Garza v. State

• Decision Date: 03 November 2008
• Docket Number: No. S07G1628.,S07G1628.
• Citation: 284 Ga. 696,670 S.E.2d 73
• Parties: GARZA v. The STATE.
• Court: Georgia Supreme Court

670 S.E.2d 73

284 Ga. 696

GARZA v.The STATE.

No. S07G1628.

Supreme Court of Georgia.

November 3, 2008.

Reconsideration Denied December 15, 2008.

Larry David Wolfe, Robert Alexander Susor, Atlanta, for appellant.

Cecilia Marie Cooper, Dist. Atty., Daniel Patrick Bibler, Asst. Dist. Atty., for appellee.

HUNSTEIN, Presiding Justice.

AppellantJoey Allen Garza was convicted in March 2002 of two counts of kidnapping, four counts of false imprisonment, and one count of aggravated assault.Following affirmance of the convictions by the Court of Appeals, Garza v. State,285 Ga.App. 902, 648 S.E.2d 84(2007), Garza sought a writ of certiorari.We granted the writ to assess the sufficiency of the evidence as to the asportation element of the crime of kidnapping.Having set forth below a new standard for asportation, we now reverse Garza's kidnapping convictions.

As recited in the opinion below, the evidence at trial established 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....[A]s 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 bedroom 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.

Garza v. State,supra, 285 Ga.App. at 902-903, 648 S.E.2d 84.The issue presented is whether any of the movements of either Mendoza or J.M. during the course of the incident—Mendoza's falling to the floor from a standing position or being forced from the floor to a chair,¹ or J.M.'s being forced from the room where he slept into an adjacent bedroom—constituted asportation within the meaning of the Georgia kidnapping statute.

1."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).Under current Georgia jurisprudence, the element of "abduct[ing] or steal[ing] away" the victim, known in legal parlance as "asportation," may be established by proof of "movement of the victim, however slight."Griffin v. State,282 Ga. 215, 219(1), 647 S.E.2d 36(2007).Thus, in addition to the more traditional scenarios involving child abduction or kidnapping for ransom, situations involving some other form of criminal activity have been found to support kidnapping charges even though the movement of the victim was merely a minor incident to the primary offense.See, e.g., Woodson v. State,273 Ga. 557, 544 S.E.2d 431(2001)(evidence of asportation sufficient where victim forced from one room to another in course of attempted rape);Scott v. State,288 Ga.App. 738(1)(b), 655 S.E.2d 431(2007)(evidence of asportation sufficient where victim dragged ten feet from bus stop to bushes in course of robbery);Phillips v. State,259 Ga.App. 331(1), 577 S.E.2d 25(2003)(evidence of asportation sufficient where victim grabbed and forced six to eight feet into store in course of armed robbery).The definition of asportation has evolved to the point where it seems that the only type of movement considered insufficient as evidence of asportation is movement immediately resulting from a physical struggle.See, e.g., Woodson,supra, 273 Ga. at 558, 544 S.E.2d 431(shoving and pulling victim to floor not sufficient);Leppla v. State,277 Ga.App. 804(1), 627 S.E.2d 794(2006)(victim's struggling and falling to ground not sufficient).

In this Court's most recent pronouncement on the subject of asportation, we reaffirmed that "[t]he requirement of asportation to prove kidnapping is satisfied if there is movement of the victim, however slight that movement is.[Cit.] The distance that a kidnapper transports the victim is not of legal significance.[Cit.]"Lyons v. State,282 Ga. 588, 591(1), 652 S.E.2d 525(2007).We went on to state, however, that

where the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise, in order to constitute "asportation" the movement must be more than a mere positional change of the victim incidental to the other criminal act; it must be movement, even if a positional change, designed to better carry out the criminal activity.[Cits.]

Id. at 591(1), 652 S.E.2d 525.Thus, we held that asportation was established where the defendants had forced the victim at gunpoint from a standing to a supine position, because this positional change "materially facilitated"the defendants in suffocating and robbing the victim.Id. at 591-592(1), 652 S.E.2d 525.

From our current vantage point, while the line drawn in Lyons—inconsequential movement versus movement "materially facilitating" another crime—may be analytically satisfying in harmonizing our courts' history of "hair-splitting decisions as to what is sufficient asportation,"seeHaynes v. State,249 Ga. 119, 120(1), 288 S.E.2d 185(1982), this delineation does nothing to ameliorate the problems resulting from such a broad construction of the concept of asportation.

In its earliest incarnation, the common law crime of kidnapping required the asportation of the victim out of the country, the rationale being to prevent the victim's removal beyond law enforcement jurisdiction and isolation from the protection of the law.See3 La-Fave, Substantive Criminal Law, § 18.1(a)(2d ed.2003).Indeed, the earliest version of the Georgia kidnapping statute required removal of the victim across state or county lines.Ga. L.1833, Nov.-Dec. Sess., pp. 143, 154, § 51.Over time, however, as legislative attention turned increasingly to the subject in response to an increase in kidnappings correlating to more widespread use of the automobile as well as several high-profile abductions, the concept of asportation was broadened.SeeLaFave, supra, at § 18.1(a);Model Penal Code and Commentaries, Pt. II, § 212.1, pp. 214-215(Official Draft and Revised Comments 1980).Following this trend, the Georgia Legislature in 1953 rewrote the kidnapping statute, removing the territorial component from the asportation requirement and thus eliminating therefrom any explicit distance threshold.Ga. L.1953, Nov.-Dec. Sess., p. 99, § 1.

The removal of the territorial component and failure to substitute any other explicit distance threshold has resulted in "it [being] left to the courts to determine in more specific terms the bases upon which the asportation in the particular case should be judged."LaFave, supra, at § 18.1(b), p. 9.And it is thus how our courts have come to expand the concept of kidnapping so drastically from its origins as to encompass movements as "slight" as stepping from one room of an apartment into another.As other courts and commentators have noted, and as this Court has witnessed, this expansive construction of asportation poses a potential danger that

the definition of kidnapping will sweep within its scope conduct that is decidedly wrongful but that should be punished as some other crime.Thus, for example, the robber who forces his victim to move from one room to another in order to find a cashbox or open a safe technically may commit kidnapping as well as robbery.This reasoning raises the possibility of cumulative penalties or of higher sanctions for kidnapping, even though the "removal" of the victim to another place was part and parcel of the robbery and not an independent wrong.

(Footnote omitted.)Model Penal Code and Commentaries, supra, at § 212.1, pp. 220-221.In other words, the appending of a kidnapping charge bears the potential to subject a defendant to greatly enhanced punishment—ranging in Georgia from a minimum ten-year sentence to life imprisonment, seeOCGA § 16-5-40(b)—for conduct that would be treated less harshly but for the occurrence of victim movement in the course thereof.Because "[u]nder the present holdings, almost any crime in which a victim moves from the point of initial contact with the defendant would authorize a kidnapping charge,"Peterson v. State,212 Ga.App. 31, 33-34, 441 S.E.2d 267(1994)(Blackburn, J., concurring specially), the expansive construction of asportation distorts the purpose of the kidnapping statute and raises serious constitutional issues.

First, by creating the potential for cumulative punishment under more than one criminal statute for a single course of conduct, such a construction implicates the principle of substantive double jeopardy, which "prevent[s] the sentencing court from prescribing greater punishment than the legislature intended."Missouri v. Hunter,459 U.S. 359, 366(III), 103 S.Ct. 673, 74 L.Ed.2d 535(1983).See alsoDrinkard v. Walker,281 Ga. 211, 212, 636 S.E.2d 530(2006).Thus, using the armed robbery example cited above, is it reasonable to believe that the Legislature intended the mere fact of a victim's...