sentences were untimely as the defendant did not make the challenge at the first available opportunity - in the sentencing hearing - but instead waited until the defendant's motion for new trial to object, the defendant's challenges were untimely and were not subject to review. Ashley v. State, 340 Ga. App. 539, 798 S.E.2d 235 (2017).
A life without parole sentence imposed on a juvenile who is not properly determined to be in the very small class of juveniles for whom such a sentence may be deemed constitutionally proportionate is not just erroneous but contrary to law and, as a result, void; it follows that state collateral review courts that are open to federal law claims must apply the holding of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), retroactively if a petitioner challenges such a sentence under the Eighth Amendment, and it follows, as a matter of Georgia procedural law, that a defendant's Miller claim, a substantive claim that, if meritorious, would render a sentence void, can be properly raised in an amended motion for new trial and in a direct appeal, despite the failure to raise the claim before the defendant was sentenced. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).
Application
Offense of burglary was completed when defendant entered or remained in house with the intent to commit the offense of kidnapping, and it was not necessary to the burglary charge to prove that defendant actually committed the offense of kidnapping, the offense of kidnapping was not included in the offense of burglary as a matter of fact or of law, and defendant therefore was convicted properly of both offenses. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).
Evidence showing that the victim was forced to go into several rooms of the victim's house against the victim's will was sufficient evidence to support a kidnapping conviction. Williams v. State, 178 Ga. App. 581, 344 S.E.2d 247 (1986).
Evidence was sufficient to sustain defendant's convictions as a party to the offenses of armed robbery, kidnapping, false imprisonment, burglary, and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-21,16-5-40,16-5-41,16-7-1, and16-8-41 because: (1) defendant received information from the defendant's love interest, about the victims' house, the location of safes, where money was located, and about the alarm system; (2) the day after the home invasion the love interest saw defendant and the defendant showed the love interest a stack of cash, and the defendant told the love interest it might be the victim's money; and (3) an FBI informant met with defendant and defendant told the informant that defendant had been shorted money from the robbery, and that the defendant got the layout of the house from the defendant's love interest. Pope v. State, 266 Ga. App. 658, 598 S.E.2d 48 (2004).
Double jeopardy did not bar retrial.
- Defendant could be retried on a kidnapping charge under O.C.G.A. § 16-5-40(b) after defendant was acquitted of felony murder under O.C.G.A. § 16-5-1(c) and a mistrial was declared on the underlying felony of kidnapping; the jury could have based its acquittal on the felony murder charge on factors other than defendant's participation in the crimes that preceded the homicide. State v. Lambert, 276 Ga. App. 668, 624 S.E.2d 174 (2005).
Kidnapping and aggravated sodomy crimes did not merge since there was sufficient evidence from which the jury could have found that the defendant's action in choking the victim almost to the point of unconsciousness after forcibly taking the victim from the living room to the bedroom constituted the bodily injury necessary to establish all the elements of kidnapping with bodily injury, which was completed before the defendant committed the aggravated sodomy. Olsen v. State, 191 Ga. App. 763, 382 S.E.2d 715 (1989).
Voluntarily entering car.
- Fact that victims got into defendant's car voluntarily did not protect defendant from a kidnapping prosecution since the defendant did not allow the victims to leave the vehicle after driving past the gas station to which the victims had asked to be taken. George v. State, 192 Ga. App. 840, 386 S.E.2d 669, cert. denied, 192 Ga. App. 901, 386 S.E.2d 669 (1989).
Sufficient evidence supported the defendant's conviction of kidnapping under O.C.G.A. § 16-5-40 although the victim entered the defendant's vehicle voluntarily; the victim testified that the defendant refused to take the victim to the victim's home despite the victim's request that the defendant do so, and that was when the kidnapping began. Clark v. State, 282 Ga. App. 248, 638 S.E.2d 397 (2006).
Evidence was sufficient to sustain defendant's conviction for attempt to kidnap, since the victim was grabbed and restrained against the victim's will and there was evidence from which the jury could find that the defendant intended to take the victim away in the defendant's truck and was thwarted only by the victim's resistance. McGinnis v. State, 183 Ga. App. 17, 358 S.E.2d 269 (1987).
Convictions of criminal attempt to commit kidnapping, O.C.G.A. § 16-5-40(a), and aggravated assault with intent to rape, O.C.G.A. § 16-5-21(a)(1), were supported by sufficient evidence since the victim positively identified the defendant as the attacker when the defendant was captured and again at trial, and since a store owner also identified the defendant at trial and testified that the store owner maintained sight of the defendant from which the store owner saw the defendant attacking the victim until the defendant's capture; additionally, since the defendant made no attempt to take the victim's purse or keys, and the evidence showed that the defendant had pornographic photos of someone who looked similar to the victim, the jury was authorized to find that the defendant had the requisite intent to detain, abduct, and rape the victim as charged. Mobley v. State, 279 Ga. App. 476, 631 S.E.2d 491 (2006).
Evidence that the defendant entered an occupied motor vehicle and commanded the driver to "drive or die," while wielding a rock in a sock supported the defendant's conviction for criminal attempt to commit kidnapping. Hughes v. State, 323 Ga. App. 4, 746 S.E.2d 648 (2013).
Evidence sufficient to support conviction for hijacking, battery, and kidnapping.
- Defendant's convictions of hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), battery, O.C.G.A. § 16-5-23, and two counts of kidnapping with bodily injury, O.C.G.A. § 16-5-40(b), were affirmed because sufficient evidence was presented at trial to support the charges as the victim testified that the defendant forced the defendant's way into the car at gunpoint while the victim and an infant child were in the vehicle and then sexually assaulted the victim after threatening to harm the child, the defendant's wallet was found in the abandoned car, and the defendant admitted to the hijacking. Adams v. State, 276 Ga. App. 319, 623 S.E.2d 525 (2005).
Evidence admissible despite incidentally placing character in issue.
- Evidence was sufficient to find defendant guilty of assault with a deadly weapon, possession of a firearm during the commission of a crime, and kidnapping; the victim's statement that the victim's sister was afraid of defendant because defendant had done the same thing to the sister was clearly admissible as part of the res gestae even if it incidentally placed defendant's character in evidence. McLendon v. State, 258 Ga. App. 133, 572 S.E.2d 763 (2002).
Kidnapping by hospital.
- Hospital did not commit kidnapping under O.C.G.A. § 16-5-40 when, after the hospital employee reported the children's situation to child services, child services took the children into custody. Gwinnett Health Sys. v. DELU, 264 Ga. App. 863, 592 S.E.2d 497 (2003).
Kidnapping occurring in two counties but same offense.
- In a warden's appeal, the grant of habeas corpus relief to an inmate based on ineffective assistance of counsel was upheld as the kidnapping charges in the two counties charged against the inmate were for the same offense and being advised by defense counsel to plead guilty in one county to avoid prosecution in the other was erroneous since double jeopardy would have barred any additional prosecution. Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007).
Guilty plea free and voluntary.
- Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw a guilty plea to two counts of kidnapping and two counts of aggravated assault as the trial court was well aware of the medications the defendant was taking when the plea was entered, the medications did not affect the defendant's ability to understand the proceedings, and an expert opined that the defendant was feigning hallucinations and was competent to stand trial; hence, at that point, the trial court had no duty to make any further inquiries into the defendant's ability to competently tender a plea. McDowell v. State, 282 Ga. App. 754, 639 S.E.2d 644 (2006).
Factual basis sufficient for guilty plea.
- Sufficient factual basis was established for a defendant's guilty plea to armed robbery, kidnapping, and possession of a firearm during the commission of a crime when the prosecutor stated that the defendant and an accomplice entered the victims' apartment, forced the victims into rooms at gunpoint, tied the victims up, and stole some items; the prosecutor also noted that much of the crime had been recorded by a9-1-1 operator; defense counsel stated that counsel had discussed the facts with the defendant; and the defendant conceded guilt. Therefore, it was not necessary that the indictment be read into the record. Leary v. State, 291 Ga. App. 754, 662 S.E.2d 733 (2008).
Forcing the victim to drive to ATM, then isolate in parking lot.
- In a kidnapping case, the evidence showed movement that was substantial, involving a number of miles, movement that was independent of the other crimes (armed robbery and hijacking a motor vehicle), and movement that isolated the victim and lessened the risk of detection, which was sufficient to find asportation as required by O.C.G.A. § 16-5-40(b). Deleon v. State, 344 Ga. App. 499, 811 S.E.2d 35 (2018).
Evidence sufficient to support conviction for kidnapping and felony murder.
- Evidence was sufficient to convict the defendant of kidnapping and felony murder because there was evidence that the defendant forced the victim to transport the defendant and a group of other men against the victim's will as the defendant and the other men had the victim's vehicle, screamed at the victim, ordered the victim to take them to another individual, and threatened the victim that it was either going to be the victim or the other individual if the victim failed to do so; the defendant was eventually alone in the victim's vehicle with the victim; the victim's vehicle stopped, and a witness heard a gunshot; and two witnesses identified the defendant as the one who shot the victim even though the witnesses did not see the event occur. Forte v. State, 302 Ga. 726, 808 S.E.2d 658 (2017).
Evidence sufficient to support conviction.
- See Moore v. State, 176 Ga. App. 882, 339 S.E.2d 271 (1985); Huston v. State, 256 Ga. 276, 347 S.E.2d 556 (1986); Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987); Riseden v. State, 181 Ga. App. 453, 352 S.E.2d 634 (1987); Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989); Mincey v. State, 186 Ga. App. 839, 368 S.E.2d 796 (1988); McKenzie v. State, 187 Ga. App. 840, 371 S.E.2d 869 (1988); Shirley v. State, 188 Ga. App. 357, 373 S.E.2d 257 (1988); Scott v. State, 193 Ga. App. 577, 388 S.E.2d 416 (1989); Green v. State, 193 Ga. App. 894, 389 S.E.2d 358 (1989); Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991); Jessup v. State, 224 Ga. App. 176, 480 S.E.2d 232 (1996); Culver v. State, 230 Ga. App. 224, 496 S.E.2d 292 (1998); Anderson v. State, 238 Ga. App. 866, 519 S.E.2d 463 (1999); Evans v. State, 240 Ga. App. 215, 522 S.E.2d 506 (1999); Garcia v. State, 240 Ga. App. 53, 522 S.E.2d 530 (1999); Collins v. State, 240 Ga. App. 289, 523 S.E.2d 359 (1999); Welch v. State, 243 Ga. App. 798, 534 S.E.2d 471 (2000); Brinson v. State, 244 Ga. App. 40, 537 S.E.2d 370 (2000); Johnson v. State, 247 Ga. App. 157, 543 S.E.2d 439 (2000); Parson v. State, 245 Ga. App. 902, 539 S.E.2d 234 (2000); Powell v. State, 249 Ga. App. 344, 548 S.E.2d 447 (2001); Chemielowiec v. State, 250 Ga. App. 66, 550 S.E.2d 120 (2001); 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989); Ross v. State, 264 Ga. App. 830, 592 S.E.2d 479 (2003); Griggs v. State, 264 Ga. App. 636, 592 S.E.2d 168 (2003); McGordon v. State, 298 Ga. App. 161, 679 S.E.2d 743 (2009).
Evidence was sufficient to convict the defendant of kidnapping because the defendant's act of forcing the second victim to enter the card room and open the back door allowed a co-defendant to enter and help the defendant complete the robbery by gathering cash while the defendant held the patrons at gunpoint; and that forced movement also prevented the second victim from calling 911 or running to a neighbor's house for help, which mitigated the risk that the defendant would be detected and apprehended by law enforcement. Rich v. State, 307 Ga. 757, 838 S.E.2d 255 (2020).
By following the commands of the defendant, the movement of the second victim made the commission of the robbery substantially easier, thus allowing the defendant and an accomplice to complete the robbery and, thus, the evidence was sufficient for the jury to find that the second victim was kidnapped as alleged. Ali v. State, 353 Ga. App. 582, 838 S.E.2d 899 (2020).
Evidence that the defendant forced the first victim at gunpoint to move from the front of the store to the break room to open the store's safe, making the armed robbery easier, and further movement to the back corner of the room with instructions to remain silent and stay down was sufficient to sustain the asportation element of the kidnapping conviction. Ali v. State, 353 Ga. App. 582, 838 S.E.2d 899 (2020).
Since the movement of the victim was not merely incidental to the armed robbery, but served to make the commission of the crime substantially easier by concealing and isolating the victim and giving the assailants greater control, the evidence was sufficient to allow reasonable jurors to conclude that the movement of the victim was not merely incidental to the robbery and to support the defendant's conviction for kidnapping. Leslie v. State, 355 Ga. App. 244, 842 S.E.2d 550 (2020).
Holding victim in motel room sufficient.
- When the evidence showed that defendant both held the victim at gunpoint in a motel room and took possession of the victim's wallet and car keys after they had been removed from the victim's person, the evidence was sufficient to authorize a rational trier of fact to find defendant guilty of armed robbery and kidnapping beyond a reasonable doubt. Spencer v. State, 180 Ga. App. 498, 349 S.E.2d 513 (1986)cert. denied.
Evidence presented by the prosecution was sufficient to enable any rational trier of fact to find the defendant guilty of armed robbery, kidnapping, and aggravated assault with intent to rob. Conway v. State, 183 Ga. App. 573, 359 S.E.2d 438 (1987).
Forcing victims to leave their hotel room at gunpoint.
- Evidence supported the defendant's kidnapping convictions under O.C.G.A. § 16-5-40(a) based on the defendant's conduct in entering the victims' motel room, demanding money the victims owed the defendant for drugs, threatening the victims' lives, and cocking a handgun and pressing the handgun against one victim's eye, whereupon the victims agreed to go with the defendant panhandling against the victims' will and only to avoid being killed. Hill v. State, Ga. , S.E.2d (Sept. 28, 2020).
Asportation of spouse sufficient.
- Evidence showing that defendant forcibly took his wife from the steps of her parents' residence; that she asked him to let her go; and that she was taken to another town against her will sufficed for a conviction. Williams v. State, 207 Ga. App. 371, 427 S.E.2d 846 (1993).
Testimony by the victim, in which the victim positively identified the defendant as the person who entered the defendant's home, and committed the crimes of robbery by intimidation, kidnapping, aggravated assault, aggravated assault with a knife, aggravated battery and possession of a knife during the commission of a crime, charged in the indictment and eyewitness testimony that the defendant entered the victim's premises minutes before the attack of the victim was sufficient to authorize the jury's finding that the defendant was guilty, beyond a reasonable doubt, of committing the crimes charged in the indictment. Mobley v. State, 211 Ga. App. 709, 441 S.E.2d 73 (1994).
Scraped knees sufficient for bodily injury associated with kidnapping.
- Victim's testimony that the defendant forced the victim out of the defendant's car at gunpoint and grabbed the victim's arm when the victim tried to escape, causing the victim to fall and scrape the victim's knees was sufficient to authorize the jury's finding that defendant was guilty of kidnapping with bodily injury. Fields v. State, 216 Ga. App. 184, 453 S.E.2d 794 (1995).
Kidnapping of spouse.
- Evidence that the defendant kidnapped his estranged wife, told her he would kill her and locked her in the car trunk, and that the wife received injuries in her attempts to escape was sufficient to find the defendant guilty of kidnapping with bodily injury. Stubbs v. State, 220 Ga. App. 106, 469 S.E.2d 229 (1996).
Although largely circumstantial, evidence was sufficient to authorize the jury to find defendant guilty of attempted kidnapping. Simonds v. State, 231 Ga. App. 692, 499 S.E.2d 744 (1998).
Attempt to pull victim into vehicle sufficient.
- Evidence was sufficient to support a conviction for kidnapping where the defendant tried to force the victim into the victim's truck and succeeded in moving the victim a short distance toward that objective. Estes v. State, 234 Ga. App. 150, 505 S.E.2d 840 (1998).
Movement through the house sufficient.
- Evidence that the defendant was one of a group of armed men who broke into the victims' apartment and, while attempting to steal money and property, forced the victims to move from the bedrooms to the living room to the bathroom was sufficient to sustain the defendant's convictions for kidnapping. Cosby v. State, 234 Ga. App. 723, 507 S.E.2d 551 (1998).
Victim's injury satisfied the requirement that injury occur during a kidnapping, when the defendant threw the victim from the back of a moving truck and the victim was injured while holding on to the tailgate and being dragged along the ground. Reynolds v. State, 234 Ga. App. 884, 508 S.E.2d 674 (1998).
Kidnapping of spouse.
- Proof that the defendant held his wife at knife point, stabbed her with a long kitchen knife, and then dragged her from the living room to the bedroom was sufficient to authorize the jury's verdict that he was guilty, beyond a reasonable doubt, of kidnapping with bodily injury. Respres v. State, 244 Ga. App. 689, 536 S.E.2d 586 (2000).
Movement through house sufficient.
- Evidence was sufficient to show asportation of the victim and to support a conviction for kidnapping since the victim went from one room in the victim's apartment to another in response to the defendant's threatening command. Woodson v. State, 273 Ga. 557, 544 S.E.2d 431 (2001).
Evidence was sufficient to sustain defendant's convictions for armed robbery and kidnapping since defendant grabbed the store clerk by the arm at gunpoint, forced the clerk behind the check out counter, emptied the store's cash register, took money from the safe, forced the clerk into a storeroom located at the rear of the store, and then, after the clerk escaped, chased the clerk with a vehicle. Duncan v. State, 253 Ga. App. 239, 558 S.E.2d 783 (2002).
Armed robbery and kidnapping convictions were upheld, despite defendant's contention that defendant could only be found guilty of no more than a theft by taking, because defendant participated in the crime upon the codefendant's representation that the victim was among those who planned such events and was an active participant therein; however, an accomplice's testimony to the contrary, corroborated by the victim, supported the state's theory. Turner v. State, 258 Ga. App. 867, 575 S.E.2d 727 (2002).
Kidnapping of laborer working at home.
- Evidence was sufficient to support defendant's conviction for kidnapping as the testimony of a laborer who worked at the home where the offense occurred established that the laborer entered the house because defendant and another individual forced the laborer to go inside and the laborer feared for the laborer's own life because defendant and the other individual threatened to shoot the laborer if the laborer ran, even though the laborer did not actually see either the defendant, the individual, or even a gun. Singleton v. State, 259 Ga. App. 184, 577 S.E.2d 6 (2003).
Evidence was sufficient to support defendant's conviction for kidnapping since defendant attempted to choke the victim, the victim's parent found defendant holding the victim wrapped in a sheet, and the parent identified defendant as the kidnapper in a photographic lineup. Palmer v. State, 260 Ga. App. 670, 580 S.E.2d 539 (2003).
Evidence was sufficient to support defendant's convictions of two counts of armed robbery, two counts of theft by taking, three counts of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2), three counts of simple battery, three counts of kidnapping, and two counts of possessing a firearm during the commission of a crime since: (1) there was evidence that defendant entered a store, placed a knife to the neck of one of the three victims, forced that victim to the back of the store, aided another assailant who was armed with a gun to bind the victims and drag them to the back of the store, and stole money and other items from two of the victims; (2) defendant confessed to the crimes during interviews with law enforcement officials; and (3) defendant's confessions were corroborated by the testimony of one of the victims who, despite earlier being unable to identify the robbers, ultimately identified defendant as one of the robbers. The corroborating victim's initial inability to identify defendant posed an issue of credibility for the jury's resolution and did not require reversal. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).
Movement through house sufficient.
- Evidence was sufficient to support defendant's convictions of rape, kidnapping, burglary, and aggravated assault since: (1) the victim testified that the victim discovered a strange person in the victim's den who grabbed the victim as the victim tried to run away, that the person held a knife to the victim's face and told the victim that the person would kill the victim if the victim screamed, that person then forced the victim to go from room to room in the victim's home to turn out the lights, and that the person then raped the victim; (2) the victim identified defendant as the victim's attacker after hearing the defendant's voice; and (3) a DNA analyst testified that, with a probability of error of one in a trillion, DNA from defendant's blood matched the DNA found in vaginal swabs that were taken from the victim. McKinney v. State, 261 Ga. App. 218, 582 S.E.2d 463 (2003).
Evidence was sufficient to find defendant guilty of armed robbery, kidnapping, and possession of a firearm during the commission of a felony, where defendant directed victim at gunpoint to walk toward a cash machine that could be used with the cash card in the victim's wallet, and where both the victim and a bystander had opportunities to view defendant. Wade v. State, 261 Ga. App. 587, 583 S.E.2d 251 (2003).
Evidence in the form of testimony from defendant's accomplices that defendant repeatedly struck the victim in the face while asking the victim "where the money was" and choked the victim when the victim could not immediately find the money in the victim's truck after defendant took the victim to the truck because the victim told defendant that the money was there, coupled with defendant's possession of the victim's beeper, was sufficient to sustain defendant's convictions for robbery, kidnapping with bodily injury, and aggravated battery. Rutledge v. State, 263 Ga. App. 308, 587 S.E.2d 808 (2003).
When the defendant participated in a carjacking, drove the victim's car from the scene of a murder, asked the defendant's love interest to lie about the defendant's whereabouts, and lied repeatedly to the police about what happened, a jury was free to conclude that the defendant participated in an armed robbery and kidnapping as an accomplice under O.C.G.A. §§ 16-2-20(a),16-5-40(a), and16-8-41(a); thus, the trial court did not err in denying a directed verdict. Owens v. State, 263 Ga. App. 478, 588 S.E.2d 265 (2003).
Movement in vehicle sufficient for asportation.
- Evidence was sufficient to support defendant's conviction for kidnapping as the evidence showed that defendant shot the victim in the chest and then helped load the victim in another person's car, which was then driven to another location where the person was shot to death. Conaway v. State, 277 Ga. 422, 589 S.E.2d 108 (2003).
Kidnapping in domestic situations.
- Evidence was sufficient to support defendant's conviction of malice murder, felony murder, burglary, aggravated assault, kidnapping with bodily injury, and possession of a firearm during the commission of a felony where defendant: (1) planned the defendant's crimes, and was armed with a gun and handcuffs; (2) broke into the defendant's in-laws' house after severing their phone line; (3) shot and killed the defendant's father-in-law and wounded the defendant's mother-in-law while they lay in bed; (4) handcuffed the defendant's bleeding mother-in-law to the mother-in-law's nine-year-old child and left them tethered to a bed rail in a room with the dead father-in-law and defendant's two-year-old child; and (5) abducted the defendant's estranged spouse and the spouse's 17-year-old sibling to a mobile home where the defendant made them take showers while the defendant watched, and then raped them both. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).
Evidence was sufficient to support all but one of defendant's convictions for burglary, kidnapping, aggravated assault, and possession of a firearm during the commission of a crime because the testimony of the three shooting victims was entirely consistent in all material respects, and any conflicts in the witnesses' testimony raised a credibility issue for jury resolution. Squires v. State, 265 Ga. App. 673, 595 S.E.2d 547 (2004).
Kidnapping of spouse.
- Since defendant's spouse testified that after taping the spouse's wrists together, the defendant forced the spouse into the car against the spouse's will and that while driving, the defendant backhanded the spouse on the spouse's face three or four times and "hit me upside my head across my face" with the defendant's forearm, a rational trier of fact could have found beyond a reasonable doubt that defendant committed the offense of kidnapping with bodily injury. Carter v. State, 268 Ga. App. 688, 603 S.E.2d 56 (2004).
Evidence was sufficient to support burglary, aggravated assault, kidnapping, false imprisonment, and armed robbery convictions where one of the victims opened the door to the victim's home when the victim recognized one of defendant's accomplices, where defendant and another then pushed the door open and rushed inside, and where defendant grabbed the first victim, pointed a gun at the first victim's head, took money from the second victim's wallet, kept the gun pointed at both victims during the entire incident, ripped the telephone cord out of the wall, and instructed the accomplices to bind and blindfold the victims, which they did; the victims both identified defendant as the gunman from a police photo array, plus made an in-court identification at trial, and any conflict between the victims' testimony that the gunman had a tattoo on the gunman's arm and a trial demonstration revealing no tattoo on defendant's arm was a matter for the jury to resolve and did not affect the sufficiency of the identification. Kates v. State, 269 Ga. App. 8, 603 S.E.2d 342 (2004).
Evidence supported defendant's robbery by intimidation and false imprisonment convictions and codefendant's armed robbery and kidnapping with bodily injury convictions as defendant lured the victim to defendant's apartment where codefendant struck the victim in the back of the head and robbed the victim at gunpoint. Smith v. State, 269 Ga. App. 133, 603 S.E.2d 445 (2004).
When the defendant's victim identified the defendant from a photo lineup and at trial as the person who forced the victim to open the vaults in the fast-food restaurant where the victim worked, then duct-taped the victim's limbs and repeatedly struck the victim as the victim lay face down on the floor, the evidence was sufficient beyond a reasonable doubt to allow the jury to convict the defendant of kidnapping with bodily injury, armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of certain crimes. Banks v. State, 269 Ga. App. 653, 605 S.E.2d 47 (2004).
Evidence sufficient for kidnapping of child.
- Sufficient evidence, including testimony from the child victim identifying defendant's vehicle, evidence of defendant's DNA matching that of the victim and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant's kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004).
Defendant's multiple convictions for armed robbery, aggravated assault, kidnapping, possessing a firearm during the commission of a felony, burglary, and kidnapping with bodily injury, were supported by sufficient evidence because the defendant and another robbed a store while holding the two owners at gunpoint, defendant led police on a high-speed car chase, and the defendant broke into and robbed two homes, one of which had an occupant that defendant beat; only one store owner's testimony was needed to establish the facts to support the aggravated assault conviction. Owens v. State, 271 Ga. App. 365, 609 S.E.2d 670 (2005).
Kidnapping in domestic situations.
- Sufficient evidence supported the defendant's convictions of armed robbery, burglary, possession of a firearm during the commission of a crime, and three counts of kidnapping arising from an incident in which the defendant and a companion robbed the defendant's victim at gunpoint, then forced the victim and the victim's children into their house and tied the victim up with duct tape; the victim identified the defendant from a photo line-up, the defendant's fingerprints were found at the scene, a store video showed the defendant buying the duct tape which was used, and the store manager identified the defendant as the buyer of the duct tape. Brownlee v. State, 271 Ga. App. 475, 610 S.E.2d 118 (2005).
Evidence was sufficient to allow a rational finder of fact to convict defendant of kidnapping, three counts of armed robbery, and two firearms offenses beyond a reasonable doubt because defendant committed the crimes at a restaurant where defendant was a regular customer, so the victims were able to identify defendant to police, a neutral witness saw defendant hurrying away from the direction of the restaurant right after the time of the robbery, and, when defendant was arrested, new clothes and receipts dated after the robbery were discovered. Strahan v. State, 273 Ga. App. 116, 614 S.E.2d 227 (2005).
Kidnapping during armed robbery.
- Evidence supported defendant's conviction for armed robbery, kidnapping, and aggravated assault as, notwithstanding the absence of an in-court identification of defendant and the state's failure to present fingerprint evidence, a victim's testimony concerning the victim's on-the-scene identification supported the finding that defendant perpetrated the crimes; there was also sufficient evidence that the cash seized from defendant's love interest's house had been put there by defendant. Oliver v. State, 273 Ga. App. 754, 615 S.E.2d 846 (2005).
Kidnapping during armed robbery.
- Evidence, including a gun and penny wrappers and a green coin basket found in defendant's bedroom, was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of armed robbery and kidnapping after a restaurant was robbed; the basket matched a basket used by the restaurant and the pennies had been exchanged at the same bank that supplied the restaurant. Brown v. State, 275 Ga. App. 66, 619 S.E.2d 759 (2005).
Kidnapping in domestic situations.
- Defendant's convictions for aggravated assault, aggravated battery, kidnapping with bodily injury, and possession of a knife during the commission of a felony, in violation of O.C.G.A. §§ 16-5-21(a)(2),16-5-24,16-5-40, and16-11-106, respectively, were supported by the evidence, as defendant was engaged in a domestic dispute with defendant's spouse and child, wherein defendant argued, threatened to kill them, and locked them in a bathroom, punched and hit the spouse, and stabbed them each multiple times with a decorative sword that defendant removed from the wall; there was sufficient evidence to show that defendant did not stab them in the midst of a struggle over possession of the sword, but instead, that defendant intended to stab or cut them. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789 (2005).
Kidnapping during armed robbery.
- Defendant's convictions for armed robbery, kidnapping, and kidnapping with bodily injury, in violation of O.C.G.A. §§ 16-8-41 and16-5-40, respectively, were supported by sufficient evidence, as defendant robbed a restaurant manager at gunpoint, forced the manager and others into the restaurant freezer, and defendant caused injury and made threats to the victims; defendant's claim that defendant was forced against defendant's will to participate in the crime, which was also committed by three codefendants, was not found credible, and several victims testified that defendant not only held a gun, but that defendant also threatened them with bodily harm if they did not cooperate. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483 (2005).
Because the weight to be given eyewitness testimony about the victim's fear, resistance, and attempts to escape was for the jury to decide, the evidence was sufficient to find defendant guilty of kidnapping. Carter v. State, 275 Ga. App. 483, 621 S.E.2d 503 (2005).
Trial court's denial of defendant's motion for acquittal, pursuant to O.C.G.A. § 17-9-1, was proper, as there was sufficient evidence to support defendant's convictions for kidnapping, rape, and robbery by intimidation, in violation of O.C.G.A. §§ 16-5-40,16-6-1, and16-8-41, respectively, because the victim positively identified defendant upon the arrest and at trial, there was similar transaction evidence from another victim who was approached and threatened in the same manner, and there was also corroborative physical evidence; defendant threatened the victim, who was at a bus stop, with a gun, robbed the victim, forced the victim to a storage area in a garage, and raped the victim. Sims v. State, 275 Ga. App. 836, 621 S.E.2d 869 (2005).
Kidnapping in domestic situations.
- Evidence regarding defendant's forcing the defendant's love interest down a street and stabbing the defendant's love interest, sustained the convictions for kidnapping with bodily injury. Smith v. State, 276 Ga. App. 41, 622 S.E.2d 413 (2005).
Evidence was sufficient to support defendant's conviction for malice murder, felony murder during the commission of a kidnapping, and kidnapping because defendant refused to turn the car around or to stop and let the victim exit the car; after the victim grabbed the steering wheel and fled the car, defendant shot the victim, fatally. Pruitt v. State, 279 Ga. 140, 611 S.E.2d 47, cert. denied, 546 U.S. 866, 126 S. Ct. 165, 163 L. Ed. 2d 152 (2005).
Evidence that defendant took money from the one man, beat the man while doing so, that defendant was armed at the time, that defendant had the victim removed from defendant's house by the codefendants so that the one victim could be murdered elsewhere, and that the second victim was removed from defendant's house by another codefendant, all after the one victim and the second victim were suspected of plotting to rob defendant, who was selling illegal drugs from defendant's home, was sufficient to support defendant's convictions for malice murder, kidnapping, armed robbery, and being in possession of a firearm during the commission of a felony. Mason v. State, 279 Ga. 636, 619 S.E.2d 621 (2005).
Kidnapping during armed robbery.
- Sufficient evidence supported convictions for aggravated assault, kidnapping, armed robbery, and possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106, even though none of the victims could identify the defendant as the gunman in the robbery due to the fact that the defendant wore a mask, because defendant was found shortly after the robbery with cash, weapons, a ski mask, a car and clothing matching the victims' description; surveillance videotape of the robbery was shown to the jury to determine whether defendant was the person on the videotape. Johnson v. State, 277 Ga. App. 41, 625 S.E.2d 411 (2005).
Kidnapping during drug deal.
- Convictions for kidnapping, aggravated assault, and malice murder, in violation of O.C.G.A. §§ 16-5-40,16-5-21, and16-5-1, respectively, were supported by sufficient evidence when defendant got into a dispute with the victim over a drug deal, defendant and the codefendants kidnapped the victim, drove the victim to a remote area, and shot the victim several times. Morris v. State, 280 Ga. 179, 626 S.E.2d 123 (2006).
Despite the victim's recantation of the events that occurred leading up to the rape, kidnapping, and aggravated assault committed by defendant, the evidence presented of the victim's statements and the testimony of the other state witnesses and medical personnel as to the extent of the victim's injuries, was sufficient to support the convictions. Hambrick v. State, 278 Ga. App. 768, 629 S.E.2d 442 (2006).
Victim's testimony that the victim did not voluntarily walk to the bathroom where the victim was found, after defendant attacked the victim, and evidence that there was blood spattered in a hallway and on the bathroom cabinet and walls, that the victim's body was found wedged between a bathtub and toilet with ceramic pieces from the toilet base embedded in the victim's scalp and an electrical cord tied around the victim's neck, allowed a jury to find that the defendant forced the victim, who may have been unconscious, into the bathroom, pushed the victim's head into the toilet base and choked the victim with an electrical cord, and this was sufficient to convict defendant of kidnapping with bodily injury, under O.C.G.A. § 16-5-40(a) and (b). Nelson v. State, 278 Ga. App. 548, 629 S.E.2d 410 (2006).
Kidnapping in a train boxcar.
- Testimony of a single witness was sufficient to establish a fact under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and defendant's convictions for kidnapping, burglary, aggravated sodomy, rape, and false imprisonment were supported by sufficient evidence where the victim testified that defendant forced the victim into a train boxcar, threatened to kill the victim, and had vaginal and oral sex with the victim against the victim's will and without the victim's consent; there was also circumstantial evidence showing the victim's lack of consent, including the victim's fleeing from the boxcar while naked, the victim's outcry to a train engineer that the victim had been raped, and the victim's injuries. Davis v. State, 278 Ga. App. 628, 629 S.E.2d 537 (2006).
Conviction of kidnapping, O.C.G.A. § 16-5-40, was supported by sufficient evidence, including testimony from the victim that the defendant forced the victim into the defendant's car at gunpoint, then drove the victim to various locations, sexually assaulted the victim, knocked the victim unconscious, grabbed the victim by the neck when the victim tried to leave the defendant's presence, strangled the victim to the point that the victim passed out, and put the victim in the trunk of the defendant's car. Moody v. State, 279 Ga. App. 440, 631 S.E.2d 485 (2006).
Movement in vehicle sufficient for asportation.
- Convictions for kidnapping and aggravated assault were supported by sufficient evidence, including testimony from the victim that, when the victim stopped the victim's car at a stop sign, the defendant jumped in the car, held a knife to the victim's throat and demanded money, that, as the victim drove, the defendant held the knife on the victim and continued to demand money, that, when the victim spotted a police station, the victim sped into its parking lot, at which point, the defendant fled on foot. Adcock v. State, 279 Ga. App. 473, 631 S.E.2d 494 (2006).
Asportation into camper.
- In a case in which the victim was allegedly bound and beaten by the defendant and thrown into a camper, which the defendant towed to a motel, the victim's testimony was sufficient to support a conviction for kidnapping with bodily injury under O.C.G.A. § 16-5-40, as the testimony of a single witness was all that was necessary under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). Johnson v. State, 281 Ga. App. 7, 635 S.E.2d 278 (2006).
Convictions for kidnapping, aggravated sexual battery, sexual battery, and attempted rape were all upheld on appeal, as a photo lineup was not impermissibly suggestive, similar transaction evidence was properly admitted, the defendant had notice of the evidence, and the jury was authorized to find the victim credible and to accept the victim's testimony; hence, a rational trier of fact could have found from the evidence presented that the defendant committed the charged crimes beyond a reasonable doubt. Watley v. State, 281 Ga. App. 244, 635 S.E.2d 857 (2006).
Refusal to let victims go amounted to kidnapping.
- Because sufficient evidence showed that the defendant, by posing as a police officer and driving the victims to remote locations, used fear and intimidation to ensure that the victims would cooperate and agree to have sex, the defendant was not entitled to an acquittal as to the charges of impersonating an officer, aggravated sodomy, attempted aggravated sodomy, aggravated assault and rape; furthermore, though both victims willingly got into the defendant's car, after the victims pleaded to be let go and the defendant refused to grant those pleas, that act amounted to a kidnapping. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).
Based on the evidence provided by a codefendant that: (1) the defendant and others severely beat the victim over a drug debt; (2) the victim wanted a ride back to a bar, but the codefendants would not allow it; (3) the defendant's former love interest testified that the defendant admitted to killing the victim; and (4) the state introduced similar transaction evidence that the defendant stood by while a codefendant savagely beat another person, the defendant's kidnapping conviction was upheld on appeal and the jury was authorized to find that the victim was involuntarily held, and that the defendant was a party to that crime. Reagan v. State, 281 Ga. App. 708, 637 S.E.2d 113 (2006).
Dragging victim a few feet sufficient for asportation.
- Evidence was sufficient to support a defendant's conviction for kidnapping as the asportation element was shown by evidence that the defendant dragged the victim toward an open window, outside of which the defendant's truck waited with an open passenger door; evidence the defendant dragged the victim a few feet was sufficient to support the kidnapping with bodily injury conviction. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Evidence sufficient for kidnapping of child.
- Sufficient evidence supported the defendant's convictions of enticing a child for indecent purposes under O.C.G.A. § 16-6-5(a) and kidnapping under O.C.G.A. § 16-5-40(a); the victim testified that the defendant carried the victim into the defendant's bedroom and would not allow the victim to leave until the defendant had finished abusing the victim. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Evidence was sufficient to sustain a defendant's convictions for a total of 20 counts of armed robbery, possessing a firearm during the commission of a crime, terroristic threats and acts, kidnapping, and aggravated assault arising out of four separate robberies because the victims' testimony, the physical evidence, and one victim's identification of the defendant as the robber provided sufficient corroboration of the testimony of the defendant's accomplice. Metoyer v. State, 282 Ga. App. 810, 640 S.E.2d 345 (2006).
Kidnapping during armed robbery.
- Pictures of a defendant withdrawing money from a victim's ATM account and evidence that the defendant repeatedly asked the victim for the PIN number for the victim's ATM card, held a knife to the victim's neck, cut the cord used to tie the victim, and had cash, an ATM receipt, and the victim's car keys when the defendant was arrested were sufficient to support the defendant's convictions for armed robbery, two counts of aggravated assault, kidnapping with bodily injury, and two counts of possessing a knife during the commission of a crime. Wright v. State, 282 Ga. App. 649, 639 S.E.2d 581 (2006).
Testimony of victim alone sufficient for kidnapping conviction.
- Defendant's claim on appeal that convictions for aggravated assault and kidnapping had to be reversed because the victim's testimony was unworthy of belief lacked merit, as it was the role of the fact finder, not the appellate court, to determine whether a witness was credible; moreover, the testimony of the victim alone was sufficient to support a finding of guilt. Bragg v. State, 285 Ga. App. 408, 646 S.E.2d 508 (2007).
There was sufficient evidence to support a kidnapping conviction since having the victim sit in a chair so that the defendant could tape the victim's hands, then moving the victim to a mattress so that the defendant could tape the victim's feet, sufficed to show asportation; further, testimony that the victim had a red mark on a cheek, puffiness and redness around the eyes and ears, and red marks where the victim had been bound, sufficed to show physical injury during the kidnapping. Phillips v. State, 284 Ga. App. 683, 644 S.E.2d 535 (2007).
Evidence supported the defendant's convictions of malice murder, two counts of felony murder, kidnapping with bodily injury, two counts of armed robbery, and aggravated battery since: the defendant had been seen fleeing the victim's home in a car registered to the defendant; the defendant told the defendant's spouse to discard the defendant's bloody clothing; the defendant sought treatment at a hospital after being shot during the crimes; and the defendant had initiated conversations in which the defendant described the actions of the defendant's companions in discarding guns used in the crimes and offered to reveal the names of the companions in exchange for not being charged with murder. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007).
Kidnapping in domestic situations.
- There was sufficient evidence to support the defendant's convictions of child molestation, kidnapping with bodily injury, kidnapping, and aggravated assault, when the defendant, who lived with an ex-girlfriend and her teenage daughter, called them into a bedroom and bound the ex-girlfriend's arms, legs, and mouth with duct tape, threatened the women with a hatchet, and led the daughter to another bedroom where the defendant duct-taped her hands and feet and forced her to have intercourse with him. Phillips v. State, 284 Ga. App. 683, 644 S.E.2d 535 (2007).
Refusal to let victims go amounted to kidnapping.- Evidence supported a kidnapping conviction when, although the victim got into a car with the defendant willingly, the defendant then held a gun to the victim's face and forced the victim to drive with the defendant to a remote area, shot the victim in the toe after the victim jumped out of the moving car, dragged the victim back into the car, and forced the victim at gunpoint to return to and stay in the defendant's home.
Because sufficient evidence was presented consisting of the victim's identification of the defendant as the perpetrator of a burglary, who threatened the victim with a sharp, knife-like letter opener, forcing the victim into a closet, and stealing the victim's camera upon fleeing, sufficient evidence supported the defendant's burglary, armed robbery, aggravated assault, and kidnapping convictions. Bryant v. State, 286 Ga. App. 493, 649 S.E.2d 597 (2007).
Kidnapping of a child.
- In a case where a 12-year-old victim testified that the victim was watching television in the den when the victim heard a loud noise in the garage and went to investigate, and the perpetrators subsequently moved the victim into the living room where the victim was kept under guard while the house was ransacked and the victim's mother was sexually molested, sufficient evidence existed to support the jury's conclusion that the defendant was guilty of kidnapping; only the slightest movement of the victim was required to constitute the necessary element of asportation. Allen v. State, 286 Ga. App. 82, 648 S.E.2d 677 (2007).
Movement throughout house sufficient.
- Legally sufficient evidence existed to convict the defendant of kidnapping under O.C.G.A. § 16-5-40 because the movement of the victim, who was handcuffed in a bathroom of the apartment the victim shared with the defendant, from the bathroom to the closet, although slight, met the requirement of the element of asportation. Austin v. State, 286 Ga. App. 149, 648 S.E.2d 414, cert. denied, No. SO7C1698, 2007 Ga. LEXIS 687 (Ga. 2007).
Carrying victim out of restaurant sufficient for kidnapping.
- Because the eyewitness testimony showed that the defendant pushed, pulled, and then carried the victim out of a restaurant as the victim yelled for a co-worker to call the police, and which was direct, not circumstantial, evidence that the victim did not go with the defendant willingly, sufficient evidence supported the defendant's kidnapping conviction. Holden v. State, 287 Ga. App. 472, 651 S.E.2d 552 (2007), cert. denied, No. S08C0189, 2008 Ga. LEXIS 153 (Ga. 2008).
Failure of victim to take advantage of escape opportunties.
- There was no merit to the defendant's argument that the evidence did not support a kidnapping conviction because the victim had failed to take advantage of several escape opportunities; the victim had testified that the victim did not try to escape before convincing the defendant to go to a fast-food restaurant because the victim feared that if the victim tried to escape in a deserted area, the defendant would catch the victim and beat the victim to death, and furthermore the jury could determine that once the defendant refused the victim's offer of the victim's money in exchange for the defendant's agreement to let the victim go, the crime of kidnapping had been completed. Smith v. State, 287 Ga. App. 222, 651 S.E.2d 133 (2007).
Inducing parents to release children to defendant.
- Defendant persuaded victims' parents that defendant was going to get defendant's own children from school and then take all of the children, including the victims, back to defendant's house to play, but instead defendant took the victims to defendant's house, while no one else was there and tied them up; thus, defendant's actions in deceiving the parents to give their permission and in inducing the children to go with defendant constituted an abduction within the meaning of O.C.G.A. § 16-5-40(a). Ayers v. State, 286 Ga. App. 898, 650 S.E.2d 370 (2007), cert. denied, 2008 Ga. LEXIS 117 (Ga. 2008).
Evidence was sufficient to support the defendant's convictions as a party to malice murder, felony murder, kidnapping with bodily injury, false imprisonment, and aggravated assault since: the victim, who claimed to have been robbed of money the defendant and a codefendant gave the victim for drugs, had been made to drive around while a codefendant pointed a gun at the victim; the victim was later taken to an apartment where the victim was threatened and pistol-whipped; the victim was taken out of the apartment, forced into some woods, and fatally shot; and following the killing, the defendant and a codefendant moved the victim's car from the apartment complex to a parking lot where the defendant and others had met the victim earlier that evening. John v. State, 282 Ga. 792, 653 S.E.2d 435 (2007).
Evidence including the victim's testimony of being dragged out of the victim's car into a house and tied up before the victim escaped bonds and broke a window, photographs of the victim's injuries, a broken window, bullets found in defendant's car, and items identified by the victim as being used by the robbers, supported a kidnapping conviction; credibility of witnesses was a question for the jury and the fact that the defendant was acquitted of related charges did not require reversal as that verdict might reflect a compromise or lenity rather than inconsistent factual conclusions. Rogers v. State, 291 Ga. App. 202, 661 S.E.2d 615 (2008).
Kidnapping during armed robbery.
- There was sufficient evidence to support a defendant's convictions of malice murder, armed robbery, kidnapping, third-degree arson, burglary, and possession of a firearm during the commission of a crime when the evidence showed that the defendant made the defendant's accomplice shoot a convenience store clerk after the defendant forced the clerk at gunpoint into a wooded area, took money from a cash register in the store, and started a fire in the store. The accomplice's testimony was sufficiently corroborated by the defendant's admission that the defendant owned the shotgun that was used in the shooting, the defendant's admission that the defendant gave the shotgun to the accomplice, the testimony of a third person that the accomplice gave the third person the shotgun after the robbery, and the fact that shotgun shells found in the defendant's home matched shells taken from the clerk's body. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007).
Evidence was sufficient to support the defendant's convictions of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and kidnapping under O.C.G.A. §§ 16-8-41,16-5-21,16-5-40, and16-11-106 as: (1) a robber ordered two store employees at gunpoint to give the robber money, then ordered the employees to go into a back room; (2) the employees described the robber and the robber's vehicle in detail; (3) the employees positively identified the defendant as the robber 15 to 20 minutes after the crime following a pursuit during which the defendant fled from police first in the defendant's vehicle, then on foot; and (4) the defendant had $281 in a pocket at the time of arrest. Lenon v. State, 290 Ga. App. 626, 660 S.E.2d 16 (2008).
In defendant's convictions for armed robbery, kidnapping, and aggravated assault in connection with robbery of a fast food restaurant, sufficient evidence existed to support defendant's convictions based on a restaurant employee identifying defendant as one of two perpetrators who confronted that employee and manager at gunpoint and threatened to shoot if the victims did not comply with defendant's demand for money; also, evidence showed that defendant forced the manager out of the manager's car at gunpoint, ordered the manager back across the parking lot and into the restaurant, and stole over $300 from the restaurant's safe as well as a cellular phone before fleeing. Holsey v. State, 291 Ga. App. 216, 661 S.E.2d 621 (2008).
Movement throughout home of 86 year old victim.
- Evidence supported the defendant's convictions of burglary, kidnapping with bodily injury, rape, aggravated assault, robbery, and theft by taking when a treating physician stated that the 86-year-old victim's injuries, including blood inside her vagina and bruises and contusions on her vagina, were consistent with forcible penetration; when the defendant admitted entering the victim's home, removing her clothing, restraining her with electrical cords, hitting her, putting a plastic bag over her head, forcing her from one room to another, and taking her money and her car; and when DNA from the defendant matched the DNA of two hair roots found on the victim's living room floor. Smith v. State, 291 Ga. App. 545, 662 S.E.2d 323 (2008).
Kidnapping of wheelchair bound victim during armed robbery.
- Brandishing a gun, a masked individual moved a wheelchair-bound restaurant manager to a hidden safe and ordered the manager to open the safe. The manager's identification of the perpetrator as the defendant, a former employee, from the defendant's distinctive voice, and the perpetrator's knowledge of the safe's location, authorized the jury to find defendant guilty of kidnapping by moving the victim's wheelchair towards the safe. Johnson v. State, 293 Ga. App. 728, 667 S.E.2d 637 (2008).
Kidnapping of a child.
- Evidence was sufficient to support a kidnapping conviction when the defendant shot the defendant's child's mother and then took the child from the home where the child lived with the mother. Because there was evidence that the child was born out of wedlock and was not legitimated, the defendant had no right to lawful custody of the child and thus had no authority to take the child; furthermore, the facts and circumstances of the bloody and violent incident, parts of which took place in the child's bedroom, supported the inference that the child was taken from the home against the child's will. Allen v. State, 284 Ga. 310, 667 S.E.2d 54 (2008).
Dragging victim by hair sufficient.
- Evidence was sufficient to support a kidnapping conviction when there was evidence that the defendant grabbed the victim by the hair and dragged the victim into or toward some woods against the victim's will. Eller v. State, 294 Ga. App. 77, 668 S.E.2d 755 (2008).
There was sufficient evidence to uphold a defendant's convictions for aggravated sodomy and kidnapping based on the testimony of the victim; who identified the defendant as the attacker who forced the victim into a vehicle by threat of a knife; there was evidence of various injuries on the victim consistent with the victim's description of the attack; the defendant admitted to having sexual intercourse with the victim but asserted that the intercourse was consensual; and forensic biologists testified as state expert witnesses that the swab of the victim's rectal cavity contained sperm and that DNA found on that swab matched DNA from the defendant's blood sample. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008).
Movement in vehicle sufficient for asportation.
- Victim's uncorroborated testimony that the defendant entered the victim's home by removing the back door from its hinges, ordered the victim at gunpoint to get in the defendant's truck, and did not bring the victim back home for hours was sufficient to convict the defendant of burglary and kidnapping. Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009).
Evidence that a defendant moved the victim from the victim's vehicle to a house and then from the house to the garage against the victim's will was sufficient evidence to support the defendant's conviction for kidnapping. Likewise, the victim's testimony that the defendant took the victim into the house and tied the victim's hands against the victim's will was sufficient evidence to support the defendant's conviction for false imprisonment. Cornette v. State, 295 Ga. App. 877, 673 S.E.2d 531 (2009).
Falsely inducing victim into movement.
- Evidence that a defendant falsely induced the victim to get into the defendant's car and to go to the defendant's home where, instead of fixing a promised meal, the defendant attempted to rape the victim, satisfied the asportation element of a kidnapping charge and was sufficient to support the defendant's conviction on the kidnapping charge beyond a reasonable doubt. Manning v. State, 296 Ga. App. 376, 674 S.E.2d 408 (2009).
Evidence supported the defendant's conviction for kidnapping even if the defendant initially abducted the victim in order to facilitate robbing the victim since the evidence would support a finding that the defendant held the victim for a significant period after the initial assault and robbery were completed. Not only did the victim's detention in a car make it easier for the defendant to commit the assault and robbery, it also placed the victim at risk of physical harm from the driver's intoxicated state. Epps v. State, 297 Ga. App. 66, 676 S.E.2d 791 (2009).
Kidnapping during armed robbery.
- Evidence supported the defendant's convictions of armed robbery, kidnapping, possession of a firearm during the commission of a crime, and financial transaction card fraud. Shortly after a man called the store where the victim worked to see if the store was open, a masked man with a gun came into the store, ordered the victim to the back, and then robbed the store and took the victim's credit cards; soon afterward that same morning, the defendant bought sneakers with the victim's credit card; the clerk who sold the defendant the sneakers identified the defendant at trial and in a photographic lineup and testified that the clerk knew the defendant because the defendant was a regular customer; and the defendant's cell phone records showed that just before the robbery, the defendant called the victim's store and blocked the defendant's number. Anderson v. State, 297 Ga. App. 733, 678 S.E.2d 498 (2009), aff'd, 287 Ga. 159, 695 S.E.2d 26 (Ga. 2010).
Following evidence was sufficient to convict the defendant of kidnapping with bodily injury, aggravated sodomy, rape, and robbery by intimidation: 1) the victim's testimony of being repeatedly raped by the defendant at knife point, forced to perform oral sex, beaten, robbed, and threatened with death; 2) a nurse's testimony that the victim was crying, rocking back and forth, and had bruised cheeks; and 3) evidence that the defendant's DNA matched sperm cell DNA found on the victim's body. Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009).
Sufficient evidence supported the defendant's convictions of armed robbery, O.C.G.A. § 16-8-41(a), rape, O.C.G.A. § 16-6-1(a)(1), aggravated assault, O.C.G.A. § 16-5-21(a)(2), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), kidnapping, O.C.G.A. § 16-5-40(a), and aggravated sodomy, O.C.G.A. § 16-6-2(a)(2) involving four different victims on three separate dates; both the husband and the wife, the victims in the first criminal incident, identified the defendant in court as the perpetrator of the crimes. Two separate DNA analyses testified to by two forensic biologists showed that the defendant's sperm was present in the vaginas of the other two female victims. Robins v. State, 298 Ga. App. 70, 679 S.E.2d 92 (2009).
Helping in loading victim into truck sufficient for conviction.
- Defendant's conviction for kidnapping with injury under O.C.G.A. § 16-5-40(b)(4) was supported by evidence that the defendant helped the codefendant load up the victim into the back of the codefendant's pickup truck so that the victim could be driven to a different location and that the victim suffered many injuries during the kidnapping. Wilkinson v. State, 298 Ga. App. 190, 679 S.E.2d 766 (2009).
Because defendant moved the victim from a closet to the dining room and then took the victim in a car after assaulting the victim, either scenario argued by the state supported a kidnapping conviction under O.C.G.A. § 16-5-40. Horne v. State, 298 Ga. App. 601, 680 S.E.2d 616 (2009), cert. denied, No. S09C1835, 2010 Ga. LEXIS 46 (Ga. 2010).
Kidnapping during armed robbery.
- Evidence was sufficient to convict the defendant of armed robbery and kidnapping as a store clerk testified that the defendant, brandishing a knife, ordered the clerk to open the cash register; that the defendant took money from the register; that the defendant forced the clerk into a bathroom, blocked the door with boxes, and fled. Further, both the clerk and a customer identified the defendant from a photo lineup and at trial. Hill v. State, 298 Ga. App. 677, 680 S.E.2d 702 (2009).
As witnesses made in-court identifications of the defendant, and the codefendant's statements to police placed the defendant at the scene of the kidnapping of the victim in Georgia and the shooting of the victim in South Carolina, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of kidnapping with bodily injury. Hunsberger v. State, 299 Ga. App. 593, 683 S.E.2d 150 (2009).
Defendant's convictions for kidnapping, hijacking a motor vehicle, armed robbery, possession of a firearm during the commission of a felony, carrying a concealed weapon, and possession of a weapon on school property were authorized because pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the victim's testimony alone established the essential elements of the offenses. Lester v. State, 309 Ga. App. 1, 710 S.E.2d 161 (2011).
Asportation into bathroom stall.
- When the victim and the victim's two-year-old granddaughter were washing their hands in a department store ladies' restroom when the defendant stormed out of one of the stalls with a stun gun, which the defendant fired into the victim's neck and demanded that the victim join the defendant in the stall and where a violent struggle ensued, with the victim trying to exit the restroom with the victim's granddaughter while the defendant fought with the victim and cut the victim with a knife in trying to prevent the victim from leaving, the evidence was sufficient to establish the asportation element of kidnapping under O.C.G.A. § 16-5-40(a) because the defendant moved the victim in trying to force the victim into the bathroom stall and away from the bathroom exit; the movement enhanced the defendant's control over both victims by substantially isolating the victims from the protection of rescuers who were trying to reach the victims on the other side of the door. However, the trial court erred in failing to instruct the jury on the lesser-included offense of false imprisonment under O.C.G.A. § 16-5-41(a) because the elements of the two crimes were the same except that kidnapping also required the element of asportation, and the jury could have found that element lacking. Hall v. State, 308 Ga. App. 858, 709 S.E.2d 348 (2011).
Co-conspirator sufficiently corroborated testimony.
- Trial court did not err in denying the defendant's motion for a directed verdict of acquittal because the state presented sufficient evidence to corroborate a coconspirator's testimony under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) and for the jury to find beyond a reasonable doubt that the defendant committed armed robbery, O.C.G.A. § 16-8-41(a), hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), and kidnapping, O.C.G.A. § 16-5-40(a); the state presented the testimony of numerous witnesses and other evidence that sufficiently corroborated the co-conspirator's testimony about the defendant's participation in the crimes. Walker v. State, 310 Ga. App. 223, 713 S.E.2d 413 (2011).
Movement through the house sufficient.
- When the second victim was moved from the front door, through the house, and into the bedroom the element of asportation was established; the movement enhanced the defendant's control over the second victim and isolated the second victim from protection or potential rescue. Goolsby v. State, 311 Ga. App. 650, 718 S.E.2d 9 (2011).
Movement into bathroom.
- Evidence fully supported the defendant's kidnapping convictions because the defendant forced the victims into a bathroom after the defendant had robbed two other victims, and the movement was not an integral part of the armed robbery offenses; herding the victims into the small and confined bathroom made it easier for the defendant to control the victims, thus making the situation more dangerous for the victims. Thomas v. State, 289 Ga. 877, 717 S.E.2d 187 (2011).
Asportation of delivery truck driver.
- Because the driver of a delivery truck was forced at gunpoint by defendant's accomplice to drive a substantial distance to a secluded dirt road, and because the defendant followed the truck in another vehicle, pursuant to O.C.G.A. §§ 16-2-20 and16-5-40, the evidence was sufficient to convict the defendant of kidnapping and possession of a firearm during the commission of a felony. Sipplen v. State, 312 Ga. App. 342, 718 S.E.2d 571 (2011).
Misleading victim into movement.
- Sufficient evidence supported the defendant's conviction for kidnapping because, even if the victim's entry into the defendant's truck was voluntary, the defendant did so under the mistaken belief that the defendant would take the victim to the hospital, and the victim attempted to escape further attack after the defendant stopped on the side of the road; at that point, the defendant caught the victim, again stabbed the victim numerous times, and dragged the victim by the legs into a ditch, effectively concealing the victim from passing traffic, when the victim was unable to move or otherwise resist. Calloway v. State, 313 Ga. App. 708, 722 S.E.2d 422 (2012).
Movement through the house sufficient.
- As to three victims, the evidence was sufficient to support the kidnapping counts because the victims were removed from bedrooms and taken to the living room where the victims were restrained. The movement of those victims was not an inherent part of the burglary, armed robbery, or firearm offenses as it was not necessary to effect the completion of those crimes. Holder v. State, 319 Ga. App. 239, 736 S.E.2d 449 (2012).
Evidence which included DNA evidence, the victim's testimony regarding the nature of the attack and description of the attacker, and the store surveillance video of an individual who wore clothing similar to that worn by the attacker and who appeared to be the same race as the attacker, supported the defendant's convictions for rape, kidnapping, armed robbery, theft by taking, and three counts of possession of a gun during the commission of a crime. Glaze v. State, 317 Ga. App. 679, 732 S.E.2d 771 (2012).
Testimony of the female victim and the accomplice that the defendant held a pistol on both victims and demanded and took cash from the male victim, along with the DNA evidence on the floor at the scene of the rape, was sufficient for the jury to find that the defendant was guilty of kidnapping with bodily injury (by rape) and rape against a female victim and kidnapping and armed robbery against a male victim. Brinkley v. State, 320 Ga. App. 275, 739 S.E.2d 703 (2013).
Asportation sufficient.
- Defendant's movement of the victim was not merely incident to any other offense and was sufficient to establish asportation as the movement of the victim took place after the defendant grabbed the victim and lifted the victim and moved the victim from the victim's aunt's backyard and down the alley, passing at least three houses. Thomas v. State, 320 Ga. App. 101, 739 S.E.2d 417 (2013).
Evidence that the defendant forced the cab driver at gunpoint to move from an open parking lot, where they might have been observed by passerby or other apartment residents, and into an apartment was sufficient to prove the asportation element of kidnapping, as the movement was not an inherent part of the armed robbery and lessened the risk that the robbery would be detected. Thomas v. State, 355 Ga. App. 111, 843 S.E.2d 1 (2020).
Pulling victim into vehicle sufficient for asportation.
- Evidence that the defendant choked and punched the victim in the victim's car, and then pulled the victim back into the car by the shirt and hair after the victim attempted to flee was sufficient to support the conviction for kidnapping with bodily injury. Hairston v. State, 322 Ga. App. 572, 745 S.E.2d 798 (2013).
Movement in vehicle sufficient for asportation.
- Evidence was sufficient to convict the defendant of kidnapping because there was testimony that the defendant grabbed the victim's arm when the victim tried to walk away from the defendant's car, pulled the victim back in the car, and then drove the victim to the defendant's apartment; and that the victim was afraid, confused, and had difficulty walking and speaking. Mayes v. State, 336 Ga. App. 55, 783 S.E.2d 659 (2016).
Movement of victims during restaurant robbery.
- Evidence that the first defendant moved two victim's from other areas to the front of the restaurant at gunpoint and ordered the victims to lie on the floor was sufficient to support the kidnapping offenses. Ray v. State, 338 Ga. App. 822, 792 S.E.2d 421 (2016).
Movement in vehicle sufficient for asportation.
- Sufficient evidence supported the defendant's convictions for aggravated assault, one count of kidnapping with bodily injury, and one count of rape based on the testimony of the two female victims that the defendant offered to drive the victims home, but then took the victims to a remote location and ordered the women to undress while the defendant brandished a knife and, after one victim escaped, the defendant drove to another remote location and forced the other woman to engage in sexual intercourse. Howard v. State, 340 Ga. App. 133, 796 S.E.2d 757 (2017).
Evidence that the defendant forced the victim at gunpoint to drive to a secluded location was sufficient to establish the offense of kidnapping and the evidence that the defendant struck the victim in the head, causing a laceration, skull fracture, and cranial bleeding, was sufficient to establish the bodily-injury element of the offense. Lundy v. State, 341 Ga. App. 767, 801 S.E.2d 629 (2017).
Movement throughout house sufficient.
- Evidence that the victim was moved away from the door and throughout the apartment during the robbery, reducing the likelihood that the acts of the defendant and others would be detected was sufficient to support the conviction for kidnapping. Taylor v. State, 344 Ga. App. 122, 809 S.E.2d 76 (2017).
Evidence that the victim was moved from the living room to the bedroom during the burglary after a struggle supported the conviction for kidnapping. Dupree v. State, 303 Ga. 885, 815 S.E.2d 899 (2018).
Evidence sufficient to support juvenile's delinquency adjudication.
- Pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), defendant juvenile's statements to the police corroborated an accomplice's testimony that the juvenile struck a woman unconscious, caused her serious bodily injury, used force to steal her pocketbook, and dragged her down onto her front yard; accordingly, the evidence was sufficient to adjudicate the juvenile delinquent under O.C.G.A. §§ 16-5-21(a)(2),16-5-40(a), and16-8-40(a)(1). In re D. T., 294 Ga. App. 486, 669 S.E.2d 471 (2008).
Evidence insufficient to support conviction.
- See Gibson v. State, 233 Ga. App. 838, 505 S.E.2d 63 (1998).
Evidence was insufficient to support one of defendant's kidnapping convictions as there was no evidence that the younger sibling was moved against the sibling's will and, thus, the state failed to prove the asportation element of kidnapping; the only evidence was the sibling's testimony that the sibling "somehow" got into the house and, when asked why the sibling was in the kitchen, the sibling testified that it was a natural reaction because the other sibling was being choked in there. Squires v. State, 265 Ga. App. 673, 595 S.E.2d 547 (2004).
Because no eyewitnesses saw a third defendant participate in an armed robbery, a kidnapping, an aggravated assault, or possess a firearm during the commission of the crimes, and because the third defendant was not implicated by the other defendants, did not confess to the crimes, and did not flee the jurisdiction, the evidence was insufficient to support a conviction for the third defendant. Johnson v. State, 277 Ga. App. 499, 627 S.E.2d 116 (2006).
When the first victim was forced back "just a few steps" to the couch, the movement occurred before the rape and was incidental and in furtherance of the rape, and the movement was not a necessary element of the rape, the evidence did not support the defendant's conviction for kidnapping with bodily injury. Goolsby v. State, 311 Ga. App. 650, 718 S.E.2d 9 (2011).
Insufficient evidence of asportation.
- Conviction for kidnapping with bodily injury, in violation of O.C.G.A. § 16-5-40(a), was not supported by sufficient evidence of asportation, as the defendant brandished a gun at the victim and attempted to have the victim get into the car but instead, the victim braced the victim's back against the car and refused to move, whereupon a struggle ensued between them and they fell to the ground; such movement of the victim did not constitute asportation, and the trial court erred in denying a motion for a directed verdict pursuant to O.C.G.A. § 17-9-1. Leppla v. State, 277 Ga. App. 804, 627 S.E.2d 794 (2006).
Defendant's convictions for armed robbery, aggravated assault, and kidnapping of a couple in a residence were reversed on appeal as evidence that one victim was ordered from a standing to a lying position and that another was dragged around the home was insufficient to establish asportation to support the kidnapping counts since the movement was short in duration and incidental to the crimes of armed robbery and aggravated assault. Rayshad v. State, 295 Ga. App. 29, 670 S.E.2d 849 (2008).
Kidnapping conviction under O.C.G.A. § 16-5-40(a) was not supported by the evidence as the asportation element was not met because the victim's movement during a defendant's robbery of a restaurant was brief, occurred during and incidental to the armed robbery, and did not enhance the risk the victim already faced. Crawford v. State, 297 Ga. App. 187, 676 S.E.2d 843 (2009).
Evidence was insufficient to support the asportation element of kidnapping. The defendant's movement of the victim, a restaurant manager who was made to open a money cabinet and a cash register, was brief, occurred during and incidental to the armed robbery, and did not enhance significantly the risk the victim already faced as a victim of armed robbery. Grimes v. State, 297 Ga. App. 720, 678 S.E.2d 167 (2009).
Evidence was insufficient to establish the asportation element of kidnapping. The defendant's movement of the victim into a bathroom was of minimal duration; occurred during the defendant's batteries and in furtherance of the batteries; and did not itself present a significant danger to the victim independent of the danger the victim already faced from the defendant's attacks. Hargrove v. State, 299 Ga. App. 27, 681 S.E.2d 707 (2009).
Fifteen-foot movement of a jewelry store employee across the floor to the safe, which was located in the same showroom, did not constitute the necessary asportation to support a kidnapping conviction because it was of minimal duration and was incidental to the armed robbery and aggravated assault crimes. Harper v. State, 300 Ga. App. 757, 686 S.E.2d 375 (2009).
Evidence that defendant moved the victim from the living room to the bedroom where a safe was located occurred during and was incidental to the offense of armed robbery and therefore was insufficient evidence of asportation; therefore, defendant's kidnapping conviction under O.C.G.A. § 16-5-40(a) was reversed. Ham v. State, 303 Ga. App. 232, 692 S.E.2d 828 (2010), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).
Evidence that, during an armed bank robbery, a defendant moved a bank employee and customer from an office out to the main lobby area of the bank was insufficient evidence of asportation to support defendant's kidnapping convictions because the movement was minimal, did not isolate the victims, and was incidental to the robbery. Williams v. State, 304 Ga. App. 787, 697 S.E.2d 911 (2010).
No significant movement.
- Victim was not moved in a way sufficient to establish asportation and, consequently, kidnapping, because the movement, a push of at most three or four feet, had extremely short duration, the movement occurred during at least three separate offenses, and the movement could be a part of criminal attempt to commit child molestation or cruelty to a child since the push preceded trying to remove a piece of duct tape, which could be used to bind or gag the victim as part of the defendant's effort to molest the child; the push did not present a significant danger to the victim independent of the fact that a person with a knife and duct tape was already in the stall blocking a sixth-grade girl from leaving. Kirt v. State, 309 Ga. App. 227, 709 S.E.2d 840 (2011).
Movement of victim for short or minimal duration insufficient.
- Evidence on a kidnapping charge was insufficient to satisfy the element of asportation because the movement of the victim was of short or minimal duration, occurring during the course and incidental to assaults upon the victim; the movement occurred after the assault on the victim had begun when the victim attempted to fight back against the attackers, and the attackers were struggling to regain control over the victim and subdue the victim, but as soon as the victim was subdued and bound, the victim was returned to the room where the assault on the victim's person continued. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).
Change of victim's position insufficient for asportation.
- Defendant was entitled to reversal of a conviction for kidnapping under O.C.G.A. § 16-5-40(a) because the victim's movement did not constitute the necessary asportation; the act of forcing the victim from a standing position to laying on the floor was merely a positional change of minimal duration that occurred while the burglary and armed robbery were in progress and were incidental to those crimes. Wilson v. State, 318 Ga. App. 37, 733 S.E.2d 345 (2012).
As to one of the four victims, the evidence was insufficient to support the kidnapping count because the duration of the movement was minimal and it was incidental to the other crimes; the subject victim was already in the living room and simply made to sit down there. Holder v. State, 319 Ga. App. 239, 736 S.E.2d 449 (2012).
Incidental movement insufficient.
- Conviction for kidnapping with bodily injury was properly set aside because the facts did not support a finding of asportation as the movement of the victim was merely incidental to the aggravated assault. The movement of the victim occurred as part of a beating, and there was nothing to suggest that the movement presented a significant danger to the victim independent of the assault. Sellars v. Evans, 293 Ga. 346, 745 S.E.2d 643 (2013).
Movement from one bedroom to another insufficient.
- Defendant's conviction for kidnapping required reversal because the movement of the victim from one bedroom to another did not further isolate the victim or decrease the potential for rescue, thereby posing no significant danger to the victim independent of the danger posed by the sexual assault and rape; thus, the evidence of asportation was insufficient. Sellers v. State, 325 Ga. App. 837, 755 S.E.2d 232 (2014).
Incidental movement insufficient.
- Defendant's conviction for kidnapping was reversed as there was insufficient evidence to support the asportation element of the conviction for kidnapping because the victim's movements during the victim's attempt to reach the doorway and escape were not performed by the assailants, who immediately returned the victim to the studio room; and, although the assailants bound the victim's wrists and ankles and forced the victim to the floor, the movement was of minimal duration, and the movement did not serve to substantially isolate the victim from protection or rescue; rather, it appeared that it was merely a criminologically insignificant circumstance attendant to the assaults being committed against the victim. Howard v. State, 334 Ga. App. 229, 779 S.E.2d 5 (2015).
Asportation element of kidnapping was not met under the State v. Garza, 284 Ga. 696 (2008) test when, after beating the defendant's former girlfriend in a bedroom, the defendant chased her to the door, grabbed her by her hair, and flung her against a door or wall, because the act of pulling her by the hair occurred during the commission of and as an inherent part of the second count of family violence battery for which the defendant was convicted. Gonzalez v. Hart, 297 Ga. 670, 777 S.E.2d 456 (2015).
Garza rule of asportation was new substantive rule.
- One count of kidnapping, in violation of O.C.G.A. § 16-5-40(a), against the defendant was reversed because forcing one victim up from their bed at gunpoint and retrieving various items from around the room and placing the items in a bag for the defendant to take was insufficient asportation as the victim was never forced to leave the bedroom. Floyd v. State, 342 Ga. App. 438, 803 S.E.2d 597 (2017).
Habeas court correctly dismissed a petition based on the new rule of law announced in Garza v. State, 284 Ga. 696 (2008) (regarding asportation in kidnapping cases) for failure to file within the time allowed by O.C.G.A. § 9-14-42(c)(3); the time ran from the Garza decision, not the date Garza was made retroactively applicable to cases on collateral review. Abrams v. Laughlin, 304 Ga. 34, 816 S.E.2d 26 (2018).
Ten feet of movement sufficient.
- Despite the fact that the defendant helped to drag the victim only 10 feet in order to conceal from sight the act of continuing to beat the victim, the jury was authorized to conclude that such asportation was sufficient to support a conviction for kidnapping. Scott v. State, 288 Ga. App. 738, 655 S.E.2d 326 (2007).
Evidence sufficient for juvenile's conviction for kidnapping.
- In a delinquency adjudication proceeding, sufficient evidence existed for the finding of delinquency for the act of kidnapping because, although the juvenile originally appeared to focus on stealing the victim's car, at one point the juvenile appeared to change plans and grabbed the victim around the waist and began to force the victim toward the victim's residence. When the victim told the juvenile that someone was in the house, the juvenile moved the victim back toward the car and told the victim to get into the car, which was sufficient evidence to establish a kidnapping that was not merely incidental to the other criminal acts. In the Interest of B.A.C., 289 Ga. App. 588, 657 S.E.2d 652 (2008).
Kidnapping of a child.
- As the defendant's forced removal of a child from a visible area to a secluded dark area behind the child's home was not essential to the defendant's molestation itself, but was instead an attempt to isolate the child from protection and rescue, thus increasing the danger the child faced, there was sufficient evidence of asportation to support the defendant's kidnapping conviction. Flores v. State, 298 Ga. App. 574, 680 S.E.2d 609 (2009), cert. denied, No. S09C1796, 2010 Ga. LEXIS 27 (Ga. 2010).
Movement within store sufficient.
- Defendant's movement of a clerk from one room to another within a store in the course of an armed robbery was sufficient to establish the asportation element of kidnapping as: 1) the victim's movement was not an inherent part of the robbery as the movement occurred after the robbery had been completed; 2) the movement created an additional danger to the victim by enhancing the defendant's control over the victim; and 3) the movement concealed the victim while allowing the defendant to escape from the scene. Hill v. State, 298 Ga. App. 677, 680 S.E.2d 702 (2009).
Isolation of law firm employees sufficient for conviction.
- As physically forcing law firm employees to a room in a more isolated area of the law office showed that their movement was not incidental to any other crime; placed the employees in additional danger by enhancing the defendant's control over the employees; and isolated the employees from protection or rescue, the element of asportation was established and the evidence was sufficient to support the defendant's kidnapping convictions. Brower v. State, 298 Ga. App. 699, 680 S.E.2d 859 (2009), cert. denied, No. S09C1845, 2010 Ga. LEXIS 13 (Ga. 2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Length of time for asportation not required.
- Sufficient evidence supported a conviction of kidnapping, O.C.G.A. § 16-5-40, under circumstances in which, after a drug purchase, the defendant and the victim went to the basement of the home where the defendant lived and there, the defendant, among other things, raped the victim twice and tied the victim to a pole with duct tape; the defendant's movement of the victim after the second alleged rape constituted asportation beyond a reasonable doubt. Although the duration of the movement was minimal, not all elements of the Berry test had to favor the prosecution to prove asportation. Brashier v. State, 299 Ga. App. 107, 681 S.E.2d 750 (2009).
Forcing restaurant employees into coolers.
- During armed robberies, defendant forced the victims into restaurants' walk-in coolers at gunpoint, told the victims not to leave, shut the door, and made the victims stay in the cooler for several minutes. As these actions were not a necessary or inherent part of the robberies, and the actions created additional dangers to the victims by subjecting the victims to cold temperatures, isolating the victims and reducing the victims chance of rescue, and enhancing the defendant's control over the victims, there was sufficient evidence of asportation to support the defendant's kidnapping convictions under O.C.G.A. § 16-5-40. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).
Movement of restaurant employee to outdoor parking lot sufficient.
- Evidence that, after defendant robbed a fast-food restaurant, the defendant dragged a captive employee from inside the restaurant to an outdoor parking lot was sufficient to prove kidnapping in violation of O.C.G.A. § 16-5-40(a) because the movement of the employee was not part of the robbery and put the employee in substantial additional danger. Dixon v. State, 300 Ga. App. 183, 684 S.E.2d 679 (2009).
Evidence was sufficient to establish the asportation element of the crime of kidnapping, O.C.G.A. § 16-5-40(a), because the evidence at trial showed that the defendant dragged the victim from the front to the rear of a house, forced the victim to get into a car, and drove a short distance before the victim escaped and jumped out of the car, and although the duration of the movement was relatively brief, the defendant's asportation of the victim ended only when the victim escaped and fled from the vehicle in fear for the victim's life; while it was arguable that at least some of the movement occurred during the commission of the theft of the victim's car, it was not an inherent part of that separate offense because the defendant did not have to force the victim back into the car in order to take the car, and the defendant's asportation of the victim presented a significant danger to the victim independent of the danger posed by the theft when it isolated the victim from contact with anyone who could have been able to provide help and further enhanced the defendant's control over the victim. Payne v. State, 301 Ga. App. 515, 687 S.E.2d 851 (2009).
Evidence of asportation and the remaining elements of kidnapping, O.C.G.A. § 16-5-40, were sufficient to support the defendant juvenile's delinquency adjudication for kidnapping because, after the victim told defendant that the victim did not have any money, the defendant forced the victim to continue walking to an isolated yard behind an abandoned house, where sodomy occurred. That action was not a necessary or inherent part of aggravated sodomy and created additional dangers to the victim by isolating the victim, reducing the victim's chance of rescue, and enhancing defendant's control over the victim. In the Interest of D. S., 302 Ga. App. 873, 691 S.E.2d 897 (2010).
Action of pulling rape victim back into motel room sufficient.
- Defendant's action in pulling a rape victim back inside a hotel room as the victim tried to escape was sufficient evidence of asportation under the kidnapping statute, O.C.G.A. § 16-5-40. Although the duration of the movement was minimal, it was not a part of the other offenses of rape and aggravated assault and posed a significant danger to the victim by isolating the victim from other hotel guests. Dixon v. State, 303 Ga. App. 517, 693 S.E.2d 900 (2010).
Isolation of victim sufficient.
- Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of kidnapping with bodily injury because the element of asportation was sufficiently established when the evidence showed that the defendant beat the victim, abducted the victim, and held the victim against the victim's will; the victim's abduction was not an inherent part of aggravated assault or robbery but occurred after the offense of aggravated assault and before the offense of robbery had been completed, and the abduction of the victim through a parking lot created an additional danger to the victim independent of the assault or robbery because the movement isolated the victim from rescue or protection by the other people in the parking lot who came forward as witnesses. Leverette v. State, 303 Ga. App. 849, 696 S.E.2d 62 (2010).
Kidnapping of a child.
- Evidence that a defendant moved the victim, a 13-year-old child, from a relatively open back yard into the child's house was sufficient evidence of asportation to support the defendant's kidnapping conviction because the movement was not incidental to another crime, and the movement placed the boy in further danger by isolating the child from rescue. Bryant v. State, 304 Ga. App. 755, 697 S.E.2d 860 (2010).
Evidence was sufficient for a rational trier of fact to have found the essential elements of the crime of kidnapping beyond a reasonable doubt because the victim was dragged down the entire length of a steep hill, from a place with some light to a darker place, and when the victim attempted to escape the victim's attacker the victim was again forced down the hill; the movement that occurred presented a significant danger to the victim independent of the danger posed by the other offenses for which the defendant was convicted, rape, aggravated sodomy, and aggravated assault, by further enhancing the defendant's control over the victim, and by dragging the victim down the hill, away from a more lighted place to a darker and more isolated place, the defendant reduced the possibility of the victim obtaining help from others or of the victim making an escape. Humphries v. State, 305 Ga. App. 69, 699 S.E.2d 62 (2010).
Defendant's conviction for kidnapping, O.C.G.A. § 16-5-40(a), was authorized because the defendant's asportation of the victim from a school parking deck to various locations, ultimately ending at an apartment complex where the victim was released two hours later, was sufficient asportation to authorize the kidnapping conviction. Lester v. State, 309 Ga. App. 1, 710 S.E.2d 161 (2011).
It was not error for the trial court to deny the defendant's motion for a directed verdict of acquittal on the kidnapping charge because during the incident, as the victim exited the defendant's truck, the defendant grabbed the victim by the neck and moved the victim away from the more public area near the truck into a backyard, and after beating the victim in that location, the defendant moved the victim deeper into the backyard toward the tree line; when the defendant finished beating the victim the defendant picked the victim up and carried the victim to a trailer, and the defendant moved the victim away from the area before the defendant began the beating, which was not necessary to the battery and independently increased the victim's danger and prevented the victim from making an escape, calling for help, or being spotted by witnesses. Amaya v. State, 308 Ga. App. 460, 708 S.E.2d 28 (2011).
Evidence was sufficient to prove the element of asportation and to support the defendant's kidnapping conviction where the defendant snatched the victim from the sidewalk, forced the victim across a parking lot and onto the premises of a restaurant, took the victim up a flight of stairs to a secluded deck where the victim could not be seen, and then raped the victim. Although the duration of the movement was relatively short, and although the movement facilitated the rape, the movement did not constitute an inherent part of that rape. The defendant's movement of the victim substantially isolated the victim from protection or rescue. Scales v. State, 310 Ga. App. 48, 712 S.E.2d 555 (2011).
Additional danger created to victim by asportation.
- Movement at issue was sufficient evidence of asportation because, after the defendant assaulted the victim, the defendant forced the severely injured victim at gunpoint to leave the victim's house, walk through a trail behind the house to a secluded wooded area, made the victim kneel on the ground on the victim's hands and knees, and for a significant period of time threatened to kill the victim or the victim's children as the victim begged for the victim's life. The defendant's actions further isolated the victim, thereby creating additional danger to the victim and removing the victim from the possibility of rescue or escape, and reinforced the defendant's control over the victim. Reynolds v. State, 311 Ga. App. 119, 714 S.E.2d 621 (2011).
There was sufficient evidence of asportation to support the defendant's kidnapping convictions because, after the defendant robbed the cash register, the defendant forced the victims to move from the front of the store to the back of the store and later further back into an office; the further movement into the back office occurred after the robbery was completed, and that movement was not a necessary or inherent part of the robbery but created additional danger to the victims. Green v. State, 310 Ga. App. 874, 714 S.E.2d 646 (2011), cert. denied, No. S11C1766, 2012 Ga. LEXIS 232 (Ga. 2012).
Defendant's act of dragging the victim by the hair inside a house to begin an attack anew, after the victim temporarily managed to escape and was screaming for help, was sufficient evidence of asportation to support the defendant's kidnapping conviction because although the movement was arguably of minimal duration, the act was not an inherent part of the violent attack that the victim had endured; instead, the defendant's act allowed the defendant to reassert control over the victim and to reinitiate the savage beating without interference, further isolating the victim from rescue and increasing the victim's risk of harm. Curtis v. State, 310 Ga. App. 782, 714 S.E.2d 666 (2011).
Defendant's act of grabbing one victim by the throat and pulling that victim from the kitchen into the living room was sufficient evidence of asportation to support the defendant's kidnapping conviction. The defendant's act of dragging the other victim inside the home to resume a beating was sufficient evidence of asportation as to that victim. Although the duration of the movement was brief, each act allowed the defendant and the co-defendant to control their victims without interference, further isolating the victims from rescue and increasing the risk of harm. Tolbert v. State, 313 Ga. App. 46, 720 S.E.2d 244 (2011).
Increased danger to children created by movement into kitchen.
- Evidence was sufficient to establish the asportation element of the defendant's kidnapping convictions because the defendant's removal of children from their bedrooms by gunpoint and into the kitchen was not an inherent part of the crimes as the children's movement to the kitchen was not necessary to effect the completion of the burglary, armed robbery, or aggravated assault; also, by moving the children from their rooms, the children were placed in greater danger because the defendant and the accomplice's control over the children was enhanced. Patterson v. State, 312 Ga. App. 793, 720 S.E.2d 278 (2011), cert. denied, No. S12C0574, 2012 Ga. LEXIS 327 (Ga. 2012).
Movement within the store sufficient.
- Because the defendant moved the victims from the front of a pawn shop into a back office in order to isolate the victims from outside view and to significantly decrease the chance that the victims could summon assistance, the element of asportation was satisfied; therefore, the defendant was properly convicted of kidnapping under O.C.G.A. § 16-5-40. Onumah v. State, 313 Ga. App. 269, 721 S.E.2d 115 (2011).
All four factors that had to be considered in determining whether the asportation element of kidnapping was met had been satisfied because the duration of the movement of the victims to a car and while riding therein occurred after the offense of aggravated assault was completed; the movement presented a significant danger to the victims apart from the separate offense because it enhanced the defendant's control over the victims, serving substantially to isolate the victims from protection or rescue and increasing the risks that further injury would occur in the event of an attempted escape and that the victims would be taken to a second location. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).
Movement to bedroom sufficient.
- Evidence was sufficient to establish the asportation element of the defendant's kidnapping with bodily injury conviction because movement occurred when the defendant pressed a knife to the victim's throat and forced the victim from the kitchen into the bedroom where the defendant raped and sodomized the victim and committed armed robbery; the movement was not an inherent part of the crimes because the victim's movement to the bedroom was not necessary to effect the completion of the rape, aggravated sodomy, or armed robbery. Holden v. State, 314 Ga. App. 36, 722 S.E.2d 873 (2012).
Movement throughout the house sufficient.
- State proved the existence of "asportation," one of the essential elements of kidnapping with bodily injury, as the victim was forcibly moved at gunpoint from the front of the house to a back bathroom and that the movement did not occur during the commission of the other offenses. Brown v. State, 291 Ga. 750, 733 S.E.2d 300 (2012).
Evidence that the movement, while not necessarily lengthy, was long enough to satisfy the duration element; the movement did not occur during the aggravated battery but rather after the first beating and before a second beating; that the movement was not an inherent part of the beating; and that the movement itself presented a danger to the victim because the victim was moved to a secluded location in the middle of the night was sufficient to support the asportation element of kidnapping. Williams v. State, 291 Ga. 501, 732 S.E.2d 47 (2012).
Incidental movement sufficient.
- By forcing the victim to have sexual intercourse in the living room, stopping the victim from escaping, then forcing the victim to a nearby bedroom and forcing sex again, the defendant made it substantially easier to commit the charged offense of rape in the bedroom and lessened the risk of detection, thus, the movement of the victim was not merely incidental to any other charged offense, and the evidence was sufficient to establish the asportation element of the kidnapping charge. Ward v. State, 324 Ga. App. 230, 749 S.E.2d 812 (2013).
Removal of two victims from the victims' vehicle, binding the victims with electrical ties and duct tape, and placing one victim in the back seat of the victim's vehicle while the other lay on the ground, concealed the victim in the car, isolated the two victims, and made the commission of the armed robbery and murders substantially easier; therefore, movement of the victims was not merely incidental to the other offenses, O.C.G.A. § 16-5-40(b)(2)(A), (B). Dennis v. State, 293 Ga. 688, 748 S.E.2d 390 (2013).
Length of time for asportation not sufficient.
- Sufficient evidence under the established case law standard supported the jury finding the defendant guilty of kidnapping based on the evidence showing that although the time and distance spanned by the defendant's forceful dragging of the victim out of the house away from the protection of the victim's teenage son, through the yard, and into the neighbor's yard may not have been lengthy, the movement was of sufficient duration to satisfy a finding of asportation. Arnold v. State, 324 Ga. App. 58, 749 S.E.2d 245 (2013).
Slight movement sufficient.
- Evidence that the defendant captured the victim as the victim attempted to escape the assault, dragged the victim back to the car and put the victim into the trunk of the car, and attempted to close the trunk was sufficient to meet the slight movement requirement to prove the asportation element of kidnapping with bodily injury. Andemical v. State, 336 Ga. App. 661, 786 S.E.2d 238 (2016).
Movement within the store sufficient.
- Evidence was sufficient to establish the asportation element of kidnapping because the store clerk testified that after taking items inside the store, the robbers forced the clerk into the office against the clerk's will and locked the door, and that testimony supported the reasonable inference that the robbers isolated the clerk to expedite the robbers' escape, thereby lessening the risk of the robbers' detection. Whatley v. State, 335 Ga. App. 749, 782 S.E.2d 831 (2016).
Proof of rape and kidnapping with bodily injury.
- Separate offenses of rape and kidnapping with bodily injury were shown where the evidence used to prove the kidnapping was the asportation of the victim from one room to another and bruises the victim suffered in the struggle with defendant before the subsequent intercourse which supported the rape charge. Roberson v. State, 219 Ga. App. 160, 464 S.E.2d 262 (1995).
Kidnapping with bodily injury.
- Burning of the victim's face with a stun gun at the outset of the kidnapping constituted the bodily harm necessary to support the conviction of kidnapping with bodily injury. James v. State, 239 Ga. App. 541, 521 S.E.2d 465 (1999).
Despite the defendant's contention that the circumstantial evidence presented by the state was insufficient, both malice murder and kidnapping by bodily injury convictions were upheld on appeal as: (1) the plain error rule did not apply to the identification evidence admitted via the defendant's aggravated assault and armed robbery victim, and evidence of the gun used in that case was relevant in the instant prosecution because the gun connected the defendant to the identification documents presented to police in close proximity to the victim's body; (2) a due process claim regarding the admission of a purportedly impermissibly suggestive pre-trial identification, followed by an in-court identification, was waived due to failure to object at trial; and (3) trial counsel was not ineffective by failing to seek suppression of the identification evidence or attack the reliability of the same. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007).
Trial court did not abuse the court's discretion in admitting: (i) a prior difficulty between the defendant and the victim; (ii) evidence that the defendant sought to hire a hit man to kill the victim; and (iii) a prior inconsistent statement of a reluctant witness who claimed to have a loss of memory as that evidence was relevant to show the defendant's motive and state of mind in committing the crime of kidnapping with bodily injury and the trial court properly ruled that the reluctant witness was a hostile witness, and allowed the state to ask leading questions, as well as admission of that witness's prior inconsistent statement as substantive evidence. LeBlanc v. State, 283 Ga. App. 434, 641 S.E.2d 646 (2007).
Impact of significant mental and psychological impairments.
- When petitioner was sentenced to death, remand was warranted as to petitioner's ineffective assistance claim because the state court curtailed a more probing prejudice inquiry by placing undue reliance on the assumed reasonableness of counsel's mitigation theory, and failed to apply the proper prejudice inquiry; a proper analysis of prejudice would have taken into account the newly uncovered evidence of petitioner's "significant" mental and psychological impairments. Sears v. Upton, 561 U.S. 945, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010).
Prosecution for false imprisonment and kidnapping barred by statute of limitations.
- Defendant's prosecution for the crimes of false imprisonment, O.C.G.A. § 16-5-41, and kidnapping, O.C.G.A. § 16-5-40(a), were barred by the statute of limitations, O.C.G.A. § 17-3-1, because the state did not indict the defendant on those charges until after the four-year statute of limitations ran; the state's decision to reissue the indictment to include the false imprisonment and kidnapping counts substantially amended the original charges because those offenses contained elements separate and distinct from any of the crimes charged in the original indictment. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).
Use of prior unfiled criminal charges in prosecution.
- Defendant's convictions for kidnapping, attempted kidnapping, and criminal trespass were erroneously reversed as the fact that the state did not file criminal charges against the defendant based directly on three prior pool incidents with young children did not mean that those incidents were non-criminal or not indicative of the defendant's state of mind. State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016).
OPINIONS OF THE ATTORNEY GENERAL
When offenders under 17 years to be placed in custody of Department of Offender Rehabilitation.
- Kidnapping, not being punishable by death or imprisonment for life, is not an offense which requires the offender under 17 years of age to be placed in the sole custody of the Department of Offender Rehabilitation; where the offender under 17 years of age is convicted of kidnapping for ransom or kidnapping in which the victim receives bodily injury, both being offenses punishable by life imprisonment or death, the juvenile offender shall only be sentenced into the custody of the Department of Offender Rehabilitation. 1975 Op. Att'y Gen. No. 75-73.
RESEARCH REFERENCES
Am. Jur. 2d.
- 1 Am. Jur. 2d, Abduction and Kidnapping, § 1 et seq.
C.J.S.- 51 C.J.S., Kidnapping, §§ 1, 25.
ALR.
- Offense of abduction or kidnapping as affected by defendant's belief in legality of his act, 114 A.L.R. 870.
Kidnapping by fraud or false pretenses, 95 A.L.R.2d 450.
What is "harm" within provisions of statutes increasing penalty for kidnapping where victim suffers harm, 11 A.L.R.3d 1053.
What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.
Seizure of prison official by inmates as kidnapping, 59 A.L.R.3d 1306.
False imprisonment as included offense within charge of kidnapping, 68 A.L.R.3d 828.
Antagonistic defenses as ground for separate trials of codefendants in criminal case, 82 A.L.R.3d 245.
Necessity and sufficiency of showing, in kidnapping prosecution, that detention was with intent to "secretly" confine victim, 98 A.L.R.3d 733.
Violation of state court order by one other than party as contempt, 7 A.L.R.4th 893.
Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.
Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.
Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.
Validity, construction, and application of "hold to service" provision of kidnapping statute, 28 A.L.R.5th 754.
Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.