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; 16-5-40 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, 2018 Ga. LEXIS 685 (Ga. 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 894 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. 16-5-40 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 895 Application (Cont’d) 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 16-5-40 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). 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). 896 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 16-5-40 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 897 Application (Cont’d) 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 16-5-40 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). 898 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 bed- 16-5-40 rooms 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.