Briard v. State
Decision Date | 07 September 1988 |
Docket Number | No. 76795,76795 |
Citation | 373 S.E.2d 239,188 Ga.App. 490 |
Parties | BRIARD v. The STATE. |
Court | Georgia Court of Appeals |
William H. Turner, Jr., Jonesboro, for appellant.
Frank C. Winn, Dist. Atty., for appellee.
Appellant was tried before a jury and found guilty of five counts of aggravated assault and five counts of kidnapping. Appellant appeals from the judgments of conviction and sentences entered on the jury's verdicts.
1. Appellant enumerates the general grounds as to four of his five kidnapping convictions, urging that the asportation element was not established by the evidence.
A review of the record shows the following: Appellant entered the emergency room of the Douglas County Hospital and demanded to be examined by his personal physician. When the nurse on duty informed him that he would have to be examined by one of the staff physicians, appellant drew a gun and pointed it at the nurse. Appellant then forced the nurse into the office of the emergency room. There were three women in the office at the time that appellant and the nurse entered. Upon seeing that appellant was armed, the three women were unable to escape but they ran to a location in the office where they felt they would be afforded a degree of relative safety. Appellant in no way directed or ordered the three women to move from their original location in the office and they were allowed to remain at their chosen place of safety throughout the ordeal. Appellant subsequently demanded that a hospital security guard come into the office, threatening that he would kill the women if this demand was not met. Once the security guard was in the office, the appellant pointed a gun at him and ordered that he sit on the floor.
"A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." OCGA § 16-5-40(a). Chambley v. State, 163 Ga.App. 502, 504(2), 295 S.E.2d 166 (1982). The determinative factor with regard to the element of asportation is whether Padgett v. State, 170 Ga.App. 98, 100, 316 S.E.2d 523 (1984). The evidence clearly authorized a finding that the nurse was forced, against her will, to enter the office and appellant does not contend otherwise. The evidence also shows, however, that the other three women, who were already in the office, acted on their own volition when they moved from one location to another. Compare Haynes v. State, 249 Ga. 119(1), 288 S.E.2d 185 (1982); Morris v. State, 179 Ga.App. 228, 229(4), 345 S.E.2d 686 (1986); Williams v. State, 178 Ga.App. 581, 591(12), 344 S.E.2d 247 (1986); Chambley v. State, supra 163 Ga.App. at 503(1), 295 S.E.2d 166; Brown v. State, 132 Ga.App. 399, 401(2), 208 S.E.2d 183 (1974). Accordingly, as to the counts alleging the kidnapping of these three women, the asportation element was not established and the trial court erred in denying appellant's motion for a directed verdict.
The evidence did, however, show the unlawful asportation of the security guard. The security guard was coerced into entering the office against his will by appellant's threats to injure his female captives. See generally Strozier v. State, 156 Ga.App. 241, 274 S.E.2d 633 (1980). Moreover, once the security guard was in the office, appellant threatened him with a gun and directed him to sit down. See Haynes v. State, supra 249 Ga. at 119, 288 S.E.2d 185; Chambley v. State, 163 Ga.App. supra at 502-503, 295 S.E.2d 166. Accordingly, as to the count alleging the kidnapping of the security guard, the trial court correctly denied appellant's motion for a directed verdict.
2. Over objection, the trial court allowed one of the victims to give her opinion as to appellant's sanity. This ruling is enumerated as error.
" Chancellor v. State, 165 Ga.App. 365, 369(17), 301 S.E.2d 294 (1983). " Leonard v. State, 157 Ga.App. 37, 38(1), 276 S.E.2d 94 (1981). The victim in the present case had ample opportunity to observe the behavior of appellant at the time of the incident and she stated the facts upon which her opinion as to appellant's sanity was based. Accordingly, the trial court correctly admitted the opinion testimony of the victim into evidence.
3. Appellant enumerates as error the denial of three of his motions for mistrial.
A motion for mistrial was made on the ground that a deputy's testimony had implied that appellant had been present at the scene of a drug sale. Pretermitting the issue of whether the testimony was such as to place appellant's character in issue, the record shows that it was appellant's own counsel who had introduced the topic of appellant's knowledge of the deputy's involvement in undercover drug transactions. Once appellant introduced this topic, the State was entitled to pursue it. See generally Chatman v. State, 162 Ga.App. 582(2), 291 S.E.2d 745 (1982); Martin v. State, 143 Ga.App. 848(1), 240 S.E.2d 219 (1977). Accordingly, the trial court correctly denied this motion for mistrial.
Appellant moved for a mistrial on the ground that the trial court had expressed an impermissible opinion as to the facts of the case during its ruling on the admissibility of certain evidence. Johnson v. State, 246 Ga. 126, 128, 269 S.E.2d 18 (1980). See also Troutman v. State, 178 Ga.App. 314, 315(2), 342 S.E.2d 785 (1986); Havard v. State, 175 Ga.App. 798, 334 S.E.2d 381 (1985). Accordingly, the trial court correctly denied this motion for mistrial.
During cross-examination of one of appellant's doctors, the State asked the witness if he knew that appellant had been "busted" for the offense of possession of 300 pounds of marijuana. Appellant moved for a mistrial on the ground that his character had been impermissibly placed into issue by the State's question. The record shows, however, that it was appellant himself who had previously introduced the topic of his "bust." Hughes v. Newell, 152 Ga.App. 618, 623(3), 263 S.E.2d 505 (1979). Accordingly, the trial court correctly denied this motion for mistrial.
4. The trial court's admission into evidence of testimony concerning appellant's habit of using vulgar language when intoxicated is enumerated as error.
Croom v. State, 165 Ga.App. 676, 677, 302 S.E.2d 598 (1983).
5. Appellant enumerates as error the trial court's refusal to give a requested charge on the misdemeanor offense of reckless conduct, OCGA § 16-5-60, as a lesser included offense of aggravated assault.
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