Smith v. State

11 FCDR 3972

313 Ga.App. 170

721 S.E.2d 165

SMITH

v.The STATE.

No. A11A1405.

Court of Appeals of Georgia.

Dec. 1, 2011.

Jimmonique R.S. Rodgers, Fort Gordon, for appellant.

Robert Earl Brooks, Jr., Dist. Atty., Carmen T. Bolden, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Jamie Barron Smith appeals from the judgment of conviction entered on jury verdicts finding him guilty of attempted rape; aggravated assault with intent to rape; aggravated assault with a knife; kidnapping; and misdemeanor battery. Smith contends that there was insufficient evidence of asportation to support the kidnapping conviction; that the trial court erred by failing to merge the aggravated assault convictions into one another and into the attempted rape conviction; and that the trial court erroneously instructed the jury with respect to the battery offense. For the reasons that follow: (1) we find the evidence of asportation was sufficient and affirm the kidnapping conviction; (2) we vacate the conviction for aggravated assault with intent to rape because it merged into the attempted rape conviction; and (3) we find no other error and affirm the remaining convictions.

1. Contrary to Smith's contention, the evidence of asportation was sufficient to support the jury's verdict finding him guilty of kidnapping.

The evidence showed that the female victim, who had her two-year-old child with her, was working alone at the front office of a storage unit rental business. Smith came into the business and rented a five-foot by ten-foot enclosed storage unit with a roll-up door. After the victim showed Smith where the unit was located, Smith parked his car near the unit and started unloading items from his car into the unit through the unit's open door. The victim briefly stood outside the unit and watched as Smith put trash bags of items and a blue box into the unit, at which point she started to walk away from the unit and back to the office. In explanation of what happened next, the victim gave the following testimony on direct examination by the prosecutor:

Q: When did this situation become something that was not normal?

A: He put the blue box in [the unit], and as I was walking away, he got me from the back and jumped on me.... And I remember a couple of punches in the face and my neck from behind. And by that time, we were in the unit....

Q: How far did you get from the unit before he grabbed you?

A: Apparently not very far. I just remember that all of a sudden, just, “Oh, he's hitting me.” And we were already in the unit....

Q: Were you standing inside the unit when you turned to leave?

A: No.

Q: You were outside the unit on the ground?

A: Yes. He jumped on me from behind and I think we fell in. Because we fell forward onto the trash bags....

Q: Can you give us a better idea of where you were standing when he jumped on you?

A: I was just ... on the outside of the door....

Q: How fast would you say that this—the grabbing, hitting, falling happened?

A: I was on the floor before I realized what had happened....

Q: What position was your body and his body on the floor at this time?

A: We went from facing the back [of the unit] and the trash bags to turning to where we were cross-ways in the unit. And then we turned to where my head was at the door....

Q: What is the next part of that struggle?

A: When he jumped on me, he was choking me. And he told me if I screamed, he would kill me and [my child] both.... He said he had a knife, and he held it to my face. And then I had my eyes closed. And when I opened my eyes, I realized my head was at the door.... And the door was closed.... I remember trying to open the door. And I got the door open a little.... And I remember grabbing onto the outside of the door, hoping that he wouldn't pull me back in. And that way he couldn't close the door because my hand would be in the way. And I was able to get my left hand and push the door up some more....

Q: And at this point, you're laying on your stomach with him laying on top of you?

A: Right....

Q: Did he at some point during this period release your neck?

A: Yes. He was at my waist.

Q: What happened, more specifically, when he released your neck?

A: He was trying to—he was piddling with my belt....

Q: What other statements were made by the defendant regarding what he intended to do?

A: When he first pulled me in, he told me to take my pants off....

Q: About how far did you get the door pushed up?

A: I remember just being able to push it up just a little. And the sunshine came in, and I saw the knife. And then I got my left hand free and pushed it up a little more, maybe two, two and a half feet or so....

Q: Were you able to prevent being pulled back into the unit?

A: Yes. When I got the door open, I was able to crawl out from there.

At that point, the victim ran back to the office and called for help and Smith fled the scene. As a result of the struggle, the victim suffered various bruises and scratches. Based on the above evidence, the jury found Smith guilty of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery.

Smith contends that his conviction for kidnapping should be reversed because there was insufficient evidence to prove an essential element of the offense—asportation of the victim. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such other person against his will.” OCGA § 16–5–40(a).¹ An essential element of the offense of kidnapping is the abduction or stealing away of the victim, also referred to as asportation or movement of the victim. Garza v. State, 284 Ga. 696, 697, 670 S.E.2d 73 (2008). In Garza, the Supreme Court adopted a four-factor test to differentiate movement that satisfies the asportation element from movement that is “merely a ‘criminologically insignificant circumstance’ attendant to some other crime.” (Citation omitted.) Id. at 702, 670 S.E.2d 73; Brown v. State, 288 Ga. 902, 905, 708 S.E.2d 294 (2011).² The factors are: “(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.” Garza, 284 Ga. at 702, 670 S.E.2d 73. Smith argues that the movement of the victim was merely an incidental or insignificant circumstance attendant to the other offenses.

The first Garza factor supports Smith's contention because the evidence shows that the movement of the victim from outside the storage unit to inside the unit was of brief duration. As to the second factor, although there was evidence that Smith punched the victim and committed battery during the movement, there was also evidence from which the jury could have concluded that the battery occurred inside the unit after the movement. Similarly, the evidence showed that Smith assaulted the victim and attempted to rape her inside the storage unit after the movement. As to the third factor, the movement of the victim was not an inherent part of the other offenses; it was not necessary to move the victim to attempt to rape her, assault her with a knife, or commit a battery on her. See Brown, 288 Ga. at 905, 708 S.E.2d 294; Scales v. State, 310 Ga.App. 48, 56, 712 S.E.2d 555 (2011). Moreover, there was evidence from which the jury could have found that all three of these offenses occurred inside the storage unit after the movement. Considering the fourth factor, the movement itself clearly presented a significant danger to the victim independent of the danger posed by any of the other offenses because Smith's obvious purpose was to conceal the victim behind the closed door of the storage unit to isolate her from protection or rescue. As noted in Garza, “the nature of the evil the kidnapping statute was originally intended to address [is] movement serving to substantially isolate the victim from protection or rescue....” Garza, 284 Ga. at 702, 670 S.E.2d 73. Satisfaction of all four Garza factors is not required to establish that asportation has occurred under the kidnapping statute. Hammond v. State, 289 Ga. 142, 144, 710 S.E.2d 124 (2011). The evidence showed movement of the victim that was not merely an incidental or “criminologically insignificant circumstance” attendant to the other crimes; rather the evidence was sufficient for the jury to find that the asportation element of kidnapping was proven under the Garza standard beyond a reasonable doubt. Tate v. State, 287 Ga. 364, 366, 695 S.E.2d 591 (2010) (finding asportation where only two of the Garza factors were present).

The evidence was sufficient for the jury to find beyond a reasonable doubt that all the elements of kidnapping, attempted rape, aggravated assault with intent to rape, aggravated assault with a knife, and battery were proved beyond a reasonable doubt. OCGA §§ 16–5–40; 16–4–1; 16–6–1; 16–5–21(a)(1); 16–5–21(a)(2); 16–5–23.1(a); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. We agree with Smith that, because his conviction for aggravated assault with intent to rape merged into his conviction for attempted rape, the conviction for aggravated assault with intent to rape must be vacated.

Smith's conviction for attempted rape was supported by evidence that, with the intent to commit rape by having forcible and nonconsensual carnal knowledge of the victim, he took a substantial step toward committing the rape, but failed to consummate it. Hollis v. State, 225 Ga.App. 370, 484 S.E.2d 54 (1997); see OCGA §§ 16–4–1 (criminal attempt); 16–6–1 (rape). As alleged in the indictment and shown by the evidence produced at trial, Smith took a substantial step toward committing the rape by assaulting the victim, forcing her into the storage unit, and threatening her if she did...