Dixon v. The State

• Decision Date: 07 April 2010
• Docket Number: No. A10A0085.,A10A0085.
• Parties: DIXONv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 517

693 S.E.2d 900

DIXONv.The STATE.

No. A10A0085.

Court of Appeals of Georgia.

April 7, 2010.

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Edwin J. Wilson, Augusta, for appellant.

Daniel J. Porter, Dist. Atty., Carole Cox, Asst. Dist. Atty., for appellee.

MIKELL, Judge.

Following a jury trial, Robert Hampton Dixon was found guilty of rape (OCGA § 16-6-1), kidnapping with bodily injury (OCGA § 16-5-40), and aggravated assault (OCGA § 16-5-21). He was acquitted of aggravated sodomy (OCGA § 16-6-2). Dixon's motion for an out-of-time appeal was granted, and he appeals from his conviction and from the denial of his amended motion for new trial. Finding no error, we affirm.

On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.¹ We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.²

So viewed, the evidence shows that in June 2002, 26-year-old Melissa Battaglia was staying at a hotel in the Atlanta area while vacationing with two friends. In the early morning hours of June 16, 2002, while her friends were out at a club and Battaglia was by herself, she left her room, carrying only her room key, to go get a soda. Upon her return, she found herself locked out of her hotel room when her room key failed to function. She went to the front desk to ask for a replacement room key, but the clerk would not give her one because her name was not on the hotel registration. She then returned to her room to try the key again. When the key would not work, she waited in front of the hotel room, hoping her friends would return.

Battaglia saw Dixon nearby, and she explained to him that she had locked herself out of her room. Battaglia testified that Dixon offered to let her use his telephone; that she went with him to his room to use his phone; but that she was unable to reach her friends. Dixon then asked Battaglia to have sex with him. She told him no, and she attempted to leave the hotel room. When she was half-way out the door, Dixon told her she “wasn't going anywhere” and started pulling her back into the room. Battaglia testified that she was screaming, yelling, and pleading; that Dixon slammed his body against the door several times; that her arm was wedged in the door and he was slamming the door on her arm; and that she was unable to free herself. Dixon managed to shut and lock the door; he then threw Battaglia on the bed. He told her not to scream and threatened to kill her, while holding a razor against her forehead and throat. He bound her wrists together tightly with a cord from an iron, spread her legs apart and stuck his tongue in her vagina, then climbed on top of her and forced his penis into her vagina. Dixon told Battaglia that she could not leave and that he was going to kill her.

Another man then entered the hotel room. Battaglia told the men that she was going to her room to see if her friends had returned, and she left Dixon's room. Dixon insisted on walking with her. When Battaglia saw another woman enter Dixon's hotel room, she fled to the front desk, where she informed the clerk that she had been raped, that she was in fear of her life, and that she needed to call the police.

Police were summoned to the scene, and one of the responding officers, Sergeant Arthur Utset of the Norcross Police Department, testified that when he arrived, Battaglia was crying and upset; that she had an injury to her left arm that looked like a sharp hit from some sharp edge; and that her arm was puffy and painful. A subsequent “rape kit” examination revealed that vaginal swabs collected from the victim contained sperm that matched Dixon's DNA.

At trial, Dixon testified in his own behalf. He admitted having sex with Battaglia but maintained that the sex was consensual.

1. Dixon contends that the evidence was insufficient to sustain his conviction for kidnapping, because the state failed to establish the essential element of asportation. We disagree.

At the time of Dixon's trial, OCGA § 16-5-40(a) provided that “[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.”³ In order to determine whether the movement of the victim constituted sufficient asportation under the kidnapping statute, we apply the test set forth by our Supreme Court in Garza v. State.⁴ This test assesses four factors:

(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.⁵

The purpose of this test is to determine “whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address,” ⁶ that is, movement serving substantially to isolate the victim from protection or rescue; ⁷ or whether the movement is “merely a criminologically insignificant circumstance attendant to some other crime.” ⁸

Assessment of the factors set forth in Garza leads us to conclude that the evidence in this case was sufficient to establish the asportation element of the crime of kidnapping. While it is true that the duration of the movement in this case was minimal, the movement occurred before the aggravated assault occurred (when Dixon threatened Battaglia's life with a razor) and before the rape occurred, and the movement was not an inherent part of either of those separate offenses.⁹ Also, the asportation that occurred here presented a significant danger to the victim independent of the danger posed by the other offenses. It served to isolate her from contact with other guests in the hotel, who might have been able to provide help; and it further enhanced Dixon's control over her.¹⁰

Viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient for a rational trier of fact to find Dixon guilty beyond a reasonable doubt for the crimes for which he was convicted, under the standard set forth in Jackson v. Virginia.¹¹

2. Dixon asserts that the trial court erred in denying his motion for new trial on

the ground that in light of Garza,¹² the court improperly charged the jury concerning the asportation requirement for the offense of kidnapping with bodily injury.

At Dixon's trial, the trial court gave the following instruction to the jury on the asportation element of the kidnapping charge:

Ladies and gentlemen, I charge you that to prove abduction, the State must prove the element of asportation. Asportation means carrying away. Only the slightest movement of the victim is required to constitute the necessary element of asportation. There is no minimum amount of time that an alleged victim must be held to constitute kidnapping.

The charge given was a correct statement of law at the time of Dixon's trial, which took place in September 2004.¹³ As discussed in Division 1 above, however, under our Supreme Court's 2008 decision in Garza, the asportation required to support a kidnapping conviction must consist of more than “slight movement.” ¹⁴ Applying Garza to the case before us, we conclude that the trial court erred in charging the jury that “the slightest movement” was sufficient to prove asportation.

We note that Dixon did not object to this charge, and the failure to object to the charge constitutes waiver of the objection on appeal.¹⁵ Nonetheless, “where there has been substantial error in the charge which was harmful as a matter of law, depriving the defendant of a fair trial, we must consider and review the charge regardless of whether an objection was made.” ¹⁶ Thus, the issue becomes whether this instruction was harmful error requiring reversal of Dixon's conviction and a new trial. We do not find substantial error in this case because the charge did not render Dixon's trial unfair.

The standard for weighing nonconstitutional error in criminal cases is known as the “highly probable test,” i.e., that it

is “highly probable that the error did not contribute to the judgment.” Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.¹⁷

The victim testified at trial as to Dixon's forcing her from the door of the hotel room to the bed inside the room. As we discussed in Division 1 above, this testimony was evidence from which the jury could find the asportation element of the kidnapping charge under the Garza standard. In light of this evidence, we conclude that it is highly probable that the trial court's error in charging the jury that “the slightest movement” is sufficient to prove asportation did not contribute to the judgment.¹⁸ Accordingly, the erroneous instruction to the jury does not require reversal of Dixon's conviction for kidnapping with bodily injury.

3. In his fourth enumeration of error, Dixon argues that the trial court erred in denying his motion for mistrial on the ground that the victim's testimony improperly placed his character in issue. During the state's direct examination of Battaglia, when the prosecuting attorney asked Battaglia if Dixon had threatened to kill her during his attack on her, Battaglia responded, “He told me that he was going to kill me. He told me that he'd done it before and that he had no problem doing it.”

Dixon's counsel objected to this statement and, out of the presence of the jury, moved for a mistrial, contending that this testimony improperly placed Dixon's character in evidence and that this statement, allegedly made...