Kiser v. State

327 Ga.App. 17

755 S.E.2d 505

KISER

v.The STATE.

No. A13A2249.

Court of Appeals of Georgia.

March 7, 2014.

Reconsideration Denied April 9, 2014.

Kevin C. Armstrong, for appellant.

Richard L. Perryman III, District Attorney, Robert A. Rogers, Assistant District Attorney, for appellee.

BOGGS, Judge.

Bobby Kiser appeals from his convictions for false imprisonment and theft by taking.¹ He contends that insufficient evidence supports his convictions and that the trial court erred by admitting hearsay during his trial and evidence of a previous conviction during the sentencing hearing. For the reasons explained below, we affirm Kiser's false imprisonment conviction, reverse his theft by taking conviction, vacate his sentence, and remand this case to the trial court for resentencing.

1. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.)

Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the record shows that a little after midnight on July 31, 2007, the victim received a telephone call from his good friend, Donald Zachery. Zachery, who owed the victim $575, asked the victim to come get his money immediately before Zachery went out of town early in the morning. Because the victim wanted to use the money to buy school clothes for his son, he decided to make the 25–minute drive from his home in Tifton to Zachery's home in Adel. He had been to Zachery's home “plenty of times” before and never had any problems.

When he arrived, he “pulled up in the yard,” and left his keys on top of the truck's console with the doors unlocked, because he was not planning to stay long at Zachery's home. Bobby Kiser, whom the victim knew and had met through Zachery several years before, was standing by the door and signaled the victim to come inside. The victim “thought nothing of it,” walked inside, and greeted Zachery. As the victim spoke with Zachery, he noticed that Kiser had closed the front door to the single wide mobile home and was standing with his back to the door “like he was standing guard.”

The victim testified that he had “never trusted” and “never vibed” with Kiser, and only interacted with Kiser through Zachery. The victim thought it was peculiar when Kiser closed the door and stood beside it. After he noticed that something “wasn't right” with Zachery as well, the victim concluded, “something's not right here.” Within three minutes of the victim's arrival, he saw Jermaine Davis come from a back room of the mobile home with a gun “pointed straight out.” Fearing for his life, the victim decided not “to wait around” and “took off running” and dove through a closed glass window in a rear bedroom of the trailer. He testified that he could not exit through the door because Kiser “was guarding the door.” While the victim was running toward the rear bedroom, he saw Kiser pull out a chrome firearm and heard him say, “we fixing to kill you.” After jumping out of the window, the victim ran and hid behind a house across the street. While his truck was still parked outside Zachery's mobile home when he ran past it, he was afraid he would be shot if he tried to enter and start it. The victim admitted that no gun was fired during or after his escape.

The victim immediately called 911, but had some initial difficulty reaching an operator. He informed the operator that someone had attempted to rob him and told her his location. She guided him to a road near some railroad tracks where he saw an approaching police car and stopped it. When the police officer took the victim back to Zachery's house within 10 to 15 minutes of the 911 call logged at 2:05 a.m., the victim's truck was gone and no one remained inside the house. The front door of the house was standing open when the police arrived.

The victim testified that when he first arrived at Zachery's mobile home that evening, he did not see any other parked cars, including the vehicles normally driven by Zachery, Kiser, and Davis. The police subsequently recovered the victim's truck three to five miles away from Zachery's home, and they were unable to recover any evidence from the vehicle linking it to Kiser, Zachery or Davis.

During cross-examination, the victim admitted that he “removed himself” before anyone had an opportunity to prevent him from leaving the mobile home—no one told him that he could not leave. He also testified, however, that he could not leave the way he came in because Kiser was at the door. A police officer testified that there was no other exit from the mobile home.

2. Kiser contends that this evidence is insufficient to support his false imprisonment conviction, because no one prevented the victim from leaving through the window or told him that he could not leave. A person is guilty of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16–5–41(a).

This statute on its face does not require that the imprisonment be for a specific length of time; all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violated the person's liberty (i.e., against his or her will). At the point when that occurs, the offense is complete notwithstanding that the victim may thereafter ... effect an escape.

(Citations omitted.) Herrin v. State, 229 Ga.App. 260, 263(3), 493 S.E.2d 634 (1997). In Alexander v. State, 279 Ga. 683, 620 S.E.2d 792 (2005), the Supreme Court of Georgia concluded that the false imprisonment statute is not unconstitutionally vague, noting:

The word “confine” has a commonly understood meaning which would place a person of common intelligence on notice of the prohibited acts. For example, Webster's Ninth New Collegiate Dictionary defines “confine” as follows: “1. To hold within a location ... 2. To keep within limits.” In turn, Black's Law Dictionary, Sixth Edition, defines the term confinement in a similar manner as: “shut in” or “imprisoned.”

Id. at 686(3), 620 S.E.2d 792. And when interpreting a similar statute governing civil actions for false imprisonment, we have held that “[a] detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used....” Hampton v. Norred & Assoc., 216 Ga.App. 367, 368(1), 454 S.E.2d 222 (1995).

In this case, the victim testified that he could not leave through the only door to the mobile home after Davis came from the rear with a pointed gun, because Kiser was guarding the door, pulled out a gun of his own, and threatened to kill him. We find this evidence sufficient to support Kiser's false imprisonment conviction. See Barnett v. State, 244 Ga.App. 585, 588–589(3), 536 S.E.2d 263 (2000) (sufficient evidence to support false imprisonment conviction even though victim ‘never expressed his will ... as to where he wanted to go or not go’); Wilson v. State, 304 Ga.App. 743, 747–748(1)(d), 698 S.E.2d 6 (2010) (sufficient evidence supported false imprisonment conviction even though defendant only blocked the front door and left other avenues of escape).

We find no merit in Kiser's argument that his acquittal for possession of a firearm during the commission of false imprisonment precludes the use of the gun evidence to support his false imprisonment conviction. It is well-established that there is no prohibition against inconsistent verdicts in Georgia.²

[A]ppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Turner v. State, 283 Ga. 17, 20(2), 655 S.E.2d 589 (2008). This case does not fall within the narrow exception for cases in which the record affirmatively shows that the jury's rationale was not the result of lenity, but instead legal error. See id. at 20–21(2), 655 S.E.2d 589; Jackson v. State, 322 Ga.App. 196, 200–201(3), 744 S.E.2d 380 (2013).

3. Kiser asserts that insufficient evidence supports his theft by taking conviction because the victim left the keys in the truck's console, no eyewitness saw him or his co-defendants take the truck, no physical evidence linked him (or his co-defendants) to the truck after it was recovered by the police, and no evidence indicated whether one or more individuals took the truck. The State asserts that the following circumstantial evidence sufficiently supports Kiser's conviction: the car was taken at a late hour when no other persons were around; none of the defendants had a vehicle parked in front of the home when the victim arrived; the police found no one in the home 10–15...