Garza v. State

• Decision Date: 25 May 2007
• Docket Number: No. A07A0434.,A07A0434.
• Citation: Garza v. State, 648 S.E.2d 84, 285 Ga. App. 902 (Ga. App. 2007)
• Parties: GARZA v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 902

648 S.E.2d 84

GARZA v. The STATE.

No. A07A0434.

Court of Appeals of Georgia.

May 25, 2007.

Reconsideration denied June 20, 2007.

L. David Wolfe, Atlanta, for appellant.

Cecilia M. Cooper, District Attorney, for appellee.

MILLER, Judge.

A jury convicted Joey Allen Garza of two counts of kidnapping, four counts of false imprisonment, and one count of aggravated assault. Before this Court, he challenges the sufficiency of the evidence as to his convictions for kidnapping and false imprisonment; the trial court's charge as to aggravated assault; the trial court's refusal to answer the jury's question as to whether a person could be falsely imprisoned while asleep; the sufficiency of the indictment as to the offense of aggravated assault; the trial court's refusal to merge a conviction of kidnapping with a conviction of false imprisonment; and the effectiveness of trial counsel. Finding such claims of error to be without merit, we affirm.

On appeal from 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. As an appellate court, we do not weigh the evidence or determine witness credibility. The standard of review is whether, based on the evidence of record, a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Byrd v. State, 251 Ga.App. 83(1), 553 S.E.2d 380 (2001).

So viewed, the evidence shows that on the evening of October 16, 2001, Garza gained entry into Angela Mendoza's residence on the pretext that he had left his wallet in her van. Once inside and while Mendoza's three children slept, he locked the door, drew a handgun from his pants, placed the weapon against Mendoza's head, and threatened to shoot her if she failed to follow his instructions. Garza struck Mendoza in the head with the handgun as she attempted to push it aside, causing her to fall to the floor. Garza then bound Mendoza's wrists with electrician's tape, tied her ankles with a torn sheet, and helped her up, made her sit in a chair, and instructed her not to move. Later, Garza allowed Mendoza to move to the floor where she joined her infant daughter and feigned sleep. When Garza fell asleep, Mendoza and her two-year-old son escaped out of a window, and Mendoza called the police.

Upon their arrival, the police forcibly entered the locked residence, removed Mendoza's infant daughter from the premises, and negotiated the release of Mendoza's nine-year-old son, J.M., for a six-pack of beer. Subsequently, Garza threatened suicide but eventually surrendered to the police without incident. In statements to police, Garza explained that his conduct had been motivated by a desire to speak with his former girl-friend, who was Mendoza's cousin and baby-sitter.

At trial, other testimony established that as the police entered the residence, Garza awoke J.M., asked him if he wanted to play cops and robbers, and, while holding his shirt, ordered him to move to the back bed-room of the residence. Once there, Garza continued to restrain J.M. by his shirt while openly holding his handgun. Although Garza did not point the weapon at him, J.M. was "scared" because he believed the weapon had been used to kill his mother.

1. Garza contends that his conviction of kidnapping Mendoza cannot stand for lack of evidence showing asportation. He also claims that the evidence is insufficient to support his convictions for false imprisonment as to Mendoza's infant daughter and her two-year-old son, arguing the lack of evidence supporting the element of detention against their will since the children slept throughout the incident. We disagree as to both of these claims.

(a) Under OCGA § 16-5-40(a), "[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." For there to be a kidnapping conviction, there must be some type of asportation, "however slight." Brown v. State, 132 Ga.App. 399, 402(2), 208 S.E.2d 183 (1974).

However, in those cases where the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise . . ., the movement necessary to constitute "asportation" must be more than a mere positional change, e.g., from a standing to a supine position. It must be movement that is not merely incidental to the other criminal act, but movement designed to carry out better the criminal activity . . . .

(Footnote omitted.) Leppla v. State, 277 Ga. App. 804, 807(1), 627 S.E.2d 794 (2006). Here, although Mendoza moved only from a standing position to the floor after being struck, it is clear that such movement, though slight, materially facilitated what followed — Mendoza's false imprisonment as evidenced by Garza's actions in binding her wrists and ankles and confining her to a chair. Consequently, a rational trier of fact could have found guilty of kidnapping Mendoza as charged.

(b) There also was evidence upon which a rational trier of fact could have found Garza guilty of the offense of false imprisonment as to Mendoza's infant daughter and her two-year-old son. "A person commits the offense 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).

Here, there was evidence that Garza entered the residence brandishing a gun, tied Mendoza up after striking her with the weapon, demanding that she follow his instructions. Such evidence is sufficient to show false imprisonment as to Mendoza. Phoukphanh v. State, 256 Ga.App. 580, 569 S.E.2d 259 (2002). That the infant daughter and the two-year-old son slept through much of what occurred does not make it less a false imprisonment as to them. Barnett v. State, 244 Ga.App. 585, 589(3), 536 S.E.2d 263 (2000) (failure to express consent or the lack thereof not dispositive of detention in fact). Moreover, one who is asleep and not conscious of an act does not consent to the act absent other evidence of consent. Brown v. State, 138 Ga. 814, 76 S.E. 379 (1912). Furthermore, because the children were under the age of consent, their detention was presumptively against their will. See Donaldson v. State, 244 Ga.App. 89, 90(2), n. 3, 534 S.E.2d 839 (2000).

2. Garza claims that the trial court erred in refusing to answer the jury's question as to whether a person can be falsely imprisoned while asleep. Garza argues that such question raised a question of law necessary to the jury's determination of guilt or innocence. Again, we disagree.

"It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence." (Citation omitted.) State v. Freeman, 264 Ga. 276, 278, 444 S.E.2d 80 (1994). Here, the trial court correctly instructed the jury the offense of false imprisonment under OCGA § 16-5-41(a). See Division 1(b), supra. We find that the jury was in a position to determine, as a matter of fact, that Garza had unlawfully detained Mendoza's infant daughter and two-year-old son. Both children were plainly subject to the care and control of the mother on the facts, even had they been awake. Thus, that the mother was not free to leave, the jury could determine that the children were also not free to leave. Accordingly, the trial court did not err requiring the jury to reach its verdict without further instruction as to the applicable law.

3. Garza also contends that Count 9 of the indictment charging him with aggravated assault was fatally defective because it failed to put him on notice of the manner in which the offense was committed. "The appropriate method for questioning the sufficiency of form and substance of an indictment is by demurrer, and failure to demur operates as a waiver of the right to be tried by an indictment perfect in form and substance. [Cit.]" Megar v. State, 144 Ga. App. 564-565(3), 241 S.E.2d 447 (1978). Such a demurrer is timely if made "prior to entry of the verdict. [Cit.]" Mealor v. State, 135 Ga.App. 682, 683(1), 218 S.E.2d 683 (1975). This Garza failed to do. Accordingly, the instant claim of error is waived.

Even were it otherwise, however, we find no deficiency in Count 9 of the indictment charging Garza with aggravated assault "by mak[ing] an assault upon the person of . . . Mendoza with a certain Ruger .22 Cal. . . . Semi Automatic Pistol . . ., a deadly weapon and an object, device, and instrument which when used offensively against a person is likely to result in serious bodily injury." The foregoing charge of aggravated assault tracked the statutory language of the offense, contained the elements thereof, and gave Garza sufficient notice of the charge he needed to be prepared to defend. OCGA § 16-5-21(a)(2); State v. Tate, 262 Ga.App. 311, 312(1)(b), 585 S.E.2d 224 (2003).

4. Citing Dukes v. State, 265 Ga. 422, 457 S.E.2d 556 (1995), Garza also contends that the trial court erred in charging aggravated assault in a manner not charged in Count 9 of the indictment. We disagree.

Dukes holds that if a trial court gives a jury charge on an entire Code section that specifies that a crime may be committed by more than one method, and if the indictment alleges that the defendant committed the crime by only one method, the deviation violates due process, unless: (a) a limiting instruction is given; or (b) under the evidence, there is no reasonable possibility that the jury convicted the defendant of the commission of the crime in a manner not charged in the indictment.

(Footnotes omitted.) Johnson v. State, 279 Ga.App. 669, 670-671, 632 S.E.2d 688 (2006). Here, the trial court did not charge the entire aggravated assault statute. Rather, it defined aggravated assault as an "assault...