Helton v. State
| Decision Date | 03 May 1983 |
| Docket Number | No. 65632,65632 |
| Citation | 305 S.E.2d 592,166 Ga.App. 662 |
| Parties | HELTON v. The STATE. |
| Court | Georgia Court of Appeals |
E.T. Hendon, Jr., Bryan M. Cavan, Decatur, for appellant.
Thomas J. Charron, Dist. Atty., for appellee.
Appellant was convicted of kidnapping, criminal attempt to commit rape, and obstruction of an officer. He appeals his convictions of kidnapping and criminal attempt to commit rape on the general grounds. He also enumerates error in several of the trial court's charges to the jury; he contends the prosecuting attorney was guilty of misconduct by leaving the jury with the false impression that appellant had been convicted previously of sexual battery; and contends he was denied effective assistance of counsel.
After an ice storm forced the victim to abandon her car approximately three miles from her apartment the victim, a GBI agent, was walking home and was offered a ride to her apartment by appellant. The victim accepted and told appellant she would get out at the fire station near her apartment. Instead of stopping as requested, appellant drove past the fire station, grabbed the victim by the hair and told her she could not get out until she gave appellant a kiss, and that she would have to do some other stuff, too. The victim started screaming for help and after appellant slapped her a couple of times, the victim got a flashlight from her purse and used it to hit appellant in the head. This caused the car to jump the curbing and wreck in the front yard of a residence. The victim climbed out of the car window and ran to the house, where she told the occupant to call the police because the victim had been kidnapped and appellant was attempting to rape her. The victim heard shots and observed a man later identified as George Neal with a pistol pointed at appellant. The victim went back into the yard, drew her pistol and told appellant he was under arrest. Appellant disregarded her and continued walking toward the victim. As appellant neared the victim Neal told him, "Buddy, if you do it, I will drop you like a rock." Appellant then turned on Neal and after a brief exchange of words appellant got in his car and left. He was traced through the license number on his car and was arrested the following night after a violent fight with the arresting officers.
1. The evidence is sufficient to support appellant's conviction of kidnapping and criminal attempt to commit rape. Although the victim got in appellant's car voluntarily, once he refused to let her out of the car and held her against her will, a kidnapping occurred. Rubiano v. State, 147 Ga.App. 142, 143(2), 248 S.E.2d 207 (1978). Contrary to appellant's assertion, a kidnapping may be committed without the use of a deadly weapon, Bill v. State, 153 Ga.App. 131, 133(2), 264 S.E.2d 582 (1980), and only the slightest movement of the victim is required to constitute the necessary element of asportation. Brown v. State, 132 Ga.App. 399, 401, 208 S.E.2d 183 (1974).
As to the criminal attempt to commit rape, appellant's statements to the victim and his actions in the car indicate that appellant was attempting to rape the victim. Thus, we find the evidence sufficient to meet the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 and to support appellant's conviction of these two offenses.
2. a. Appellant contends the trial court erred in its original charge to the jury by excluding asportation as an element of the offense of kidnapping. Appellant waived his right to object to this portion of the court's charge by failing to respond to the court's inquiry as to whether either counsel had objections to the charge. White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979); Brown v. State, 154 Ga.App. 358, 359, 268 S.E.2d 731 (1980).
b. Appellant contends that the trial court erroneously charged the jury that the mere solicitation by a man of a woman to have sexual intercourse does not warrant a conviction of criminal attempt to commit rape when there was no intention by the man to have carnal knowledge of the woman forcibly and against her will. However, appellant requested this charge and it was given in substantially the same language as requested by appellant. Thus, "[a]ny error in this charge, if there was error, was induced by the defense, and cannot constitute reversible error." Davis v. State, 238 Ga. 239, 232 S.E.2d 235 (1977).
c. At the request of the jury, the court recharged the jury on the offense of kidnapping as follows:
Appellant argues that the portion of this charge relating to the prosecutrix entering appellant's car voluntarily was error, because it would allow the jury to believe that asportation was not an essential element of kidnapping. We do not agree.
The evidence was undisputed that after the victim asked to get out of the car, appellant continued driving until the car was wrecked. Hence, there was no question of whether the victim was transported in appellant's car, but only whether she was transported and held against her will. It is clear that the trial court was attempting to explain that the abduction or stealing away could occur after the victim got in the car voluntarily. Although the trial court's wording may not have been as clear and precise as desired, this court has held that ...
To continue reading
Request your trial
-
Shepherd v. State
...189 Ga.App. 267, 268(2), 375 S.E.2d 460 (1988). Edwards v. State, 235 Ga. 603, 604(2), 221 S.E.2d 28 (1975); Helton v. State, 166 Ga.App. 662, 664(2b), 305 S.E.2d 592 (1983); Vick v. State, 166 Ga.App. 572, 573(2), 305 S.E.2d 17 (1983); Wright v. State, 162 Ga.App. 60, 290 S.E.2d 163 (1982)......
-
Levin v. Morales
...a victim moves from the point of initial contact with the defendant would authorize a kidnapping charge.”); Helton v. State, 166 Ga.App. 662, 663(1), 305 S.E.2d 592 (1983) (“[O]nly the slightest movement of the victim is required to constitute the necessary element of asportation.”) (citati......
-
McGinnis v. State
...State, 249 Ga. 119(1), 288 S.E.2d 185 (1982). The other element consists of holding the victim against his will. Helton v. State, 166 Ga.App. 662, 663(1), 305 S.E.2d 592 (1983); Padgett v. State, 170 Ga.App. 98, 99(1), 316 S.E.2d 523 (1984). A criminal attempt consists of three elements: 1)......
-
Awtrey v. State
...once he refused to let her out of the [automobile] and held her against her will, a kidnapping occurred. [Cit.]" Helton v. State, 166 Ga.App. 662, 663, 305 S.E.2d 592 (1983). The evidence in the instant case was sufficient for a rational trier of fact to find beyond a reasonable doubt that ......